§ 971d. — Administration.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC971d]
TITLE 16--CONSERVATION
CHAPTER 16A--ATLANTIC TUNAS CONVENTION
Sec. 971d. Administration
(a) Regulations; cooperation with other parties to Convention;
utilization of personnel, services, and facilities for
enforcement
The Secretary is authorized and directed to administer and enforce
all of the provisions of the Convention, this chapter, and regulations
issued pursuant thereto, except to the extent otherwise provided for in
this chapter. In carrying out such functions the Secretary is authorized
and directed to adopt such regulations as may be necessary to carry out
the purposes and objectives of the Convention and this chapter, and with
the concurrence of the Secretary of State, he may cooperate with the
duly authorized officials of the government of any party to the
Convention. In addition, the Secretary may utilize, with the concurrence
of the Secretary of the department in which the Coast Guard is operating
insofar as such utilization involves enforcement at sea, with or without
reimbursement and by agreement with any other Federal department or
agency, or with any agency of any State, the personnel, services, and
facilities of that agency for enforcement purposes with respect to any
vessel in the exclusive economic zone, or wherever found, with respect
to any vessel documented under the laws of the United States, and any
vessel numbered or otherwise licensed under the laws of any State. When
so utilized, such personnel of the States of the United States are
authorized to function as Federal law enforcement agents for these
purposes, but they shall not be held and considered as employees of the
United States for the purposes of any laws administered by the Director
of the Office of Personnel Management.
(b) Primary enforcement responsibility
Enforcement activities at sea under the provisions of this chapter
for fishing vessels subject to the jurisdiction of the United States
shall be primarily the responsibility of the Secretary of the department
in which the Coast Guard is operating, in cooperation with the Secretary
and the United States Customs Service. The Secretary after consultation
with the Secretary of the department in which the Coast Guard is
operating, shall adopt such regulations as may be necessary to provide
for procedures and methods of enforcement pursuant to article IX of the
Convention.
(c) Regulations and other measures to carry out Commission
recommendations
(1)(A) Upon favorable action by the Secretary of State under section
971c(a) of this title on any recommendation of the Commission made
pursuant to article VIII of the Convention, the Secretary shall
promulgate, pursuant to this subsection, such regulations as may be
necessary and appropriate to carry out such recommendation.
(B) Not later than June 30, 1991, the Secretary shall promulgate any
additional regulations necessary to ensure that the United States is in
full compliance with all recommendations made by the Commission that
have been accepted by the United States and with other agreements under
the Convention between the United States and any nation which is a party
to the Convention.
(C) Regulations promulgated under this paragraph shall, to the
extent practicable, be consistent with fishery management plans prepared
and implemented under the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.).
(2) To promulgate regulations referred to in paragraph (1) of this
subsection, the Secretary shall publish in the Federal Register a
general notice of proposed rulemaking and shall afford interested
persons an opportunity to participate in the rulemaking through (A)
submission of written data, views, or arguments, and (B) oral
presentation at a public hearing. Such regulations shall be published in
the Federal Register and shall be accompanied by a statement of the
considerations involved in the issuance of the regulations, and by a
statement, based on inquiries and investigations, assessing the nature
and effectiveness of the measures for the implementation of the
Commission's recommendations which are being or will be carried out by
countries whose vessels engage in fishing the species subject to such
recommendations within the waters to which the Convention applies. After
publication in the Federal Register, such regulations shall be
applicable to all vessels and persons subject to the jurisdiction of the
United States on such date as the Secretary shall prescribe. The
Secretary shall suspend at any time the application of any such
regulation when, after consultation with the Secretary of State and the
United States Commissioners, he determines that fishing operations in
the Convention area of a contracting party for whom the regulations are
effective are such as to constitute a serious threat to the achievement
of the Commission's recommendations.
(3) The regulations required to be promulgated under paragraph (1)
of this subsection may--
(A) select for regulation one or more of the species covered by
the Convention;
(B) divide the Convention waters into areas;
(C) establish one or more open or closed seasons as to each such
area;
(D) limit the size of the fish and quantity of the catch which
may be taken from each area within any season during which fishing
is allowed;
(E) limit or prohibit the incidental catch of a regulated
species which may be retained, taken, possessed, or landed by
vessels or persons fishing for other species of fish;
(F) require records of operations to be kept by any master or
other person in charge of any fishing vessel;
(G) require such clearance certificates for vessels as may be
necessary to carry out the purposes of the Convention and this
chapter;
(H) require proof satisfactory to the Secretary that any fish
subject to regulation pursuant to a recommendation of the Commission
offered for entry into the United States has not been taken or
retained contrary to the recommendations of the Commission made
pursuant to article VIII of the Convention which have been adopted
as regulations pursuant to this section;
(I) require any commercial or recreational fisherman to obtain a
permit from the Secretary and report the quantity of the catch of a
regulated species;
(J) require that observers be carried aboard fishing vessels for
the purpose of providing statistically reliable scientific data; and
(K) impose such other requirements and provide for such other
measures as the Secretary may determine necessary to implement any
recommendation of the Convention or to obtain scientific data
necessary to accomplish the purpose of the Convention;
except that no regulation promulgated under this section may have the
effect of increasing or decreasing any allocation or quota of fish or
fishing mortality level to the United States agreed to pursuant to a
recommendation of the Commission.
