[Senate Report 111-194]
[From the U.S. Government Publishing Office]
111th Congress Report
SENATE
2d Session 111-194
_______________________________________________________________________
Calendar No. 402
INTERNATIONAL FISHERIES AGREEMENT CLARIFICATION ACT OF 2009
__________
R E P O R T
OF THE
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
on
S. 2856
May 24, 2010.--Ordered to be printed
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
one hundred eleventh congress
second session
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
DANIEL K. INOUYE, Hawaii KAY BAILEY HUTCHISON, Texas
JOHN F. KERRY, Massachusetts OLYMPIA J. SNOWE, Maine
BYRON L. DORGAN, North Dakota JOHN ENSIGN, Nevada
BARBARA BOXER, California JIM DeMINT, South Carolina
BILL NELSON, Florida JOHN THUNE, South Dakota
MARIA CANTWELL, Washington ROGER F. WICKER, Mississippi
FRANK R. LAUTENBERG, New Jersey GEORGE S. LeMIEUX, Florida
MARK PRYOR, Arkansas JOHNNY ISAKSON, Georgia
CLAIRE McCASKILL, Missouri DAVID VITTER, Louisiana
AMY KLOBUCHAR, Minnesota SAM BROWNBACK, Kansas
TOM UDALL, New Mexico MIKE JOHANNS, Nebraska
MARK WARNER, Virginia
MARK BEGICH, Alaska
Ellen Doneski, Staff Director
James Reid, Deputy Staff Director
Bruce Andrews, General Counsel
Ann Begeman, Republican Staff Director
Brian Hendricks, Republican General Counsel
Todd Bertoson, Republican Senior Counsel
Calendar No. 402
111th Congress Report
SENATE
2d Session 111-194
======================================================================
INTERNATIONAL FISHERIES AGREEMENT CLARIFICATION ACT OF 2009
_______
May 24, 2010.--Ordered to be printed
_______
Mr. Rockefeller, from the Committee on Commerce, Science, and
Transportation, submitted the following
REPORT
[To accompany S. 2856]
The Committee on Commerce, Science, and Transportation, to
which was referred the bill (S. 2856) to allow the United
States-Canada Transboundary Resource Sharing Understanding to
be considered an international agreement for the purposes of
section 304(e)(4) of the Magnuson-Stevens Fishery Conservation
and Management Act, having considered the same, reports
favorably thereon with an amendment (in the nature of a
substitute) and recommends that the bill (as amended) do pass.
Purpose of the Bill
S. 2856, the International Fisheries Agreement Clarification
Act, would clarify that the United States-Canada Transboundary
Resource Sharing Understanding, a written agreement between
U.S. and Canadian fisheries conservation and management
officials establishing a framework for sharing specific
transboundary fisheries resources on Georges Bank in the Gulf
of Maine, is an international agreement for the purposes of
section 304(e)(4) of the Magnuson-Stevens Fishery Conservation
and Management Act (MSA).
Background and Needs
On October 14, 2008, the Subcommittee on Oceans, Atmosphere,
Fisheries, and Coast Guard held a field hearing in Portland,
Maine, on the sustainability of Maine's groundfish industry.
Witness testimony at that hearing included a number of
recommended actions that Congress could take to improve the
outlook for the New England groundfish fishery and the
communities that rely upon it. Among these was a recommendation
for Congress to clarify that, when stocks are jointly managed
by the U.S. and Canada, such an arrangement should be treated
as an international agreement under the MSA--an allusion to the
U.S.-Canada Transboundary Resource Sharing Understanding.
