USC Chapter 88

in effect

16 U.S.C. § 6901 Definitions

In this chapter: (1) 1982 ConventionThe term “1982 Convention” means the United Nations Convention on the Law of the Sea of 10 December 1982. (2) AgreementThe term “Agreement” means the Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks. (3) CommissionThe term “Commission” means the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean established in accordance with this Convention. (4) Convention areaThe term “convention area” means all waters of the Pacific Ocean bounded to the south and to the east by the following line: From the south coast of Australia due south along the 141th meridian of east longitude to its intersection with the 55th parallel of south latitude; thence due east along the 55th parallel of south latitude to its intersection with the 150th meridian of east longitude; thence due south along the 150th meridian of east longitude to its intersection with the 60th parallel of south latitude; thence due east along the 60th parallel of south latitude to its intersection with the 130th meridian of west longitude; thence due north along the 130th meridian of west longitude to its intersection with the 4th parallel of south latitude; thence due west along the 4th parallel of south latitude to its intersection with the 150th meridian of west longitude; thence due north along the 150th meridian of west longitude. (5) Exclusive economic zoneThe term “exclusive economic zone” means the zone established by Presidential Proclamation Numbered 5030 of March 10, 1983. (6) FishingThe term “fishing” means—(A) searching for, catching, taking, or harvesting fish; (B) attempting to search for, catch, take, or harvest fish; (C) engaging in any other activity which can reasonably be expected to result in the locating, catching, taking, or harvesting of fish for any purpose; (D) placing, searching for, or recovering fish aggregating devices or associated electronic equipment such as radio beacons; (E) any operations at sea directly in support of, or in preparation for, any activity described in subparagraphs (A) through (D), including transshipment; and (F) use of any other vessel, vehicle, aircraft, or hovercraft, for any activity described in subparagraphs (A) through (E) except for emergencies involving the health and safety of the crew or the safety of a vessel. (7) Fishing vesselThe term “fishing vessel” means any vessel used or intended for use for the purpose of fishing, including support ships, carrier vessels, and any other vessel directly involved in such fishing operations. (8) Highly migratory fish stocksThe term “highly migratory fish stocks” means all fish stocks of the species listed in Annex 1 of the 1982 Convention, except sauries, occurring in the Convention Area,11 So in original. Probably should not be capitalized. and such other species of fish as the Commission may determine. (9) SecretaryThe term “Secretary” means the Secretary of Commerce. (10) StateThe term “State” means each of the several States of the United States, the District of Columbia, the Commonwealth of the Northern Mariana Islands, American Samoa, Guam, and any other commonwealth, territory, or possession of the United States. (11) TranshipmentThe term “transshipment” means the unloading of all or any of the fish on board a fishing vessel to another fishing vessel either at sea or in port. (12) WCPFC Convention; Western and Central Pacific ConventionThe terms “WCPFC Convention” and “Western and Central Pacific Convention” means the Convention on the Conservation and Management of the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, (including any annexes, amendments, or protocols which are in force, or have come into force, for the United States) which was adopted at Honolulu, Hawaii, on September 5, 2000, by the Multilateral High Level Conference on the Highly Migratory Fish Stocks in the Western and Central Pacific Ocean.

