50 CFR § 600.605-600.630 - Magnuson-Stevens Act Provisions - Preemption of State Authority Under Section 306(b)

99 Fishery Conservation and Management § 600.610 are found at §§ 300.170–300.176 of chapter II of this title. [69 FR 31535, June 4, 2004] § 600.530 Pacific albacore fishery. (a) Purpose and scope. This section regulates fishing by Canadian vessels under the 1981 Treaty Between the Government of the United States of America and the Government of Can ada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002. Notwithstanding any other pro vision of this subpart F, fishing vessels of Canada may be authorized to fish in waters under the fisheries jurisdiction of the United States more than 12 nau tical miles from the baseline from which the territorial sea is measured in accordance with the Treaty and this section, pursuant to Public Law 108–219 (118 Stat. 616; 16 U.S.C. 1821 note). (b) Definitions. In addition to the defi nitions in the Magnuson-Stevens Fish ery Conservation and Management Act and § 600.10, the terms used in this sub part have the following meanings: Fishing under the Treaty as amended in 2002 means to engage in fishing for al bacore tuna in waters under the fish eries jurisdiction of the United States seaward of 12 nautical miles from the baseline from which the territorial sea is measured. Regional Administrator means the Re gional Administrator, Southwest Re gion, NMFS, 501 W. Ocean Boulevard, Suite 4200, Long Beach, CA 90802–4213, or a designee. Reporting Office means the office des ignated by the Regional Administrator to take hail-in and hail-out reports from U.S. and Canadian vessel opera tors. Treaty means the 1981 Treaty Be tween the Government of the United States of America and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges as amended in 2002. (c) Vessel list. A Canadian vessel is not eligible to fish for albacore in U.S. waters under the Treaty as amended in 2002 unless the vessel is on the list pro vided to NMFS by the Government of Canada of vessels authorized by Canada to fish under the Treaty as amended in 2002. (d) Vessel identification. A Canadian vessel fishing under the Treaty as amended in 2002 must clearly display its Canadian vessel registration num ber followed by the letter C in the same height and size as the numerals, con sistent with Canadian vessel marking requirements. (e) Hail-in reports. The operator of a Canadian Vessel eligible to fish for al bacore in U.S. waters under the Treaty as amended in 2002 must file a hail-in report with the Reporting Office at least 24 hours prior to beginning any such fishing. (f) Hail-out Reports. The operator of a Canadian vessel that has been fishing in U.S. waters under the Treaty as amended in 2002 must file a hail-out re port with the Reporting Office at least 24 hours prior to exiting from U.S. waters. (g) Prohibitions. It is prohibited for the operator of a Canadian vessel to en gage in fishing in U.S. waters if the vessel: (1) Is not on the vessel list in para graph (c) of this section; (2) Has not filed a hail-in report to advise of an intent to fish under the Treaty as amended in 2002 prior to en gaging in such fishing; or (3) Is not clearly marked in accord ance with paragraph (d) of this section. [69 FR 31535, June 4, 2004] Subpart G—Preemption of State Authority Under Section 306(b) § 600.605 General policy. It is the policy of the Secretary that preemption proceedings will be con ducted expeditiously. The administra tive law judge and counsel or other rep resentative for each party are encour aged to make every effort at each stage of the proceedings to avoid delay. § 600.610 Factual findings for Federal preemption. (a) The two factual findings for Fed eral preemption of state management authority over a fishery are: (1) The fishing in a fishery that is covered by an FMP implemented under the Magnuson-Stevens Act is engaged in predominately within the EEZ and beyond such zone. 100 50 CFR Ch. VI (10–1–22 Edition) § 600.615 (2) A state has taken any action, or omitted to take any action, the results of which will substantially and ad versely affect the carrying out of such FMP. (b) Whether fishing is engaged in ‘‘predominately’’ within or beyond the EEZ will be determined after consider ation of relevant factors, including but not limited to, the catch (based on numbers, value, or weight of fish caught, or other relevant factors) or fishing effort during the appropriate period, and in light of historical pat terns of the distribution of catch or fishing effort for such stock or stocks of fish. (c) Whether relevant effects are sub stantial will be determined after con sideration of the magnitude of such ac tual or potential effects. Relevant to this determination are various factors, including but not limited to, the pro portion of the fishery (stock or stocks of fish and fishing for such stocks) that is subject to the effects of a particular state’s action or omission, the charac teristics and status (including migra tory patterns and biological condition) of the stock or stocks of fish in the fishery, and the similarity or dissimi larity between the goals, objectives, or policies of the state’s action or omis sion and the management goals or ob jectives specified in the FMP for the fishery or between the state and Fed eral conservation and management measures of the fishery. [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998] § 600.615 Commencement of pro ceedings. (a) Notice of proposed preemption. (1) If a proceeding under this part is deemed necessary, the Administrator must issue a notice of proposed preemption to the Attorney General of the State or States concerned. The notice will con tain: (i) A recital of the legal authority and jurisdiction for instituting the pro ceeding. (ii) A concise statement of the § 600.610 factual findings for Federal preemption upon which the notice is based. (iii) The time, place, and date of the hearing. (2) The notice of proposed preemption will also be published in the