In 1995, the U.S.-Canada Transboundary Steering Committee
(Steering Committee) was established to promote a collaborative
transboundary approach to fisheries resource management between
Fisheries and Oceans Canada, Maritimes Region, and the National
Oceanic and Atmospheric Administration's (NOAA's) National
Marine Fisheries Service (NMFS), Northeast Region. These
collaborative efforts resulted in a mutual understanding on a
process for sharing specific transboundary fisheries resources
on Georges Bank in the Gulf of Maine. Commonly referred to as
the U.S.-Canada Transboundary Resource Sharing Understanding
(Understanding), this management regime is explained at length
in a document entitled ``Development of a Sharing Allocation
Proposal for Transboundary Resources of Cod, Haddock, and
Yellowtail Flounder on Georges Bank'' (January 2002).
The Understanding establishes bilateral parameters for the
management of three fish stocks--Georges Bank cod, Georges Bank
haddock, and Georges Bank yellowtail flounder--within a
specified area straddling the international boundary known as
the Hague Line, which bisects Georges Bank in the Gulf of
Maine. The Understanding further establishes a governance
structure to carry out the joint conservation and management
objectives of the U.S. and Canada with regard to these three
stocks. The fundamental organizational components in this
governance structure are the Transboundary Management Guidance
Committee (TMGC), the Transboundary Resource Assessment
Committee (TRAC), and the Steering Committee. The TMGC is a
government-industry committee comprised of representatives from
the U.S. and Canada that has a mandate to develop and propose
guidance in the form of harvest strategies, resource sharing,
and management processes for the stocks covered by the
Understanding. The TRAC is a body comprised of U.S. and
Canadian scientists and co-chaired by NMFS and Fisheries and
Oceans Canada, which reviews stock assessments and projections
related to the stocks managed under the Understanding. The TRAC
provides scientific advice to the TMGC, primarily in the form
of TRAC Status Reports, to inform the TMGC's decisions and
recommendations. The Steering Committee, which is the
government-industry committee that produced the Understanding,
provides guidance for the TRAC and TMGC processes.
The NMFS has determined that Georges Bank cod and Georges
Bank yellowtail flounder are overfished. Georges Bank haddock
was removed from the overfished list in 2008. Section 304(e)(4)
of the MSA requires that, in an overfished fishery, the fishery
management plan must specify a time period for rebuilding the
fishery which: (1) is as short as possible, taking into
account, among other things, recommendations of international
organizations in which the United States participates; and (2)
does not exceed 10 years, except in cases where, among other
things, management measures under an international agreement in
which the United States participates dictate otherwise.
Latitude is afforded by this rebuilding provision in instances
involving international organizations or international
agreements in recognition of the fact that, in cases where
fishing mortality is not exclusively under U.S. control,
recognizing that some level of adaptability is reasonably
necessary in order to harmonize fishery management under the
MSA with management decisions under bilateral and multilateral
management regimes.
Although the Understanding appears to be an ``international
agreement'' as that term is used in section 304(e)(4) of the
MSA, NOAA and its NMFS Northeast Regional Office have looked to
State Department implementing regulations for the Case-Zablocki
Act (1 U.S.C. 112a and 112b) for interpretive guidance and
have reached the opposite conclusion. The Case-Zablocki Act
requires transmittal to Congress of certain ``international
agreements'' within the meaning of that Act. The implementing
regulations, which are codified at 22 C.F.R. 181.2, set forth
criteria to assist agencies in determining what agreements must
be submitted to Congress under the Act. NOAA and NMFS read
these criteria to define an ``international agreement'' as an
agreement of significance and specificity between two or more
states, state agencies, or intergovernmental organizations that
is intended to be legally binding and governed by international
law. They have concluded that, because the Understanding
expressly states that any recommendations made under it are
subject to U.S. and Canadian domestic laws rather than
international law, it is not an ``international agreement''
under the Case-Zablocki Act and, in turn, not an
``international agreement'' for purposes of section 304(e) of
the MSA.
