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PUBLIC LAW 94-265—APR. 13, 1976 to be appropriate, be installed and maintained in working order on each such vessel; (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; (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, exceed such nation's allocation of the total allowable level of foreign fishing, as determined under subsection (e). (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; and (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). (d) TOTAL ALLOWABLE LEVEL or FOREIGN FISHING.—The total allowable level of foreign fishing, if any, with respect to any fishery 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 the provisions of this Act, (e) ALLOCATION OF ALLOWABLE LEVEL.^—The Secretary of State, in cooperation with the Secretary, shall determine the allocation among foreign nations of the total allowable level of foreign fishing which is permitted with respect to any fishery subject to the exclusive fishery management authority of the United States. In making any such determination, the Secretary of State and the Secretary shall consider— (1) whether, and to what extent, the fishing vessels of such nations have traditionally engaged in fishing in such fishery; (2) whether such nations have cooperated with the United States in, and made substantial contributions to, fishery research and the identification of fishery resources; (3) whether such nations have cooperated with the United States in enforcement and with respect to the conservation and management of fishery resources; and (4) such other matters as the Secretary of State, in cooperation with the Secretary, deems appropriate. (f) RECIPROCITY.—Foreign fisning shall not be authorized for the fishing vessels of any foreign nation unless such nation satisfies the

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Secretary and the Secretary of State that such nation extends substantially the same fishing privileges to fishing vessels of the United States, if any, as the United States extends to foreign fishing vessels, (g) PRELIMINARY FISHERY MANAGEMENT PLANS.—The Secretary, when notified by the Secretary of State that any foreign nation has submitted an application under section 204(b), shall prepare a preliminary fishery management plan for any fishery covered by such application if the Secretary determines that no fishery management plan for that fishery will be prepared and implemented, pursuant to title III, before March 1, 1977. To the extent practicable, each such Post, p. 346. plan— (1) shall contain a preliminary description of the fishery and a preliminary determination as to the optimum j^ield from such fishery and the total allowable level of foreign fishing with respect to such fishery; (2) shall require each foreign fishing vessel engaged or wishing to engage in such fishery to obtain a permit from the Secretary; (3) shall require the submission of pertinent data to the Secretary, with respect to such fishery, as described in section 303(a) (5); and (4) may, to the extent necessary to prevent irreversible effects from overfishing, with respect to such fishery, contain conservation and management measures applicable to foreign fishing which— (A) are determined to be necessary, and appropriate for the conservation and management of such fishery, (B) are consistent with the national standards, the other provisions of this Act, and other applicable law, and (C) are described in section 303(b)(2), (3), (4), (5), and

(T)-. Each preliminary fishery management plan shall be in effect with respect to foreign fishing for which permits have been issued until a fishery management plan is prepared and implemented, pursuant to title III, with respect to such fishery. The Secretary may, in accord- Regulations. ance with section 553 of title 5, United States Code, also prepare and promulgate interim regulations with respect to any such preliminary plan. Such regulations shall be in effect until regulations implementing the applicable fishery management plan are promulgated pursuant to section 305. SEC. 202. INTERNATIONAL FISHERY AGREEMENTS. (a) NEGOTIATIONS.—The Secretary of State— 16 USC 1822. (1) shall renegotiate treaties as provided for in subsection (b); (2) shall negotiate governing international fishery agreements described in section 201(c); (3) may negotiate boundary agreements as provided for in subsection (d); (4) shall, upon the request of and in cooperation with the Secretary, initiate and conduct negotiations for the purpose of entering into international fishery agreements— (A) which allow fishing vessels of the United States equitable access to fish over which foreign nations assert exclusive fishery management authority, and (B) which provide for the conservation and management of anadromous species and highly migratory species; and

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PUBLIC LAW 94-265—APR. 13, 1976 (5) may enter into such other negotiations, not prohibited by subsection (c), as may be necessary and appropriate to further the purposes, policy, and provisions of this Act. (b) TREATY RENEGOTIATION.—The Secretary of State, in coopera-

tion with the Secretary, shall initiate, promptly after the date of enactment of this Act, the renegotiation of any treaty which pertains to fishing within the fishery conservation zone (or within the area that will constitute such zone after February 28, 1977), or for anadromous species or Continental Shelf fishery resources beyond such zone or area, and which is in any manner inconsistent with the purposes, policy, or provisions of this Act, in order to conform such treaty to such purposes, policy, and provisions. I t is the sense of Congress that the United States shall withdraw from any such treaty, in accordance with its provisions, if such treaty is not so renegotiated within a reasonable period of time after such date of enactment. (c) INTERNATIONAL FISHERY AGREEMENTS.—No international fishery agreement (other than a treaty) which pertains to foreign fishing within the fishery conservation zone (or within the area that will constitute such zone after February 28, 1977), or for anadromous species or Continental Shelf fishery resources beyond such zone or area— (1) which is in effect on June 1, 1976, may thereafter be renewed, extended, or amended; or (2) may be entered into after May 31, 1976; by the United States unless it is in accordance with the provisions of section 201(c). (d) BOUNDARY NEGOTIATIONS.—The Secretary of State, in cooperation with the Secretary, may initiate and conduct negotiations with any adjacent or opposite foreign nation to establish the boundaries of the fishery conservation zone of the United States in relation to any such nation. (e) NoNRECoGNiTioN.—It is the sense of the Congress that the United States Government shall not recognize the claim of any foreign nation to a fishery conservation zone (or the equivalent) beyond such nation's territorial sea, to the extent that such sea is recognized by the United States, if such nation— (1) fails to consider and take into account traditional fishing activity of fishing vessels of the United States; (2) fails to recognize and accept that highly migratory species are to be managed by applicable international fishery agreements, whether or not such nation is a party to any such agreement; or (3) imposes on fishing vessels of the United States any conditions or restrictions which are unrelated to fishery conservation and management. SEC. 203. CONGRESSIONAL OVERSIGHT OF GOVERNING INTERNATIONAL FISHERY AGREEMENTS. Transmittal to Congress.

16 USC 1823.

(a) IN GENERAL.—No governing international fishery agreement shall become effective with respect to the United States before the close of the first 60 calendar days of continuous session of the Congress after the date on which the President transmits to the House of Representatives and to the Senate a document setting forth the text of such governing international fishery agreement, A copy of the document shall be delivered to each House of Congress on the same day and shall be delivered to the Clerk of the House of Representatives, if the House is not in session, and to the Secretary of the Senate, if the Senate is not in session.

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(b) REFERRAL TO COMMITTEES.—Any document described in subsection (a) shall be immediately referred in the House of Representatives to the Committee on Merchant Marine and Fisheries, and in the Senate to the Committees on Commerce and Foreign Relations. (c) COMPUTATION or 60-DAY PERIOD.—For purposes of subsection (a)— (1) continuity of session is broken only by an ad]Ournment of Congress sine die; and (2) the days on which either House is not in session because of an adjournment of more than 3 days to a day certain are excluded in the computation of the 60-day period. (d) CONGRESSIONAL PROCEDURES.— (1)

RULES OF THE HOUSE o r REPRESENTATIVES AND SENATE.—The

provisions of this section are enacted by the Congress— (A) as an exercise of the rulemaking power of the House of Representatives and the Senate, respectively, and they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of fishery agreement resolutions described in paragraph (2), and they supersede other rules only to the extent that they are inconsistent therewith; and (B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, and in the same manner and to the same extent as in the case of any other rule of that House. (2) DEFINITION.—For purposes of this subsection, the term "fishery agreement resolution" refers to a joint resolution of either House of Congress— (A) the effect of which is to prohibit the entering into force and effect of any governing international fishery agreement the text of which is transmitted to the Congress pursuant to subsection (a); and (B) which is reported from the Committee on Merchant Marine and Fisheries of the House of Representatives or the Committee on Commerce or the Committee on Foreign Relations of the Senate, not later than 45 days after the date on which the document described in subsection (a) relating to that agreement is transmitted to the Congress. (3) PLACEMENT ON CALENDAR.—Any fishery agreement resolution upon being reported shall immediately be placed on the appropriate calendar. (4) FLOOR CONSIDERATION IN THE HOUSE.—

(A) A motion in the House of Representatives to proceed to the consideration of any fishery agreement resolution shall be highly privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to. (B) Debate in the House of Representatives on any fishery Debate agreement resolution shall be limited to not more than 10 limitation, hours, which shall be divided equally between those favoring and those opposing the resolution. A motion further to limit debate shall not be debatable. I t shall not be in order to move to recommit any fishery agreement resolution or to move to reconsider the vote by which any fishery agreement resolution is agreed to or disagreed to.

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PUBLIC LAW 94-265—APR. 13, 1976 (C) Motions to postpone, made in the House of Representatives with respect to the consideration of any fishery agreement resolution, and motions to proceed to the consideration of other business, shall be decided without debate. (D) All appeals from the decisions of the Chair relating to the application of the Kules of the House of Representatives to the procedure relating to any fishery agreement resolution shall be decided without debate. (E) Except to the extent specifically provided in the preceding provisions of this subsection, consideration of any fishery agreement resolution shall be governed by the Rules of the House of Representatives applicable to other bills and resolutions in similar circumstances. (5) F L O O R CONSIDERATION IN THE SENATE.

Debate limitation.