FEDERAL REGISTER. This notification may be combined with any notice of proposed rulemaking published under paragraph (d)(1) of this section. (b) Response. The state will have the opportunity to respond in writing to the notice of proposed preemption. (c) Amendment. The Administrator may, at any time prior to the Sec retary’s decision, withdraw the notice of proposed preemption. Upon motion of either party before the record is closed, the administrative law judge may amend the notice of proposed pre emption. (d) Proposed regulations—(1) In gen eral. If additional regulations are re quired to govern fishing within the boundaries of a state, the Adminis trator may publish proposed regula tions in the FEDERAL REGISTER concur rently with issuing the notification in dicated in paragraph (a) of this section. (2) Emergency actions. Nothing in this section will prevent the Secretary from taking emergency action under section 305(c) of the Magnuson-Stevens Act. [61 FR 32540, June 24, 1996, as amended at 63 FR 7075, Feb. 12, 1998] § 600.620 Rules pertaining to the hear ing. (a) The civil procedure rules of the NOAA currently set forth in 15 CFR part 904, subpart C (or as subsequently amended), apply to the proceeding after its commencement by service of notice (pursuant to § 600.615) and prior to the Secretary’s decision (§ 600.625), except that the following sections will not apply: (1) 15 CFR 904.201 (Definitions); (2) 15 CFR 904.206(a)(1) (Duties and powers of Judge); and (3) 15 CFR 904.272 (Administrative re view of decision). (b) Additional duties and powers of judge—(1) Time periods. The administra tive law judge is authorized to modify all time periods pertaining to the course of the hearing (under §§ 600.615 and 600.620) to expedite the pro ceedings, upon application and appro priate showing of need or emergency circumstances by a party. (2) Intervention. Intervention by per sons not parties is not allowed. 101 Fishery Conservation and Management § 600.705 § 600.625 Secretary’s decision. (a) The Secretary will, on the basis of the hearing, record the administrative law judge’s recommended decision: (1) Accept or reject any of the find ings or conclusions of the administra tive law judge and decide whether the factual findings exist for Federal pre emption of a state’s authority within its boundaries (other than in its inter nal waters) with respect to the fishery in question; (2) Reserve decision on the merits or withdraw the notice of proposed pre emption; or (3) Remand the case to the adminis trative law judge for further pro ceedings as may be appropriate, along with a statement of reasons for the re mand. (b) Notification. (1) If the factual find ings for Federal preemption are deter mined to exist, the Secretary will no tify in writing the Attorney General of that state and the appropriate Coun cil(s) of the preemption of that state’s authority. The Secretary will also di rect the Administrator to promulgate appropriate regulations proposed under § 600.615(d) and otherwise to begin regu lating the fishery within the state’s boundaries (other than in its internal waters). (2) If the factual findings for Federal preemption are determined not to exist, the Secretary will notify, in writing, the Attorney General of the state and the appropriate Council(s) of that determination. The Secretary will also direct the Administrator to issue a notice withdrawing any regulations proposed under § 600.615(d). § 600.630 Application for reinstatement of state authority. (a) Application or notice. (1) At any time after the promulgation of regula tions under § 600.625(b)(1) to regulate a fishery within a state’s boundaries, the affected state may apply to the Sec retary for reinstatement of state au thority. The Secretary may also serve upon such state a notice of intent to terminate such Federal regulation. A state’s application must include a clear and concise statement of: (i) The action taken by the State to correct the action or omission found to have substantially and adversely af fected the carrying out of the FMP; or (ii) Any changed circumstances that affect the relationship of the state’s ac tion or omission to take action to the carrying out of the FMP (including any amendment to such plan); and (iii) Any laws, regulations, or other materials that the state believes sup port the application. (2) Any such application received by the Secretary or notice issued to the State will be published in the FEDERAL REGISTER. (b) Informal response. The Secretary has sole discretion to accept or reject the application or response. If the Sec retary accepts the application or re jects any responses and finds that the reasons for regulation of the fishery within the boundaries of the state no longer prevail, the Secretary will promptly terminate such regulation and publish in the FEDERAL REGISTER any regulatory amendments necessary to accomplish that end. (c) Hearing. The Secretary has sole discretion to direct the Administrator to schedule hearings for the receipt of evidence by an administrative law judge. Hearings before the administra tive law judge to receive such evidence will be conducted in accordance with § 600.620. Upon conclusion of such hear ings, the administrative law judge will certify the record and a recommended decision to the Secretary. If the Sec retary, upon consideration of the state’s application or any response to the notice published under § 600.630(a)(2), the hearing record, the recommended decision, and any other relevant materials finds that the rea sons for regulation of the fishery with in the boundaries of the state no longer prevail, the Secretary will promptly terminate such regulation and publish in the FEDERAL REGISTER any regu latory amendments necessary to ac complish that end. Subpart H—General Provisions for Domestic Fisheries § 600.705 Relation to other laws. (a) General. Persons affected by these regulations should be aware that other Federal and state statutes and regula tions may apply to their activities.