§ 1855. — Other requirements and authority.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1855]
TITLE 16--CONSERVATION
CHAPTER 38--FISHERY CONSERVATION AND MANAGEMENT
SUBCHAPTER IV--NATIONAL FISHERY MANAGEMENT PROGRAM
Sec. 1855. Other requirements and authority
(a) Gear evaluation and notification of entry
(1) Not later than 18 months after October 11, 1996, the Secretary
shall publish in the Federal Register, after notice and an opportunity
for public comment, a list of all fisheries--
(A) under the authority of each Council and all fishing gear
used in such fisheries, based on information submitted by the
Councils under section 1853(a) of this title; and
(B) to which section 1852(a)(3) of this title applies and all
fishing gear used in such fisheries.
(2) The Secretary shall include with such list guidelines for
determining when fishing gear or a fishery is sufficiently different
from those listed as to require notification under paragraph (3).
(3) Effective 180 days after the publication of such list, no person
or vessel may employ fishing gear or engage in a fishery not included on
such list without giving 90 days advance written notice to the
appropriate Council, or the Secretary with respect to a fishery to which
section 1852(a)(3) of this title applies. A signed return receipt shall
serve as adequate evidence of such notice and as the date upon which the
90-day period begins.
(4) A Council may submit to the Secretary any proposed changes to
such list or such guidelines the Council deems appropriate. The
Secretary shall publish a revised list, after notice and an opportunity
for public comment, upon receiving any such proposed changes from a
Council.
(5) A Council may request the Secretary to promulgate emergency
regulations under subsection (c) of this section to prohibit any persons
or vessels from using an unlisted fishing gear or engaging in an
unlisted fishery if the appropriate Council, or the Secretary for
fisheries to which section 1852(a)(3) of this title applies, determines
that such unlisted gear or unlisted fishery would compromise the
effectiveness of conservation and management efforts under this chapter.
(6) Nothing in this subsection shall be construed to permit a person
or vessel to engage in fishing or employ fishing gear when such fishing
or gear is prohibited or restricted by regulation under a fishery
management plan or plan amendment, or under other applicable law.
(b) Fish habitat
(1)(A) The Secretary shall, within 6 months of October 11, 1996,
establish by regulation guidelines to assist the Councils in the
description and identification of essential fish habitat in fishery
management plans (including adverse impacts on such habitat) and in the
consideration of actions to ensure the conservation and enhancement of
such habitat. The Secretary shall set forth a schedule for the amendment
of fishery management plans to include the identification of essential
fish habitat and for the review and updating of such identifications
based on new scientific evidence or other relevant information.
(B) The Secretary, in consultation with participants in the fishery,
shall provide each Council with recommendations and information
regarding each fishery under that Council's authority to assist it in
the identification of essential fish habitat, the adverse impacts on
that habitat, and the actions that should be considered to ensure the
conservation and enhancement of that habitat.
(C) The Secretary shall review programs administered by the
Department of Commerce and ensure that any relevant programs further the
conservation and enhancement of essential fish habitat.
(D) The Secretary shall coordinate with and provide information to
other Federal agencies to further the conservation and enhancement of
essential fish habitat.
(2) Each Federal agency shall consult with the Secretary with
respect to any action authorized, funded, or undertaken, or proposed to
be authorized, funded, or undertaken, by such agency that may adversely
affect any essential fish habitat identified under this chapter.
(3) Each Council--
(A) may comment on and make recommendations to the Secretary and
any Federal or State agency concerning any activity authorized,
funded, or undertaken, or proposed to be authorized, funded, or
undertaken, by any Federal or State agency that, in the view of the
Council, may affect the habitat, including essential fish habitat,
of a fishery resource under its authority; and
(B) shall comment on and make recommendations to the Secretary
and any Federal or State agency concerning any such activity that,
in the view of the Council, is likely to substantially affect the
habitat, including essential fish habitat, of an anadromous fishery
resource under its authority.
(4)(A) If the Secretary receives information from a Council or
Federal or State agency or determines from other sources that an action
authorized, funded, or undertaken, or proposed to be authorized, funded,
or undertaken, by any State or Federal agency would adversely affect any
essential fish habitat identified under this chapter, the Secretary
shall recommend to such agency measures that can be taken by such agency
to conserve such habitat.