(A) A motion in the Senate to proceed to the consideration of any fishery agreement resolution shall be privileged and not debatable. An amendment to the motion shall not be in order, nor shall it be in order to move to reconsider the vote by which the motion is agreed to or disagreed to. (B) Debate in the Senate on any fishery agreement resolution and on all debatable motions and appeals in connection therewith shall be limited to not more than 10 hours. The time shall be equally divided between, and controlled by, the majority leader and the minority leader or their designees. (C) Debate in the Senate on any debatable motion or appeal in connection with any fishery agreement resolution shall be limited to not more than 1 hour, to be equally divided between, and controlled by, the mover of the motion or appeal and the manager of the resolution, except that if the manager of the resolution is in favor of any such motion or appeal, the time in opposition thereto shall be controlled by the minority leader or his designee. The majority leader and the minority leader, or either of them, may allot additional time to any Senator during the consideration of any debatable motion or appeal, from time under their control with respect to the applicable fishery agreement resolution. (D) A motion in the Senate to further limit debate is not debatable. A motion to recommit any fishery agreement resolution is not in order. SEC. 204. PERMITS FOR FOREIGN FISHING.

16 USC 1824.

(a) IN GENERAL.—After February 28, 1977, no foreign fishing vessel shall engage in fishing within the fishery conservation zone, or for anadromous species or Continental Shelf fishery resources beyond such zone, unless such vessel has on board a valid permit issued under this section for such vessel. (b) APPLICATIONS AND PERMITS UNDER GOVERNING INTERNATIONAL FISHERY AGREEMENTS.—

(1) ELIGIBILITY.—Each foreign nation with which the United States has entered into a governing international fishery agreement shall submit an application to the Secretary of State each year for a permit for each of its fishing vessels that wishes to engage in fishing described in subsection (a). (2) FORMS.—The Secretary, in consultation with the Secretary of State and the Secretary of the department in which the Coast Guard is operating, shall prescribe the forms for permit applications submitted under this subsection and for permits issued pursuant to any such application.

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(3) CONTENTS.—Any application made under this subsection shall specify— (A) the name and official number or other identification of each fishing vessel for which a permit is sought, together with the name and address of the owner thereof; (B) the tonnage, capacity, speed, processing equipment^ type and quantity of fishing gear, and such other pertinent information with respect to characteristics of each such vessel as the Secretary may require; (C) each fishery in which each such vessel wishes to fish: (D) the amount of fish or tonnage of catch contemplated for each such vessel during the time such permit is in force; and (E) the ocean area in which, and the season or period during which, such fishing will be conducted; and shall include any other pertinent information and material which the Secretary may require. (4) TRANSMITTAL FOR ACTION.—Upon receipt of any applica- Publication in tion which complies with the requirements of paragraph (3), the Federal Register.

Secretary of State shall publish such application in the Federal Register and shall promptly transmit— (A) such application, together with his comments and recommendations thereon, to the Secretary; (B) a copy of the application to each appropriate Council and to the Secretary of the department in which the Coast Guard is operating; and (C) a copy of such material to the Committee on Merchant Marine and Fisheries of the House of Representatives and to the Committees on Commerce and Foreign Relations of the Senate. (5) ACTION BY COUNCIL.—After receipt of an application transmitted under paragraph (4)(B), each appropriate Council shall prepare and submit to the Secretary such written comments on the application as it deems appropriate. Such comments shall be submitted within 45 days after the date on which the application is received by the Council and may include recommendations with respect to approval of the application and, if approval is recommended, with respect to appropriate conditions and restrictions thereon. Any interested person may submit comments to such Council with respect to any such application. The Council shall consider any such comments in formulating its submission to the Secretary. (6) APPROVAL.—After receipt of any application transmitted under paragraph (4)(A), the Secretary shall consult with the Secretary of State and, with respect to enforcement, with the Secretary of the department in which the Coast Guard is operating. The Secretary, after taking into consideration the views and recommendations of such Secretaries, and any comments submitted by any Council under paragraph (6), may approve the application, if he determines that the fishing described in the application will meet the requirements of this Act. (7) ESTABLISHMENT OF CONDITIONS AND RESTRICTIONS.—The

Secretary shall establish conditions and restrictions which shall be included in each permit issued pursuant to any application approved under paragraph (6) and which must be complied with by the owner or operator of the fishing vessel for which the permit is issued. Such conditions and restrictions shall include the following:

Transmittal to congressional committees. Written comments.

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Transmittal to congressional committees.

PUBLIC LAW 94-265—APR. 13, 1976 (A) A l l of the requirements of any applicable fishery management plan, or preliminary fishery management plan, and the regulations promulgated to implement any such plan. (B) The requirement that no permit may be used by any vessel other than the fishing vessel for which i t is issued. (C) The requirements described in section 201(c)(1), (2), and (3). (D) Any other condition and restriction related to fishery conservation and management which the Secretary prescribes as necessary and appropriate. (8) NOTICE OF APPROVAL.—The Secretary shall p r o m p t l y transmit a copy of each application approved under paragraph (6) and the conditions and restrictions established under paragraph (7) U>(A) the Secretary of State for transmittal to the foreign nation involved; (B) the Secretary of the department in which the Coast G u a r d is operating; (C) any Council which has authority over any fishery specified in such application; and (D) the Committee on Merchant Marine and Fisheries of the House of Representatives and the Committees on Commerce and Foreign Relations of the Senate. (9) DISAPPROVAL o r APPLICATIONS.—If the Secretary does not

approve any application submitted by a foreign nation under this subsection, he shall promptly inform the Secretary of State of the disapproval and his reasons therefore. The Secretary of State shall notify such foreign nation of the disapproval and the reasons therefor. Such foreign nation, after taking into consideration the reasons for disapproval, may submit a revised application under this subsection. (10) FEES.—Reasonable fees shall be paid to the Secretary by the owner or operator of any foreign fishing vessel for which a permit is issued pursuant to this subsection. The Secretary, in consultation with the Secretary of State, shall establish and publish a schedule of such fees, which shall apply nondiscriminatorily to each foreign nation. I n determining the level of such fees, the Secretary may take into account the cost of carrying out the provisions of this Act with respect to foreign fishing, including, but not limited to, the cost of fishery conservation and management, fisheries research, administration, and enforcement. (11) ISSUANCE OF PERMITS.—If a foreign nation notifies the

Secretary of State of its acceptance of the conditions and restrictions established by the Secretary under paragraph (7), the Secretary of State shall promptly transmit such notification to the Secretary. Upon payment of the applicable fees established pursuant to paragraph (10), the Secretary shall thereupon issue to such foreign nation, through the Secretary of State, permits for the a p p r o p r i a t e fishing vessels of that nation. E a c h permit shall contain a statement of all conditions and restrictions established under paragraph (7) which apply to the fishing vessel for which the permit is issued. (12) SANCTIONS.—If any foreign fishing vessel for which a permit has been issued pursuant to this subsection has been used in the commission of any act prohibited by section 307 the Secretary may, or if any civil penalty imposed under section 308 or any criminal fine imposed under section 309 has not been paid and is overdue the Secretary shall—

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(A) revoke such permit, with or without prejudice to the r i g h t of the foreign nation involved to obtain a permit for such vessel in any subsequent year; (B) suspend such permit for the period of time deemed a p p r o p r i a t e; or (C) impose additional conditions and restrictions on the approved application of the foreign nation involved and on any permit issued under such application. Any permit which is suspended under this paragraph for nonpayment of a civil penalty shall be reinstated by the Secretary upon the payment of such civil penalty together with interest thereon at the prevailing rate, (c) REGISTRATION P E R M I T S. — The Secretary of State, in coopera-

tion with the Secretary, shall issue annually a registration permit for each fishing vessel of a foreign nation which is a party to an international fishery agreement under which foreign fishing is authorized by section 201(b) and which wishes to engage in fishing described in subsection (a). E a c h such permit shall set forth the terms and conditions contained in the agreement that apply with respect to such fishing, and shall include the additional requirement that the owner or operator of the fishing vessel for which the permit is issued shall prominently display such permit in the wheelhouse of such vessel and show it, upon request, to any officer authorized to enforce the provisions of this Act (as provided for in section 311). The Secretary of State, after consultation with the Secretary and the Secretary of the department in which the Coast G u a r d is operating, shall prescribe the form and manner in which applications for registration permits may be made, and the forms of such permits. The Secretary of State may establish, require the payment of, and collect fees for registration permits; except that the level of such fees shall not exceed the administrative costs incurred by him in issuing such permits. SEC. 205. IMPORT PROHIBITIONS. (a)

DETERMINATIONS BY SECRETARY OF S T A T E. — I f the Secretary of

State determines that— (1) h e has been unable, within a reasonable period of time, to conclude with any foreign nation an international fishery agreement allowing fishing vessels of the United States equitable access to fisheries over which that nation asserts exclusive fishery management authority, as recognized by the United States, in accordance with traditional fishing activities of such vessels, if any, and under terms not more restrictive than those established under sections 201(c) and (d) and 204 (b)(7) and (10), because such nation has (A) refused to commence negotiations, or (B) failed to negotiate in good f a i t h; (2) any foreign nation is not allowing fishing vessels of the United States to engage in fishing for highly migratory species in accordance with an applicable international fishery agreement, whether or not such nation is a party thereto; (3) any foreign nation is not complying with its obligations under any existing international fishery agreement concerning fishing by fishing vessels of the United States i n any fishery over which that nation asserts exclusive fishery management authority; or (4) any fishing vessel of the United States, while fishing i n waters beyond any foreign nation's territorial sea, to the extent that^such sea is recognized by the United States, is seized by any foreign nation—

16 USC 1825. j -

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PUBLIC LAW 94-265—APR. 13, 1976 (A) in violation of an applicable international fishery agreement; (B) without authorization under an agreement between the United States and such nation; or (C) as a consequence of a claim of jurisdiction which is not recognized by the United States; he shall certify such determination to the Secretary of the Treasury. (b) PROHIBITIONS.—Upon receipt of any certification from the Secretary of State under subsection (a), the Secretary of the Treasury shall immediately take such action as may be necessary and appropriate to prohibit the importation into the United States— (1) of all. fish and fish products from the fishery involved, if any; and (2) upon recommendation of the Secretary of State, such other fish or fish products, from any fishery of the foreign nation concerned, which the Secretary of State finds to be appropriate to carry out the purposes of this section. (c) REMOVAL OF PROHIBITION.—If the Secretary of State finds that the reasons for the imposition of any import prohibition under this section no longer prevail, the Secretary of State shall notify the Secretary of the Treasury, who shall promptly remove such import prohibition. (d) DEFINITIONS.—As used in this section— (1) The term "fish" includes any highly migratory species. (2) The term "fish products" means any article which is produced from or composed of (in whole or in part) any fish.

