[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 1549 Introduced in Senate (IS)]








109th CONGRESS
  1st Session
                                S. 1549

To improve the conservation and management of Pacific whiting, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 28, 2005

   Mr. Smith introduced the following bill; which was read twice and 
   referred to the Committee on Commerce, Science, and Transportation

_______________________________________________________________________

                                 A BILL


 
To improve the conservation and management of Pacific whiting, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Cooperative Hake Improvement and 
Conservation Act''.

SEC. 2. FINDINGS, SENSE OF CONGRESS, PURPOSES, AND POLICY.

    (a) Findings.--Congress makes the following findings:
            (1) The United States has an obligation to ensure that, to 
        the extent practicable in accordance with applicable law, 
        stocks of Pacific whiting are conserved and managed in a 
        sustainable manner so as to prevent overfishing while providing 
        economic opportunities for the United States fishing industry, 
        including commercial fishermen and seafood processors, and 
        coastal communities.
            (2) The Pacific whiting fishery is uniquely suited to the 
        establishment of a distinct market-based program due to the 
        relatively small and easily identifiable numbers of fishermen 
        and processors involved, and to the existence of a management 
        system that clearly allocates harvest among discrete sectors of 
        the fishery.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) a regional program of market-based incentives for 
        management and conservation should be established in order to 
        meet the obligation described in subsection (a)(1); and
            (2) as actions taken to reduce excess capacity in fisheries 
        may result in adverse impacts on fishermen, processors, and 
        local coastal communities, any such program should be designed, 
        to the extent practicable, to avoid such impacts.
    (c) Purpose.--The purpose of this Act is to facilitate the 
continued economic viability of the Pacific whiting fishery for the 
benefit of the United States through the establishment of a market-
based cooperative system for the harvesting and processing of Pacific 
whiting.
    (d) Policy.--It is the policy of the United States to demonstrate 
the conservation and economic benefits of a market-based cooperative 
system by using the shore-based vessels and processors of the Pacific 
whiting in a fishery management program without disrupting other 
sectors of the whiting fishery or other fisheries.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Aggregate catch.--The term ``aggregate catch'' means 
        the total amount of Pacific whiting harvested and delivered on 
        shore in California, Oregon, and Washington without further 
        processing during the benchmark period during a year from 1994 
        through 2004, excluding any such Pacific whiting harvested 
        pursuant to a treaty between the United States and a treaty 
        tribe.
            (2) Aggregate landed catch.--The term ``aggregate landed 
        catch'' means the total amount of Pacific whiting processed on 
        shore in California, Oregon, and Washington during the 
        benchmark period during a year from 1999 through 2004.
            (3) Benchmark period.--The term ``benchmark period'' means 
        for a year, the period from April 1 through September 30 of 
        such year.
            (4) Catch.--The term ``catch'' means all fishery removals 
        from the offshore whiting resource, including landings, 
        discards, and bycatch in fisheries other than the Pacific 
        whiting fishery.
            (5) Cooperative share.--The term ``cooperative share'' 
        means the percentage of allowable Pacific whiting harvest 
        assigned to each qualified fisherman or qualified processor 
        based on the formula established in section 4.
            (6) Council.--The term ``Council'' means the Pacific 
        Fishery Management Council established under section 