(B) Within 30 days after receiving a recommendation under
subparagraph (A), a Federal agency shall provide a detailed response in
writing to any Council commenting under paragraph (3) and the Secretary
regarding the matter. The response shall include a description of
measures proposed by the agency for avoiding, mitigating, or offsetting
the impact of the activity on such habitat. In the case of a response
that is inconsistent with the recommendations of the Secretary, the
Federal agency shall explain its reasons for not following the
recommendations.
(c) Emergency actions and interim measures
(1) If the Secretary finds that an emergency exists or that interim
measures are needed to reduce overfishing for any fishery, he may
promulgate emergency regulations or interim measures necessary to
address the emergency or overfishing, without regard to whether a
fishery management plan exists for such fishery.
(2) If a Council finds that an emergency exists or that interim
measures are needed to reduce overfishing for any fishery within its
jurisdiction, whether or not a fishery management plan exists for such
fishery--
(A) the Secretary shall promulgate emergency regulations or
interim measures under paragraph (1) to address the emergency or
overfishing if the Council, by unanimous vote of the members who are
voting members, requests the taking of such action; and
(B) the Secretary may promulgate emergency regulations or
interim measures under paragraph (1) to address the emergency or
overfishing if the Council, by less than a unanimous vote, requests
the taking of such action.
(3) Any emergency regulation or interim measure which changes any
existing fishery management plan or amendment shall be treated as an
amendment to such plan for the period in which such regulation is in
effect. Any emergency regulation or interim measure promulgated under
this subsection--
(A) shall be published in the Federal Register together with the
reasons therefor;
(B) shall, except as provided in subparagraph (C), remain in
effect for not more than 180 days after the date of publication, and
may be extended by publication in the Federal Register for one
additional period of not more than 180 days, provided the public has
had an opportunity to comment on the emergency regulation or interim
measure, and, in the case of a Council recommendation for emergency
regulations or interim measures, the Council is actively preparing a
fishery management plan, plan amendment, or proposed regulations to
address the emergency or overfishing on a permanent basis;
(C) that responds to a public health emergency or an oil spill
may remain in effect until the circumstances that created the
emergency no longer exist, Provided, That the public has an
opportunity to comment after the regulation is published, and, in
the case of a public health emergency, the Secretary of Health and
Human Services concurs with the Secretary's action; and
(D) may be terminated by the Secretary at an earlier date by
publication in the Federal Register of a notice of termination,
except for emergency regulations promulgated under paragraph (2) in
which case such early termination may be made only upon the
agreement of the Secretary and the Council concerned.
(d) Responsibility of Secretary
The Secretary shall have general responsibility to carry out any
fishery management plan or amendment approved or prepared by him, in
accordance with the provisions of this chapter. The Secretary may
promulgate such regulations, in accordance with section 553 of title 5,
as may be necessary to discharge such responsibility or to carry out any
other provision of this chapter.
(e) Effect of certain laws on certain time requirements
The Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.),\1\ the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), and Executive Order
Numbered 12866, dated September 30, 1993, shall be complied with within
the time limitations specified in subsections (a), (b), and (c) of
section 1854 of this title as they apply to the functions of the
Secretary under such provisions.
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\1\ See References in Text note below.
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(f) Judicial review
(1) Regulations promulgated by the Secretary under this chapter and
actions described in paragraph (2) shall be subject to judicial review
to the extent authorized by, and in accordance with, chapter 7 of title
5, if a petition for such review is filed within 30 days after the date
on which the regulations are promulgated or the action is published in
the Federal Register, as applicable; except that--
(A) section 705 of such title is not applicable, and
(B) the appropriate court shall only set aside any such
regulation or action on a ground specified in section 706(2)(A),
(B), (C), or (D) of such title.
(2) The actions referred to in paragraph (1) are actions that are
taken by the Secretary under regulations which implement a fishery
management plan, including but not limited to actions that establish the
date of closure of a fishery to commercial or recreational fishing.