TITLE III—NATIONAL FISHERY MANAGEMENT PROGRAM SEC. 301. NATIONAL STANDARDS FOR FISHERY CONSERVATION AND MANAGEMENT.

16 USC 1851.

(a) IN GENERAL.—Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this title shall be consistent with the following national standards for fishery conservation and management: (1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery. (2) Conservation and management measures shall be based upon the best scientific information available. (3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. (4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. (5) Conservation and management measures shall, where practicable, promote efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.

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PUBLIC LAW 94-265—APR. 13, 1976 (6) Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. (7) Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. (b) GUIDELINES.—The Secretary shall establish guidelines, based on the national standards, to assist i n the development of fishery management plans. SEC. 302. REGIONAL FISHERY MANAGEMENT COUNCILS.

(a) ESTABLISHMENT.—There shall be established, within 120 days 16 USC 1852. after the date of the enactment of this Act, eight Kegional Fishery Establishment. Management Councils, as follows: (1) N E W ENGLAND COUNCIL.—The New E n g l and Fishery Management Council shall consist of the States of Maine, New H a m p s h i r e, Massachusetts, Rhode Island, and Connecticut and shall have authority over the fisheries in the Atlantic Ocean seaw a r d of such States. The New E n g l and Council shall have 17 voting members, including 11 appointed by the Secretary pursuant to subsection (b)(1)(C) ( a t least one of whom shall be appointed from each such State). (2) MID-ATLANTIC COUNCIL.—The Mid-Atlantic F i s h e r y M a n agement Council shall consist of the States of New York, New Jersey, Delaware, Pennsylvania, Maryland, and Virginia and shall have authority over the fisheries in the Atlantic Ocean seaward of such States. The Mid-Atlantic Council shall have 19 voting members, including 12 appointed by the Secretary pursuant to subsection (b)(1)(C) (at least one of whom shall be appointed from each such State). (3) S O U T H ATLANTIC COUNCIL.—The S o u t h A t l a n t i c F i s h e r y

Management Council shall consist of the States of North Carolina, South Carolina, Georgia, and Florida and shall have authority over the fisheries in the Atlantic Ocean seaward of such States. The South Atlantic Council shall have 13 voting members, including 8 appointed by the Secretary pursuant to subsection (b)(1) (C) ( a t least one of whom shall be appointed from each such State). (4)

CARIBBEAN COUNCIL.—The Caribbean F i s h e r y

Manage-

ment Council shall consist of the Virgin Islands and the Commonwealth of P u e r to Rico and shall have authority over the fisheries in the Caribbean Sea and Atlantic Ocean seaward of such States. The Caribbean Council shall have 7 voting members, including 4 appointed by the Secretary pursuant to subsection (b)(1)(C) ( a t least one of whom shall be appointed from each such State). (5) G U L F COUNCIL.—The Gulf of Mexico Fishery Management Council shall consist of the' States of Texas, Louisiana, Mississippi, Alabama, and Florida and shall have authority over the fisheries in the Gulf of Mexico seaward of such States. The Gulf Council shall have 17 voting members, including 11 appointed by the Secretary pursuant to subsection (b)(1)(C) (at least one of whom shall be appointed from each such State). (6)

PACIFIC

COUNCIL.—The

Pacific

Fishery

Management

Council shall consist of the States of California, Oregon, W a s h ington, and I d a h o and shall have authority over the fisheries in the Pacific Ocean seaward of such States. The Pacific Council shall, have 13 voting members, including 8 appointed by the

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PUBLIC LAW 94-265—APR. 13, 1976 Secretary pursuant to subsection (b)(1)(C) (at least one of whom shall be appointed from each such State). (7) NORTH PACiric COUNCIL.—The North Pacific Fishery Management Council shall consist of the States of Alaska, Washington, and Oregon and shall have authority over the fisheries in the Arctic Ocean, Bering Sea, and Pacific Ocean seaward of Alaska. The North Pacific Council shall have 11 voting members, including 7 appointed by the Secretary pursuant to subsection (b)(1)(C) (5 of whom shall be appointed from the State of Alaska and 2 of whom shall be appointed from the State of Washington). (8) WESTERN PACIFIC COUNCIL.—The Western Pacific Fishery

Management Council shall consist of the State of Hawaii, American Samoa, and Guam and shall have authority over the fisheries in the Pacific Ocean seaward of such States. The Western Pacific Council shall have 11 voting members, including 7 appointed by the Secretary pursuant to subsection (b)(1)(C) (at least one of whom shall be appointed from each such State). Each Council shall reflect the expertise and interest of the several constituent States in the ocean area over which such Council is granted authority. (b) VOTING MEMBERS.—(1) The voting members of each Council shall be: (A) The principal State official with marine fishery management responsibility and expertise in each constituent State, who is designated as such by the Governor of the State, so long as the official continues to hold such position, or the designee of such official. (B) The regional director of the National Marine Fisheries Service for the geographic area concerned, or his designee, except that if two such directors are within such geographical area, the Secretary shall designate which of such directors shall be the voting member. (C) The members required to be appointed by the Secretary shall be appointed by the Secretary from a list of qualified individuals submitted by the Governor of each applicable constituent State. With respect to the initial such appointments, such Governors shall submit such lists to the Secretary as soon as practicable, not later than 45 days after the date of the enactment of this Act. As used in this subparagraph, (i) the term "list of quali"List of qualified individuals." fied individuals" shall include the names (including pertinent bio"Qualified graphical data) of not less than three such individuals for each individual." applicable vacancy, and (ii) the term "qualified individual" means an individual who is knowledgeable or experienced with regard to the management, conservation, or recreational or commercial harvest, of the fishery resources of the geographical area concerned. Term. (2) Each voting member appointed to a Council pursuant to paragraph (1)(C) shall serve for a term of 3 years; except that, with respect to the members initially so appointed, the Secretary shall designate up to one-third thereof to serve for a term of 1 year, up to onethird thereof to serve for a term of 2 years, and the remaining such members to serve for a term of 3 years. (3) Successors to the voting members of any Council shall be appointed in the same manner as the original voting members. Any individual appointed to fill a vacancy occurring prior to the expiration of any term of office shall be appointed for the remainder of that term.

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 PUBLIC LAW 9 4 - 2 6 5 — A P R. 13, 1976 (c) NONVOTING M E M B E R S. — (1)

9 0 STAT. 3 4 9

The n o n v o t i n g members of each

Council shall b e: (A) The regional or area director of the United States F i s h and Wildlife Service for the geographical area concerned, or his designee. (B) The commander of the Coast G u a r d district for the geographical area concerned, or his designee; except that, if t w o Coast G u a r d districts are within such geographical area, the commander designated for such purpose by the commandant of the Coast Guard. (C) The executive director of the Marine Fisheries Commission for the geographical area concerned, if any, or his designee. (D) One representative of the Department of State designated for such purpose by the Secretary of State, or his designee. (2) The Pacific Council shall have one additional nonvoting member who shall be appointed by, and serve at the pleasure of, the Governor of Alaska.

,

,

(d) COMPENSATION AND E X P E N S E S. — The v o t i n g members of each

Council, who are not employed by the Federal Government or any State or local government, shall receive compensation at the daily rate for G S - 1 8 of the General Schedule when engaged in the actual per- 5 USC 5332 note. formance of duties for such Council. The voting members of each Council, any nonvoting member described in subsection (c)(1)(C), and the nonvoting member appointed pursuant to subsection (c)(2) shall be reimbursed for actual expenses incurred in the performance of such duties. (e) TRANSACTION o r B U S I N E S S. —

(1) A majority of the voting members of any Council shall constitute a quorum, b u t one or more such members designated by the Council may hold hearings. A l l decisions of any Council shall be by majority vote of the voting members present and voting. (2) The voting members of each Council shall select a Chairman for such Council from among the voting members. (3) E a c h Council shall meet in the geographical area concerned at the call of the Chairman or upon the request of a majority of its voting members. (4) I f any voting member of a Council disagrees with respect to any m a t t e r which is transmitted to the Secretary by such Council, such member may submit a statement to the Secretary setting forth the reasons for such disagreement.

