§1854. Action by Secretary

(a) Action by Secretary after receipt of plan

(1) After the Secretary receives a fishery management plan, or amendment to a plan, which was prepared by a Council, the Secretary shall-

(A) immediately make a preliminary evaluation of the management plan or amendment for purposes of deciding if it is consistent with the national standards and sufficient in scope and substance to warrant review under this subsection and-

(i) if that decision is affirmative, implement subparagraphs (B), (C), and (D) with respect to the plan or amendment, or

(ii) if that decision is negative-

(I) disapprove the plan or amendment, and

(II) notify the Council, in writing, of the disapproval and of those matters specified in subsection (b)(2)(A), (B) and (C) of this section as they relate to the plan or amendment;

(B) immediately commence a review of the management plan or amendment to determine whether it is consistent with the national standards, the other provisions of this chapter, and any other applicable law;

(C) immediately publish in the Federal Register a notice stating that the plan or amendment is available and that written data, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the receipt date; and

(D) by the 15th day after the receipt date-

(i) make such changes in the proposed regulations submitted for the plan or amendment under section 1853(c) of this title as may be necessary for the implementation of the plan, and

(ii) publish such proposed regulations, including any changes made thereto under clause (i), in the Federal Register together with an explanation of those changes which are substantive.

(2) In undertaking the review required under paragraph (1)(B), the Secretary shall-

(A) take into account the data, views, and comments received from interested persons;

(B) consult with the Secretary of State with respect to foreign fishing; and

(C) consult with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea and to fishery access adjustments referred to in section 1853(a)(6) of this title.

(3)(A) The Secretary shall take action under this section on any fishery management plan or amendment to a plan which the Council characterizes as being a final plan or amendment.

(B) For purposes of this section, the term "receipt date" means the 5th day after the day on which a Council transmits to the Secretary a fishery management plan, or an amendment to a plan, that it characterizes as a final plan or amendment.

(b) Review by Secretary

(1) A plan or amendment shall take effect and be implemented in accordance with section 1855(a) of this title if-

(A) the Secretary does not notify the Council in writing of-

(i) his disapproval under subsection (a)(1)(A)(ii) of this section, or

(ii) his disapproval, or partial disapproval, under paragraph (2), of the plan or amendment before the close of the 95th day after the receipt date; or

(B) at any time subsequent to the 60th day after the receipt date and before such 95th day, the Secretary notifies the Council in writing that he does not intend to disapprove, or partially disapprove, the plan or amendment.

(2) If after review under subsection (a) of this section the Secretary determines that the plan or amendment is not consistent with the criteria set forth in paragraph (1)(B) of that subsection, the Secretary shall notify the Council in writing of his disapproval or partial disapproval of the plan or amendment. Such notice shall specify-

(A) the applicable law with which the plan or amendment is inconsistent;

(B) the nature of such inconsistency; and

(C) recommendations concerning the actions that could be taken by the Council to conform such plan or amendment to the requirements of applicable law.

(3)(A) If the Secretary disapproves a proposed plan or amendment under subsection (a)(1)(A)(ii) of this section, or disapproves, or partially disapproves, a proposed plan or amendment under paragraph (2), the Council may submit a revised plan or amendment, accompanied by appropriately revised proposed regulations, to the Secretary.

(B) After the Secretary receives a revised plan or amendment under subparagraph (A) or (C)(ii), the Secretary shall immediately-

(i) commence a review of the plan or amendment to determine whether it complies with the criteria set forth in subsection (a)(1)(B) of this section;

(ii) publish in the Federal Register a notice stating that the revised plan or amendment is available and that written data, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 30-day period beginning on the date (hereinafter in this paragraph referred to as the "revised receipt date") the plan or amendment was submitted to the Secretary under subparagraph (A) or (C)(ii); and

(iii) review the revised proposed regulations, if any, submitted by the Council and make such changes to them as may be necessary for the implementation of the plan, and thereafter publish such revised proposed regulations (as so changed) in the Federal Register together with an explanation of each of such changes that is substantive.

