SEC. 103.56 HIGHLY MIGRATORY SPECIES.

The exclusive fishery management authority of the United States shall not include, nor shall it be construed to extend to, highly migratory species of fish.

SEC. 104.57 EFFECTIVE DATE.

This title shall take effect March 1, 1977.

TITLE II-FOREIGN FISHING AND INTERNATIONAL FISHING AGREEMENTS

SEC. 201.58 FOREIGN FISHING.

(a) IN GENERAL.-After February 28, 1977, no foreign fishing is authorized within the exclusive economic zone,59 within the special areas,60 or for anadromous species or Continental Shelf fishery resources beyond such zone or areas,61 unless such foreign fishing

(1) 62 is authorized under subsections (b) or (c) or section 204(e), or under a permit issued under section 204(d);

(2) 62 is not prohibited under subsection (f); and

(3) is conducted under, and in accordance with, a valid and applicable permit issued pursuant to section 204.

(b) EXISTING INTERNATIONAL FISHERY AGREEMENTS.-Foreign fishing described in subsection (a) may be conducted pursuant to an international fishery agreement (subject to the provisions of section 202 (b) or (c)), if such agreement

(1) was in effect on the date of enactment of this Act; and (2) has not expired, been renegotiated, or otherwise ceased to be of force and effect with respect to the United States. (c) GOVERNING INTERNATIONAL FISHERY AGREEMENTS.-Foreign fishing described in subsection (a) may be conducted pursuant to an international fishery agreement (other than a treaty) which meets the requirements of this subsection if such agreement becomes effective after application of section 203. Any such international fishery agreement shall hereafter in this Act be referred to as a "governing international fishery agreement". Each governing international fishery agreement shall acknowledge the exclusive fishery management authority of the United States, as set forth in this Act. It is the sense of the Congress that each such agreement shall include a binding commitment, on the part of such foreign nation and its fishing vessels, to comply with the following terms and conditions:

(1) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to such agreement, will abide by all regulations promulgated by the Secretary pursuant to this Act, including any regulations promulgated to implement any applicable fishery management plan or any preliminary fishery management plan.

50 16 U.S.C. 1813.

67 16 U.S.C. 1811 note.

58 16 U.S.C. 1821.

59 Sec. 101(c)(2) of Public Law 99-659 replaced the term "fishery conservation zone" with the term "exclusive economic zone" throughout this Act.

60 Sec. 301(d)(1)(A) of Public Law 102-251 (106 Stat. 63) inserted "within the special areas,". 61 Sec. 301(dX1XB) of Public Law 102-251 (106 Stat. 63) struck out "beyond the exclusive economic zone" and inserted in lieu thereof "beyond such zone or areas".

62 Sec. 105(a)(1) of the Sustainable Fisheries Act (Public Law 104-297; 110 Stat. 3563) amend

(2) The foreign nation, and the owner or operator of any fishing vessel fishing pursuant to such agreement, will abide by the requirement that

(A) any officer authorized to enforce the provisions of this Act (as provided for in section 311) be permitted—

(i) to board, and search or inspect, any such vessel at any time,

(ii) to make arrests and seizures provided for in section 311(b) whenever such officer has reasonable cause to believe, as a result of such a search or inspection, that any such vessel or any person has committed an act prohibited by section 307, and

(iii) to examine and make notations on the permit issued pursuant to section 204 for such vessel;

(B) the permit issued for any such vessel pursuant to section 204 be prominently displayed in the wheelhouse of such vessel;

(C) transponders, or such other appropriate position-fixing and identification equipment as the Secretary of the department in which the Coast Guard is operating determines to be appropriate, be installed and maintained in working order on each such vessel;

(D)63 United States observers required under subsection (h) 64 be permitted to be stationed aboard any such vessel and that all of the costs incurred incident to such stationing, including the costs of data editing and entry and observer monitoring, be paid for, in accordance with such subsection, by the owner or operator of the vessel;

(E) any fees required under section 204(b)(10) be paid in advance;

(F) agents be appointed and maintained within the United States who are authorized to receive and respond to any legal process issued in the United States with respect to such owner or operator; and

(G) responsibility be assumed, in accordance with any requirements prescribed by the Secretary, for the reimbursement of United States citizens for any loss of, or damage to, their fishing vessels, fishing gear, or catch which is caused by any fishing vessel of that nation; and will abide by any other monitoring, compliance, or enforcement requirement related to fishery conservation and management which is included in such agreement.

(3) The foreign nation and the owners or operators of all of the fishing vessels of such nation shall not, in any year, harvest an amount of fish which 65 exceeds such nation's allocation of the total allowable level of foreign fishing, as determined under subsection (e).

63 Sec. 2(a)(1) of Public Law 97-453 (96 Stat. 2481), amended and restated subpar. (D). Subpar. (D) formerly read as follows:

"(D) duly authorized United States observers be permitted on board any such vessel and that the United States be reimbursed for the cost of such observers;".