16 U.S.C. § 6902 Appointment of United States Commissioners

(a) In generalThe United States shall be represented on the Commission by 5 United States Commissioners. The President shall appoint individuals to serve on the Commission at the pleasure of the President. In making the appointments, the President shall select Commissioners from among individuals who are knowledgeable or experienced concerning highly migratory fish stocks and commercial fishing in the Western and Central Pacific Ocean, one of whom shall be an officer or employee of the Department of Commerce, and one of whom shall be the chairman or a member of the Western Pacific Fishery Management Council, and one of whom shall be the chairman or a member of the Pacific Fishery Management Council. The Commissioners shall be entitled to adopt such rules of procedures as they find necessary and to select a chairman from among members who are officers or employees of the United States Government. (b) Alternate CommissionersThe Secretary of State, in consultation with the Secretary, may designate from time to time and for periods of time deemed appropriate Alternate United States Commissioners to the Commission. Any Alternate United States Commissioner may exercise at any meeting of the Commission, Council, any Panel, or the advisory committee established pursuant to subsection (d), all powers and duties of a United States Commissioner in the absence of any Commissioner appointed pursuant to subsection (a) of this section for whatever reason. The number of such Alternate United States Commissioners that may be designated for any such meeting shall be limited to the number of United States Commissioners appointed pursuant to subsection (a) of this section who will not be present at such meeting. (c) Administrative matters(1) Employment statusIndividuals serving as such Commissioners, other than officers or employees of the United States Government, shall not be considered Federal employees except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5 and chapter 171 of title 28. (2) CompensationThe United States Commissioners or Alternate Commissioners, although officers of the United States while so serving, shall receive no compensation for their services as such Commissioners or Alternate Commissioners. (3) Travel expenses(A) The Secretary of State shall pay the necessary travel expenses of United States Commissioners and Alternate United States Commissioners in accordance with the Federal Travel Regulations and sections 5701, 5702, 5704 through 5708, and 5731 of title 5. (B) The Secretary may reimburse the Secretary of State for amounts expended by the Secretary of State under this subsection. (d) Advisory committees(1) Establishment of permanent advisory committee(A) MembershipThere is established an advisory committee which shall be composed of—(i) not less than 15 nor more than 20 individuals appointed by the Secretary of Commerce in consultation with the United States Commissioners, who shall select such individuals from the various groups concerned with the fisheries covered by the WCPFC Convention, providing, to the maximum extent practicable, an equitable balance among such groups; (ii) the chair of the Western Pacific Fishery Management Council’s Advisory Committee or the chair’s designee; and (iii) officials of the fisheries management authorities of American Samoa, Guam, and the Northern Mariana Islands (or their designees). (B) Terms and privilegesEach member of the advisory committee appointed under subparagraph (A) shall serve for a term of 2 years and shall be eligible for reappointment. The advisory committee shall be invited to attend all non-executive meetings of the United States Commissioners and at such meetings shall be given opportunity to examine and to be heard on all proposed programs of investigation, reports, recommendations, and regulations of the Commission. (C) ProceduresThe advisory committee established by subparagraph (A) shall determine its organization, and prescribe its practices and procedures for carrying out its functions under this chapter,11 See References in Text note below. the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), and the WCPFC Convention. The advisory committee shall publish and make available to the public a statement of its organization, practices, and procedures. A majority of the members of the advisory committee shall constitute a quorum. Meetings of the advisory committee, except when in executive session, shall be open to the public, and prior notice of meetings shall be made public in a timely fashion.22 So in original. The period probably should be a comma. and the advisory committee shall not be subject to chapter 10 of title 5. (D) Provision of informationThe Secretary and the Secretary of State shall furnish the advisory committee with relevant information concerning fisheries and international fishery agreements. (E) Agenda recommendationsNo later than 30 days before each annual meeting of the Commission, the Advisory Committee shall transmit to the United States Commissioners recommendations relating to the agenda of the annual meeting. The recommendations must be agreed to by a majority of the Advisory Committee members. The United States Commissioners shall consider such recommendations, along with additional views transmitted by Advisory Committee members, in the formulation of the United States position for the Commission meeting and during the negotiations at that meeting. (2) Administrative matters(A) Support servicesThe Secretary shall provide to advisory committees in a timely manner such administrative and technical support services as are necessary for their effective functioning. (B) Compensation; status; expensesIndividuals appointed to serve as a member of an advisory committee—(i) shall serve without pay, but while away from their homes or regular places of business in the performance of services for the advisory committee shall be allowed travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the Government service are allowed expenses under section 5703 of title 5; and (ii) shall not be considered Federal employees except for the purposes of injury compensation or tort claims liability as provided in chapter 81 of title 5 and chapter 171 of title 28. (f) 33 So in original. No subsec. (e) has been enacted. Memorandum of understandingFor highly migratory species in the Pacific, the Secretary, in coordination with the Secretary of State, shall develop a memorandum of understanding with the Western Pacific, Pacific, and North Pacific Fishery Management Councils, that clarifies the role of the relevant Council or Councils with respect to—(1) participation in United States delegations to international fishery organizations in the Pacific Ocean, including government-to-government consultations; (2) providing formal recommendations to the Secretary and the Secretary of State regarding necessary measures for both domestic and foreign vessels fishing for these species; (3) coordinating positions with the United States delegation for presentation to the appropriate international fishery organization; and (4) recommending those domestic fishing regulations that are consistent with the actions of the international fishery organization, for approval and implementation under the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.)

