1.This Act may be cited as the
Cooperative Hake Improvement and
Conservation Act
.
2.Findings, sense of
Congress, purposes, and policy
(a)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)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)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)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.
3.In this Act:
(1)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)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)The term
benchmark period means for a year, the period from April 1 through
September 30 of such year.
(4)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)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)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)The term
Magnuson-Stevens Act means the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1801 et seq.).
(8)Offshore
whiting resourceThe 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)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 PlanThe 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)The term
Pacific groundfish means all species of fish included in the
Pacific Coast Groundfish Fishery Management Plan.
(12)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)The term Plan
means a
fishery management plan prepared by the Council and approved by the Secretary
under the Magnuson-Stevens Act.
(14)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)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)The term processor
means a
person that engages in processing of Pacific whiting harvested as part of an
on-shore allocation.
(17)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)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)The term Secretary
means the
Secretary of Commerce.
(20)The term share-holder
means
the current owner of cooperative shares.
(21)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 levelThe 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.
4.Rationalization of the
Pacific whiting fishery
(a)Identification
of qualified participants
(1)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)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)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)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)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)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)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)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)
(A)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)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)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)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.
5.Conservation of
Pacific whiting
(a)Limits on
incidental catch
(1)Recommendation
of incidental catch limitationsThe 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
recommendationsThe Council
may make recommendations annually or in such other time increment that
facilitates conservation and management of the Pacific groundfish
fishery.
(3)
(A)Basis for
recommendationsSuch
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)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)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)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)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)
(1)Recommendations
of other incidental catch limitationsThe 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)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 standardsAmendments 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)).
6.
(a)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)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).
7.Enforcement and
penalties
(a)It is unlawful for
any person to violate any provision of this Act or any regulation issued under
this Act.
(b)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)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)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)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.).
8.
(a)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)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.
9.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.
10.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.