64 Sec. 105(a)(2) of the Sustainable Fisheries Act (Public Law 104-297; 110 Stat. 3563) struck out "(i)" and inserted "(h)".

65 The words "harvest an amount of fish which" were added by sec. 4(2) of Public Law 95354 (92 Stat. 519).

(4) The foreign nation will—

(A) apply, pursuant to section 204, for any required permits;

(B) deliver promptly to the owner or operator of the appropriate fishing vessel any permit which is issued under that section for such vessel;

(C) abide by, and take appropriate steps under its own laws to assure that all such owners and operators comply with, section 204(a) and the applicable conditions and restrictions established under section 204(b)(7); and

(D) 66 take, or refrain from taking, as appropriate, actions of the kind referred to in subsection (e)(1) in order to receive favorable allocations under such subsection. (d) 67 TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING.-The total allowable level of foreign fishing, if any, with respect to any fishery

66 Subpar. (D) was added by sec. 2(a)(2) of Public Law 97-453 (96 Stat. 2481).

67 The text of subsec. (d) was restored to the original by sec. 104 of the Fishery Conservation Amendments of 1990 (Public Law 101-627; 104 Stat. 4439). Previously, sec. 230 of Public Law 96-561 amended and restated subsec. (d) to read as follows:

"(d) TOTAL ALLOWABLE LEVEL OF FOREIGN FISHING.-(1) As used in this subsection

"(A) The term 'base harvest' means, with respect to any United States fishery, the total allowable level of foreign fishing during the 1979 harvesting season.

"(B) The term harvesting season' means the period established under this Act by the Secretary during which foreign fishing is permitted within a United States fishery. For purposes of this subsection, a harvesting season is designated by the calendar year in which the last day of the harvesting season occurs, regardless whether fishing is not permitted on that day due to emergency or other closure of the fishery.

"(C) The term 'calculation factor' means, with respect to each United States fishery, 15 percent of the base harvest.

"(D) The term 'reduction factor amount' means, with respect to each United States fishery, for any harvesting season after the 1980 harvesting season

"(i) an amount equal to 15 percent of the base harvest for that fishery, if, in addition to the level of harvest by vessels of the United States in the designated preceding harvesting season for the fishery, such vessels harvest, in one or more harvesting season, not less than 75 percent of the calculation factor;

"(ii) an amount equal to 10 percent of the base harvest for the fishery, if, in addition to the level of harvest by vessels of the United States in the designated preceding harvesting season for the fishery, such vessels harvest, in one or more harvesting seasons, not less than 50 percent, but less than 75 percent, of the calculation factor; or

"(iii) an amount equal to 5 percent of the base harvest for the fishery, if, in addition to the level of harvest by vessels of the United States in the designated previous harvesting season for the fishery, such vessels harvest, in one or more harvesting seasons, not less than 25 percent, but less than 50 percent, of the calculation factor. For purposes of this paragraph, the term 'designated preceding harvest season' means—

"(I) until a reduction factor amount is first achieved under this paragraph with respect to the fishery concerned, the 1979 harvesting season, and

"(II) after such amount is first achieved, the most recent harvesting season in which a reduction factor amount was achieved.

"(E) The term 'annual fishing level' for any United States fishery during any harvesting season after the 1980 harvesting season is the base harvest for the fishery reduced by

“(i) an amount equal to the reduction factor amount for that harvesting season; and "(ii) an amount equal to the increased level of harvest by vessels of the United States over the level achieved by such vessels in the 1979 harvesting season for the fishery. "(F) The term 'United States fishery' means any fishery subject to the exclusive fishery management authority of the United States.

"(2) The total allowable level of foreign fishing, if any, with respect to any United States fishery for each harvesting season after the 1980 harvesting season shall be

"(A) the level representing that portion of the optimum yield of such fishery that will not be harvested by vessels of the United States as determined in accordance with the provisions of this Act (other than those relating to the determination of annual fishing levels),

or

son.

“(B) the annual fishing level determined pursuant to paragraph (3) for the harvesting sea“(3) For each United States fishery, the appropriate fishery management council, on a timely basis, may determine and certify to the Secretary of State and the Secretary the annual fishing level for that fishery for each harvesting season after the 1980 harvesting season.

"(4) If with respect to any harvesting season for any United States fishery for which the total allowable level of foreign fishing is determined under paragraph (2)(B), the Secretary, in con

subject to the exclusive fishery management authority of the United States, shall be that portion of the optimum yield of such fishery which will not be harvested by vessels of the United States, as determined in accordance with this Act.

(e) ALLOCATION OF ALLOWABLE LEVEL. (1) 68 (A) The Secretary of State, in cooperation with the Secretary, may make allocations to foreign nations from 69 the total allowable level of foreign fishing which is permitted with respect to each fishery subject to the exclusive fishery management authority of the United States.

(B) From the determinations made under subparagraph (A), the Secretary of State shall compute the aggregate of all of the fishery allocations made of each foreign nation.