In testimony before the Commerce Committee during the field
hearing in Portland, Maine in October 2008, Jim Odlin, a
fisherman and vessel owner, asserted that section 304(e)(4)
should be applied in managing those portions of Georges Bank
cod, haddock, and yellowtail flounder stocks addressed in the
Understanding, because the terms ``international
organizations'' and ``international agreement'' are not defined
in the MSA. Generally accepted canons of statutory construction
suggest that in the absence of statutory definitions, these
terms should be given their plain meaning in the context of the
provision and statute in which they appear. A plain meaning
approach suggests that ``international organizations'' means an
organized structure, entity, or framework that is formed among
nations. The governance structure described in the
Understanding, including the TRAC and the TMGC, appears to fall
in this category. It is established by U.S. and Canadian
government agencies, and its various components such as the
TRAC and TMGC meet on a regular, ongoing basis to fulfill their
prescribed mandates. Similarly, reading section 304(e)(4) for
its plain meaning, it appears to strongly suggest that
``international agreement'' means any treaty, agreement, pact,
or other arrangement which is agreed upon among nations. The
Understanding is just such an arrangement. It is an agreed-upon
plan, memorialized in writing, between U.S. and Canadian
government agencies with regulatory authority for the
conservation and management of fisheries for the sharing of
specific transboundary fisheries resources on Georges Bank.
The interpretation that NOAA and NMFS have used for
``international agreement'' has significant implications for
U.S. management of fish stocks shared under the Understanding.
Fish move freely through international boundaries, and
neighboring countries rarely impose identical or even
complementary management structures on their domestic
fisheries. For example, Canada does not require a 10-year
rebuilding timeline for overfished fisheries, but rather
requires overfishing to be ended immediately and progress to be
made towards eventual rebuilding of the stock. Furthermore, the
U.S. and Canada base their catch limits on different scientific
data and analyses, which can result in widely variant stock
status estimates. U.S. managers must deduct the amount of fish
Canadians will catch from the domestic total allowable catch to
remain in compliance with the MSA's mandated rebuilding
timeline. Without the latitude afforded under section 304(e) of
the MSA for the management of stocks which are subject to
international agreements, the result could be a Canadian catch
that accounts for the entirety of the U.S. total allowable
catch, leaving no fish at all for U.S. fishermen.
Indeed, at the most recent meeting of the TRAC, the U.S. and
Canada reached an impasse over the total allowable catch of
Georges Bank yellowtail flounder. As a result, the Canadians
will harvest the level of fish their regulators permit without
regard for the U.S. mandates. Therefore, the U.S. harvest will
have to be reduced by the amount domestic managers anticipate
Canada will catch in the transboundary management area, leaving
the U.S. industry just a fraction of what it would otherwise be
able to land. This breakdown in negotiations, caused directly
by the NMFS Northeast Region's determination that the
Understanding is not an international agreement for purposes of
the MSA, will drastically impact both the northeast
multispecies fishery (which includes yellowtail flounder, cod,
haddock, and others) and the Atlantic scallop fishery, because
yellowtail flounder is caught as bycatch in the scallop
fishery. These fisheries combined to total nearly $400 million
in landings value in 2008.
The Committee heard concerns that this provision would impact
the rebuilding timelines for Georges Bank cod as well as
yellowtail flounder. Cod is an overfished species, and a
commercial backbone of the multispecies fishery. This bill was
specifically structured to only impact the portion of the fish
stock occurring in the U.S./Canada shared area as defined in
the Understanding. Because the range of the cod stock is
significantly larger than the shared area, cod will still be
subject to the MSA's more stringent rebuilding timelines.
Virtually the entire yellowtail flounder stock is contained
within the shared area, so this bill would allow an extension
of the Georges Bank yellowtail flounder's rebuilding timeline.
Summary of Provisions
S. 2856 would amend the MSA to clarify that portions of fish
stocks covered by the U.S.-Canada Transboundary Resource
Sharing Understanding would be exempt from the 10-year
rebuilding timeline requirement. Overfishing would still have
to be ended immediately, and any agreed-upon catch limit would
have to allow for rebuilding to continue. S. 2856 would further
state that the provisions contained in the bill would apply for
the fishing year beginning May 1, 2010.
