[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3840 Introduced in House (IH)]







110th CONGRESS
  1st Session
                                H. R. 3840

   To prohibit commercial fishing of Atlantic menhaden for reduction 
purposes in inland, State, and Federal waters along the Atlantic coast 
             of the United States, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 16, 2007

  Mr. Saxton (for himself and Mr. Gilchrest) introduced the following 
     bill; which was referred to the Committee on Natural Resources

_______________________________________________________________________

                                 A BILL


 
   To prohibit commercial fishing of Atlantic menhaden for reduction 
purposes in inland, State, and Federal waters along the Atlantic coast 
             of the United States, 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 ``Atlantic Menhaden Conservation 
Act''.

SEC. 2. FINDINGS.

    The Congress finds the following:
            (1) Atlantic menhaden are a key piece of the Atlantic 
        ecosystem, from Florida to Maine.
            (2) Serving as a vital link in the food chain, Atlantic 
        menhaden are a primary source of food for striped bass, 
        bluefish, weakfish, Spanish mackerel, seals, and whales, and 
        are favored by seabirds like loons and ospreys.
            (3) Atlantic menhaden help maintain water quality by 
        feeding on plankton and decaying plants. In aggregate in the 
        Chesapeake Bay, these valuable living resources have the 
        ability to filter a volume of water equal to the entire bay in 
        less than one day.
            (4) The Chesapeake Bay, the biggest estuary in North 
        America, is a prime Atlantic menhaden nursery ground for the 
        whole east coast, yet populations there are at historic lows. 
        Juvenile fish are especially low, which is a key indicator of a 
        dwindling population.
            (5) The Chesapeake Bay is also a major spawning ground for 
        striped bass, which are popular with anglers. Many striped bass 
        in the bay are suffering from malnutrition and disease, and the 
        declining Atlantic menhaden population may be a big factor.
            (6) Industrial harvests of Atlantic menhaden for reduction 
        purposes are the primary source of fishing mortality.
            (7) In 2006, Addendum III to the Interstate Fishery 
        Management Plan for Atlantic menhaden established a 
        precautionary cap on harvesting of Atlantic menhaden. However, 
        there is no scientific basis to establish whether the level of 
        harvest allowed by such plan is sustainable.
            (8) More research and studies are needed to determine the 
        health of Atlantic menhaden populations, but the danger signs 
        clearly point to the need for protection measures now for what 
        is often called the most important fish in the sea.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) The term ``Atlantic menhaden'' means members of stocks 
        or populations of the species Brevoortia tyrannus.
            (2) The term ``coastal State'' means--
                    (A) Pennsylvania and each State of the United 
                States bordering on the Atlantic Ocean north of the 
                State of South Carolina;
                    (B) the District of Columbia; and
                    (C) the Potomac River Fisheries Commission 
                established by the Potomac River Compact of 1958.
            (3) The term ``coastal waters'' means--
                    (A) for each coastal State referred to in paragraph 
                (2)(A)--
                            (i) all waters, whether salt or fresh, of 
                        the coastal State shoreward of the baseline 
                        from which the territorial sea of the United 
                        States is measured; and
                            (ii) the waters of the coastal State 
                        seaward from the baseline referred to in clause 
                        (i) to the inner boundary of the exclusive 
                        economic zone;
                    (B) for the District of Columbia, those waters 
                within its jurisdiction; and
                    (C) for the Potomac River Fisheries Commission, 
                those waters of the Potomac River within the boundaries 
                established by the Potomac River Compact of 1958.
            (4) The term ``Commission'' means the Atlantic States 
        Marine Fisheries Commission established under the interstate 
        compact consented to and approved by the Congress in Public 
        Laws 77-539 and 81-721.
            (5) The term ``exclusive economic zone'' has the meaning 
        given such term in section 3(6) of the Magnuson Act (16 U.S.C. 
        1802(6)).
            (6) The term ``fishing'' means--
                    (A) the commercial catching, taking, or harvesting 
                of Atlantic menhaden for reduction purposes, except 
                when incidental to harvesting that occurs in the course 
                of commercial or recreational fish-catching activities 
                directed at a species other than Atlantic menhaden;
                    (B) the attempted commercial catching, taking, or 
                harvesting of Atlantic menhaden for reduction purposes; 
                and
                    (C) any operation at sea in support of, or in 
                preparation for, any activity described in subparagraph 
                (A) or (B).
        The term does not include any scientific research authorized by 
        the Federal Government or by any State government.
            (7) The term ``fishing for Atlantic menhaden for reduction 
        purposes'' means fishing that harvests Atlantic menhaden that 
        are reduced to meal and oil.
            (8) The term ``Magnuson Act'' means the Magnuson-Stevens 
        Fishery Conservation and Management Act (16 U.S.C. 1801 et 
        seq.).
            (9) The term ``moratorium area'' means the coastal waters 
        with respect to which a moratorium is in effect under section 
        5.
            (10) The term ``moratorium period'' means, with respect to 
        the coastal waters of a coastal State, the period beginning on 
        the date of the enactment of this Act and ending on the day on 
        which the Commission notifies the Secretaries that such State 
        has taken appropriate remedial action with respect to those 
        matters that were the case of the moratorium being declared.
            (11) The term ``Plan'' means a plan for managing Atlantic 
        menhaden, or an amendment to such plan, that--
                    (A) is prepared and adopted by the Commission;
                    (B) establishes a scientifically determined limit 
                on total allowable landings of Atlantic menhaden; and
                    (C) takes account of the role of Atlantic menhaden 
                in the ecosystem.
            (12) The term ``Secretaries'' means the Secretary of 
        Commerce and the Secretary of the Interior or their designees.
            (13) The term ``Secretary'' means the Secretary of Commerce 
        or a designee of the Secretary of Commerce.