        302(a)(1)(F) of the Magnuson-Stevens Act (16 U.S.C. 
        1852(a)(1)(F)).
            (7) Magnuson-stevens act.--The term ``Magnuson-Stevens 
        Act'' means the Magnuson-Stevens Fishery Conservation and 
        Management Act (16 U.S.C. 1801 et seq.).
            (8) Offshore whiting resource.--The term ``offshore whiting 
        resource'' means the transboundary stock of fish of the species 
        Merluccius productus that--
                    (A) is located in the offshore waters of the United 
                States and Canada; and
                    (B) does not include any fish of that species 
                located in Puget Sound or the Strait of Georgia.
            (9) On-shore allocation.--The term ``on-shore allocation'' 
        means that amount of the United States catch level required 
        under a Plan to be delivered to processors located on shore in 
        the States of California, Oregon, or Washington.
            (10) Pacific coast groundfish fishery management plan.--The 
        term ``Pacific Coast Groundfish Fishery Management Plan'' means 
        the Pacific Coast Groundfish Fishery Management Plan and 
        Environmental Impact Statement for the California, Oregon, and 
        Washington groundfish fishery approved by the Secretary on 
        January 4, 1982, and all subsequent approved amendments to that 
        plan.
            (11) Pacific groundfish.--The term ``Pacific groundfish'' 
        means all species of fish included in the Pacific Coast 
        Groundfish Fishery Management Plan.
            (12) Pacific whiting.--The term ``Pacific whiting'' means 
        that portion of the harvest of the offshore whiting resource 
        that is under the jurisdiction of the United States.
            (13) Plan.--The term ``Plan'' means a fishery management 
        plan prepared by the Council and approved by the Secretary 
        under the Magnuson-Stevens Act.
            (14) Person.--The term ``person'' means any individual 
        (whether or not a citizen or national of the United States), 
        any corporation, partnership, association, or other entity 
        (whether or not organized or existing under the laws of any 
        State).
            (15) Processing.--The term ``processing'' means the 
        preparation or packaging of Pacific whiting to render it 
        suitable for human consumption, retail sale, industrial uses, 
        or long-term storage by cooking, filleting, freezing, 
        conversion to fish protein compounds, mincing, or heading and 
        gutting.
            (16) Processor.--The term ``processor'' means a person that 
        engages in processing of Pacific whiting harvested as part of 
        an on-shore allocation.
            (17) Qualified fisherman.--The term ``qualified fisherman'' 
        means the current owner of a trawl-endorsed Pacific groundfish 
        limited entry permit issued under regulations implementing the 
        Pacific Coast Groundfish Fishery Management Plan which during 
        any two years from 1994 through 2004 delivered not less than of 
        500 metric tons of Pacific whiting during each such year to a 
        processor during the benchmark period.
            (18) Qualified processor.--The term ``qualified processor'' 
        means--
                    (A) a processor that operated in any year from 1999 
                through 2004, and processed at least 1,000,000 pounds 
                of whiting during such year; or
                    (B) a successor in ownership of a processor 
                described in subparagraph (A).
            (19) Secretary.--The term ``Secretary'' means the Secretary 
        of Commerce.
            (20) Share-holder.--The term ``share-holder'' means the 
        current owner of cooperative shares.
            (21) Treaty tribe.--The term ``treaty tribe'' means any 
        Indian tribe determined by the United States courts to have 
        rights to harvest Pacific whiting within specified areas.
            (22) United states catch level.--The term ``United States 
        catch level'' means that portion of the offshore whiting 
        resource which may be harvested by persons subject to the 
        jurisdiction of the United States.