Legislative History
On October 14, 2008, the Subcommittee on Oceans, Atmosphere,
Fisheries, and Coast Guard held a field hearing in Portland,
Maine, on the sustainability of Maine's groundfish industry. S.
2856 was introduced in the Senate by Senator Snowe on December
9, 2009, with Senator Kirk as an original cosponsor. The bill
was referred to the Senate Committee on Commerce, Science, and
Transportation. On December 17, 2009, the Committee considered
a manager's amendment to this bill in an open executive
session. The Committee, without objection, ordered S. 2856 be
reported favorably as amended.
Estimated Costs
In accordance with paragraph 11(a) of rule XXVI of the
Standing Rules of the Senate and section 403 of the
Congressional Budget Act of 1974, the Committee provides the
following cost estimate, prepared by the Congressional Budget
Office:
January 21, 2010.
Hon. John D. Rockefeller IV,
Chairman, Committee on Commerce, Science, and Transportation,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2856, the
International Fisheries Agreement Clarification Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jeff LaFave.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 2856--International Fisheries Agreement Clarification Act
S. 2856 would amend the Magnuson-Stevens Fishery
Conservation and Management Act to recognize, as an
international agreement under that act, an existing agreement
between the United States and Canada to jointly manage a
portion of the Georges Bank fishery (a 10,000-square-mile
fishing area off the Atlantic coast of the United States
stretching from Massachusetts to New Jersey). The bill also
would amend that act to give the National Oceanic and
Atmospheric Administration (NOAA) greater flexibility in
establishing limits on the number of fish that could be caught
within the fishery each year. Based on information from NOAA,
CBO estimates that implementing the bill would have no
significant impact on the federal budget.
Under current law, if NOAA identifies a certain fish
population as unsustainable, the agency must limit the number
of those fish caught within the fishery in order to achieve a
sustainable population within a 10-year period. The agency
identifies a fish population as sustainable when the number of
fish removed from the stock does not exceed the number supplied
by growth and reproduction. Under the bill, NOAA would be
required to establish catch limits that work towards
sustainable populations within the Georges Bank fishery, but
the agency would not be required to achieve those populations
within a fixed time period. Based on information from NOAA, CBO
estimates that any costs associated with implementing the
legislation would be negligible.
S. 2856 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Jeff LaFave. The
estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Regulatory Impact Statement
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee provides the
following evaluation of the regulatory impact of the
legislation, as reported:
NUMBER OF PERSONS COVERED
The reported bill would clarify an ambiguity regarding the
proper treatment of an existing international understanding
under current law. It would not authorize any new regulations
and therefore would not subject any individuals or businesses
to new regulations.
ECONOMIC IMPACT
S. 2856 would not authorize any funding. To the extent that
it may increase U.S. fishermen's access to certain fish
populations, it would have a net positive impact on the
Nation's economy.
PRIVACY
The reported bill would not have any adverse impact on the
personal privacy of individuals.
PAPERWORK
S. 2856 would not impose any new paperwork requirements on
private citizens, businesses, or other entities that do not
choose to participate in a regional coastal and ocean
observation association; representatives of entities choosing
to participate in these associations may be subject to some
additional paperwork requirements.
Congressionally Directed Spending
In compliance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
Section-by-Section Analysis
Section 1. Short Title and Table of Contents.
Section 1 would provide that the legislation may be cited as
the International Fisheries Agreement Clarification Act.
Section 2. International Fisheries Agreements.
Section 2 would amend section 304(e)(1) of the MSA to require
the Secretary of Commerce to take into account the
Understanding and other related understandings, and decisions
made under those understandings, for purposes of section
304(e)(4)(A)(i) of that Act. It would provide that section
304(e)(4)(A)(ii) of the Act shall not apply to those portions
of fish stocks covered by such understandings. It would further
stipulate that fishing level recommendations from the New
England Fishery Management Council Scientific and Statistical
Committee may be exceeded as long as overfishing is ended
immediately and the fishing mortality level allows for progress
toward rebuilding affected fish stocks.