?.' •.."^r..;

,:(.v,bi,,k*-

(f) S T A F F AND ADMINISTRATION.—

(1) E a c h Council may appoint, and assign duties to, an executive director and such other full- and part-time administrative employees as the Secretary determines are necessary to the performance of its functions. (2) Upon the request of any Council, and after consultation with the Secretary, the head of any Federal agency is authorized to detail to such Council, on a reimbursable basis, any of the personnel of such agency, to assist such Council in the performance of its functions under this Act. (3) The Secretary shall provide to each Council such administrative and technical support services as a r e necessary for the effective functioning of such Council. (4) The Administrator of General Services shall furnish each Council with such offices, equipment, supplies, and services as he is authorized to furnish to any other agency or instrumentality of the United States.

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 90 STAT. 350.

•

^

PUBLIC LAW 94-265—APR. 13, 1976

(5) The Secretary and the Secretary of State shall furnish each Council with relevant information concerning foreign fishing and international fishery agreements. (6) Each Council shall determine its organization, and prescribe its practices and procedures for carrying out its functions under this Act, in accordance with such uniform standards as are prescribed by the Secretary. Each Council shall publish and make available to the public a statement of its organization, practices, and procedures. (7) The Secretary shall pay— (A) the compensation and expenses provided for in subsection (d); (B) appropriate compensation to employees appointed under paragraph (1); (C) the amounts required for reimbursement of other Federal agencies under paragraphs (2) and (4); (D) the actual expenses of the members of the committees and panels established under subsection (g); and (E) such other costs as the Secretary determines are necessary to the performance of the functions of the Councils. (g) COMMITTEES AND P A N E L S. —

Fishery management P**"* Comments.

Public hearings.

Reports.

\

Review.

(1) Each Council shall establish and maintain, and appoint the members of, a scientific and statistical committee to assist it in the development, collection, and evaluation of such statistical, biological, economic, social, and other scientific information as is relevant to such Council's development and amendment of any fishery management plan. (2) Each Council shall establish such other advisory panels as are necessary or appropriate to assist it in carrying out its functions under this Act. (h) FUNCTIONS.—Each Council shall, in accordance with the provisions of this Act— (1) prepare and submit to the Secretary a fishery management plan with respect to each fishery within its geographical area of authority and, from time to time, such amendments to each such plan as are necessary; (2) prepare comments on any application for foreign fishing transmitted to it under section 204(b)(4)(B), and any fishery management plan or amendment transmitted to it under section 304(c)(2); (3) conduct public hearings, at appropriate times and in appropriate locations in the geographical area concerned, so as to allow all interested persons an opportunity to be heard in the development of fishery management plans and amendments to such plans, and with respect to the administration and implementation of the provisions of this Act; (4) submit to the Secretary— (A) a report, before February 1 of each year, on the Council's activities during the immediately preceding calendar (B) such periodic reports as the Council deems appropriate, and (C) any other relevant report which may be requested by the Secretary; (5) review on a continuing basis, and revise as appropriate, the assessments and specifications made pursuant to section 303(a) (3) and (4) with respect to the optimum yield from, and the total allowable level of foreign fishing in, each fishery within its geographical area of authority; and

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Page:United States Statutes at Large Volume 90 Part 1.djvu/401

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90 STAT. 351

(6) conduct any other activities which are required by, or provided for in, this Act or which are necessary and appropriate to the foregoing functions. SEC. 303. CONTENTS OF FISHERY MANAGEMENT PLANS. (a) REQUIRED PROVISIONS.—Any fishery management plan which 16 USC 1853. is prepared by any Council, or by the Secretary, with respect to any fishery, shall— (1) contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are— (A) necessary and appropriate for the conservation and management of the fishery; (B) described in this subsection or subsection (b), or both; and (C) consistent with the national standards, the other provisions of this Act, and any other applicable law; (2) contain a description of the fishery, including, but not limited to, the number of vessels involved, the type and quantity of fishing gear used, the species of fish involved and their location, the cost likely to be incurred in management, actual and potential revenues from the fishery, any recreational interests in the fishery, and the nature and extent of foreign fishing and Indian treaty fishing rights, if any; (3) a^ess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery, and include a summary of the information utilized in making such specification; (4) assess and specify— (A) the capacity and the extent to which fishing vessels of the United States, on an annual basis, will harvest the optimum yield specified under paragraph (3), and (B) the portion of such optimum yield which, on an annual basis, will not be harvested by fishing vessels of the United States and can be made available for foreign fishing; and (5) specify the pertinent data which shall be submitted to the Secretary with respect to the fishery, including, but not limited to, information regarding the type and quantity of fishing gear used, catch by species in numbers of fish or weight thereof, areas in which fishing was engaged in, time of fishing, and number of hauls. (b) DISCRETIONARY PROVISIONS.—Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, may— (1) require a permit to be obtained from, and fees to be paid to, the Secretary with respect to any fishing vessel of the United 'States fishing, or wishing to fish, in the fishery conservation zone, or for anadromous species or Continental Shelf fishery resources beyond such zone; (2) designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear; (3) establish specified limitations on the catch of fish (based on area, species, size, number, weight, sex, incidental catch, total biomass, or other factors), which are necessary and appropriate for the conservation and management of the fishery;

89-194 O—78—pt. 1

26

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Page:United States Statutes at Large Volume 90 Part 1.djvu/402

 90 STAT. 352

,3

16 USC 1854.

PUBLIC LAW 94-265—APR. 13, 1976 (4) prohibit, limit, condition, or require the use of specified types and quantities of fishing gear, fishing vessels, or equipment for such vessels, including devices which may be required to facilitate enforcement of the provisions of this Act; (5) incorporate (consistent with the national standards, the other provisions of this Act, and any other applicable law) the relevant fishery conservation and management measures of the coastal States nearest to the fishery; (6) establish a system for limiting access to the fishery in order to achieve optimum yield if, in developing such system, the Council and the Secretary take into account— (A) present participation in the fishery, (B) historical fishing practices in, and dependence on, the fishery, (C) the economics of the fishery, (D) the capability of fishing vessels used in the fishery to engage in other fisheries, (E) the cultural and social framework relevant to the fishery, and (F) any other relevant considerations; and (7) prescribe such other measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery. (c) PROPOSED REGULATIONS.—Any Council may prepare any proposed regulations which it deems necessary and appropriate to carry out any fishery management plan, or any amendment to any fishery management plan, which is prepared by it. Such proposed regulations shall be submitted to the Secretary, together with such plan or amendment, for action by the Secretary pursuant to sections 304 and 305. (d) CONFIDENTIALITY OF STATISTICS.—Any statistics submitted to the Secretary by any person in compliance with any requirement under subsection (a)(5) shall be confidential and shall not be disclosed except when required under court order. The Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve such confidentiality, except that the Secretary may release or make public any such statistics in any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such statistics. SEC. 304. ACTION BY THE SECRETARY. (a) ACTION BY THE SECRETARY AFTER RECEIPT OF PLAN.—Within 60

days after the Secretary receives any fishery management plan, or any amendment to any such plan, which is prepared by any Council, the Secretary shall— (1) review such plan or amendment pursuant to subsection (b); and (2) notify such Council in writing of his approval, disapproval, or partial disapproval of such plan or amendment. In the case of disapproval or partial disapproval, the Secretary shall include in such notification a statement and explanation of the Secretary's objections and the reasons therefor, suggestions for improvement, a request to such Council to change such plan or amendment to satisfy the objections, and a request to resubmit the plan or amendment, as so modified, to the Secretary within 45 days after the date on which the Council receives such notification. (b) REVIEW BY THE SECRETARY.—The Secretary shall review any fishery management plan, and any amendment to any such plan, prepared by any Council and submitted to him to determine whether

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Page:United States Statutes at Large Volume 90 Part 1.djvu/403

 PUBLIC LAW 9 4 - 2 6 5 — A P R. 13, 1976

90 STAT. 3 5 3

it is consistent with the national standards, the other provisions of this Act, and any other applicable law. I n carrying out such review, the Secretary shall consult with— (1) the Secretary of State with respect to foreign fishing; and (2) the Secretary of the department in which the Coast G u a r d is operating with respect to enforcement a t sea. (c) PREPARATION BY THE SECRETARY.—(1) The Secretary may p r e -

p a r e a fishery management plan, with respect to any fishery, o r any amendment to any such plan, in accordance with the national standards, the other provisions of this Act, and any other applicable law, if— (A) the a p p r o p r i a t e Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management; or (B) the Secretary disapproves or partially disapproves any such plan or amendment, and the Council involved fails to change such plan or amendment in accordance with the notification made under subsection (a)(2). I n p r e p a r i n g any such plan or amendment, the Secretary shall consult with the Secretary of State with respect to foreign fishing and with the Secretary of the department in which the Coast G u a r d is operating with respect to enforcement at sea. (2) Whenever, pursuant to paragraph (1), the Secretary prepares a fishery management plan or amendment, the Secretary shall promptly transmit such plan or amendment to the appropriate Council for consideration and comment. W i t h i n 45 days after the date of receipt of such plan or amendment, the a p p r o p r i a t e Council may recommend, to the Secretary, changes in such plan or amendment, consistent with the national standards, the other provisions of this Act, and any other applicable law. After the expiration of such 45-day period, the Secretary may implement such plan or amendment pursuant to section 305. (3) Notwithstanding paragraph (1), the Secretary may not include in any fishery management plan, or any amendment to any such plan, prepared by him, a provision establishing a limited access system described in section 303(b)(6), unless such system is first approved by a majority of the voting members, present and voting, of each appropriate Council. (d) ESTABLISHMENT OF F E E S. — The Secretary shall by regulation Regulations, establish the level of any fees which are authorized to be charged pursuant to section 303(b)(1). Such level shall not exceed the administrative costs incurred by the Secretary in issuing such permits. (e) FISHERIES RESEARCH.—The Secretary shall initiate and maintain a comprehensive program of fishery research to carry out and further the purposes, policy, and provisions of t h i s Act. Such, program shall be designed to acquire knowledge and information, including statistics, on fishery conservation and management, including, but not limited to, biological research concerning the interdependence of fisheries or stocks of fish, the impact of pollution on fish, the impact of wetland and estuarine degradation, and other matters bearing upon the abundance and availability of fish. (f)

MISCELLANEOUS D U T I E S. — (1)

I f any

fishery

extends beyond

the geographical area of authority of any one Council, the Secretary may— (A) designate which Council shall prepare the fishery management plan for such fishery and any amendment to such p l a n; or

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Page:United States Statutes at Large Volume 90 Part 1.djvu/404

 90 STAT. 354

PUBLIC LAW 94-265—APR. 13, 1976 (B) may require that the plan and amendment be prepared jointly by the Councils concerned. No jointly prepared plan or amendment may be submitted to the Secretary unless it is approved by a majority of the voting members, present and voting, of each Council concerned. (2) The Secretary shall establish the boundaries between the geographical areas of authority of adjacent Councils. SEC. 305. IMPLEMENTATION OF FISHERY MANAGEMENT PLANS.

