§ 5106. — Secretarial action.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC5106]
TITLE 16--CONSERVATION
CHAPTER 71--ATLANTIC COASTAL FISHERIES COOPERATIVE MANAGEMENT
Sec. 5106. Secretarial action
(a) Secretarial review of Commission determination 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) of this section, the
Secretary shall--
(A) give careful consideration to the comments of the State that
the Commission has determined under section 5105(a) of this title is
not in compliance with a coastal fishery management plan, and
provide such State, upon request, with the opportunity to meet with
and present its comments directly to the Secretary; and
(B) solicit and consider the comments of the Commission and the
appropriate Councils.
(c) Moratorium
(1) Upon making a finding under subsection (a) of this section that
a State has failed to carry out its responsibility 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 noncomplying
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
withdrawing under section 5105(c) of this title the determination 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 necessary to implement this
section. Such regulations--
(1) may provide for the possession and use of fish which have
been produced in an aquaculture 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 impracticable;
(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 retained.
(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) of this section;
(2) engage in fishing for any species of fish to which the
moratorium applies within the waters 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 regulation issued under subsection (d) of this section;
(4) fail to return to the water immediately, with a minimum of
injury, any fish to which the moratorium applies that are taken
incidental to fishing for species other than those to which the
moratorium applies, except as provided by regulations issued under
subsection (d) of this section;
(5) refuse to permit any officer authorized to enforce the
provisions of this chapter to board a fishing vessel subject to such
person's control for purposes of conducting any search or inspection
in connection with the enforcement of this chapter;
(6) forcibly assault, resist, oppose, impede, intimidate, or
interfere with any such authorized officer in the conduct of any
search or inspection under this chapter;
(7) resist a lawful arrest for any act prohibited by this
section;
(8) ship, transport, offer for sale, sell, purchase, import, or
have custody, control, or possession of, any fish taken or retained
in violation of this chapter; or
(9) interfere with, delay, or prevent, by any means, the
apprehension or arrest of another person, knowing that such other
person has committed any act prohibited by this section.
(f) Civil and criminal penalties
(1) Any person who commits any act that is unlawful under subsection
(e) of this section shall be liable to the United States for a civil
penalty as provided by section 308 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1858).
(2) Any person who commits an act prohibited by paragraph (5), (6),
(7), or (9) of subsection (e) of this section is guilty of an offense
punishable as provided by section 309(a)(1) and (b) of the Magnuson-
Stevens Fishery Conservation and Management Act (16 U.S.C. 1859(a)(1)
and (b)).
(g) Civil forfeitures
(1) Any vessel (including its gear, equipment, appurtenances,
stores, and cargo) used, and any fish (or the fair market value thereof)
taken or retained, in any manner, in connection with, or as the result
of, the commission of any act that is unlawful under subsection (e) of
this section, shall be subject to forfeiture to the United States as
provided in section 310 of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1860).
(2) Any fish seized pursuant to this chapter may be disposed of
pursuant to the order of a court of competent jurisdiction or, if
perishable, in a manner prescribed in regulation.
(h) Enforcement
A person authorized by the Secretary or the Secretary of the
department in which the Coast Guard is operating may take any action to
enforce a moratorium declared under subsection (c) of this section that
an officer authorized by the Secretary under section 311(b) of the
Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C.
1861(b)) may take to enforce that Act [16 U.S.C. 1801 et seq.]. The
Secretary may, by agreement, on a reimbursable basis or otherwise,
utilize the personnel, services, equipment (including aircraft and
vessels), and facilities of any other Federal department or agency and
of any agency of a State in carrying out that enforcement.
(Pub. L. 103-206, title VIII, Sec. 807, Dec. 20, 1993, 107 Stat. 2451;
Pub. L. 106-555, title I, Sec. 122(b)(3), Dec. 21, 2000, 114 Stat.
2766.)
References in Text
The Magnuson-Stevens Fishery Conservation and Management Act,
referred to in subsec. (h), is Pub. L. 94-265, Apr. 13, 1976, 90 Stat.
331, as amended, which is classified principally to chapter 38
(Sec. 1801 et seq.) of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 1801 of this
title and Tables.
Amendments
2000--Subsecs. (f) to (h). Pub. L. 106--555 substituted ``Magnuson-
Stevens Fishery'' for ``Magnuson Fishery'' wherever appearing.
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 relating 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 Security, and the Department of
Homeland Security Reorganization Plan of November 25, 2002, as modified,
set out as a note under section 542 of Title 6.