Section 3. Effective date.
Section 3 would provide that the amendments made by this bill
would apply with respect to fishing years beginning after April
30, 2010.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by the bill,
as reported, are shown as follows (existing law proposed to be
omitted is enclosed in black brackets, new material is printed
in italic, existing law in which no change is proposed is shown
in roman):
SEC. 304. ACTION BY SECRETARY.
[ 16 U.S.C. 1854]
(a) Review of Plans.--
(1) Upon transmittal by the Council to the Secretary
of a fishery management plan or plan amendment, the
Secretary shall--
(A) immediately commence a review of the plan
or amendment to determine whether it is
consistent with the national standards, the
other provisions of this Act, and any other
applicable law; and
(B) immediately publish in the Federal
Register a notice stating that the plan or
amendment is available and that written
information, 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 notice is
published.
(2) In undertaking the review required under
paragraph (1), the Secretary shall--
(A) take into account the information, 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 303(a)(6).
(3) The Secretary shall approve, disapprove, or
partially approve a plan or amendment within 30 days of
the end of the comment period under paragraph (1) by
written notice to the Council. A notice of disapproval
or partial approval shall specify--
(A) the applicable law with which the plan or
amendment is inconsistent;
(B) the nature of such inconsistencies; 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.
If the Secretary does not notify a Council within 30
days of the end of the comment period of the approval,
disapproval, or partial approval of a plan or
amendment, then such plan or amendment shall take
effect as if approved.
(4) If the Secretary disapproves or partially
approves a plan or amendment, the Council may submit a
revised plan or amendment to the Secretary for review
under this subsection.
(5) For purposes of this subsection and subsection
(b), the term ``immediately'' means on or before the
5th day after the day on which a Council transmits to
the Secretary a fishery management plan, plan
amendment, or proposed regulation that the Council
characterizes as final.
(b) Review of Regulations.--
(1) Upon transmittal by the Council to the Secretary
of proposed regulations prepared under section 303(c),
the Secretary shall immediately initiate an evaluation
of the proposed regulations to determine whether they
are consistent with the fishery management plan, plan
amendment, this Act and other applicable law. Within 15
days of initiating such evaluation the Secretary shall
make a determination and--
(A) if that determination is affirmative, the
Secretary shall publish such regulations in the
Federal Register, with such technical changes
as may be necessary for clarity and an
explanation of those changes, for a public
comment period of 15 to 60 days; or
(B) if that determination is negative, the
Secretary shall notify the Council in writing
of the inconsistencies and provide
recommendations on revisions that would make
the proposed regulations consistent with the
fishery management plan, plan amendment, this
Act, and other applicable law.
(2) Upon receiving a notification under paragraph
(1)(B), the Council may revise the proposed regulations
and submit them to the Secretary for reevaluation under
paragraph (1).
(3) The Secretary shall promulgate final regulations
within 30 days after the end of the comment period
under paragraph (1)(A). The Secretary shall consult
with the Council before making any revisions to the
proposed regulations, and must publish in the Federal
Register an explanation of any differences between the
proposed and final regulations.
(c) Preparation and Review of Secretarial Plans.--
(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 Act, 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;
(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; or
(C) the Secretary is given authority to
prepare such plan or amendment under this
section.
(2) In preparing any plan or amendment under this
subsection, the Secretary shall--
(A) conduct public hearings, at appropriate
times and 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 and any regulations
implementing the plan; and
(B) 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.
(3) Notwithstanding paragraph (1) for a fishery under
the authority of a Council, 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,
including any limited access privilege program, unless
such system is first approved by a majority of the
voting members, present and voting, of each appropriate
Council.