(a) IN GENERAL.—As soon as practicable after the Secretary— (1) approves, pursuant to section 304(a) and (b), any fishery management plan or amendment; or (2) prepares, pursuant to section 304(c), any fishery management plan or amendment; the Secretary shall publish in the Federal Kegister (A) such plan or amendment, and (B) any regulations which he proposes to promulgate Written to implement such plan or amendment. Interested persons shall be comments. afforded a period of not less than 45 days after such publication within which to submit in writing data, views, or comments on the plan or amendment, and on the proposed regulations. (b) HEARING.—The Secretary may schedule a hearing, in accordance with section 553 of title 5, United States Code, on any fishery management plan, any amendment to any such plan, and any regulations to implement any such plan or amendment. If any such hearing is sclieduled, the Secretary may, pending its outcome— (A) postpone the effective date of the regulations proposed to implement such plan or amendment; or (B) take such other action as he deems appropriate to preserve the rights or status of any person. Regulations. (c) IMPLEMENTATION.—The Secretary shall promulgate regulations to implement any fishery management plan or any amendment to any such plan— (1) after consideration of all relevant matters— (A) presented to him during the 45-day period referred to in subsection (a), and (B) produced in any hearing held under subsection (b); and (2) if he finds that the plan or amendment is consistent with the national standards, the other provisions of this Act, and any other applicable law. To the extent practicable, such regulations shall be put into effect in a manner which does not disrupt the regular fishing season for any fishery. (d) JUDICIAL REVIEW.—Regulations promulgated by the Secretary under this Act shall be subject to judicial review to the extent authorized by,, and in accordance with, chapter 7 of title 5, United States 5 USC 701 et seq. Code, if a petition for such review is filed within 30 days after the date on which the regulations are promulgated; except that (1) section 705 of such title is not applicable, and (2) the appropriate court shall only set aside any such regulation on a ground specified in section 706(2)(A), (B), (C), or (D) of such title. Emergency (e) EMERGENCY ACTIONS.—If the Secretary finds that an emergency regulations. involving any fishery resources exists, he may— (1) promulgate emergency regulations, without regard to subsections (a) and (c), to implement any fishery management plan, if such emergency so requires; or (2) promulgate emergency regulations to amend any regulation which implements any existing fishery management plan, to the extent required by such emergency. Publication in Federal Register. 16 USC 1855.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/405

 PUBLIC LAW 94-265—APR. 13, 1976 Any emergency regulation which changes any existing fishery management plan shall be treated as an amendment to such plan for the period in which such regulation is in effect. Any emergency regulation promulgated under this subsection (A) shall be published in the Federal Register together with the reasons therefor; (B) shall remain in effect for not more than 45 days after the date of such publication, except that any such regulation may be repromulgated for one additional period of not more than 45 days; and (C) may be terminated by the Secretary at any earlier date by publication in the Federal Register of a notice of termination. (f) ANNUAL REPORT.—The Secretary shall report to the Congress and the President, not later than March 1 of each year, on all activities of the Councils and the Secretary with respect to fishery management plans, regulations to implement such plans, and all other activities relating to the conservation and management of fishery resources that were undertaken under this Act during the preceding calendar year. (g) RESPONSIBILITY OF THE SECRETARY.—The Secretary shall have general responsibility to carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act. The Secretary may promulgate such regulations, in accordance with section 553 of title 5, United States Code, as may be necessary to discharge such responsibility or to carry out any other provision of this Act. SEC. 306. STATE JURISDICTION. (a) IN GENERAL.—Except as provided in subsection (b), nothing in this Act shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries. No State may directly or indirectly regulate any fishing which is engaged in by any fishing vessel outside its boundaries, unless such vessel is registered under the laws of such State. (b) EXCEPTION.— (1) If the Secretary finds, after notice and an opportunity for a hearing in accordance with section 554 of title 5, United States Code, that— (A) the fishing in a fishery, which is covered by a fishery management plan implemented under this Act, is engaged in predominately within the fishery conservation zone and beyond such zone; and (B) any State has taken any action, or omitted to take any action, the results of which will substantially and adversely affect the carrying out of such fishery management plan; the Secretary shall promptly notify such State and the appropriate Council of such finding and of his intention to regulate the applicable fishery within the boundaries of such State (other than its internal waters), pursuant to such fishery management plan and the regulations promulgated to implement such plan. (2) If the Secretary, pursuant to this subsection, assumes responsibility for the regulation of any fishery, the State involved may at any time thereafter apply to the Secretary for reinstatement of its authority over such fishery. If the Secretary finds that the reasons for which he assumed such regulation no longer prevail, he shall promptly terminate such regulation. SEC. 307. PROHIBITED ACTS. I t is unlawful— (1) for any person— (A) to violate any provision of this Act or any regulation or permit issued pursuant to this Act;

90 STAT. 355

Publication in Federal Register.

Publication in Federal Register. Report to Congress and President.

Regulations,

16 USC 1856.

Notice and hearing.

16 USC 1857.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/406

 90 STAT. 356

^

PUBLIC LAW 94-265—APR. 13, 1976 (B) 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 Act; (C) to violate any provision of, or regulation under, an applicable governing international fishery agreement entered into pursuant to section 201(c); (D) to refuse to permit any officer authorized to enforce the provisions of this Act (as provided for in section 311) to board a fishing vessel subject to such person's control for purposes of conducting any search or inspection in connection with the enforcement of this Act or any regulation, permit, or agreement referred to in subparagraph (A) or (^)' . .... (E) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection described in subparagraph (D); (F) to resist a lawful arrest for any act prohibited by this section; (G) 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 Act or any regulation, permit, or agreement referred to in subparagraph (A) or (C);or (H) to interfere with, delay, or prevent, by any means, the apprehension or arrest of another person, knowing that such other person has committed any act prohibited by this section; and (2) for any vessel other than a vessel of the United States, and for the owner or operator of any vessel other than a vessel of the United States, to engage in fishing— (A) within the boundaries of any State; or (B) within the fishery conservation zone, or for any anadromous species or Continental Shelf fishery resources beyond such zone, unless such fishing is authorized by, and conducted in accordance with, a valid and applicable permit issued pursuant to section 204(b) or (c).

16 USC 1858.

SEC. 308. CIVIL PENALTIES. (a) ASSESSMENT OF PENALTY.—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 prohibited by section 307 shall be liable to the United States for a civil penalty. The amount of the civil penalty shall not exceed $25,000 for each violation. Each day of a continuing violation shall constitute a separate offense. The amount of such civil penalty shall be assessed by the Secretary, or his designee, by written notice. In determining the amount of such penalty, the Secretary shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and such other matters as justice may require. (b) REVIEW OF CIVIL PENALTY.—Any person against whom a civil penalty is assessed under subsection (a) may obtain review thereof in the appropriate court of the United States by filing a notice of appeal in such court within 30 days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found

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Page:United States Statutes at Large Volume 90 Part 1.djvu/407

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9 0 STAT. 3 5 7

or such penalty imposed, as provided in section 2112 of title 28, United States Code. The findings and order of the Secretary shall be set aside by such court if they are not found to be supported by substantial evidence, as provided in section 706(2) of title 5, United States Code. (c) ACTION U P O N F A I L U R E TO P A Y A S S E S S M E N T. — I f any person

fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the a p p r o p r i a t e court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the A t to r n e y General of the United States, who shall recover the amount assessed in any a p p r o p r i a t e district court of the United States. I n such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review. (d) COMPROMISE OR OTHER ACTION BY SECRETARY.—The Secretary

may compromise, modify, or remit, with or without conditions, any civil penalty which is subject to imposition or which has been imposed under this section. SEC. 309. CRIMINAL OFFENSES. (a) OFFENSES.—A person is guilty of an offense if he commits any 16 USC 1859. act prohibited by— (1) section 307(1)(D), (E), (F), or (H); or (2) section 307(2). (b) P U N I S H M E N T. — Any offense described in subsection (a)(1) is punishable by a fine of not more than $50,000, or imprisonment for not more than 6 months, or b o t h; except that if in the commission of any such offense the person uses a dangerous weapon, engages in conduct that causes bodily injury to any officer authorized to enforce the provisions of this Act (as provided for in section 311), or places any such officer in fear of imminent bodily injury, the offense is punishable by a fine of not more than $100,000, or imprisonment for not more than 10 years, or both. Any offense described in subsection (a)(2) is punishable by a fine of not more than $100,000, or imprisonment for not more than 1 year, or both. .. „ • '. (c) JURISDICTION.—There is Federal jurisdiction over any offense described in this section. SEC. 310. CIVIL FORFEITURES. (a) IN GENERAL.—Any fishing vessel (including its fishing gear, 16 USC 1860. furniture, appurtenances, stores, and cargo) used, and any fish taken or retained, in any manner, in connection with or as a result of the commission of any act prohibited by section 307 (other than any act for which the issuance of a citation under section 311(c) is sufficient sanction) shall be subject to forfeiture to the United States. A l l or part of such vessel may, and all such fish shall, be forfeited to the United States pursuant to a civil proceeding under this section. (b) JURISDICTION OF COURTS.—Any district cOurt of the