SEC. 4. MONITORING OF IMPLEMENTATION AND ENFORCEMENT BY COASTAL STATES.

    (a) Determination.--During December of each fiscal year, and at any 
other time it determines it to be necessary, the Commission shall 
determine--
            (1) whether each coastal State has adopted all regulatory 
        measures necessary to fully implement the Plan in its coastal 
        waters; and
            (2) whether the enforcement of the Plan by each coastal 
        State is satisfactory.
    (b) Satisfactory State Enforcement.--For purposes of subsection 
(a)(2), enforcement by a coastal State shall not be considered 
satisfactory by the Commission if, in its view, the enforcement is 
being carried out in such a manner that the implementation of the Plan 
within the coastal waters of the State is being, or will likely be, 
substantially and adversely affected.
    (c) Notification of Secretaries.--The Commission shall immediately 
notify the Secretaries of each affirmative determination made by it 
under subsection (a).

SEC. 5. MORATORIUM.

    (a) Establishment of Moratorium.--There is hereby established for 
the coastal waters of each coastal State a moratorium on commercial 
fishing for Atlantic menhaden for reduction purposes.
    (b) Termination of Moratorium.--Upon receiving notice from the 
Commission under section 4(c) of an affirmative determination regarding 
a coastal State, the Secretaries--
            (1) within 30 days after receiving the notification and 
        after carefully considering and reviewing the comments of the 
        Commission and of that coastal State, shall determine jointly 
        whether that coastal State is in compliance with the Plan; and
            (2) shall terminate the moratorium under subsection (a) 
        with respect to coastal waters of that coastal State, if--
                    (A) a scientifically determined total allowable 
                catch limit has been established under the Plan for 
                commercial fishing for Atlantic menhaden for reduction 
                purposes; and
                    (B) the Secretaries determine that the State is in 
                compliance with the Plan.
    (c) Prohibited Acts During Moratorium.--During a moratorium period, 
it is unlawful for any person--
            (1) to engage in fishing within the moratorium area;
            (2) to land, or attempt to land, Atlantic menhaden that are 
        caught, taken, or harvested in violation of paragraph (1);
            (3) to land lawfully harvested Atlantic menhaden within the 
        boundaries of a coastal State when a moratorium is in effect 
        under subsection (a) for coastal waters of that State; or
            (4) to fail to return to the water Atlantic menhaden with 
        respect to which the moratorium applies that are caught 
        incidental to harvesting that occurs in the course of 
        commercial or recreational fish-catching activities, regardless 
        of the physical condition of the menhaden when caught.
    (d) Civil Penalties.--
            (1) Civil penalty.--Any person who commits any act that is 
        unlawful under subsection (bc) shall be liable to the United 
        States for a civil penalty as provided by section 308 of the 
        Magnuson Act (16 U.S.C. 1858).
            (2) Civil forfeitures.--
                    (A) In general.--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 (c) shall be subject to forfeiture to 
                the United States as provided in section 310 of the 
                Magnuson Act (16 U.S.C. 1860).
                    (B) Disposal of fish.--Any fish seized pursuant to 
                this Act may be disposed of pursuant to the order of a 
                court of competent jurisdiction, or, if perishable, in 
                a manner prescribed in regulations.
    (e) Regulations.--The Secretaries may issue regulations to 
implement this section.

SEC. 6. CONTINUING STUDIES OF MENHADEN POPULATIONS.

    (a) In General.--For the purposes of carrying out this Act, the 
Secretaries shall conduct continuing, comprehensive studies of Atlantic 
menhaden stocks. These studies shall include, but shall not be limited 
to, the following:
            (1) Annual stock assessments, using fishery-dependent and 
        fishery-independent data, for the purposes of extending the 
        long-term population record.
            (2) Investigations of the causes of fluctuations in 
        Atlantic menhaden populations.
            (3) Investigations of the role of Atlantic menhaden on 
        water quality and other environmental factors, and the 
        contribution of Atlantic menhaden to the recruitment, spawning 
        potential, mortality, and abundance of Atlantic striped bass 
        populations, including the Delaware River population.
            (4) Investigations of--
                    (A) the interactions between Atlantic menhaden and 
                other fish, including bluefish, Atlantic striped bass, 
                mackerel, and other forage fish or possible 
                competitors, and stock assessments of these species, to 
                the extent appropriate; and
                    (B) the effects of interspecies predation and 
                competition on the recruitment, spawning potential, 
                mortality, and abundance of Atlantic menhaden.
    (b) Socio-Economic Study.--The Secretaries, in consultation with 
the Atlantic States Marine Fisheries Commission, shall conduct a study 
of the socioeconomic benefits of the Atlantic menhaden resource. The 
Secretaries shall issue a report to the Congress concerning the 
findings of this study no later than September 30, 2008.
    (c) Reports.--The Secretaries shall make biennial reports to the 
Congress and to the Commission concerning the progress and findings of 
studies conducted under subsection (a) and shall make those reports 
public. Such reports shall, to the extent appropriate, contain 
recommendations of actions which could be taken to encourage the 
sustainable management of Atlantic menhaden.