(4) Whenever the Secretary prepares a fishery
management plan or plan amendment under this section,
the Secretary shall immediately--
(A) for a plan or amendment for a fishery
under the authority of a Council, submit such
plan or amendment to the appropriate Council
for consideration and comment; and
(B) publish in the Federal Register a notice
stating that the plan or amendment is available
and that written information, 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 notice is published.
(5) Whenever a plan or amendment is submitted under
paragraph (4)(A), 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 paragraph (4)(B).
After the close of such 60-day period, the Secretary,
after taking into account any such comments and
recommendations, as well as any views, information, or
comments submitted under paragraph (4)(B), may adopt
such plan or amendment.
(6) The Secretary may propose regulations in the
Federal Register to implement any plan or amendment
prepared by the Secretary. In the case of a plan or
amendment to which paragraph (4)(A) applies, such
regulations shall be submitted to the Council with such
plan or amendment. The comment period on proposed
regulations shall be 60 days, except that the Secretary
may shorten the comment period on minor revisions to
existing regulations.
(7) The Secretary shall promulgate final regulations
within 30 days after the end of the comment period
under paragraph (6). The Secretary must publish in the
Federal Register an explanation of any substantive
differences between the proposed and final rules. All
final regulations must be consistent with the fishery
management plan, with the national standards and other
provisions of this Act, and with any other applicable
law.
(d) Establishment of Fees.--
(1) The Secretary shall by regulation establish the
level of any fees which are authorized to be charged
pursuant to section 303(b)(1). 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.
(2)(A) Notwithstanding paragraph (1), the Secretary
is authorized and shall collect a fee to recover the
actual costs directly related to the management, data
collection, and enforcement of any--
(i) limited access privilege program; and
(ii) community development quota program that
allocates a percentage of the total allowable
catch of a fishery to such program.
(B) Such fee shall not exceed 3 percent of the ex-
vessel value of fish harvested under any such program,
and shall be collected at either the time of the
landing, filing of a landing report, or sale of such
fish during a fishing season or in the last quarter of
the calendar year in which the fish is harvested.
(C)(i) Fees collected under this paragraph shall be
in addition to any other fees charged under this Act
and shall be deposited in the Limited Access System
Administration Fund established under section
305(h)(5)(B).
(ii) Upon application by a State, the Secretary shall
transfer to such State up to 33 percent of any fee
collected pursuant to subparagraph (A) under a
community development quota program and deposited in
the Limited Access System Administration Fund in order
to reimburse such State for actual costs directly
incurred in the management and enforcement of such
program.
(e) Rebuilding Overfished Fisheries.--
(1)(A) The Secretary shall report annually to the
Congress and the Councils on the status of fisheries
within each Council's geographical area of authority
and identify those fisheries that are overfished or are
approaching a condition of being overfished. For those
fisheries managed under a fishery management plan or
international agreement, the status shall be determined
using the criteria for overfishing specified in such
plan or agreement. A fishery shall be classified as
approaching a condition of being overfished if, based
on trends in fishing effort, fishery resource size, and
other appropriate factors, the Secretary estimates that
the fishery will become overfished within two years.
(B) The United States-Canada Transboundary Resource
Sharing Understanding and other related Understandings,
and decisions made under those Understandings, shall be
taken into account for purposes of paragraph (4)(A)(i).
Paragraph (4)(A)(ii) shall not apply to those portions
of stocks covered by such Understandings.
Notwithstanding section 302(h)(6) of this title,
fishing level recommendations regarding rebuilding in
any given year for such stocks may be exceeded as long
as the fishing mortality level allows for progress
toward rebuilding affected fish stocks, and overfishing
is ended immediately according to the procedures set
forth in this subsection.
(2) If the Secretary determines at any time that a
fishery is overfished, the Secretary shall immediately
notify the appropriate Council and request that action
be taken to end overfishing in the fishery and to
implement conservation and management measures to
rebuild affected stocks of fish. The Secretary shall
publish each notice under this paragraph in the Federal
Register.