United

States which has jurisdiction under section 311(d) shall have jurisdiction, upon application by the Attorney General on behalf of the United States, to order any forfeiture authorized under subsection (a) and any action provided for under subsection (d). (c) JUDGMENT.—If a judgment is entered for the United States in a civil forfeiture proceeding under this section, the Attorney General may seize any property or other interest declared forfeited to the United States, which has not previously been seized pursuant to this Act or for which security has not previously been obtained under subsection (d). The provisions of the customs laws relating to — (1) the disposition of forfeited property, (2) the proceeds from the sale of forfeited property,

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Page:United States Statutes at Large Volume 90 Part 1.djvu/408

 90 STAT. 358

PUBLIC LAW 94-265—APR. 13, 1976 (3) the remission or mitigation of forfeitures, and (4) the compromise of claims, shall apply to any forfeiture ordered, and to any case in which forfeiture is alleged to be authorized, under this section, unless such provisions are inconsistent with the purposes, policy, and provisions of this Act. The duties and powers imposed upon the Commissioner of Customs or other persons under such provisions shall, with respect to this Act, be performed by officers or other persons designated for such purpose by the Secretary. (d) PROCEDURE.—(1) Any officer authorized to serve any process in rem which is issued by a court having jurisdiction under section 311 (d) shall— (A) stay the execution of such process; or (B) discharge any fish seized pursuant to such process; upon the receipt of a satisfactory bond or other security from any person claiming such property. Such bond or other security shall be conditioned upon such person (i) delivering such property to the appropriate court upon order thereof, without any impairment of its value, or (ii) paying the monetary value of such property pursuant to an order of such court. Judgment shall be recoverable on such bond or other security against both the principal and any sureties in the event that any condition thereof is breached, as determined by such court. (2) Any fish seized pursuant to this Act may be sold, subject to the approval and direction of the appropriate court, for not less than the fair market value thereof. The proceeds of any such sale shall be deposited with such court pending the disposition of the matter involved. (e) KEBUTTABLE PRESUMPTION.—For purposes of this section, it shall be a rebuttable presumption that all fish found on board a fishing vessel which is seized in connection with an act prohibited by section 307 were taken or retained in violation of this Act. SEC. 311. ENFORCEMENT.

16 USC 1861.

Reports to congressional committees.

(a) KESPONSIBILITY.—The provisions of this Act shall be enforced by the Secretary and the Secretary of the department in which the Coast Guard is operating. Such Secretaries may, by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal agency, including all elements of the Department of Defense, and of any State agency, in the performance of such duties. Such Secretaries shall report semiannually, to each committee of the Congress listed in section 203(b) and to the Councils, on the degree and extent of known and estimated compliance with the provisions of this Act. (b) POWERS or AUTHORIZED OFFICERS.—Any officer who is author-

ized (by the Secretary, the Secretary of the department in which the Coast Guard is operating, or the head of any Federal or State agency which has entered into an agreement with such Secretaries under subsection (a)) to enforce the provisions of this Act may— (1) with or without a warrant or other process— (A) arrest any person, if he has reasonable cause to believe that such person has committed an act prohibited by section 307; (B) board, and search or inspect, any fishing vessel which is subject to the provisions of this Act; (C) seize any fishing vessel (together with its fishing gear, furniture, appurtenances, stores, and cargo) used or employed

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Page:United States Statutes at Large Volume 90 Part 1.djvu/409

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90 STAT. 359

in, or with respect to which it reasonably appears that such vessel was used or employed in, the violation of any provision of this Act; (D) seize any fish (wherever found) taken or retained in violation of any provision of this Act; and (E) seize any other evidence related to any violation of any provision of this Act; ^ (2) execute any warrant or other process issued by any court of competent jurisdiction; and (3) exercise any other lawful authority. (c) ISSUANCE OP CITATIONS.—If any officer authorized to enforce the provisions of this Act (as provided for in this section) finds that a fishing vessel is operating or has been operated in violation of any provision of this Act, such officer may, in accordance with regulations issued jointly by the Secretary and the Secretary of the department in which the Coast Guard is operating, issue a citation to the owner or operator of such vessel in lieu of proceeding under subsection (b). If a permit has been issued pursuant to this Act for such vessel, such officer shall note the issuance of any citation under this subsection, including the date thereof and the reason therefor, on the permit. The Secretary shall maintain a record of all citations issued pursuant to this subsection. (d) JURISDICTION OF COURTS.—The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under the provisions of this Act. In the case of Guam, and any Commonwealth, territory, or possession of the United States in the Pacific Ocean, the appropriate court is the United States District Court for the District of Guam, except that in the case of American Samoa, the appropriate court is the United States District Court for the District of Hawaii. Any such court may, at any time— (1) enter restraining orders or prohibitions; ' (2) issue warrants, process in rem, or other process; (3) prescribe and accept satisfactory bonds or other security; and (4) take such other actions as are in the interest of justice. (e) DEFINITION.—For purposes of this section— (1) The term "provisions of this Act" includes (A) any regulation or permit issued pursuant to this Act, and (B) any provision of, or regulation issued pursuant to, any international fishery agreement under which foreign fishing is authorized by section 201(b) or (c), with respect to fishing subject to the exclusive fishery management authority of the Uhited States. (2) The term "violation of any provision of this Act" includes (A) the commission of any act prohibited by section 307, and (B) the violation of any regulation, permit, or agreement referred to in paragraph (1). SEC. 312. EFFECTIVE DATE OF CERTAIN PROVISIONS. Sections 307, 308, 309, 310, and 311 shall take effect March 1, 1977. 16 USC 1857 note.

TITLE IV—MISCELLANEOUS PROVISIONS SEC. 401. EFFECT ON LAW OF THE SEA TREATY.

If the United States ratifies a comprehensive treaty, which includes 16 USC 1881. provisions with respect to fishery conservation and management jurisdiction, resulting from any United Nations Conference on the Law of the Sea, the Secretary, after consultation with the Secretary of State, may promulgate any amendment to the regulations promulgated under this Act if such amendment is necessary and appropriate to

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Page:United States Statutes at Large Volume 90 Part 1.djvu/410

 90 STAT. 360

Ante, p. 331.

Infra. 22 USC 1973.

22 USC 1972 note. 22 USC 1973 note.

PUBLIC LAW 94-265—APR. 13, 1976 conform such regulations to the provisions of such treaty, in anticipation of the date when such treaty shall come into force and effect for, or otherwise be applicable to, the United States. SEC. 402. REPEALS. (a) The Act of October 14, 1966 (16 U.S.C. 1091-1094), is repealed as of March 1, 1977. (b) The Act of May 20, 1964 (16 U.S.C. 1081-1086), is repealed as of March 1, 1977. SEC. 403. FISHERMEN'S PROTECTIVE ACT AMENDMENTS. (a) AMENDMENTS.—The Act of August 27, 1954 (22 U.S.C. 1972), is amended— (1) by amending section 2 thereof to read as follows: "SEC. 2. If— "(1) any vessel of the United States is seized by a foreign country on the basis of claims in territorial waters or the high seas which are not recognized by the United States; or "(2) any general claim of any foreign country to exclusive fishery management authority is recognized by the United States, and any vessel of the United States is seized by such foreign country on the basis of conditions and restrictions under such claim, if such conditions and restrictions— "(A) are unrelated to fishery conservation and management, "(B) fail to consider and take into account traditional fishing practices of vessels of the United States, "(C) are greater or more onerous than the conditions and restrictions which the United States applies to foreign fishing vessels subject to the exclusive fishery management authority of the United States (as established in title I of the Fishery Conservation and Management Act of 1976), or "(D) fail to allow fishing vessels of the United States equitable access to fish subject to such country's exclusive fishery management authority; and there is no dispute as to the material facts with respect to the location or activity of such vessel at the time of such seizure, the Secretary of State shall immediately take such steps as are necessary— "(i) for the protection of such vessel and for the health and welfare of its crew; "(ii) to secure the release of such vessel and its crew; and "(iii) to determine the amount of any fine, license, fee, registration fee, or other direct charge reimbursable under section 3 (a) of this Act."; and (2) by amending section 3(a) thereof by inserting immediately before the last sentence thereof the following new sentence: "For purposes of this section, the term 'other direct charge' means any levy, however characterized or computed (including, but not limited to, any computation based on the value of a vessel or the value of fish or other property on board a vessel), which is imposed in addition to any fine, license fee, or registration fee." (b) EFFECTIVE DATE,—The amendment made by subsection (a)(1) shall take effect March 1, 1977. The amendment made by subsection (a)(2) shall apply with respect to seizures of vessels of the United States occurring on or after December 31, 1974. SEC. 404. MARINE MAMMAL PROTECTION ACT AMENDMENT. (a) AMENDMENT.—Section 3(15)(B) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1362(15)(B)) is amended by striking

