§ 1856. — State jurisdiction.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC1856]
TITLE 16--CONSERVATION
CHAPTER 38--FISHERY CONSERVATION AND MANAGEMENT
SUBCHAPTER IV--NATIONAL FISHERY MANAGEMENT PROGRAM
Sec. 1856. State jurisdiction
(a) In general
(1) Except as provided in subsection (b) of this section, nothing in
this chapter shall be construed as extending 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) of this section, 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 delimiting 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 commonly known as
Nantucket Sound, to the pocket of water west of the seventieth
meridian 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 international
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, including 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 outside 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
fishing 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 determination and provide an opportunity
for the State to correct any inconsistencies identified in the
notification. If, after notice and opportunity 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
Council find that the State has corrected the inconsistencies. For a
fishery for which there was a 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 authority provided by this subparagraph
applies only if the Council approves the delegation of management 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 management
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 management 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
predominately within the exclusive economic zone and beyond such
zone; and
(B) any State has taken any action, or omitted to take any
action, the results of which will substantially and adversely affect
the carrying 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
fishery within the boundaries of such State (other than its internal
waters), pursuant to such fishery management plan and the regulations
promulgated to implement such plan.
(2) If the Secretary, pursuant to this subsection, assumes
responsibility for the regulation 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 hearing be held pursuant
to paragraph (1), the Secretary shall conduct such hearing prior to
taking 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 applies to the Governor
of the State for, and (subject to paragraph (2)) is granted,
permission for the vessel to engage in such processing and the
application specifies the species to be processed; and
(C) the owner or operator of the vessel submits reports on the
tonnage of fish received from vessels of the United States and the
locations from which such fish were harvested, in accordance with
such procedures as the Secretary by regulation shall prescribe.
(2) The Governor of a State may not grant permission 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 economic 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 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.
(3) Nothing in this subsection may be construed as relieving a
foreign fishing vessel from the duty to comply with all applicable
Federal and State laws while operating within the internal waters of a
State incident to permission obtained 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,
storage, 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, Sec. 306, Apr. 13, 1976, 90 Stat. 355; Pub.
L. 97-191, Sec. 1, June 1, 1982, 96 Stat. 107; Pub. L. 97-453, Sec. 9,
Jan. 12, 1983, 96 Stat. 2491; Pub. L. 98-623, title IV, Sec. 404(4),
Nov. 8, 1984, 98 Stat. 3408; Pub. L. 99-659, title I, Sec. 101(c)(2),
Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101-627, title I, Sec. 112, Nov.
28, 1990, 104 Stat. 4453; Pub. L. 104-297, title I, Sec. 112(a)-(c),
Oct. 11, 1996, 110 Stat. 3595, 3596.)
Amendments
1996--Subsec. (a)(3). Pub. L. 104-297, Sec. 112(a), amended par. (3)
generally. Prior to amendment, par. (3) read as 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, Sec. 112(b), added par. (3).
Subsec. (c)(1)(A). Pub. L. 104-297, Sec. 112(c)(1), substituted
``(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, Sec. 112(c)(2), (3), added
subpar. (C).
1990--Subsec. (c)(1)(B). Pub. L. 101-627, Sec. 112(1), inserted
before period at end ``and the application specifies the species to be
processed''.
Subsec. (c)(2). Pub. L. 101-627, Sec. 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
processors 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 ``exclusive
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 designated, 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 delineating 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).
Effective Date of 1982 Amendment
Section 3 of Pub. L. 97-191 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, Sec. 203, Nov. 13, 1998, 112 Stat. 3453,
as amended by Pub. L. 107-77, title VI, Sec. 624, Nov. 28, 2001, 115
Stat. 803, provided that:
``(a) In General.--Subject to the provisions of this section and
notwithstanding section 306(a) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1856(a)), each of the States
of Washington, Oregon, and California may adopt and enforce State laws
and regulations governing fishing and processing 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 exclusive 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 exercise 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 implement 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 legally
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 exclusive economic zone adjacent to the
State of Washington, 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.--Except as expressly
provided in this section, nothing in this section reduces the authority
of any State under the Magnuson-Stevens Fishery Conservation and
Management 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
management 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 section.
``(i) Sunset.--This section shall have no force or effect on and
after September 30, 2006.
``(j) Not later than December 31, 2001, and every 2 years
thereafter, the Pacific State Marine Fisheries Commission shall submit
to the Committee on Commerce, Science, and Transportation of the Senate
and the Committee on Resources of the House of Representatives a report
on the health and management of the Dungeness Crab fishery located off
the coasts of the States of Washington, Oregon, and California.''
Pub. L. 104-297, title I, Sec. 112(d), Oct. 11, 1996, 110 Stat.
3596, 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, 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 exclusive
economic zone off each respective State in a fishery 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, Sec. 203(g), Nov. 13, 1998, 112 Stat. 3454.
Foreign Fish Processing in Norton Sound
Pub. L. 99-509, title V, Sec. 5004, Oct. 21, 1986, 100 Stat. 1912,
provided that for purposes of processing pink salmon within the internal
waters of the State of Alaska, the geographic area bounded on the north
by a parallel 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 waters of the State of Alaska for the purposes of subsec.
(c)(4)(B) of this section until Sept. 30, 1993.
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, respectively, set out as
notes under section 1331 of Title 43, Public Lands.
Section Referred to in Other Sections
This section is referred to in section 1857 of this title.