16 U.S.C. § 6903 Authority and responsibility of the Secretary of State

The Secretary of State may— (1) receive and transmit, on behalf of the United States, reports, requests, recommendations, proposals, decisions, and other communications of and to the Commission; (2) in consultation with the Secretary approve, disapprove, object to, or withdraw objections to bylaws and rules, or amendments thereof, adopted by the WCPFC Commission, and, with the concurrence of the Secretary to approve or disapprove the general annual program of the WCPFC Commission with respect to conservation and management measures and other measures proposed or adopted in accordance with the WCPFC Convention; and (3) act upon, or refer to other appropriate authority, any communication referred to in paragraph (1).

16 U.S.C. § 6904 Rulemaking authority of the Secretary of Commerce

(a) Promulgation of regulationsThe Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department in which the Coast Guard is operating, is authorized to promulgate such regulations as may be necessary to carry out the United States international obligations under the WCPFC Convention and this chapter, including recommendations and decisions adopted by the Commission. In cases where the Secretary has discretion in the implementation of one or more measures adopted by the Commission that would govern fisheries under the authority of a Regional Fishery Management Council, the Secretary may, to the extent practicable within the implementation schedule of the WCPFC Convention and any recommendations and decisions adopted by the Commission, promulgate such regulations in accordance with the procedures established by the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.). (b) Additions to fishery regimes and regulationsThe Secretary may promulgate regulations applicable to all vessels and persons subject to the jurisdiction of the United States, including United States flag vessels wherever they may be operating, on such date as the Secretary shall prescribe.

16 U.S.C. § 6905 Enforcement

(a) In generalThe Secretary may—(1) administer and enforce this chapter and any regulations issued under this chapter, except to the extent otherwise provided for in this Act; (2) request and utilize on a reimbursed or non-reimbursed basis the assistance, services, personnel, equipment, and facilities of other Federal departments and agencies in—(A) the administration and enforcement of this chapter; and (B) the conduct of scientific, research, and other programs under this chapter; (3) conduct fishing operations and biological experiments for purposes of scientific investigation or other purposes necessary to implement the WCPFC Convention; (4) collect, utilize, and disclose such information as may be necessary to implement the WCPFC Convention, subject to sections 552 and 552a of title 5 and section 402(b) of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1881a(b)); (5) if recommended by the United States Commissioners or proposed by a Council with authority over the relevant fishery, assess and collect fees, not to exceed three percent of the ex-vessel value of fish harvested by vessels of the United States in fisheries managed pursuant to this chapter, to recover the actual costs to the United States of management and enforcement under this chapter, which shall be deposited as an offsetting collection in, and credited to, the account providing appropriations to carry out the functions of the Secretary under this chapter; and (6) issue permits to owners and operators of United States vessels to fish in the convention area seaward of the United States Exclusive Economic Zone, under such terms and conditions as the Secretary may prescribe, and shall remain valid for a period to be determined by the Secretary. (b) Consistency with other lawsThe Secretary shall ensure the consistency, to the extent practicable, of fishery management programs administered under this Act, the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.), the Tuna Conventions Act (16 U.S.C. 951 et seq.), the South Pacific Tuna Act (16 U.S.C. 973 et seq.), section 401 of Public Law 108–219 (16 U.S.C. 1821 note) (relating to Pacific albacore tuna), and the Atlantic Tunas Convention Act (16 U.S.C. 971 [et seq.]). (c) Additional prohibitions and enforcementFor additional prohibitions relating to this chapter and enforcement of this chapter, see section 1826g of this title. (d) Confidentiality(1) In generalAny information submitted to the Secretary in compliance with any requirement under this Act shall be confidential and shall not be disclosed, except—(A) to Federal employees who are responsible for administering, implementing, and enforcing this Act; (B) to the Commission, in accordance with requirements in the Convention and decisions of the Commission, and, insofar as possible, in accordance with an agreement with the Commission that prevents public disclosure of the identity or business of any person; (C) to State or Marine Fisheries Commission employees pursuant to an agreement with the Secretary that prevents public disclosure of the identity or business or any person; (D) when required by court order; or (E) when the Secretary has obtained written authorization from the person submitting such information to release such information to persons for reasons not otherwise provided for in this subsection, and such release does not violate other requirements of this Act. (2) Use of informationThe Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve the confidentiality of information submitted in compliance with any requirement or regulation under this Act, except that the Secretary may release or make public any such information in any aggregate or summary form that does not directly or indirectly disclose the identity or business of any person. Nothing in this subsection shall be interpreted or construed to prevent the use for conservation and management purposes by the Secretary of any information submitted in compliance with any requirement or regulation under this Act.