SEC. 7. AUTHORIZATION OF APPROPRIATIONS; COOPERATIVE AGREEMENTS.

    (a) Authorization.--For each of fiscal years 2008, 2009, and 2010, 
there are authorized to be appropriated to carry out this Act--
            (1) $800,000 to the Secretary of Commerce; and
            (2) $250,000 to the Secretary of the Interior.
    (b) Cooperative Agreements.--The Secretaries may enter into 
cooperative agreements with the Atlantic States Marine Fisheries 
Commission or with States, for the purpose of using amounts 
appropriated pursuant to this section to provide financial assistance 
for carrying out the purposes of this Act.

SEC. 8. PUBLIC PARTICIPATION IN PREPARATION OF MANAGEMENT PLANS AND 
              AMENDMENTS.

    (a) Standards and Procedures.--In order to ensure the opportunity 
for public participation in the preparation of management plans and 
amendments to management plans for Atlantic menhaden, the Commission 
shall prepare such plans and amendments in accordance with the 
standards and procedures established under section 805(a)(2) of the 
Atlantic Coastal Fisheries Cooperative Management Act.
    (b) Application.--Subsection (a) shall apply to all management 
plans for Atlantic menhaden, and amendments to such plans, adopted by 
the Commission.

SEC. 9. PROHIBITION ON COMMERCIAL HARVESTING OF ATLANTIC MENHADEN IN 
              EXCLUSIVE ECONOMIC ZONE.

    (a) Prohibition.--It is unlawful to engage in, or to attempt to 
engage in, the commercial harvesting of Atlantic menhaden for reduction 
purposes in the exclusive economic zone established by Proclamation 
Number 5030, dated March 10, 1983.
    (b) Penalty.--
            (1) In general.--Any person who is found by the Secretary 
        after notice and an opportunity for a hearing in accordance 
        with section 554 of title 5, United States Code, to have 
        committed an act that is unlawful under subsection (a), is 
        liable to the United States for a civil penalty. The amount of 
        the civil penalty may not exceed $1,000 for each violation. 
        Each day of continuing violation constitutes a separate 
        offense. The amount of the civil penalty shall be assessed by 
        the Secretary of Commerce by written notice. In determining the 
        amount of the penalty, the Secretary shall take into account 
        the nature, circumstances, extent, and gravity of the 
        prohibited act committed and, with respect to the violator, the 
        degree of culpability, any history of prior violations, ability 
        to pay, and such other matters as justice may require.
            (2) Review; failure to pay; compromise; subpoenas.--
        Subsections (b) through (e) of section 308 of the Magnuson Act 
        (16 U.S.C. 1858(b)-(e); relating to review of civil penalties; 
        acting upon failure to pay assessment, compromise, and 
        subpoenas) shall apply to penalties assessed under paragraph 
        (1) to the same extent and in the same manner as if those 
        penalties were assessed under subsection (a) of such section 
        308.
    (c) Civil Forfeitures.--
            (1) In general.--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 the result of, the commission of any act 
        that is unlawful under subsection (a), is subject to forfeiture 
        to the United States. All or part of the vessel may, and all 
        such fish (or the fair market value thereof) shall, be 
        forfeited to the United States under a civil proceeding 
        described in paragraph (2). The district courts of the United 
        States have jurisdiction over proceedings under this 
        subsection.
            (2) Judgment; procedure; rebuttable presumptions.--
        Subsections (c) through (e) of section 310 of the Magnuson Act 
        (16 U.S.C. 1860(c)-(e); relating to judgment, procedure, and 
        rebuttable presumptions) shall apply with respect to 
        proceedings for forfeiture commenced under this subsection to 
        the same extent and in the same manner as if the proceeding 
        were commenced under subsection (a) of such section 310.
    (d) Consequential Effects on Existing Law.--The Atlantic States 
Marine Fisheries Commission shall promptly take action to amend the 
Plan to take into account the prohibition established under this 
section on the commercial harvesting of Atlantic menhaden for reduction 
purposes.

SEC. 10. 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 section 5(a), or to enforce the 
prohibition in section 9, that an officer authorized under section 311 
of the Magnuson Act (16 U.S.C. 1861) may take to enforce that Act. 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.
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