SEC. 4. RATIONALIZATION OF THE PACIFIC WHITING FISHERY.

    (a) Identification of Qualified Participants.--
            (1) Requirement for permits.--The Secretary shall issue a 
        permit to--
                    (A) any person who demonstrates by appropriate 
                records that such person is a qualified fisherman; and
                    (B) any person who demonstrates by appropriate 
                records that such person is a qualified processor.
            (2) Limitations.--Permits issued under this subsection will 
        be clearly designated as qualified fisherman or qualified 
        processor permits, are not interchangeable, and shall not 
        confer ownership in any stock of fish over which the United 
        States exercises sovereign jurisdiction.
            (3) Transfer of permits.--Permits may be transferred 
        through sale, lease, barter, gift, inheritance, or any other 
        legal means. A permit which is transferred may not be 
        redesignated and may only be used in accordance with this Act 
        and any regulations issued pursuant to this Act.
            (4) Fee.--The Secretary may charge a fee to issue a permit 
        under this subsection which shall not exceed the administrative 
        costs incurred in issuing the permit.
            (5) Endorsement.--For the purposes of paragraph (1)(A), the 
        permit issued by the Secretary shall be an appropriate 
        permanent endorsement of a Pacific groundfish trawl limited 
        entry permit issued under the Pacific Coast Groundfish Fishery 
        Management Plan.
    (b) Allocation of Resource.--Prior to March 1 of the calendar year 
following the issuance of final regulations as required by section 6, 
the Secretary shall make an initial allocation of cooperative shares as 
follows:
            (1) Each qualified fisherman who currently owns a Pacific 
        groundfish trawl limited entry permit issued under the Pacific 
        Coast Groundfish Fishery Management Plan that has been endorsed 
        under subsection (a) shall be assigned a percentage of 
        cooperative share using the following formula:
                    (A) For each permit, the amount of Pacific whiting 
                harvested by any vessel to which the permit was 
                assigned during the benchmark period in each of the 
                years from 1994 through 2004 shall be divided by the 
                aggregate catch for each of those years.
                    (B) The 9 highest percentages shall be averaged and 
                the result shall be considered the permit's catch 
                history.
                    (C) Each permit's catch history shall be divided by 
                the sum of all catch histories to determine the 
                qualified fisherman's cooperative share.
            (2) Each qualified processor who has been issued a permit 
        under subsection (a) shall be assigned a percentage of 
        cooperative share using the following formula:
                    (A) For each qualified processor, the amount of 
                Pacific whiting purchased by that processor during the 
                benchmark period in each of the years from 1999 through 
                2004 shall be divided by the aggregate landed catch for 
                each of those years.
                    (B) The 4 highest percentages shall be averaged and 
                the result shall be considered the qualified 
                processor's processing history.
                    (C) Each qualified processor's processing history 
                shall be divided by the sum of all processing histories 
                to determine the qualified processor's cooperative 
                share.
            (3) The percentages assigned to qualifying fishermen shall 
        be designated fishermen's cooperative share and the percentages 
        assigned to qualifying processors shall be designated 
        processors' cooperative share. Except as provided in subsection 
        (d), cooperative shares may be transferred, in whole or in 
        part, through sale, lease, barter, gift, inheritance or any 
        other legal means but will retain their original designation.
    (c) Cooperative Harvest of Pacific Whiting.--
            (1) In each calendar year, the on-shore allocation shall be 
        divided so that--
                    (A) an amount sufficient to account for the 
                incidental commercial or recreational catch of Pacific 
                whiting in fisheries other than the Pacific whiting 
                fishery, but not to exceed 1 percent of the on-shore 
                allocation, shall be available for harvest by any 
                person legally eligible to harvest Pacific whiting; and
                    (B) after subtracting the amounts described in 
                subparagraph (A), 50 percent of the remainder shall be 
                available for harvest using fishermen's cooperative 
                shares and 50 percent of the remainder shall be 
                available for harvest using processors' cooperative 
                shares.
            (2) At any time during a calendar year, a holder of 
        fisherman's cooperative shares may enter into one or more 
        agreements with holders of processor's cooperative shares to 
        use all or a portion of those processors' cooperative shares. 
        No Pacific whiting may be harvested using fishermen's 
        cooperative shares or processors' cooperative shares without a 
        registered agreement. Such an agreement shall not be valid if--
                    (A) it does not require the use of an equal amount 
                of fishermen's cooperative shares and processors' 
                cooperative shares; or
                    (B) it is not registered with the Secretary prior 
                to the time the cooperative shares covered by the 
                agreement are used to harvest Pacific whiting.
    (d) Restrictions on Transfer.--Fishermen's cooperative shares may 
only be transferred to a person holding a Pacific groundfish trawl 
limited entry permit issued under the Pacific Coast Groundfish Fishery 
Management Plan.
    (e) Contribution to Research and Management.--
            (1) Fee.--In addition to any fee which may be collected 
        under subsection (a), the Secretary is authorized and shall 
        collect a fee equally from share-holders to recover the costs 
        of carrying out this section (including costs associated with 
        carrying out activities under section 5) and of conducting 
        scientific research on the offshore whiting resource.
            (2) Determination of fee.--
                    (A) In general.--Each share-holder will be liable 
                for a fee up to 3 percent of the ex-vessel value of the 
                Pacific whiting that was harvested in a calendar year 
                using fishermen's cooperative shares owned by that 
                share-holder and up to 3 percent of the ex-vessel value 
                of the Pacific whiting that was harvested in a calendar 
                year using processors' cooperative shares owned by that 
                share-holder.
                    (B) Schedule of payment.--The fee referred to in 
                subparagraph (A) shall be payable not later than 30 
                days after the end of the calendar year during which 
                the Pacific whiting on which the fee is imposed was 
                harvested.
            (3) Availability of fees.--Fees collected under this 
        subsection shall be available to the Secretary without fiscal 
        year limitation and may only be used to carry out the 
        Secretary's obligations under this Act, except as provided in 
        paragraph (4).
            (4) Use by states.--Upon application from the States of 
        Washington, Oregon, or California, the Secretary may transfer 
        up to 33 percent of the fees collected under this subsection in 
        any calendar year to 1 or more of such States to offset costs 
        incurred by such States in the conservation and management of 
        Pacific whiting.