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 PUBLIC LAW 94-265—APR. 13, 1976

90 STAT. 361

out "the fisheries zone established pursuant to the Act of October 14, 1966." and inserting in lieu thereof "the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaward boundary of each coastal State, and the outer boundary is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured.". (b) EFFECTIVE DATE.—The amendment made by subsection (a) 16 USC 1362 shall take effect March 1, 1977. °o*«SEC. 405. ATLANTIC TUNAS CONVENTION ACT AMENDMENT. (a) AMENDMENT.—Section 2(4) of the Atlantic Tunas Convention Act of 1975 (16 U.S.C. 971(4)) is amended by striking out "the fisheries zone established pursuant to the Act of October 14, 1966 (80 Stat. 908; 16 U.S.G. 1091-1094)," and inserting in lieu thereof "the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaw ard boundary of each coastal State, and the outer boundary is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured,". (b) EFFECTIVE DATE.—The amendment made by subsection (a) shall 16 USC 971 note, take effect March 1, 1977. SEC. 406. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated to the Secretary, for pur- 16 USC 1882. poses of carrying out the provisions of this Act, not to exceed the following sums: (1) $5,000,000 for the fiscal year ending June 30, 1976. (2) $5,000,000 for the transitional fiscal quarter ending September 30, 1976. (3) $25,000,000 for the fiscal year ending September 30, 1977. (4) $30,000,000 for the fiscal year ending September 30, 1978. Approved April 13, 1976.

LEGISLATIVE HISTORY: HOUSE REPORTS: No. 94-445 (Comm. on Merchant Marine and Fisheries) and No. 94-948 (Comm. of Conference). SENATE REPORTS: No. 94-416 (Comm. on Commerce), No. 94-459 (Comm. on Foreign Relations), and No. 94-515 (Comm. on Armed Services) all accompanying S. 961, and No. 94-711 (Comm. of Conference). CONGRESSIONAL RECORD: Vol. 121 (1975): Oct. 9, considered and passed House. Dec. 19, S. 961 considered in Senate. Vol. 122 (1976): Jan. 19-22, 27, S. 961 considered in Senate. Jan. 28, considered and passed Senate, amended, in lieu of S. 961. Mar. 29, Senate agreed to conference report. Mar. 30, House agreed to conference report. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS: Vol. 12, No. 16 (1976): Apr. 13, Presidential statement.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/412

 90 STAT: 362

PUBLIC LAW 94-266—APR. 15, 1976

Public Law 94-266 94th Congress Joint Resolution Apr. 15, 1976 [H.J. Res. 890]

Emergency supplemental appropriations, 1976.

Making emergency supplemental appropriations for public employment program* summer youth programs, and preventive health services for the fiscal year ending.June 30, 1976, and for other purposes

Resolved by the Senatie and House of Representatives of the United States of America in Congress assembled, That the following sums are appropriated, out of any money in the Treasury not otherwise appropriated, for the fiscal year ending June 30, 1976, namely: TITLE I I N D E P E N D E N T AGENCIES ENVIRONMENTAL PROTECTION AGENCY CONSTRUCTION GRANTS

33 USC 1283.

For an additional amount for liquidation of obligations incurred pursuant to authority contained in section 203 of the Federal Water Pollution Control Act, as amended, $300,000,000, to remain available until expended. TITLE II DEPARTMENT OF LABOR EMPLOYMENT AND TRAINING AJ>MINISTRATION COMPREHENSIVE MANPOWER ASSISTANCE

For an additional amount for "Comprehensive manpower assistance", $528,420,000, to remain available until September 30, 1976. TEMPORARY EMPLOYMENT

ASSISTANCE

For expenses necessary to carry out activities authorized by title II of the Comprehensive Employment and Training Act of 1973, as amended (29 U.S.C. 841-851), $1,200,000,000, to remain available until January 31, 1977. COMMUNITY SERVICE EMPLOYMENT FOR OLDER AMERICANS

42 USC 3056.

To carry out title IX of the Older Americans Act, as amended, $55,900,000, to remain available until June 30, 1977.

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 PUBLIC LAW 94-266—APR. 15, 1976

90 STAT. 363

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE CENTER TOR DISEASE CONTROL PREVENTIVE HEALTH SERVICES

For an additional amount for "Preventive Health Services" for carrying out, to the extent not otherwise provided, title III and section 431 of the Public Health Service Act for a comprehensive, 42 USC 241, nationwide influenza immunization program, $135,064,000, to remain 289a. available until expended: Provided, That vaccines may be supplied to State and local health agencies without charge. RELATED AGENCY COMMUNITY SERVICES ADMINISTRATION COMMUNITY SERVICES PROGRAM

For an additional amount for "Community services program", $23,000,000, to remain available until September 30, 1976. Approved April 15, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1004 (Comm. on Appropriations). SENATE REPORT No. 94-742 (Comm. on Appropriations). CONGRESSIONAL RECORD, Vol. 122 (1976): Apr. 5, considered and passed House. Apr. 9, considered and passed Senate, amended. Apr. 12, House concurred in Senate amendments. WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 12, No. 16: Apr. 15, Presidential statement.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/415

 PUBLIC LAW 94-267—APR. 15, 1976

90 STAT. 365

Public Law 94-267 94th Congress An Act To amend the Internal Revenue Code of 1954 to permit tax-free rollovers of distributions from employee retirement plans in the event of plan termination.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That— (a) TERMINATION OF EMPLOYEE TRUST, ETC.—Section 402(a) of the Internal Revenue Code of 1954 (relating to taxability of beneficiaries of exempt trusts) is amended— (1) by striking out paragraph (5)(A) and inserting in lieu thereof the following: "(A) the balance to the credit of an employee is paid to him— " (i) within one taxable year of the employee on account of a termination of the plan of which the trust is a part or, in the case of a profit-sharing or stock bonus plan, a complete discontinuance of contributions under such plan, or "(ii) in one or more distributions which constitute a lump-sum distribution within the meaning of subsection (e)(4)(A) (determined without reference to subsection (e)(4)(B)),", (2) by striking out "the lump-sum distribution" in the last sentence of paragraph (5) and inserting in lieu thereof "a payment", and (3) by adding at the end thereof the following paragraph:

Apr. 15, 1976 [H.R. 12725]

Internal Revenue Code of 1954, amendments. 26 USC 402.

^

"(6) SPECIAL ROLLOVER RULES.—For purposes of paragraph

(5)(A)m"(A) TIME OF TERMINATION.—A complete discontinuance

of contributions under a profit-sharing or stock bonus plan shall be deemed to occur on the day the plan administrator notifies the Secretary or his delegate (in accordance with regulations prescribed by the Secretary or his delegate) that all contributions to the plan have been completely discontinued. For purposes of section 411(d)(3), the plan shall be 26 USC 411. considered to be terminated no later than the day such notice is filed with the Secretary or his delegate. "(B)

^

S A L E o r S U B S I D I A R Y OR ASSETS.—

"(i) A payment of the balance to the credit of an employee of a corporation (hereinafter referred to as the employer corporation) which is a subsidiary corporation (withm the meaning of section 425(f)) or which is a 26 USC 425. member of a controlled group of corporations (within the meaning of section 1563(a), determined by substi- 26 USC 1563. tuting '50 percent' for '80 percent' each place it appears therein) in connection with the liquidation, sale, or other means of terminating the parent-subsidiary or controlled group relationship of the employer corporation with the parent corporation or controlled group, or "(ii) a payment of the balance to the credit of an employee of a corporation (hereinafter referred to as the acquiring corporation) in connection with the sale or

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Page:United States Statutes at Large Volume 90 Part 1.djvu/416

 9 0 STAT. 3 6 6

PUBLIC LAW 9 4 - 2 6 7 — A P R. 15, 1976 other transfer to the acquiring corporation of all or substantially all of the assets used by the previous employer of the employee (hereinafter referred to as the selling corporation) in a trade or business conducted by the selling corporation, shall be treated as a payment or distribution on account of the termination of the plan with respect to such employee if the employees of the employer corporation or the acquiring corporation (whichever applies) are not active participants i n such plan at the time of such payment or distribution. For purposes of this subparagraph, in no event shall a payment or distribution be deemed to be in connection with a sale or other transfer of assets, or a liquidation, sale, or other means of terminating such parent-subsidiary or controlled group relationship, if such payment or distribution is made later than the end of the second calendar year after the calendar year in which occurs such sale or other transfer of assets, or such liquidation, sale, or other means of term i n a t i n g such parent-subsidiary or controlled group relationship.".

' •

26 USC 403.

(b) TERMINATION OF A N N U I T Y P L A N. — S e c t i o n 403(a)

26 USC 402.

.