(C)(i) Before the close of the 60th day after the revised receipt date, the Secretary, after taking into account any data, views, or comments received under subparagraph (B)(ii), shall complete the review required under subparagraph (B)(i) and determine whether the plan or amendment complies with the criteria set forth in subsection (a)(1)(B) of this section. If the Secretary determines that a plan or amendment is not in compliance with such criteria, he shall immediately notify the Council of his disapproval of the plan or amendment.

(ii) After notifying a Council of disapproval under clause (i), the Secretary shall promptly provide to the Council a written statement of the reasons on which the disapproval was based and advise the Council that it may submit a further revised plan or amendment, together with appropriately revised proposed regulations, for review and determination under this paragraph.

(D) A revised plan or amendment shall take effect and be implemented in accordance with section 1855(a) of this title if the Secretary does not notify the Council, in writing, by the close of the 60th day after the revised receipt date of his disapproval of the plan or amendment.

(c) Preparation by Secretary

(1) The Secretary may prepare a fishery management plan, with respect to any fishery, or any amendment to any such plan, in accordance with the national standards, the other provisions of this chapter, and any other applicable law, if-

(A) the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management; or

(B) the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment, as the case may be.

In preparing any such plan or amendment, the Secretary shall consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department in which the Coast Guard is operating with respect to enforcement at sea. The Secretary shall also prepare such proposed regulations as he deems necessary or appropriate to carry out each plan or amendment prepared by him under this paragraph.

(2)(A) Whenever, under paragraph (1), the Secretary prepares a fishery management plan or amendment, the Secretary shall immediately-

(i) submit such plan or amendment, and proposed regulations to implement such plan or amendment, to the appropriate Council for consideration and comment;

(ii) publish in the Federal Register a notice stating that the plan or amendment is available and that written data, views, or comments of interested persons on the plan or amendment may be submitted to the Secretary during the 60-day period beginning on the date the plan or amendment was submitted under clause (i); and

(iii) by the 15th day after the date of submission under clause (i), submit for publication in the Federal Register the proposed regulations to implement the plan or amendment.

(B) The appropriate Council must submit its comments and recommendations, if any, regarding the plan or amendment to the Secretary before the close of the 60-day period referred to in subparagraph (A)(ii). After the close of such 60-day period, the Secretary, after taking into account any such comments and recommendations, as well as any views, data, or comments submitted under subparagraph (A)(ii), may implement such plan or amendment under section 1855(a) of this title.

(3) Notwithstanding paragraph (1), the Secretary may not include in any fishery management plan, or any amendment to any such plan, prepared by him, a provision establishing a limited access system described in section 1853(b)(6) of this title, unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council.

(d) Establishment of fees

The Secretary shall by regulation establish the level of any fees which are authorized to be charged pursuant to section 1853(b)(1) of this title. The Secretary may enter into a cooperative agreement with the States concerned under which the States administer the permit system and the agreement may provide that all or part of the fees collected under the system shall accrue to the States. The level of fees charged under this subsection shall not exceed the administrative costs incurred in issuing the permits.

(e) Fisheries research

(1) The Secretary shall initiate and maintain, in cooperation with the Councils, a comprehensive program of fishery research to carry out and further the purposes, policy, and provisions of this chapter. Such program shall be designed to acquire knowledge and information, including statistics, on fishery conservation and management and on the economics of the fisheries.

(2) Within one year after November 28, 1990, and at least every three years thereafter, the Secretary shall develop and publish in the Federal Register a strategic plan for fisheries research for the five years immediately following such publication. The plan shall-

(A) identify and describe a comprehensive program with a limited number of priority objectives for research in each of the areas specified in paragraph (3);

(B) indicate the goals and timetables for the program described in subparagraph (A); and

(C) provide a role for affected commercial fishermen in such research, including involvement in field testing.