(3)(A) Notwithstanding any other provision of law, the Secretary
shall file a response to any petition filed in accordance with paragraph
(1), not later than 45 days after the date the Secretary is served with
that petition, except that the appropriate court may extend the period
for filing such a response upon a showing by the Secretary of good cause
for that extension.
(B) A response of the Secretary under this paragraph shall include a
copy of the administrative record for the regulations that are the
subject of the petition.
(4) Upon a motion by the person who files a petition under this
subsection, the appropriate court shall assign the matter for hearing at
the earliest possible date and shall expedite the matter in every
possible way.
(g) Negotiated conservation and management measures
(1)(A) In accordance with regulations promulgated by the Secretary
pursuant to this paragraph, a Council may establish a fishery
negotiation panel to assist in the development of specific conservation
and management measures for a fishery under its authority. The Secretary
may establish a fishery negotiation panel to assist in the development
of specific conservation and management measures required for a fishery
under section 1854(e)(5) of this title, for a fishery for which the
Secretary has authority under section 1854(g) of this title, or for any
other fishery with the approval of the appropriate Council.
(B) No later than 180 days after October 11, 1996, the Secretary
shall promulgate regulations establishing procedures, developed in
cooperation with the Administrative Conference of the United States, for
the establishment and operation of fishery negotiation panels. Such
procedures shall be comparable to the procedures for negotiated
rulemaking established by subchapter III of chapter 5 of title 5.
(2) If a negotiation panel submits a report, such report shall
specify all the areas where consensus was reached by the panel,
including, if appropriate, proposed conservation and management
measures, as well as any other information submitted by members of the
negotiation panel. Upon receipt, the Secretary shall publish such report
in the Federal Register for public comment.
(3) Nothing in this subsection shall be construed to require either
a Council or the Secretary, whichever is appropriate, to use all or any
portion of a report from a negotiation panel established under this
subsection in the development of specific conservation and management
measures for the fishery for which the panel was established.
(h) Central registry system for limited access system permits
(1) Within 6 months after October 11, 1996, the Secretary shall
establish an exclusive central registry system (which may be
administered on a regional basis) for limited access system permits
established under section 1853(b)(6) of this title or other Federal law,
including individual fishing quotas, which shall provide for the
registration of title to, and interests in, such permits, as well as for
procedures for changes in the registration of title to such permits upon
the occurrence of involuntary transfers, judicial or nonjudicial
foreclosure of interests, enforcement of judgments thereon, and related
matters deemed appropriate by the Secretary. Such registry system
shall--
(A) provide a mechanism for filing notice of a nonjudicial
foreclosure or enforcement of a judgment by which the holder of a
senior security interest acquires or conveys ownership of a permit,
and in the event of a nonjudicial foreclosure, by which the
interests of the holders of junior security interests are released
when the permit is transferred;
(B) provide for public access to the information filed under
such system, notwithstanding section 1881a(b) of this title; and
(C) provide such notice and other requirements of applicable law
that the Secretary deems necessary for an effective registry system.
(2) The Secretary shall promulgate such regulations as may be
necessary to carry out this subsection, after consulting with the
Councils and providing an opportunity for public comment. The Secretary
is authorized to contract with non-Federal entities to administer the
central registry system.
(3) To be effective and perfected against any person except the
transferor, its heirs and devisees, and persons having actual notice
thereof, all security interests, and all sales and other transfers of
permits described in paragraph (1), shall be registered in compliance
with the regulations promulgated under paragraph (2). Such registration
shall constitute the exclusive means of perfection of title to, and
security interests in, such permits, except for Federal tax liens
thereon, which shall be perfected exclusively in accordance with the
Internal Revenue Code of 1986 (26 U.S.C. 1 et seq.). The Secretary shall
notify both the buyer and seller of a permit if a lien has been filed by
the Secretary of the Treasury against the permit before collecting any
transfer fee under paragraph (5) of this subsection.
(4) The priority of security interests shall be determined in order
of filing, the first filed having the highest priority. A validly-filed
security interest shall remain valid and perfected notwithstanding a
change in residence or place of business of the owner of record. For the
purposes of this subsection, ``security interest'' shall include
security interests, assignments, liens and other encumbrances of
whatever kind.