(3) Within 2 years after an identification under
paragraph (1) or notification under paragraphs (2) or
(7), the appropriate Council (or the Secretary, for
fisheries under section 302(a)(3)) shall prepare and
implement a fishery management plan, plan amendment, or
proposed regulations for the fishery to which the
identification or notice applies--
(A) to end overfishing immediately in the
fishery and to rebuild affected stocks of fish;
or
(B) to prevent overfishing from occurring in
the fishery whenever such fishery is identified
as approaching an overfished condition.
(4) For a fishery that is overfished, any fishery
management plan, amendment, or proposed regulations
prepared pursuant to paragraph (3) or paragraph (5) for
such fishery shall--
(A) specify a time period for rebuilding the
fishery that shall--
(i) be as short as possible, taking
into account the status and biology of
any overfished stocks of fish, the
needs of fishing communities,
recommendations by international
organizations in which the United
States participates, and the
interaction of the overfished stock of
fish within the marine ecosystem; and
(ii) not exceed 10 years, except in
cases where the biology of the stock of
fish, other environmental conditions,
or management measures under an
international agreement in which the
United States participates dictate
otherwise;
(B) allocate both overfishing restrictions
and recovery benefits fairly and equitably
among sectors of the fishery; and
(C) for fisheries managed under an
international agreement, reflect traditional
participation in the fishery, relative to other
nations, by fishermen of the United States.
(5) If, within the 2-year period beginning on the
date of identification or notification that a fishery
is overfished, the Council does not submit to the
Secretary a fishery management plan, plan amendment, or
proposed regulations required by paragraph (3)(A), the
Secretary shall prepare a fishery management plan or
plan amendment and any accompanying regulations to stop
overfishing and rebuild affected stocks of fish within
9 months under subsection (c).
(6) During the development of a fishery management
plan, a plan amendment, or proposed regulations
required by this subsection, the Council may request
the Secretary to implement interim measures to reduce
overfishing under section 305(c) until such measures
can be replaced by such plan, amendment, or
regulations. Such measures, if otherwise in compliance
with the provisions of this Act, may be implemented
even though they are not sufficient by themselves to
stop overfishing of a fishery.
(7) The Secretary shall review any fishery management
plan, plan amendment, or regulations required by this
subsection at routine intervals that may not exceed two
years. If the Secretary finds as a result of the review
that such plan, amendment, or regulations have not
resulted in adequate progress toward ending overfishing
and rebuilding affected fish stocks, the Secretary
shall--
(A) in the case of a fishery to which section
302(a)(3) applies, immediately make revisions
necessary to achieve adequate progress; or
(B) for all other fisheries, immediately
notify the appropriate Council. Such
notification shall recommend further
conservation and management measures which the
Council should consider under paragraph (3) to
achieve adequate progress.
(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.
(g) Atlantic Highly Migratory Species.--
(1) Preparation and implementation of plan or plan
amendment. The Secretary shall prepare a fishery
management plan or plan amendment under subsection (c)
with respect to any highly migratory species fishery to
which section 302(a)(3) applies. In preparing and
implementing any such plan or amendment, the Secretary
shall--
(A) consult with and consider the comments
and views of affected Councils, commissioners
and advisory groups appointed under Acts
implementing relevant international fishery
agreements pertaining to highly migratory
species, and the advisory panel established
under section 302(g);
(B) establish an advisory panel under section
302(g) for each fishery management plan to be
prepared under this paragraph;
(C) evaluate the likely effects, if any, of
conservation and management measures on
participants in the affected fisheries and
minimize, to the extent practicable, any
disadvantage to United States fishermen in
relation to foreign competitors;
(D) with respect to a highly migratory
species for which the United States is
authorized to harvest an allocation, quota, or
at a fishing mortality level under a relevant
international fishery agreement, provide
fishing vessels of the United States with a
reasonable opportunity to harvest such
allocation, quota, or at such fishing mortality
level;
(E) 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;
(F) diligently pursue, through international
entities (such as the International Commission
for the Conservation of Atlantic Tunas),
comparable international fishery management
measures with respect to fishing for highly
migratory species; and
(G) ensure that conservation and management
measures under this subsection--
(i) promote international
conservation of the affected fishery;
(ii) take into consideration
traditional fishing patterns of fishing
vessels of the United States and the
operating requirements of the
fisheries;
(iii) are fair and equitable in
allocating fishing privileges among
United States fishermen and do not have
economic allocation as the sole
purpose; and
(iv) promote, to the extent
practicable, implementation of
scientific research programs that
include the tagging and release of
Atlantic highly migratory species.