(C) The Secretary of State shall initially release to each foreign nation for harvesting up to 50 percent of the allocations aggregate computed for such nation under subparagraph (B), and such release of allocation shall be apportioned by the Secretary of State, in cooperation with the Secretary, among the individual fishery allocations determined for that nation under subparagraph (A). The basis on which each apportionment is made under this subparagraph shall be stated in writing by the Secretary of State.

(D) After the initial release of fishery allocations under subparagraph (C) to a foreign nation, any subsequent release of an allocation for any fishery to such nation shall only be made

(i) after the lapse of such period of time as may be sufficient for purposes of making the determination required under clause (ii); and

(ii) if the Secretary of State and the Secretary, after taking into account the size of the allocation for such fishery and the length and timing of the fishing season, determine in writing that such nation is complying with the purposes and intent of this paragraph with respect to such fishery.

If the foreign nation is not determined under clause (ii) to be in such compliance, the Secretary of State shall reduce, in a manner and quantity he considers to be appropriate (I) the remainder of such allocation, or (II) if all of such allocation has been released, the next allocation of such fishery, if any, made to such nation.

sultation with the Secretary of State, approves the determination by any appropriate fishery management council that any portion of the optimum yield for that harvesting season will not be harvested by vessels of the United States, the Secretary of State, in accordance with subsection (e), may allocate such portion for use during that harvesting season by foreign fishing vessels; except that if

“(A) the making available of such portion (or any part thereof) during that harvesting season is determined to be detrimental to the development of the United States fishing industry; and

(B) such portion or part will be available for harvest in the immediately succeeding harvesting season, as determined on the basis of the best available scientific information; then such portion or part may be allocated for use by foreign fishing vessels in such succeeding harvesting season. The determinations required to be made under subparagraphs (A) and (B) of the preceding sentence shall be made by the Secretary in consultation with the Secretary of State and on the basis of any recommendation of any appropriate fishery management council.". 68 Sec. 2(a)4) of Public Law 97-453 (96 Stat. 2481) amended and restated par. (1). Previously, sec. 3 of Public Law 96-61 (93 Stat. 407) amended subsec. (e) by designating the existing text as par. (1) and adding a new par. (2). In addition, sec. 231 of Public Law 96-561 (94 Stat. 3297) amended and restated the last sentence of par. (1), effective for the 1981 harvesting season and harvesting seasons thereafter.

69 Sec. 404(2)(A) of Public Law 98-623 (98 Stat. 3408) substituted the words "may make allocations to foreign nations from" in lieu of the words "shall determine the allocation among foreign nations of".

(E) The determinations required to be made under subparagraphs (A) and (D)(ii), and the apportionments required to be made under subparagraph (C), with respect to a foreign nation shall be based on

(i) whether, and to what extent, such nation imposes tariff barriers or nontariff barriers on the importation, or otherwise restricts the market access, of both 70 United States fish and 70 fishery products, particularly fish and fishery products for which the foreign nation has requested as allocation; 70

(ii) 71 whether, and to what extent, such nation is cooperating with the United States in both the advancement of existing and new opportunities for fishery exports from the United States through the purchase of fishery products from United States processors, and the advancement of fisheries trade through the purchase of fish and fishery products from United States fishermen, particularly fish and fishery products for which the foreign nation has requested an allocation;

(iii) whether, and to what extent, such nation and the fishing fleets of such nation have cooperated with the United States in the enforcement of United States fishing regulations;

(iv) whether, and to what extent, such nation requires the fish harvested from the exclusive economic zone 59 or special areas 72 for its domestic consumption;

(v) whether, and to what extent, such nation otherwise contributes to, or fosters the growth of, a sound and economic United States fishing industry, including minimizing gear conflicts with fishing operations of United States fishermen, and transferring harvesting or processing technology which will benefit the United States fishing industry;

(vi) whether, and to what extent, the fishing vessels of such nation have traditionally engaged in fishing in such fishery;

(vii) whether, and to what extent, such nation is cooperating with the United States in, and making substantial contributions to, fishery research and the identification of fishery resources; and

(viii) such other matters as the Secretary of State, in cooperation with the Secretary, deems appropriate. (2) 73 (A) For the purposes of this paragraph

(i) The term "certification" means a certification made by the Secretary that nationals of a foreign country, directly or indirectly, are conducting fishing operations or engaging in trade or taking which diminishes the effectiveness of the International Convention for the Regulation of Whaling. A certification under this section shall also be deemed a certification

70 Sec. 404(2)(B) of Public Law 98-623 (98 Stat. 3408) amended clause (i) by inserting the word "both", by substituting the word "and" in lieu of "or", and by adding the final phrase beginning with the words ", particularly fish and fishery products".

71 Sec. 404(2)(C) of Public Law 98-623 (98 Stat. 3408) amended and restated clause (ii). It previously read as follows:

“(ii) Whether, and to what extent, such nation is cooperating with the United States in the advancement of existing and new opportunities for fisheries trade, particularly through the purchase of fish or fishery products from United States processors or from United States fishermen;".

72 Sec. 301(d)(2) of Public Law 102-251 (106 Stat. 63) inserted "or special areas" here.