(5)(A) Notwithstanding section 1854(d)(1) of this title, the
Secretary shall collect a reasonable fee of not more than one-half of
one percent of the value of a limited access system permit upon
registration of the title to such permit with the central registry
system and upon the transfer of such registered title. Any such fee
collected shall be deposited in the Limited Access System Administration
Fund established under subparagraph (B).
(B) There is established in the Treasury a Limited Access System
Administration Fund. The Fund shall be available, without appropriation
or fiscal year limitation, only to the Secretary for the purposes of--
(i) administering the central registry system; and
(ii) administering and implementing this chapter in the fishery
in which the fees were collected. Sums in the Fund that are not
currently needed for these purposes shall be kept on deposit or
invested in obligations of, or guaranteed by, the United States.
(i) Alaska and western Pacific community development programs
(1)(A) The North Pacific Council and the Secretary shall establish a
western Alaska community development quota program under which a
percentage of the total allowable catch of any Bering Sea fishery is
allocated to the program.
(B) To be eligible to participate in the western Alaska community
development quota program under subparagraph (A) a community shall--
(i) be located within 50 nautical miles from the baseline from
which the breadth of the territorial sea is measured along the
Bering Sea coast from the Bering Strait to the western most of the
Aleutian Islands, or on an island within the Bering Sea;
(ii) not be located on the Gulf of Alaska coast of the north
Pacific Ocean;
(iii) meet criteria developed by the Governor of Alaska,
approved by the Secretary, and published in the Federal Register;
(iv) be certified by the Secretary of the Interior pursuant to
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.) to
be a Native village;
(v) consist of residents who conduct more than one-half of their
current commercial or subsistence fishing effort in the waters of
the Bering Sea or waters surrounding the Aleutian Islands; and
(vi) not have previously developed harvesting or processing
capability sufficient to support substantial participation in the
groundfish fisheries in the Bering Sea, unless the community can
show that the benefits from an approved Community Development Plan
would be the only way for the community to realize a return from
previous investments.
(C)(i) Prior to October 1, 2001, the North Pacific Council may not
submit to the Secretary any fishery management plan, plan amendment, or
regulation that allocates to the western Alaska community development
quota program a percentage of the total allowable catch of any Bering
Sea fishery for which, prior to October 1, 1995, the Council had not
approved a percentage of the total allowable catch for allocation to
such community development quota program. The expiration of any plan,
amendment, or regulation that meets the requirements of clause (ii)
prior to October 1, 2001, shall not be construed to prohibit the Council
from submitting a revision or extension of such plan, amendment, or
regulation to the Secretary if such revision or extension complies with
the other requirements of this paragraph.
(ii) With respect to a fishery management plan, plan amendment, or
regulation for a Bering Sea fishery that--
(I) allocates to the western Alaska community development quota
program a percentage of the total allowable catch of such fishery;
and
(II) was approved by the North Pacific Council prior to October
1, 1995;
the Secretary shall, except as provided in clause (iii) and after
approval of such plan, amendment, or regulation under section 1854 of
this title, allocate to the program the percentage of the total
allowable catch described in such plan, amendment, or regulation. Prior
to October 1, 2001, the percentage submitted by the Council and approved
by the Secretary for any such plan, amendment, or regulation shall be no
greater than the percentage approved by the Council for such fishery
prior to October 1, 1995.
(iii) The Secretary shall phase in the percentage for community
development quotas approved in 1995 by the North Pacific Council for the
Bering Sea crab fisheries as follows:
(I) 3.5 percent of the total allowable catch of each such
fishery for 1998 shall be allocated to the western Alaska community
development quota program;
(II) 5 percent of the total allowable catch of each such fishery
for 1999 shall be allocated to the western Alaska community
development quota program; and
(III) 7.5 percent of the total allowable catch of each such
fishery for 2000 and thereafter shall be allocated to the western
Alaska community development quota program, unless the North Pacific
Council submits and the Secretary approves a percentage that is no
greater than 7.5 percent of the total allowable catch of each such
fishery for 2001 or the North Pacific Council submits and the
Secretary approves any other percentage on or after October 1, 2001.
