112. State jurisdiction.

[MSFCMA section 306]

a. In general.

Summary:

Section 306(a)(3), a simple statement that a State may not directly or indirectly regulate a fishing vessel outside its boundaries unless the vessel is registered in that State, has been replaced with more elaborate text. The first subsection, (3)(A), is an attempt to articulate the current status of the law, in the positive ("a State may" instead of "a State may not"). This formulation is intended to help Federal and State courts understand the circumstances in which it's all right for a State to regulate its own registered vessels in the EEZ, namely (1) if there is no FMP or other applicable Federal regulation, or (2) if the State's laws are consistent with the FMP and applicable Federal rules. The next subsection, (3)(B), is modeled on the Alaska crab FMP. It allows a State to regulate any vessels in the EEZ if the relevant FMP delegates management of the fishery to that State, and the State laws are consistent with the plan. If the Secretary determines there are any inconsistencies, the State has an opportunity to correct them. If it fails to do so, its authority to regulate in the EEZ is withdrawn. The last sentence requires a three-quarters Council vote to delegate authority under this subsection. The third subsection, (3)(C), is the MR. BIG fix. It allows the State of Alaska to regulate a non-registered vessel in the EEZ off Alaska, if no FMP was in place on August 1, 1996, and if the Secretary and Council find Alaska has a legitimate interest in conservation and management of the fishery. This authority ends when an FMP is implemented.

Legislative history:

This section went through many drafts, some of them supplied by NOAA General Counsel. A GCF definition of "registered under the law of that State" was in the version reported by the Senate Commerce Committee. It is worth noting, since the phrase is not defined elsewhere. The manager's amendment deleted it because some West Coast fishing interests believed it expanded current law. Senators Snowe and Stevens held a colloquy on the meaning of section 306(a)(3)(A), in which she outlined Maine measures that are more stringent than the FMP for American lobster. Claiming they are also "consistent with" the FMP, she inquired whether they could be enforced against Maine vessels in the EEZ. Stevens replied that the measures are not "irreconcilable" with the FMP, thus consistent, thus enforceable. Issues: NOAA General Counsel does not agree with Senators Snowe and Stevens' characterizations of Maine measures as consistent with the lobster FMP. Senator Stevens is correct that the new version of 306(a)(3) does not change the State's ability to enforce its laws in the EEZ, but some Maine measures, such as the ban on dragging for lobsters, are considered by GC to be inconsistent with the FMP.

b. Exception.

Summary:

This is an unnecessary addition to section 306(b), saying the Secretary must have a hearing if a State requests one. A hearing was already required.

c. Exception regarding foreign fish processing in internal waters.

Summary:

At NOAA's request, a foreign fishing vessel engaged in internal waters processing must report how much fish it processed and where the fish were harvested. NMFS must prescribe procedures for this reporting through rulemaking.

d. Interim authority for Dungeness crab.

[no MSFCMA amendment]

Summary:

This provision gives the States of Washington, Oregon, and California authority, until 1999, or until an FMP is in place, to enforce in the EEZ of each State, that State's laws governing crab fishing. It provides some specifics on what can and cannot be enforced. (The limited entry program of a State cannot be enforced against a vessel operating in the EEZ off that State unless the vessel is also registered in that State.) It also declares a "sense of Congress" that the Pacific Council should develop a shellfish plan at the earliest practicable date, and requires a report from the Pacific Council by December 1, 1997, on its progress in developing the plan.

Legislative history:

This arose as a result of the shellfish subproceeding in U.S. v. Washington, which clarified that treaty tribes have the right to the opportunity to harvest half of the available Dungeness crab. If Washington cannot regulate vessels from other areas, the State will need to impose all of the conservation measures necessary for treaty/non-treaty sharing on vessels from Washington. Congress provided this limited authority to prevent that from happening. This provision was not in either the House version of June 1995, nor in the Senate version of May 1996, because the West Coast industry was greatly divided on what expanded state authority should be granted. The September 1996 floor statements explain that specific provisions are aimed at allowing jurisdiction only for conservation and to implement U.S. v. Washington, and not to allocate among vessels based on size or State of residence. Each State has a limited entry program in place, and the qualifying criteria differ among the States. This will be one of the difficult issues to deal with when the Pacific Council adopts an FMP. Senator Gorton indicated he expects the Council to be guided by the States' limited entry programs.

Issues:

The direction to the Council to prepare an FMP is a "sense of Congress" that the Council "should" prepare an FMP, but lack of people and resources may limit the Council's response. Dealing with the limited entry portion of any FMP will be difficult because of the different limited entry programs in each State.
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