16 U.S.C. § 6906 Prohibited acts

(a) In generalIt is unlawful for any person—(1) to violate any provision of this chapter or any regulation or permit issued pursuant to this chapter; (2) to use any fishing vessel to engage in fishing after the revocation, or during the period of suspension, of an applicable permit issued pursuant to this chapter; (3) to refuse to permit any officer authorized to enforce the provisions of this chapter to board a fishing vessel subject to such person’s control for the purposes of conducting any search, investigation, or inspection in connection with the enforcement of this chapter or any regulation, permit, or the Convention; (4) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search, investigations, or inspection in connection with the enforcement of this chapter or any regulation, permit, or the Convention; (5) to resist a lawful arrest for any act prohibited by this chapter; (6) to ship, transport, offer for sale, sell, purchase, import, export, or have custody, control, or possession of, any fish taken or retained in violation of this chapter or any regulation, permit, or agreement referred to in paragraph (1) or (2); (7) to interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such other person has committed any chapter 11 So in original. prohibited by this section; (8) to knowingly and willfully submit to the Secretary false information (including false information regarding the capacity and extent to which a United States fish processor, on an annual basis, will process a portion of the optimum yield of a fishery that will be harvested by fishery vessels of the United States), regarding any matter that the Secretary is considering in the course of carrying out this chapter; (9) to forcibly assault, resist, oppose, impede, intimidate, sexually harass, bribe, or interfere with any observer on a vessel under this chapter, or any data collector employed by the National Marine Fisheries Service or under contract to any person to carry out responsibilities under this chapter; (10) to engage in fishing in violation of any regulation adopted pursuant to section 6905(a) of this title; (11) to ship, transport, purchase, sell, offer for sale, import, export, or have in custody, possession, or control any fish taken or retained in violation of such regulations; (12) to fail to make, keep, or furnish any catch returns, statistical records, or other reports as are required by regulations adopted pursuant to this chapter to be made, kept, or furnished; (13) to fail to stop a vessel upon being hailed and instructed to stop by a duly authorized official of the United States; (14) to import, in violation of any regulation adopted pursuant to section 6905(a) of this title, any fish in any form of those species subject to regulation pursuant to a recommendation, resolution, or decision of the Commission, or any tuna in any form not under regulation but under investigation by the Commission, during the period such fish have been denied entry in accordance with the provisions of section 6905(a) of this title. (b) Entry certificationIn the case of any fish described in subsection (a) offered for entry into the United States, the Secretary of Commerce shall require proof satisfactory to the Secretary that such fish is not ineligible for such entry under the terms of section 6905(a) of this title.