(D) This paragraph shall not be construed to require the North
Pacific Council to resubmit, or the Secretary to reapprove, any fishery
management plan or plan amendment approved by the North Pacific Council
prior to October 1, 1995, that includes a community development quota
program, or any regulations to implement such plan or amendment.
(2)(A) The Western Pacific Council and the Secretary may establish a
western Pacific community development program for any fishery under the
authority of such Council in order to provide access to such fishery for
western Pacific communities that participate in the program.
(B) To be eligible to participate in the western Pacific community
development program, a community shall--
(i) be located within the Western Pacific Regional Fishery
Management Area;
(ii) meet criteria developed by the Western Pacific Council,
approved by the Secretary and published in the Federal Register;
(iii) consist of community residents who are descended from the
aboriginal people indigenous to the area who conducted commercial or
subsistence fishing using traditional fishing practices in the
waters of the Western \2\ Pacific region;
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\2\ So in original. Probably should not be capitalized.
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(iv) not have previously developed harvesting or processing
capability sufficient to support substantial participation in
fisheries in the Western Pacific Regional Fishery Management Area;
and
(v) develop and submit a Community Development Plan to the
Western Pacific Council and the Secretary.
(C) In developing the criteria for eligible communities under
subparagraph (B)(ii), the Western Pacific Council shall base such
criteria on traditional fishing practices in or dependence on the
fishery, the cultural and social framework relevant to the fishery, and
economic barriers to access to the fishery.
(D) For the purposes of this subsection ``Western Pacific Regional
Fishery Management Area'' means the area under the jurisdiction of the
Western Pacific Council, or an island within such area.
(E) Notwithstanding any other provision of this chapter, the Western
Pacific Council shall take into account traditional indigenous fishing
practices in preparing any fishery management plan.
(3) The Secretary shall deduct from any fees collected from a
community development quota program under section 1854(d)(2) of this
title the costs incurred by participants in the program for observer and
reporting requirements which are in addition to observer and reporting
requirements of other participants in the fishery in which the
allocation to such program has been made.
(4) After October 11, 1996, the North Pacific Council and Western
Pacific Council may not submit to the Secretary a community development
quota program that is not in compliance with this subsection.
(Pub. L. 94-265, title III, Sec. 305, Apr. 13, 1976, 90 Stat. 354; Pub.
L. 96-561, title II, Sec. 235, Dec. 22, 1980, 94 Stat. 3299; Pub. L. 97-
453, Sec. 8, Jan. 12, 1983, 96 Stat. 2490; Pub. L. 101-627, title I,
Secs. 110(b)(2), 111(a)(1), (b), Nov. 28, 1990, 104 Stat. 4451, 4452;
Pub. L. 104-297, title I, Secs. 110(a)-(d), 111(a), Oct. 11, 1996, 110
Stat. 3587-3590, 3592.)
References in Text
The Paperwork Reduction Act of 1980, referred to in subsec. (e), is
Pub. L. 96-511, Dec. 11, 1980, 94 Stat. 2812, as amended, which was
classified principally to chapter 35 (Sec. 3501 et seq.) of Title 44,
Public Printing and Documents, prior to the general amendment of that
chapter by Pub. L. 104-13, Sec. 2, May 22, 1995, 109 Stat. 163. For
complete classification of this Act to the Code, see Short Title of 1980
Amendment note set out under section 101 of Title 44 and Tables.
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), referred to
in subsec. (e), is Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164, which
is classified generally to chapter 6 (Sec. 601 et seq.) of Title 5,
Government Organization and Employees. For complete classification of
the Act to the Code, see Short Title note set out under section 601 of
Title 5 and Tables.
Executive Order Numbered 12886, referred to in subsec. (e), is set
out as a note under section 601 of Title 5, Government Organization and
Employees.
The Internal Revenue Code of 1986, referred to in subsec. (h)(3), is
classified generally to Title 26, Internal Revenue Code.
The Alaska Native Claims Settlement Act, referred to in subsec.
(i)(1)(B)(iv), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as
amended, which is classified generally to chapter 33 (Sec. 1601 et seq.)
of Title 43, Public Lands. For complete classification of this Act to
the Code, see Short Title note set out under section 1601 of Title 43
and Tables.