SEC. 5. CONSERVATION OF PACIFIC WHITING.

    (a) Limits on Incidental Catch.--
            (1) Recommendation of incidental catch limitations.--The 
        Council may recommend to the Secretary appropriate amounts of 
        any species of Pacific groundfish, other than Pacific whiting, 
        that may be harvested incidentally to the harvest of Pacific 
        whiting under this Act and any other Act.
            (2) Schedule for recommendations.--The Council may make 
        recommendations annually or in such other time increment that 
        facilitates conservation and management of the Pacific 
        groundfish fishery.
            (3) Recommendations.--
                    (A) Basis for recommendations.--Such 
                recommendations shall be--
                            (i) based on the best scientific 
                        information available;
                            (ii) reasonably calculated to promote 
                        conservation;
                            (iii) fair and equitable to holders of 
                        cooperative shares and others who harvest 
                        Pacific groundfish; and
                            (iv) to the extent practicable, designed to 
                        minimize the discard of Pacific whiting and 
                        other species of Pacific groundfish.
            (4) Considerations.--The Council shall, in making such 
        recommendations, consider the percentage of Pacific whiting 
        available for harvest by holders of cooperative shares relative 
        to the percentage of Pacific whiting available for harvest by 
        others.
            (5) Use of funds.--The amounts recommended under paragraph 
        (1) shall include specific subamounts by species or species 
        group which shall be available only to holders of cooperative 
        shares and which may be transferred among holders of 
        cooperative shares who are harvesting Pacific whiting under a 
        valid agreement under section 4.
            (6) Publication.--Not later than 45 days after receiving 
        the recommendations of the Council, the Secretary shall publish 
        a proposed rule which applies the aggregate limits to the 
        Pacific whiting fishery and allow 30 days for public comment 
        before publishing a final rule.
    (b) Monitoring.--The Secretary shall issue regulations providing 
for the statistically reliable monitoring of harvesting and processing 
of Pacific whiting to determine compliance with this Act and to collect 
necessary biological samples for the conservation and management of the 
Pacific whiting fishery and the offshore whiting resource.
    (c) Action by the Council.--
            (1) Recommendations of other incidental catch 
        limitations.--The Council may recommend amendments to the 
        Pacific Coast Groundfish Fishery Management Plan which provide 
        for limits on incidental catch of species other than Pacific 
        whiting, monitoring of the Pacific whiting fishery, and a 
        system allowing transfer of incidental catch amounts among 
        persons harvesting Pacific whiting under a valid agreement 
        under section 4. Amendments recommended under this paragraph 
        shall meet the requirements of subsection (a)(3).
            (2) Additional regulations.--Regulations issued by the 
        Secretary under subsections (a) or (b) shall be superseded by 
        any regulations issued by the Secretary to implement Plan 
        amendments recommended under paragraph (1).
    (d) Compliance With Environmental Standards.--Amendments to the 
Pacific Coast Groundfish Fishery Management Plan and regulations 
implementing those amendments which are prepared in accordance with 
applicable provisions of the Magnuson-Stevens Act and regulations 
implementing this Act are deemed to have been prepared in compliance 
with the requirements of section 102(2)(C) of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