(4) Upon the promulgation of regulations provided for in paragraph
(3) of this subsection, the Secretary shall promulgate, with the
concurrence of the Secretary of State and pursuant to the procedures
prescribed in paragraph (2) of this subsection, additional regulations
which shall become effective simultaneously with the application of the
regulations provided for in paragraph (3) of this subsection, which
prohibit--
(A) the entry into the United States of fish in any form of
those species which are subject to regulation pursuant to a
recommendation of the Commission and which were taken from the
Convention area in such manner or in such circumstances as would
tend to diminish the effectiveness of the conservation
recommendations of the Commission; and
(B) the entry into the United States, from any country when the
vessels of such country are being used in the conduct of fishing
operations in the Convention area in such manner or in such
circumstances as would tend to diminish the effectiveness of the
conservation recommendations of the Commission, of fish in any form
of those species which are subject to regulation pursuant to a
recommendation of the Commission and which were taken from the
Convention area.
(5) In the case of repeated and flagrant fishing operations in the
Convention area by the vessels of any country which seriously threaten
the achievement of the objectives of the Commission's recommendations,
the Secretary with the concurrence of the Secretary of State, may by
regulations promulgated pursuant to paragraph (2) of this subsection
prohibit the entry in any form from such country of other species
covered by the Convention as may be under investigation by the
Commission and which were taken in the Convention area. Any such
prohibition shall continue until the Secretary is satisfied that the
condition warranting the prohibition no longer exists, except that all
fish in any form of the species under regulation which were previously
prohibited from entry shall continue to be prohibited from entry.
(6) Identification and notification.--
(A) Not later than July 1, 1996, and annually thereafter, the
Secretary, in consultation with the Secretary of State, the
Commissioners, and the advisory committee, shall--
(i) identify those nations whose fishing vessels are
fishing, or have fished during the preceding calendar year,
within the convention area in a manner or under circumstances
that diminish the effectiveness of a conservation
recommendation;
(ii) notify the President and the nation so identified,
including an explanation of the reasons therefor; and
(iii) publish a list of those Nations identified under
clause (i).
(B) In identifying those Nations, the Secretary shall consider,
based on the best available information, whether those Nations have
measures in place for reporting, monitoring, and enforcement, and
whether those measures diminish the effectiveness of any
conservation recommendation.
(7) Consultation.--Not later than 30 days after a Nation is notified
under paragraph (6), the President may enter into consultations with the
Government of that Nation for the purpose of obtaining an agreement that
will--
(A) effect the immediate termination and prevent the resumption
of any fishing operation by vessels of that Nation within the
Convention area which is conducted in a manner or under
circumstances that diminish the effectiveness of the conservation
recommendation;
(B) when practicable, require actions by that Nation, or vessels
of that Nation, to mitigate the negative impacts of fishing
operations on the effectiveness of the conservation recommendation
involved, including but not limited to, the imposition of
subsequent-year deductions for quota overages; and
(C) result in the establishment, if necessary, by such Nation of
reporting, monitoring, and enforcement measures that are adequate to
ensure the effectiveness of conservation recommendations.
(d) Recommended Commission actions regarding large-scale driftnet
fishing and conservation of Atlantic swordfish
(1) It is the sense of the Congress that the Secretary, in
consultation with the Secretary of State, should seek support for a
recommendation by the Commission to ban large-scale driftnet fishing (as
that term is defined in section 3(16) \1\ of the Magnuson-Stevens
Fishery Conservation and Management Act [16 U.S.C. 1802(16)]) in the
Convention area.
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\1\ See References in Text note below.
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(2) The Secretary, in consultation with the Secretary of State,
shall request the Commission to adopt recommendations necessary for the
conservation and management of Atlantic swordfish. In making the
request, the Secretary shall seek the establishment of an international
minimum harvest size and a reduction in harvest levels to the extent
necessary to conserve the stock. Until the Commission adopts all the
conservation and management measures requested by the Secretary, the
Secretary, within 3 months after each annual meeting of the Commission,
shall notify Congress as to the nature and results of his request. These
notifications shall identify those nations not acting to conserve and
manage Atlantic swordfish, and recommend measures which could be taken
to achieve effective international conservation and management of the
stock.