Amendments
1996--Pub. L. 104-297, Sec. 110(a)(1), (3), substituted ``Other
requirements and authority'' for ``Implementation of fishery management
plans'' as section catchline.
Subsec. (a). Pub. L. 104-297, Sec. 110(a)(1), (3), added subsec. (a)
and struck out heading and text of former subsec. (a). Text read as
follows: ``The Secretary shall promulgate each regulation that is
necessary to carry out a plan or amendment--
``(1) within 110 days after the plan or amendment was received
by him for action under section 1854(a) of this title, if such plan
or amendment takes effect under section 1854(b)(1) of this title;
``(2) within 75 days after a revised plan or amendment was
received by him under section 1854(b) of this title, if such plan or
amendment takes effect under paragraph (3)(D) of such section; or
``(3) within such time as he deems appropriate in the case of a
plan or amendment prepared by him under section 1854(c) or (f)(3) of
this title.''
Subsec. (b). Pub. L. 104-297, Sec. 110(a)(3), added subsec. (b).
Former subsec. (b) redesignated (f).
Subsec. (c). Pub. L. 104-297, Sec. 110(b)(1), inserted ``and interim
measures'' after ``actions'' in heading.
Subsec. (c)(1). Pub. L. 104-297, Sec. 110(b)(2)(C), which directed
insertion of ``or overfishing'' after ``emergency'', was executed by
making the insertion after ``the emergency'' to reflect the probable
intent of Congress.
Pub. L. 104-297, Sec. 110(b)(2)(A), (B), substituted ``or that
interim measures are needed to reduce overfishing for'' for
``involving'' and inserted ``or interim measures'' after ``emergency
regulations''.
Subsec. (c)(2). Pub. L. 104-297, Sec. 110(b)(2)(C), which directed
insertion of ``or overfishing'' after ``emergency'', was executed by
making the insertion after ``the emergency'' in subpars. (A) and (B) to
reflect the probable intent of Congress.
Pub. L. 104-297, Sec. 110(b)(2)(A), (B), substituted ``or that
interim measures are needed to reduce overfishing for'' for
``involving'' in introductory provisions and inserted ``or interim
measures'' after ``emergency regulations'' in subpars. (A) and (B).
Subsec. (c)(3). Pub. L. 104-297, Sec. 110(b)(3)(A), inserted ``or
interim measure'' after ``emergency regulation'' in two places in
introductory provisions.
Subsec. (c)(3)(B). Pub. L. 104-297, Sec. 110(b)(3)(B), (D), added
subpar. (B) and struck out former subpar. (B) which read as follows:
``shall remain in effect for not more than 90 days after the date of
such publication, except that any such regulation may, by agreement of
the Secretary and the Council, be promulgated for one additional period
of not more than 90 days; and''.
Subsec. (c)(3)(C). Pub. L. 104-297, Sec. 110(b)(3)(D), added subpar.
(C). Former subpar. (C) redesignated (D).
Subsec. (c)(3)(D). Pub. L. 104-297, Sec. 110(b)(3)(C), redesignated
subpar. (C) as (D).
Subsec. (e). Pub. L. 104-297, Sec. 110(c), substituted ``12866,
dated September 30, 1993,'' for ``12291, dated February 17, 1981,'' and
``subsections (a), (b), and (c) of section 1854 of this title'' for
``subsection (c) of this section or section 1854(a) and (b) of this
title''.
Subsec. (f). Pub. L. 104-297, Sec. 110(a)(2), redesignated subsec.
(b) as (f).
Subsecs. (g), (h). Pub. L. 104-297, Sec. 110(d), added subsecs. (g)
and (h).
Subsec. (i). Pub. L. 104-297, Sec. 111(a), added subsec. (i).
1990--Subsec. (a). Pub. L. 101-627, Secs. 110(b)(2), 111(a)(1)(A),
redesignated subsec. (c) as (a) and substituted ``section 1854(c) or
(f)(3)'' for ``section 1854(c)''.
Subsec. (b). Pub. L. 101-627, Sec. 111(a)(1)(A), (b), redesignated
subsec. (d) as (b) and amended it generally. Prior to amendment, subsec.