SEC. 6. PROGRAM IMPLEMENTATION.

    (a) Requirement.--Not later than 6 months after the date of 
enactment of this Act, the Secretary shall issue final regulations to 
implement the program for Pacific whiting conservation and management 
described in this Act. In developing such regulations, the Secretary 
shall allow the Council the opportunity to propose draft regulations.
    (b) Plan Amendment.--The Council may amend the appropriate Plan to 
conform with this Act or regulations issued under this Act. Failure of 
the Council to amend a Plan shall not delay the obligations of the 
Secretary under subsection (a).

SEC. 7. ENFORCEMENT AND PENALTIES.

    (a) In General.--It is unlawful for any person to violate any 
provision of this Act or any regulation issued under this Act.
    (b) Unlawful Harvest.--It is unlawful for any person to harvest 
Pacific whiting using cooperative shares without having a valid 
agreement registered with the Secretary under section 4(c)(2).
    (c) Penalty.--Any person who commits an action that is unlawful 
under subsection (a) or (b) may be liable for a civil penalty under 
subsection (a) of section 308 of the Magnuson-Stevens Act (16 U.S.C. 
1858) or permit sanction imposed by subsection (g) of such section 308, 
as if such person had committed an act prohibited by section 307 of 
such Act (16 U.S.C. 1857).
    (d) Review.--Any person against whom a civil penalty is assessed or 
against whom a permit sanction is imposed as described in subsection 
(c) may obtain review thereof as described in subsection (b) of section 
308 of the Magnuson-Stevens Act.
    (e) Sherman Act.--No person may own or control cooperative shares 
in an amount or manner that violates the Sherman Act (15 U.S.C. 1 et 
seq.).

SEC. 8. REPORTS TO CONGRESS.

    (a) Requirement.--Not later than 5 years after the issuance of 
final regulations under section 6(a), and during each 5-year period 
thereafter, the Secretary, after consultation with the Council, shall 
submit to Congress a report on the implementation of this Act.
    (b) Contents.--Such reports shall include--
            (1) a description of the conservation and management 
        actions carried out for the Pacific whiting fishery, including 
        the extent to which bycatch (including discard) of Pacific 
        groundfish has been minimized;
            (2) the number of active fishing vessels and processing 
        facilities remaining in such fishery;
            (3) the economic impact of such fishery on local coastal 
        communities;
            (4) whether the amounts specified in section 4(c)(1)(A) 
        continue to be appropriate; and
            (5) any recommendations of the Secretary for changes to 
        this Act, along with a justification for such recommendations.

SEC. 9. CONSTRUCTION.

    The provisions of this Act shall be deemed not to violate section 
804 of the Departments of Commerce, Justice, and State, the Judiciary, 
and Related Agencies Appropriations Act, 2004 (division B of Public Law 
108-199; 118 Stat. 111) or any provision of the Magnuson-Stevens Act 
and may not be construed to have any effect on the application of such 
section 804.

SEC. 10. AUTHORIZATIONS.

    There is authorized to be appropriated to the Secretary $750,000 
for each of fiscal years 2006 and 2007 to carry out the provisions of 
this Act, of which $250,000 may be made available to the Council each 
fiscal year.
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