(3) The areas of research referred to in paragraph (2) are as follows:

(A) Research to support fishery conservation and management, including research on the economics of fisheries and biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish populations, the impact of wetland and estuarine degradation, and other matters bearing upon the abundance and availability of fish.

(B) Conservation engineering research, including the study of fish behavior and the development and testing of new gear technology and fishing techniques to minimize the harvest of nontarget species and promote efficient harvest of target species.

(C) Information management research, including the development of a fishery information base and an information management system that will permit the full use of data in the support of effective fishery conservation and management.

(4) In developing the plan required under paragraph (2), the Secretary shall consult with relevant Federal agencies, scientific and technical experts, and other interested persons, public and private, and shall publish a proposed plan in the Federal Register for the purpose of receiving public comment on the plan. The Secretary shall ensure that affected commercial fishermen are actively involved in the development of the portion of the plan pertaining to conservation engineering research. Upon final publication in the Federal Register, the plan shall be submitted by the Secretary to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives.

(f) Fisheries under authority of more than one Council

(1) Except as provided in paragraph (3), if any fishery extends beyond the geographical area of authority of any one Council, the Secretary may-

(A) designate which Council shall prepare the fishery management plan for such fishery and any amendment to such plan; or

(B) may require that the plan and amendment be prepared jointly by the Councils concerned.

No jointly prepared plan or amendment may be submitted to the Secretary unless it is approved by a majority of the voting members, present and voting, of each Council concerned.

(2) The Secretary shall establish the boundaries between the geographical areas of authority of adjacent Councils.

(3)(A) The Secretary shall have authority over any highly migratory species fishery that is within the geographical area of authority of more than one of the following Councils: New England Council, Mid-Atlantic Council, South Atlantic Council, Gulf Council, and Caribbean Council.

(B) In accordance with the provisions of this chapter and any other applicable law, the Secretary shall-

(i) identify research and information priorities, including observer requirements and necessary data collection and analysis for the conservation and management of highly migratory species;

(ii) prepare and amend fishery management plans with respect to highly migratory species fisheries to which this paragraph applies; and

(iii) diligently pursue, through international entities (such as the International Commission for the Conservation of Atlantic Tunas), international fishery management measures with respect to fishing for highly migratory species.

(C) In preparing or amending any fishery management plan under this paragraph, the Secretary shall-

(i) conduct public hearings, at appropriate times and in appropriate locations in the geographical areas concerned, so as to allow interested persons an opportunity to be heard in the preparation and amendment of the plan;

(ii) consult with and consider the comments and views of commissioners and advisory groups appointed under Acts implementing relevant international fishery agreements pertaining to highly migratory species;

(iii) consult with and consider the comments and views of affected Councils;

(iv) evaluate the likely effects, if any, of conservation and management measures on participants in the fisheries affected by the plan and minimize, to the extent practicable, any disadvantage to United States fishermen in relation to foreign competitors; and

(v) review, on a continuing basis (and promptly whenever a recommendation pertaining to fishing for highly migratory species has been made under a relevant international fishery agreement), and revise as appropriate, the conservation and management measures included in the plan.

(D) Conservation and management measures contained in any fishery management plan under this paragraph shall-

(i) take into consideration traditional fishing patterns of fishing vessels of the United States and the operating requirements of the fisheries;

(ii) be fair and equitable in allocating fishing privileges among United States fishermen and not have economic allocation as the sole purpose; and

(iii) promote international conservation.

(E) With respect to a highly migratory species for which the United States is authorized to harvest an allocation or quota under a relevant international fishery agreement, the Secretary shall provide fishing vessels of the United States with a reasonable opportunity to harvest such allocation or quota.

(F) In implementing the provisions of this paragraph, the Secretary shall consult with-

(i) the Secretary of State;

(ii) commissioners and advisory groups appointed under Acts implementing relevant international fishery agreements pertaining to highly migratory species; and

(iii) appropriate Councils.