16 U.S.C. § 6907 Cooperation in carrying out convention

(a) Federal and State agencies; private institutions and organizationsThe Secretary may cooperate with agencies of the United States government,11 So in original. Probably should be capitalized. any public or private institutions or organizations within the United States or abroad, and, through the Secretary of State, the duly authorized officials of the government of any party to the WCPFC Convention, in carrying out responsibilities under this chapter. (b) Scientific and other programs; facilities and personnelAll Federal agencies are authorized, upon the request of the Secretary, to cooperate in the conduct of scientific and other programs and to furnish facilities and personnel for the purpose of assisting the Commission in carrying out its duties under the WCPFC Convention. (c) Sanctioned fishing operations and biological experimentsNothing in this chapter, or in the laws or regulations of any State, prevents the Secretary or the Commission from—(1) conducting or authorizing the conduct of fishing operations and biological experiments at any time for purposes of scientific investigation; or (2) discharging any other duties prescribed by the WCPFC Convention. (d) State jurisdiction not affectedExcept as provided in subsection (e) of this section, nothing in this chapter shall be construed to diminish or to increase the jurisdiction of any State in the territorial sea of the United States. (e) Application of regulations(1) In generalRegulations promulgated under section 6905(a) of this title shall apply within the boundaries of any State bordering on the Convention area if the Secretary has provided notice to such State, the State does not request an agency hearing, and the Secretary determines that the State—(A) has not, within a reasonable period of time after the promulgation of regulations pursuant to this chapter, enacted laws or promulgated regulations that implement the recommendations of the Commission within the boundaries of such State; or (B) has enacted laws or promulgated regulations that implement the recommendations of the commission within the boundaries of such State that—(i) are less restrictive that 22 So in original. Probably should be “than”. the regulations promulgated under section 6905(a) of this title; or (ii) are not effectively enforced. (2) Determination by SecretaryThe regulations promulgated pursuant to section 6905(a) of this title shall apply until the Secretary determines that the State is effectively enforcing within its boundaries measures that are not less restrictive than the regulations promulgated under section 6905(a) of this title. (3) HearingIf a State requests a formal agency hearing, the Secretary shall not apply the regulations promulgated pursuant 33 So in original. Probably should be followed by “to”. section 6905(a) of this title within that State’s boundaries unless the hearing record supports a determination under paragraph (1)(A) or (B). (f) Review of State laws and regulationsTo ensure that the purposes of subsection (e) are carried out, the Secretary shall undertake a continuing review of the laws and regulations of all States to which subsection (e) applies or may apply and the extent to which such laws and regulations are enforced.

16 U.S.C. § 6908 Territorial participation

The Secretary of State shall ensure participation in the Commission and its subsidiary bodies by American Samoa, Guam, and the Northern Mariana Islands to the same extent provided to the territories of other nations.

16 U.S.C. § 6909 Exclusive Economic Zone notification

Masters of commercial fishing vessels of nations fishing for species under the management authority of the Western and Central Pacific Fisheries Convention that do not carry vessel monitoring systems capable of communicating with United States enforcement authorities shall, prior to, or as soon as reasonably possible after, entering and transiting the Exclusive Economic Zone seaward of Hawaii and of the Commonwealths, territories, and possessions of the United States in the Pacific Ocean area— (1) notify the United States Coast Guard or the National Marine Fisheries Service Office of Law Enforcement in the appropriate region of the name, flag state, location, route, and destination of the vessel and of the circumstances under which it will enter United States waters; (2) ensure that all fishing gear on board the vessel is stowed below deck or otherwise removed from the place where it is normally used for fishing and placed where it is not readily available for fishing; and (3) where requested by an enforcement officer, proceed to a specified location so that a vessel inspection can be conducted.

16 U.S.C. § 6909a United States conservation, management, and enforcement objectives

The Secretary, in consultation with the Secretary of State, in the course of negotiations, shall seek— (1) to minimize any disadvantage to United States fishermen in relation to other members of the Commission; (2) to maximize the opportunities for fishing vessels of the United States to harvest fish stocks on the high seas in the Convention area, recognizing that such harvests may be restricted if the Commission, based on the best available scientific information provided by the Scientific Committee, determines it is necessary to achieve the conservation objective set forth in Article 2 of the Convention; (3) to prevent any requirement for the transfer to other nations or foreign entities of the fishing capacity, fishing capacity rights, or fishing vessels of the United States or its territories, unless any such requirement is voluntary and market-based; and (4) to ensure that conservation and management measures take into consideration traditional fishing patterns of fishing vessels of the United States and the operating requirements of the fisheries covered by the Western and Central Pacific Convention.

16 U.S.C. § 6910 Authorization of appropriations

There are authorized to be appropriated to the Secretary of Commerce such sums as may be necessary to carry out this chapter and to pay the United States’ contribution to the Commission under section 5 of part III of the WCPFC Convention.