(b) read as follows: ``Regulations promulgated by the Secretary under
this chapter shall be subject to judicial review to the extent
authorized by, and in accordance with, chapter 7 of title 5, if a
petition for such review is filed within 30 days after the date on which
the regulations are promulgated; except that (1) section 705 of such
title is not applicable, and (2) the appropriate court shall only set
aside any such regulation on a ground specified in section 706(2)(A),
(B), (C), or (D) of such title.''
Subsecs. (c) to (e), (g), (h). Pub. L. 101-627, Sec. 111(a)(1),
redesignated subsecs. (e), (g), and (h) as (c), (d), and (e),
respectively.
1983--Subsec. (a). Pub. L. 97-453, Sec. 8(1), struck out subsec. (a)
which had provided that, as soon as practicable after the Secretary
approved pursuant to section 1854(a) and (b) of this title any fishery
management plan or amendment or prepared pursuant to section 1854(c) of
this title any fishery management plan or amendment, the Secretary was
to publish a notice of availability of such plan or amendment and any
regulations which he proposed to promulgate to implement such plan or
amendment in the Federal Register, and that interested persons were to
be afforded a period of not less than 45 days after such publication
within which to submit in writing data, views, or comments on the plan
or amendment, and on the proposed regulations.
Subsec. (b). Pub. L. 97-453, Sec. 8(1), struck out subsec. (b) which
had provided that the Secretary might schedule a hearing, in accordance
with section 553 of title 5, on any fishery management plan, any
amendment to any such plan, any regulations to implement any such plan
or amendment and that if any such hearing was scheduled, the Secretary
could postpone the effective date of the regulations proposed to
implement such plan or amendment, or take such other action as he deemed
appropriate to preserve the rights or status of any person, pending its
outcome.
Subsec. (c). Pub. L. 97-453, Sec. 8(2), substituted provision that
the Secretary shall promulgate each regulation that is necessary to
carry out a plan or amendment within 110 days after the plan or
amendment was received by him for action under section 1854(a) of this
title if such plan or amendment takes effect under section 1854(b)(1) of
this title, within 75 days after a revised plan or amendment was
received by him under section 1854(b) of this title if such plan or
amendment takes effect under paragraph (3)(D) of such section, or within
such time as he deems appropriate in the case of a plan or amendment
prepared by him under section 1854(c) of this title, for provision that
the Secretary promulgate regulations to implement any fishery management
plan or any amendment to any such plan after consideration of all
relevant matters presented to him during the 45-day period referred to
in former subsection (a) of this section and produced in any hearing
held under former subsection (b) of this section if he found the plan or
amendment consistent with the national standards, the other provisions
of this chapter, and any other applicable law, and that to the extent
practicable, such regulation be put into effect in a manner not
disruptive of the regular fishing season for any fishery.
Subsec. (e). Pub. L. 97-453, Sec. 8(3), substituted provision that
if the Secretary finds that an emergency exists involving any fishery,
he may promulgate emergency regulations necessary to address the
emergency, without regard to whether a fishery management plan exists
for such fishery, that if a Council finds that an emergency exists
involving any fishery within its jurisdiction, whether or not a fishery
management plan exists for such fishery, the Secretary shall promulgate
emergency regulations under paragraph (1) to address the emergency if
the Council, by unanimous vote of the members who are voting members,
requests the taking of such action, and the Secretary may promulgate
emergency regulations under paragraph (1) to address the emergency if
the Council, by less than a unanimous vote, requests the taking of such
action, for provision that if the Secretary found that an emergency
involving any fishery resources existed, he could promulgate emergency
regulations, without regard to former subsections (a) and (c) of this
section, to implement any fishery management plan, if required, or
promulgate emergency regulations to amend any regulation implementing
any existing fishery management plan, to the extent required by such
emergency, lengthened from 45 days to 90 days the maximum period that
emergency regulations may remain in effect after publication in the
Federal Register and the maximum additional period for which such
regulations may be promulgated, and inserted a provision that emergency
regulations promulgated under par. (2) may only be terminated early upon
the agreement of the Secretary and the Council concerned.