(g) Incidental harvest research

(1) Within 9 months after November 28, 1990, the Secretary shall, after consultation with the Gulf of Mexico Fishery Management Council and South Atlantic Fishery Management Council, establish by regulation a 3-year program to assess the impact on fishery resources of incidental harvest by the shrimp trawl fishery within the authority of such Councils.

(2) The program established pursuant to paragraph (1) shall provide for the identification of stocks of fish which are subject to significant incidental harvest in the course of normal shrimp trawl fishing activity.

(3) For stocks of fish identified pursuant to paragraph (2), with priority given to stocks which (based upon the best available scientific information) are considered to be overfished, the Secretary shall conduct-

(A) a program to collect and evaluate data on the nature and extent (including the spatial and temporal distribution) of incidental mortality of such stocks as a direct result of shrimp trawl fishing activities;

(B) an assessment of the status and condition of such stocks, including collection of information which would allow the estimation of life history parameters with sufficient accuracy and precision to support sound scientific evaluation of the effects of various management alternatives on the status of such stocks; and

(C) a program of data collection and evaluation for such stocks on the magnitude and distribution of fishing mortality and fishing effort by sources of fishing mortality other than shrimp trawl fishing activity.

(4) The Secretary shall, in cooperation with affected interests, commence a program to design, and evaluate the efficacy of, technological devices and other changes in fishing technology for the reduction of incidental mortality of nontarget fishery resources in the course of shrimp trawl fishing activity. Such program shall take into account local conditions and include evaluation of any reduction in incidental mortality, as well as any reduction or increase in the retention of shrimp in the course of normal fishing activity.

(5) The Secretary shall, upon completion of the programs required by this subsection, submit a detailed report on the results of such programs to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Merchant Marine and Fisheries of the House of Representatives.

(6)(A) Except as provided in this paragraph, the Secretary may not implement any measures under this chapter to reduce incidental mortality of nontarget fishery resources in the course of shrimp trawl fishing which would restrict the period during which shrimp are harvested or would require the use of any technological device or other change in fishing technology.

(B) The prohibition contained in subparagraph (A) shall cease on April 1, 1994.

(C) This paragraph does not apply to any law or regulation in effect on November 28, 1990, nor does it limit in any way the Secretary's authority to take action, including any limitation on entry permitted by this chapter, for the conservation and management of the shrimp fishery resource.

( Pub. L. 94–265, title III, §304, Apr. 13, 1976, 90 Stat. 352 ; Pub. L. 97–453, §7(a), Jan. 12, 1983, 96 Stat. 2487 ; Pub. L. 99–659, title I, §106, Nov. 14, 1986, 100 Stat. 3712 ; Pub. L. 101–627, title I, §§110(a), (b)(1), (c), 111(a)(2), 120(d), Nov. 28, 1990, 104 Stat. 4449–4452 , 4459; Pub. L. 102–567, title III, §303, Oct. 29, 1992, 106 Stat. 4283 ; Pub. L. 103–206, title VII, §702, Dec. 20, 1993, 107 Stat. 2446 .)

Amendments

1993-Subsec. (g)(6)(B). Pub. L. 103–206 substituted "April 1, 1994" for "January 1, 1994".

1992-Subsec. (e)(1). Pub. L. 102–567 added par. (1). Former par. (1) redesignated (2).

Subsec. (e)(2). Pub. L. 102–567 redesignated par. (1) as (2) and substituted "(3)" for "(2)" in subpar. (A). Former par. (2) redesignated (3).

Subsec. (e)(3). Pub. L. 102–567 redesignated par. (2) as (3) and substituted "(2)" for "(1)" in introductory provisions. Former par. (3) redesignated (4).

Subsec. (e)(4). Pub. L. 102–567 redesignated par. (3) as (4) and substituted "(2)" for "(1)".

1990-Subsec. (b)(1), (3)(D). Pub. L. 101–627, §111(a)(2)(A), (B), substituted "section 1855(a)" for "section 1855(c)".