(Pub. L. 94-70, Sec. 6, Aug. 5, 1975, 89 Stat. 387; 1978 Reorg. Plan No.
2, Sec. 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3784; Pub. L.
101-627, title II, Secs. 206, 207, Nov. 28, 1990, 104 Stat. 4461; Pub.
L. 104-43, title III, Secs. 303(3), 305, Nov. 3, 1995, 109 Stat. 384,
385; Pub. L. 105-384, title II, Sec. 202(b)(1)(C), (F), Nov. 13, 1998,
112 Stat. 3452, 3453.)
References in Text
The Magnuson-Stevens Fishery Conservation and Management Act,
referred to in subsec. (c)(1)(C), 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.
Section 3 of the Magnuson-Stevens Fishery Conservation and
Management Act, referred to in subsec. (d)(1), was subsequently amended,
and section 3(16) no longer defines the term ``large-scale driftnet
fishing''. However, such term is defined elsewhere in that section.
Amendments
1998--Subsec. (c)(1)(C). Pub. L. 105-384, Sec. 202(b)(1)(F),
substituted ``Magnuson-Stevens Fishery'' for ``Magnuson Fishery''.
Subsecs. (c)(6)(A)(iii), (B). Pub. L. 105-384, Sec. 202(b)(1)(C),
substituted ``clause (i)'' for ``subparagraph (A)'' in cl. (iii), and
redesignated last sentence of subpar. (A) as subpar. (B) and realigned
margin.
Subsec. (d)(1). Pub. L. 105-384, Sec. 202(b)(1)(F), substituted
``Magnuson-Stevens Fishery'' for ``Magnuson Fishery''.
1995--Subsec. (a). Pub. L. 104-43, Sec. 303(3), substituted
``exclusive economic zone'' for ``fisheries zone'' after ``any vessel in
the'' in third sentence.
Subsec. (c). Pub. L. 104-43, Sec. 305(1), inserted ``and other
measures'' after ``Regulations'' in heading.
Subsec. (c)(3). Pub. L. 104-43, Sec. 305(2), inserted ``or fishing
mortality level'' after ``quota of fish'' in concluding provisions.
Subsec. (c)(6), (7). Pub. L. 104-43, Sec. 305(3), added pars. (6)
and (7).
1990--Subsec. (c)(1). Pub. L. 101-627, Sec. 206(a), designated
existing provisions as subpar. (A) and added subpars. (B) and (C).
Subsec. (c)(3). Pub. L. 101-627, Sec. 206(b), added subpars. (I) to
(K) and concluding provisions and struck out former subpar. (I) which
read as follows: ``impose such other requirements and provide for such
other measures as the Secretary may deem necessary to implement any
recommendation of the Commission.''
Subsec. (d). Pub. L. 101-627, Sec. 207, amended subsec. (d)
generally, substituting provisions relating to recommended Commission
actions regarding large-scale driftnet fishing and conservation of
Atlantic swordfish for provisions relating to Commission recommendations
concerning bluefin tuna and issuance of regulations.
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.
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 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.
``Director of the Office of Personnel Management'' substituted for
``Civil Service Commission'' in subsec. (a) pursuant to Reorg. Plan No.
2 of 1978, Sec. 102, 43 F.R. 36037, 92 Stat. 3783, set out under section
1101 of Title 5, Government Organization and Employees, which
transferred functions vested by statute in the Civil Service Commission
to Director of Office of Personnel Management (except as otherwise
specified), effective Jan. 1, 1979, as provided by section 1-102 of Ex.
Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055, set out under section 1101
of Title 5.
Use of Aircraft in Atlantic Bluefin Tuna Fishing
Pub. L. 106-553, Sec. 1(a)(2) [title VI, Sec. 634], Dec. 21, 2000,
114 Stat. 2762, 2762A-114, provided that: ``None of the funds provided
in this or any previous Act, or hereinafter made available to the
Department of Commerce shall be available to issue or renew, for any
fishing vessel, any general or harpoon category fishing permit for
Atlantic bluefin tuna that would allow the vessel--
``(1) to use an aircraft to locate, or otherwise assist in
fishing for, catching, or possessing Atlantic bluefin tuna; or
``(2) to fish for, catch, or possessing [sic] Atlantic bluefin
tuna located by the use of an aircraft.''
Section Referred to in Other Sections
This section is referred to in sections 971e, 971j of this title.