(relating

to rollover amounts) is amended— (1) by striking out subparagraph (4)(A) and inserting in lieu thereof the following: " (A) the balance to the credit of an employee is paid to him— " (i) within one taxable year of the employee on account of a termination of the plan of which such trust is a part or, in the case of a profit-sharing plan, a complete discontinuance of contributions under such plan, or " ( i i) in one or more distributions which constitutes a lump-sum distribution within the meaning of section 402 (e)(4)(A) (determined without reference to section 402 (e)(4)(B)),'', (2) by striking out " the lump-sum distribution" in the last sentence of paragraph (4) and inserting in lieu thereof "a payment", and (3) by a d d i n g a t the end thereof the following paragraph: " (5) SPECIAL ROLLOVER RULES.—For purposes of paragraph (4) . (A)(i)" (A) T I M E or TERMINATION.—A complete discontinuance

26 USC 411.

of contributions under a profit-sharing plan shall be deemed to occur on the day the plan administrator notifies the Secretary or his delegate (in accordance with regulations prescribed by the Secretary or his delegate) that all contributions to the plan have been completely discontinued. For purposes of section 411(d)(3), the plan shall be considered to be terminated no later than the d a y such notice is filed with the Secretary or his delegate. "(B)

26 USC 425. 26 USC 1563.

SALE or SUBSIDIARY O ASSETS.— R

" (i) A payment of the balance to the credit of an employee of a corporation (hereinafter referred to as the employer corporation) which is a subsidiary corporation (within the meaning of section 4 2 5 (f)) or which is a member of a controlled group of corporations (within the meaning of section 1563(a), determined by substit u t i n g '50 percent' for '80 percent' each place it appears therein) in connection with the liquidation, sale, or other

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Page:United States Statutes at Large Volume 90 Part 1.djvu/417

 PUBLIC LAW 9 4 - 2 6 7 — A P R. 15, 1976

90 STAT. 367

means of terminating the parent-subsidiary or controlled group relationship of the employer corporation with the parent corporation or controlled group, or " ( i i) A payment of the balance to the credit of an employee of a corporation (hereinafter referred to as the acquiring corporation) in connection with the sale or other transfer to the acquiring corporation of all or substantially all of the assets used by the previous employer of the employee (hereinafter referred to as the selling corporation) in a trade or business conducted by the selling corporation, shall be treated as a payment or distribution on account of the the termination of the plan with respect to such employee if the employees of the employer corporation or the acquiring corporation (whichever applies) are not active participants in such plan a t the time of such payment or distribution. For purposes of this subparagraph, in no event shall a payment or distribution be deemed to be in accordance with a sale or other transfer of assets, or a liquidation, sale, or other means of terminating such parent-subsidiary or controlled group relationship, if such payment or distribution is made later than the end of the second calendar year after the calendar year in which occurs such sale or other transfer of assets, or such liquidation, sale, or other means of term i n a t i n g such parent-subsidiary or controlled group relationship.". (c)

CONFORMING AMENDMENTS. —

(1) Section 401(a) of such Code (relating to requirements for qualification) is amended by a d d i n g after paragraph (19) the following: " (20) A t r u s t forming part of a pension plan shall not be treated as failing to constitute a qualified trust under this section merely because the pension plan of which such t r u s t is a part makes a payment or distribution described in section 402(a)(5)(A)(i) or 403 (a)(4)(A)(i). This paragraph shall not apply to a defined benefit plan unless the employer maintaining such plan files a notice with the Pension Benefit G u a r a n t y Corporation (at the time and in the manner prescribed by the Pension Benefit G u a r a n t y Corporation) notifying the Corporation of such payment or distribution and the Corporation has approved such payment or distribution or, within 90 days after the date on which such notice was filed, has failed to disapprove such payment or distribution.". (2) The last sentence of section 401(a) of such Code is amended by striking out " and ( 1 9) " and inserting in lieu thereof " (19), and (20)". (3) Section 404(a)(2) of such Code (relating to employee annuities) is amended by striking out " and ( 1 9) " and inserting in lieu thereof ", (19), and (20)". (4) Section 805(d)(1)(C) of such Code (relating to pension plan reserves) is amended by striking out " and ( 1 9) " and inserting in lieu thereof " (19), and ( 2 0) ". (d)

TRANSITIONAL RULES. —

(1) IN GENERAL. (A)

PERIOD FOR ROLLOVER CONTRIBUTION.—In the case of a

payment described in section 4 0 2 (a)(5)(A) (other than a payment described in section 402(a)(5)(A) as in effect on the day before the date of the enactment of this Act) or section 4 0 3 (a)(4)(A) (other than a payment described in

89-194 O—78—pt. 1

27

Qualification requirements. 26 USC 401.

Ante, p. 365. Ante, p. 366.

26 USC 404. 26 USC 805. 26 USC 402 note.

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Page:United States Statutes at Large Volume 90 Part 1.djvu/418

 9 0 STAT. 3 6 8

26 USC 403.

26 USC 402.

,

PUBLIC LAW 9 4 - 2 6 7 - - A P R. 15, 1976 section 403(a)(4)(A) as in effect on the day before the date of the enactment of this Act) of the I n t e r n a l Revenue Code of 1954 (relating to distributions of the balance to the credit of the employee) which is contributed by a n employee after the date of the enactment of this Act to a trust, plan, account, annuity, or bond described in section 402(a)(5)(B) or 403 (a)(4)(B) of such Code, the applicable period specified in section 4 0 2 (a)(5)(B) or 4 0 3 (a)(4)(B) of such Code (relating to rollover distributions to another plan or retirement account) shall not expire before December 31, 1976. (B)

26 USC 6402.

^

26 USC 1.

T I M E OF CONTKEBUTIGN.—

(i) GENERAL RULE.—If the initial portion of a payment the applicable period for which is determined under subparagraph (A) is contributed before December 31, 1976, by an individual to a trust, plan, account, annuity, or bond described i n subparagraph (A) and the remaining portion of such payment is contributed by such individual to such a trust, plan, account, annuity, or bond not later than 30 days after the date a credit or refund is allowed by the Secretary of the Treasury or his delegate under section 6402 of the I n t e r n a l Revenue Code of 1954 with respect to the contribution, then, for purposes of subparagraph (A) and sections 4 0 2 (a)(5) and 403(a) (4) of such Code, a t the election of the individual (made in accordance with regulations prescribed by the Secretary or his delegate), such remaining portion shall be considered to have been contributed on the date the initial portion of the payment was contributed. For purposes of this subparagraph, the initial portion of a payment is the amount by which such payment exceeds the amount of the tax imposed on such payment by. chapter 1 of such Code (determined without regard to this subparagraph). (ii) REGULATIONS.—For purposes of this subparagraph, the tax imposed on a payment by chapter 1 of the I n t e r n a l Revenue Code of 1954, and the date a credit or refund is allowed by the Secretary of the Treasury or his delegate under section 6402 with respect to a contribution, shall be determined under regulations prescribed by the Secretary of the Treasury or his delegate. (C) PERIOD o r LIMITATIONS.—If a n i n d i v i d u a l has m a d e

26 USC 1 et seq. -* '•' •Mr ', S{

the election provided by subparagraph (B), then— (i) the period provided by the I n t e r n a l Revenue Code of 1954 for the assessment of any deficiency for the taxable year in which the payment described in subparagraph (A) was made and each subsequent taxable year for which tax is determined by reference to the treatment of such payment under such Code or the status under such Code of any trust, plan, account, annuity, or bond described in subparagraph (A) shall, to the extent attributable to such treatment, not expire before the expiration of 3 years from the date the Secretary of the Treasury o r his delegate is notified by the individual (in such manner as the Secretary of the Treasury or his delegate may prescribe) that such individual has made (or failed to make) the contribution of the remaining portion of the payment within the period specified in subparagraph (B)(i),and

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 PUBLIC LAW 94-267—APR. 15, 1976

90 STAT. 369

(ii) such deficiency may be assessed before the expiration of such 3-year period notwithstanding the provisions of section 6212(c) of such Code or the provisions of any 26 USC 6212. other law or rule of law which would otherwise prevent such assessment. (2)

ROLLOVER CONTRIBUTION FOR CERTAIN PROPERTY SOLD.—

Sections 402(a)(5)(C) and 403(a)(4)(C) of the Internal Revenue Code of 1954 (relating to the requirement that rollover amount must consist of property received in a distribution) shall not apply with respect to that portion of the property received in a payment described in section 402(a)(5)(A) (other than a payment described in section 402(a)(5)(A) as in effect on the day before the date of the enactment of this Act) or 403(a)(4) (A) (other than a payment described in section 403(a)(4)(A) as in effect on the day before the date of the enactment of this Act) of such Code which is sold or exchanged by the employee on or before the date of the enactment of this Act, if the employee transfers an amount of cash equal to the proceeds received from the sale or exchange of such property in excess of the amount considered contributed by the employee (within the meaning of section 402(a)(4)(D)(i) of such Code). (3) NoNRECOGNiTioN OF GAIN O LOSS.—For purposes of the R Internal Revenue Code of 1954, no gain or loss shall be recognized with respect to the sale or exchange of property described in paragraph (2) if the proceeds of such sale or exchange are transferred by an employee in accordance with this subsection and the applicable provisions of section 402(a)(5) or 40^ (a)(4) of such Code. (e) EFFECTIVE DATE.—The amendments made by this Act shall apply with respect to payments made to an employee on or after July 4, 1974. Approved April 15, 1976.

LEGISLATIVE HISTORY: HOUSE REPORT No. 94-1020 (Coram, on Ways and Means). CONGRESSIONAL RECORD, Vol. 122 (1976): Apr. 13, considered and passed House. Apr. 14, considered and passed Senate.

26 USC 402, 403. ^

-Ante, p. 366. ';. '"

26 USC 401 note,

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