Subsec. (f). Pub. L. 97-453, Sec. 8(4), struck out subsec. (f) which
had directed the Secretary to report to the Congress and the President,
not later than March 1 of each year, on all activities of the Councils
and the Secretary with respect to fishery management plans, regulations
to implement such plans, and all other activities relating to the
conservation and management of fishery resources undertaken under this
chapter during the preceding calendar year.
Subsec. (h). Pub. L. 97-453, Sec. 8(5), added subsec. (h).
1980--Subsec. (a). Pub. L. 96-561 inserted ``a notice of
availability of'' after ``Federal Register (A)''.
Termination of Administrative Conference of United States
For termination of Administrative Conference of United States, see
provision of title IV of Pub. L. 104-52, set out as a note preceding
section 591 of Title 5, Government Organization and Employees.
Community Development Quota Report
Section 108(h) of Pub. L. 104-297 provided that: ``Not later than
October 1, 1998, the National Academy of Sciences, in consultation with
the Secretary, the North Pacific and Western Pacific Councils,
communities and organizations participating in the program, participants
in affected fisheries, and the affected States, shall submit to the
Secretary of Commerce and Congress a comprehensive report on the
performance and effectiveness of the community development quota
programs under the authority of the North Pacific and Western Pacific
Councils. The report shall--
``(1) evaluate the extent to which such programs have met the
objective of providing communities with the means to develop ongoing
commercial fishing activities;
``(2) evaluate the manner and extent to which such programs have
resulted in the communities and residents--
``(A) receiving employment opportunities in commercial
fishing and processing; and
``(B) obtaining the capital necessary to invest in
commercial fishing, fish processing, and commercial fishing
support projects (including infrastructure to support commercial
fishing);
``(3) evaluate the social and economic conditions in the
participating communities and the extent to which alternative
private sector employment opportunities exist;
``(4) evaluate the economic impacts on participants in the
affected fisheries, taking into account the condition of the fishery
resource, the market, and other relevant factors;
``(5) recommend a proposed schedule for accomplishing the
developmental purposes of community development quotas; and
``(6) address such other matters as the National Academy of
Sciences deems appropriate.''
Registry Transition for Limited Access System Permits
Section 110(e) of Pub. L. 104-297, as amended by Pub. L. 104-208,
div. A, title I, Sec. 101(a) [title II, Sec. 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-Stevens Fishery
Conservation and Management Act [16 U.S.C. 1855(h)(1)], as amended by
this Act, that are effective 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 evidence satisfactory to the Secretary of Commerce
and in compliance with such regulations of the perfection of such
security.''
Western Pacific Demonstration Projects
Section 111(b) of Pub. L. 104-297, as amended by Pub. L. 104-208,
div. A, title I, Sec. 101(a) [title II, Sec. 211(b)], Sept. 30, 1996,
110 Stat. 3009, 3009-41; Pub. L. 106-554, Sec. 1(a)(4) [div. B, title I,
Sec. 144(g)], Dec. 21, 2000, 114 Stat. 2763, 2763A-250; Pub. L. 106-555,
title II, Sec. 206, Dec. 21, 2000, 114 Stat. 2770, provided that:
``(1) The Secretary of Commerce and the Secretary of the Interior
are authorized to make direct grants to eligible western Pacific
communities, as recommended by the Western Pacific Fishery Management
Council, for the purpose of establishing not less than three and not
more than five fishery demonstration projects to foster and promote
traditional indigenous fishing practices. There are authorized 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 fisheries and may--
``(A) identify and apply traditional indigenous fishing
practices;
``(B) develop or enhance western Pacific community-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 Commerce, 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, determine the
relative merits of, and annually rank applications 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 members or employees of the Western
Pacific Fishery Management 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
provide a detailed written explanation of the reasons therefor.
``(4) The Western Pacific Fishery Management Council 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 technical assistance
to western Pacific community-based entities to assist in carrying out
demonstration projects under this subsection.
``(6) For the purposes of this subsection, `western Pacific
community' shall mean a community eligible to participate under section
305(i)(2)(B) of the Magnuson-Stevens Fishery Conservation and Management
Act [16 U.S.C. 1855(i)(2)(B)], as amended by this Act.''
Section Referred to in Other Sections
This section is referred to in sections 1802, 1821, 1852, 1853,
1854, 5503 of this title.