Subsec. (c)(2)(B). Pub. L. 101–627, §120(d), substituted "appropriate Council" for "appropriate council".

Pub. L. 101–627, §111(a)(2)(C), substituted "section 1855(a)" for "section 1855(c)".

Subsec. (e). Pub. L. 101–627, §110(a), amended subsec. (e) generally. Prior to amendment, subsec. (e) read as follows: "The Secretary shall initiate and maintain, in cooperation with the Councils, a comprehensive program of fishery research to carry out and further the purposes, policy, and provisions of this chapter. Such program shall be designed to acquire knowledge and information, including statistics, on fishery conservation and management and on the economics of the fisheries, including, but not limited to, biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish, the impact of wetland and estuarine degradation, and other matters bearing upon the abundance and availability of fish. The Secretary shall annually review and update the comprehensive program and make the results of the review and update available to the Councils."

Subsec. (f). Pub. L. 101–627, §110(b)(1), in heading substituted "Fisheries under authority of more than one Council" for "Miscellaneous duties", in par. (1) substituted "Except as provided in paragraph (3), if" for "If", and added par. (3).

Subsec. (g). Pub. L. 101–627, §110(c), added subsec. (g).

1986-Subsec. (a)(1). Pub. L. 99–659, §106(1)(A), struck out "(the date of receipt of which is hereafter in this section referred to as the 'receipt date')" after "by a Council" in introductory provisions.

Subsec. (a)(1)(A), (B). Pub. L. 99–659, §106(1)(B), (C), added subpar. (A) and redesignated former subpars. (A) and (B) as (B) and (C), respectively.

Subsec. (a)(1)(C). Pub. L. 99–659, §106(1)(B), (D), redesignated former subpar. (B) as (C) and substituted "60-day" for "75-day". Former subpar. (C) redesignated (D).

Subsec. (a)(1)(D). Pub. L. 99–659, §106(1)(B), (E), redesignated former subpar. (C) as (D) and substituted "15th day" for "30th day".

Subsec. (a)(2). Pub. L. 99–659, §106(1)(F), substituted "paragraph (1)(B)" for "paragraph (1)(A)" in introductory provisions and inserted "and to fishery access adjustments referred to in section 1853(a)(6) of this title" in subpar. (C).

Subsec. (a)(3). Pub. L. 99–659, §106(1)(G), added par. (3).

Subsec. (b)(1)(A). Pub. L. 99–659, §106(2)(A), amended subpar. (A) generally. Prior to amendment, subpar. (A) read as follows: "the Secretary does not notify the Council in writing of his disapproval, or partial disapproval, under paragraph (2), of the plan or amendment before the close of the 95th day after the receipt date; or".

Subsec. (b)(1)(B). Pub. L. 99–659, §106(2)(B), substituted "60th day" for "75th day".

Subsec. (b)(2). Pub. L. 99–659, §106(2)(C), substituted "paragraph (1)(B)" for "paragraph (1)(A)" in introductory provisions.

Subsec. (b)(3)(A). Pub. L. 99–659, §106(2)(D)(i), inserted "disapproves a proposed plan or amendment under subsection (a)(1)(A)(ii) of this section, or".

Subsec. (b)(3)(B)(i), (C)(i). Pub. L. 99–659, §106(2)(D)(ii), substituted "subsection (a)(1)(B)" for "subsection (a)(1)(A)".

Subsec. (c)(2)(A)(ii). Pub. L. 99–659, §106(3)(A), substituted "60-day" for "75-day".

Subsec. (c)(2)(A)(iii). Pub. L. 99–659, §106(3)(B), substituted "15th day" for "30th day".

Subsec. (c)(2)(B). Pub. L. 99–659, §106(3)(C), substituted "60-day" for "75-day" in two places.

Subsec. (e). Pub. L. 99–659, §106(4), inserted ", in cooperation with the Councils,", "and on the economics of the fisheries", and "The Secretary shall annually review and update the comprehensive program and make the results of the review and update available to the Councils."

