§ 1856. State jurisdiction

2,655 words·~12 min read·/usc/title-16/section-1856

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

(a)In general

(1)Except as provided in subsection (b), nothing in this chapter shall be construed as extending or diminishing the jurisdiction or authority of any State within its boundaries.

(2)For the purposes of this chapter, except as provided in subsection (b), the jurisdiction and authority of a State shall extend—

(A)to any pocket of waters that is adjacent to the State and totally enclosed by lines delimiting the territorial sea of the United States pursuant to the Geneva Convention on the Territorial Sea and Contiguous Zone or any successor convention to which the United States is a party;

(B)with respect to the body of water commonly known as Nantucket Sound, to the pocket of water west of the seventieth meridian west of Greenwich; and

(C)to the waters of southeastern Alaska (for the purpose of regulating fishing for other than any species of crab) that are—

(i)north of the line representing the international boundary at Dixon Entrance and the westward extension of that line; east of 138 degrees west longitude; and not more than three nautical miles seaward from the coast, from the lines extending from headland to headland across all bays, inlets, straits, passes, sounds, and entrances, and from any island or group of islands, including the islands of the Alexander Archipelago (except Forrester Island); or

(ii)between the islands referred to in clause

(i)(except Forrester Island) and the mainland.

(3)A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances:

(A)The fishing vessel is registered under the law of that State, and

(i)there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or

(ii)the State’s laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating.

(B)The fishery management plan for the fishery in which the fishing vessel is operating delegates management of the fishery to a State and the State’s laws and regulations are consistent with such fishery management plan. If at any time the Secretary determines that a State law or regulation applicable to a fishing vessel under this circumstance is not consistent with the fishery management plan, the Secretary shall promptly notify the State and the appropriate Council of such determination and provide an opportunity for the State to correct any inconsistencies identified in the notification. If, after notice and opportunity for corrective action, the State does not correct the inconsistencies identified by the Secretary, the authority granted to the State under this subparagraph shall not apply until the Secretary and the appropriate Council find that the State has corrected the inconsistencies. For a fishery for which there was a fishery management plan in place on August 1, 1996 that did not delegate management of the fishery to a State as of that date, the authority provided by this subparagraph applies only if the Council approves the delegation of management of the fishery to the State by a three-quarters majority vote of the voting members of the Council.

(C)The fishing vessel is not registered under the law of the State of Alaska and is operating in a fishery in the exclusive economic zone off Alaska for which there was no fishery management plan in place on August 1, 1996, and the Secretary and the North Pacific Council find that there is a legitimate interest of the State of Alaska in the conservation and management of such fishery. The authority provided under this subparagraph shall terminate when a fishery management plan under this chapter is approved and implemented for such fishery.

(b)Exception

(1)If the Secretary finds, after notice and an opportunity for a hearing in accordance with section 554 of title 5, that—

(A)the fishing in a fishery, which is covered by a fishery management plan implemented under this chapter, is engaged in predominately within the exclusive economic 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.

(3)If the State involved requests that a hearing be held pursuant to paragraph (1), the Secretary shall conduct such hearing prior to taking any action under paragraph (1).

(c)Exception regarding foreign fish processing in internal waters

(1)A foreign fishing vessel may engage in fish processing within the internal waters of a State if, and only if—

(A)the vessel is qualified for purposes of this paragraph pursuant to paragraph (4)(C) or has received a permit under section 1824(d) of this title;

(B)the owner or operator of the vessel applies to the Governor of the State for, and (subject to paragraph (2)) is granted, permission for the vessel to engage in such processing and the application specifies the species to be processed; and

(C)the owner or operator of the vessel submits reports on the tonnage of fish received from vessels of the United States and the locations from which such fish were harvested, in accordance with such procedures as the Secretary by regulation shall prescribe.

(2)The Governor of a State may not grant permission for a foreign fishing vessel to engage in fish processing under paragraph (1)—

(A)for a fishery which occurs in the waters of more than one State or in the exclusive economic zone, except after—

(i)consulting with the appropriate Council and Marine Fisheries Commission, and

(ii)considering any comments received from the Governor of any other State where the fishery occurs; and

(B)if the Governor determines that fish processors within the State have adequate capacity, and will utilize such capacity, to process all of the United States harvested fish from the fishery concerned that are landed in the State.

(3)Nothing in this subsection may be construed as relieving a foreign fishing vessel from the duty to comply with all applicable Federal and State laws while operating within the internal waters of a State incident to permission obtained under paragraph (1)(B).

(4)For purposes of this subsection—

(A)The term “fish processing” includes, in addition to processing, the performance of any other activity relating to fishing, including, but not limited to, preparation, supply, storage, refrigeration, or transportation.

(B)The phrase “internal waters of a State” means all waters within the boundaries of a State except those seaward of the baseline from which the territorial sea is measured.

(C)A foreign fishing vessel shall be treated as qualified for purposes of paragraph

(1)if the foreign nation under which it is flagged will be a party to

(i)a governing international fishery agreement or

(ii)a treaty described in section 1821(b) of this title during the time the vessel will engage in the fish processing for which permission is sought under paragraph (1)(B).

(Pub. L. 94–265, title III, § 306, Apr. 13, 1976, 90 Stat. 355; Pub. L. 97–191, § 1, June 1, 1982, 96 Stat. 107; Pub. L. 97–453, § 9, Jan. 12, 1983, 96 Stat. 2491; Pub. L. 98–623, title IV, § 404(4), Nov. 8, 1984, 98 Stat. 3408; Pub. L. 99–659, title I, § 101(c)(2), Nov. 14, 1986, 100 Stat. 3707; Pub. L. 101–627, title I, § 112, Nov. 28, 1990, 104 Stat. 4453; Pub. L. 104–297, title I, § 112(a)–(c), Oct. 11, 1996, 110 Stat. 3595, 3596.)