H. R. 3840
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
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.
This Act may be cited as the
Atlantic Menhaden Conservation
The Congress finds the following:
Atlantic menhaden are a key piece of the Atlantic ecosystem, from Florida to Maine.
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.
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.
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.
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.
Industrial harvests of Atlantic menhaden for reduction purposes are the primary source of fishing mortality.
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.
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.
As used in this Act:
The term Atlantic menhaden means members of stocks or populations of the species Brevoortia tyrannus.
The term coastal State means—
Pennsylvania and each State of the United States bordering on the Atlantic Ocean north of the State of South Carolina;
the District of Columbia; and
the Potomac River Fisheries Commission established by the Potomac River Compact of 1958.
The term coastal waters means—
for each coastal State referred to in paragraph (2)(A)—
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
the waters of the coastal State seaward from the baseline referred to in clause (i) to the inner boundary of the exclusive economic zone;
for the District of Columbia, those waters within its jurisdiction; and
for the Potomac River Fisheries Commission, those waters of the Potomac River within the boundaries established by the Potomac River Compact of 1958.
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.
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)).
The term fishing means—
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;
the attempted commercial catching, taking, or harvesting of Atlantic menhaden for reduction purposes; and
any operation at sea in support of, or in preparation for, any activity described in subparagraph (A) or (B).
The term fishing for Atlantic menhaden for reduction purposes means fishing that harvests Atlantic menhaden that are reduced to meal and oil.
The term Magnuson Act means the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801 et seq.).
The term moratorium area means the coastal waters with respect to which a moratorium is in effect under section 5.
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.
The term Plan means a plan for managing Atlantic menhaden, or an amendment to such plan, that—
is prepared and adopted by the Commission;
establishes a scientifically determined limit on total allowable landings of Atlantic menhaden; and
takes account of the role of Atlantic menhaden in the ecosystem.
The term Secretaries means the Secretary of Commerce and the Secretary of the Interior or their designees.
The term Secretary means the Secretary of Commerce or a designee of the Secretary of Commerce.
Monitoring of implementation and enforcement by coastal states
During December of each fiscal year, and at any other time it determines it to be necessary, the Commission shall determine—
whether each coastal State has adopted all regulatory measures necessary to fully implement the Plan in its coastal waters; and
whether the enforcement of the Plan by each coastal State is satisfactory.
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.
Notification of secretaries
The Commission shall immediately notify the Secretaries of each affirmative determination made by it under subsection (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.
Termination of moratorium
Upon receiving notice from the Commission under section 4(c) of an affirmative determination regarding a coastal State, the Secretaries—
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
shall terminate the moratorium under subsection (a) with respect to coastal waters of that coastal State, if—
a scientifically determined total allowable catch limit has been established under the Plan for commercial fishing for Atlantic menhaden for reduction purposes; and
the Secretaries determine that the State is in compliance with the Plan.
Prohibited acts during moratorium
During a moratorium period, it is unlawful for any person—
to engage in fishing within the moratorium area;
to land, or attempt to land, Atlantic menhaden that are caught, taken, or harvested in violation of paragraph (1);
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
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.
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).
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).
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.
The Secretaries may issue regulations to implement this section.
Continuing studies of menhaden populations
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:
Annual stock assessments, using fishery-dependent and fishery-independent data, for the purposes of extending the long-term population record.
Investigations of the causes of fluctuations in Atlantic menhaden populations.
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.
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
the effects of interspecies predation and competition on the recruitment, spawning potential, mortality, and abundance of Atlantic menhaden.
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.
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.
Authorization of appropriations; cooperative agreements
For each of fiscal years 2008, 2009, and 2010, there are authorized to be appropriated to carry out this Act—
$800,000 to the Secretary of Commerce; and
$250,000 to the Secretary of the Interior.
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.
Public participation in preparation of management plans and amendments
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.
Subsection (a) shall apply to all management plans for Atlantic menhaden, and amendments to such plans, adopted by the Commission.
Prohibition on commercial harvesting of Atlantic menhaden in exclusive economic zone
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.
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.
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.
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.
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.
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.
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.