1983-Subsec. (a). Pub. L. 97–453, §7(a)(1), amended subsec. (a) generally, which had provided that within 60 days after the Secretary received any fishery management plan, or any amendment to any such plan, which was prepared by any Council, the Secretary was to review such plan or amendment pursuant to subsection (b) of this section, notify such Council in writing of his approval, disapproval, or partial disapproval of such plan or amendment, and that in the case of disapproval or partial disapproval, the Secretary was to include in such notification a statement and explanation of the Secretary's objections and the reasons therefor, suggestions for improvement, a request to such Council to change such plan or amendment to satisfy the objections, and a request to resubmit the plan or amendment, as so modified, to the Secretary within 45 days after the date on which the Council received such notification.

Subsec. (b). Pub. L. 97–453, §7(a)(1), amended subsec. (b) generally, which had provided that the Secretary was to review any fishery management plan, and any amendment to any such plan, prepared by any Council and submitted to him to determine whether it was consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that in carrying out such review, the Secretary was to consult with the Secretary of State with respect to foreign fishing, and the Secretary of the department in which the Coast Guard was operating with respect to enforcement at sea.

Subsec. (c)(1). Pub. L. 97–453, §7(a)(2)(A), in subpar. (B) substituted "or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment, as the case may be" for "and the Council involved fails to change such plan or amendment in accordance with the notification made under subsection (a)(2) of this section", and added to the provisions following subpar. (B) a requirement that the Secretary also prepare such proposed regulations as he deems necessary or appropriate to carry out each plan or amendment prepared by him under this paragraph.

Subsec. (c)(2). Pub. L. 97–453, §7(a)(2)(B), amended par. (2) generally, which had provided that whenever, pursuant to paragraph (1), the Secretary prepared a fishery management plan or amendment, the Secretary was to promptly transmit such plan or amendment to the appropriate Council for consideration and comment, that within 45 days after the date of receipt of such plan or amendment, the appropriate Council could recommend, to the Secretary, changes in such plan or amendment, consistent with the national standards, the other provisions of this chapter, and any other applicable law, and that after the expiration of such 45-day period, the Secretary could implement such plan or amendment pursuant to section 1855 of this title.

Subsec. (d). Pub. L. 97–453, §7(a)(3), inserted provisions relating to agreements with the States for the administration of the permit system and the permissible accrual to the States of fees collected under the system.

Effective Date of 1983 Amendment

Section 7(b) of Pub. L. 97–453 provided that: "The amendments made by subsection (a) [amending this section] shall only apply with respect to fishery management plans and amendments thereto that are initially submitted to the Secretary of Commerce on or after the date of the enactment of this Act [Jan. 12, 1983] for action under section 304 [this section]."

Abolition of House Committee on Merchant Marine and Fisheries

Committee on Merchant Marine and Fisheries of House of Representatives abolished and its jurisdiction given primarily to Committee on Transportation and Infrastructure of House of Representatives, and remainder of jurisdiction given to Committees on National Security and on Resources of House of Representatives, by House Resolution No. 6, One Hundred Fourth Congress, Jan. 4, 1995.

Interim Management of Highly Migratory Species Fisheries

Section 108(k) of Pub. L. 101–627 provided that: "Notwithstanding the amendments made by subsections (a) and (g) [amending section 1852 of this title], any fishery management plan or amendment which-

"(1) addresses a highly migratory species fishery to which section 304(f)(3) of the Magnuson Fishery Conservation and Management Act [16 U.S.C. 1854(f)(3)] (as amended by this Act) applies,

"(2) was prepared by one or more Regional Fishery Management Councils, and

"(3) was in force and effect on January 1, 1990,

shall remain in force and effect until superseded by a fishery management plan prepared by the Secretary, and regulations implementing that plan."

Section Referred to in Other Sections

This section is referred to in sections 1852, 1853, 1855 of this title.