(2) Certain fish excluded from ``bycatch''
definition. Notwithstanding section 3(2), fish
harvested in a commercial fishery managed by the
Secretary under this subsection or the Atlantic Tunas
Convention Act of 1975 (16 U.S.C. 971d), or highly
migratory species harvested in a commercial fishery
managed by a Council under this Act or the Western and
Central Pacific Fisheries Convention Implementation
Act, that are not regulatory discards and that are
tagged and released alive under a scientific tagging
and release program established by the Secretary shall
not be considered bycatch for purposes of this Act.
(h) Repeal or Revocation of a Fishery Management Plan.--The
Secretary may repeal or revoke a fishery management plan for a
fishery under the authority of a Council only if the Council
approves the repeal or revocation by a three-quarters majority
of the voting members of the Council.
(i) Environmental Review Process.--
(1) Procedures.--The Secretary shall, in consultation
with the Councils and the Council on Environmental
Quality, revise and update agency procedures for
compliance with the National Environmental Policy Act
(42 U.S.C. 4231 et seq.). The procedures shall--
(A) conform to the time lines for review and
approval of fishery management plans and plan
amendments under this section; and
(B) integrate applicable environmental
analytical procedures, including the time
frames for public input, with the procedure for
the preparation and dissemination of fishery
management plans, plan amendments, and other
actions taken or approved pursuant to this Act
in order to provide for timely, clear and
concise analysis that is useful to decision
makers and the public, reduce extraneous
paperwork, and effectively involve the public.
(2) Usage.--The updated agency procedures promulgated
in accordance with this section used by the Councils or
the Secretary shall be the sole environmental impact
assessment procedure for fishery management plans,
amendments, regulations, or other actions taken or
approved pursuant to this Act.
(3) Schedule for Promulgation of Final Procedures.--
The Secretary shall--
(A) propose revised procedures within 6
months after the date of enactment of the
Magnuson-Stevens Fishery Conservation and
Management Reauthorization Act of 2006;
(B) provide 90 days for public review and
comments; and
(C) promulgate final procedures no later than
12 months after the date of enactment of that
Act.
(4) Public participation. The Secretary is authorized
and directed, in cooperation with the Council on
Environmental Quality and the Councils, to involve the
affected public in the development of revised
procedures, including workshops or other appropriate
means of public involvement.
[(j)](i) International Overfishing.--The provisions of this
subsection shall apply in lieu of subsection (e) to a fishery
that the Secretary determines is overfished or approaching a
condition of being overfished due to excessive international
fishing pressure, and for which there are no management
measures to end overfishing under an international agreement to
which the United States is a party. For such fisheries--
(1) the Secretary, in cooperation with the Secretary
of State, immediately take appropriate action at the
international level to end the overfishing; and
(2) within 1 year after the Secretary's
determination, the appropriate Council, or Secretary,
for fisheries under section 302(a)(3) shall--
(A) develop recommendations for domestic
regulations to address the relative impact of
fishing vessels of the United States on the
stock and, if developed by a Council, the
Council shall submit such recommendations to
the Secretary; and
(B) develop and submit recommendations to the
Secretary of State, and to the Congress, for
international actions that will end overfishing
in the fishery and rebuild the affected stocks,
taking into account the relative impact of
vessels of other nations and vessels of the
United States on the relevant stock.