Collapse to view only § 3635. Preemption
- § 3631. Definitions
- § 3632. United States Section
- § 3633. Authority and responsibility
- § 3634. Interagency cooperation
- § 3635. Preemption
- § 3636. Rulemaking
- § 3637. Prohibited acts and penalties
- § 3638. General standard
- § 3639. Advisory committee
- § 3640. Administrative matters
- § 3641. Authorization of appropriations
- § 3642. Disposition of property of International Pacific Salmon Fisheries Commission
- § 3643. Savings provision
- § 3644. Restriction on spending authority
- § 3645. Northern and Southern Funds; treaty implementation; additional authorization of appropriations
§ 3631. Definitions
As used in this chapter, unless the context otherwise requires, the term—
(a) “Commission” means the Pacific Salmon Commission established by the Treaty;
(b) “enhancement” means manmade improvements to natural habitats, or the application of artificial fish culture technology, that will lead to the increase of salmon stocks;
(c) “Magnuson Act” means the Act entitled “the Magnuson-Stevens Fishery Conservation and Management Act,” as approved April 13, 1976, and as later amended (16 U.S.C. section 1801 et seq.);
(d) “Panel” means any of the Panels established by the Treaty;
(e) “person” means any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State);
(f) “salmon” means any anadromous species of the family Salmonidae and genus Oncorhynchus, commonly known as Pacific salmon, including but not limited to:
Popular names | Scientific name |
|---|---|
Chinook or King Salmon | Oncorhynchus tshawytscha |
Coho or Silver Salmon | Oncorhynchus kisutch |
Pink or Humpback Salmon | Oncorhynchus gorbuscha |
Chum or Dog Salmon | Oncorhynchus keta |
Sockeye or Red Salmon | Oncorhynchus nerka |
and shall also include Steelhead (Salmo gairdneri);
(g) “Secretary” means the Secretary of Commerce;
(h) “Treaty” means the Treaty between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon, signed at Ottawa, January 28, 1985;
(i) “treaty Indian tribe” means any of the federally recognized Indian tribes of the Columbia River basin, Washington coast or Puget Sound areas having reserved fishing rights to salmon stocks subject to the Treaty under treaties with the United States Government; and
(j) “United States Section” means the four United States Commissioners appointed by the President pursuant to this chapter.
(Pub. L. 99–5, § 2, Mar. 15, 1985, 99 Stat. 7; Pub. L. 102–251, title III, § 306(a), Mar. 9, 1992, 106 Stat. 66; Pub. L. 104–208, div. A, title I, § 101(a) [title II, § 211(b)], Sept. 30, 1996, 110 Stat. 3009, 3009–41.)
§ 3632. United States Section
(a) Commissioners
(b) Alternate Commissioners
(c) Southern Panel
The United States shall be represented on the southern Panel by six Panel members, of whom—
(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;
(2) one shall be an official of the State of Oregon, with salmon fishery management responsibility and expertise;
(3) one shall be an official of the State of Washington, with salmon fishery management responsibility and expertise;
(4) two shall be appointed from a list submitted by the treaty Indian tribes of individuals with salmon fishery management responsibility and expertise; and
(5) one shall be appointed from the commercial or recreational sector who is knowledgeable and experienced in the salmon fisheries for which the southern Panel is responsible.
(d) Northern Panel
The United States shall be represented on the northern Panel by six Panel members, of whom—
(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;
(2) one shall be an official of the State of Alaska, with salmon fishery management responsibility and expertise; and
(3) four shall be individuals knowledgeable and experienced in the salmon fisheries for which the northern Panel is responsible.
(e) Fraser River Panel
The United States shall be represented on the Fraser River Panel by four Panel members, of whom—
(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;
(2) one shall be an official of the State of Washington, with salmon fishery management responsibility and expertise;
(3) one shall be appointed from a list submitted by the treaty Indian tribes of individuals with salmon fishery management responsibility and expertise for the fisheries for which the Fraser River Panel is responsible; and
(4) one shall be appointed from the commercial sector of the salmon fishing industry concerned with fisheries for which the Fraser River Panel is responsible.
(f) Transboundary Panel
The United States shall be represented on the Transboundary Panel by seven panel members, of whom—
(1) one shall be an official of the United States Government, with salmon fishery management responsibility and expertise;
(2) one shall be an official of the State of Alaska, with salmon fishery management responsibility and expertise; and
(3) five shall be individuals knowledgeable and experienced in the salmon fisheries for which the Transboundary Panel is responsible.
(g) Panel appointments
(h) Voting requirements
(1) Except as provided in paragraph (2), the United States Section shall operate with the objective of attaining consensus decisions in the development and exercise of its single vote within the Commission. A decision of the United States Section shall be taken when there is no dissenting vote.
(2) A decision of the United States Section with respect to any salmon fishery regime covered by chapter 1 or 2 (except paragraph 4 of chapter 2) of Annex IV to the Pacific Salmon Treaty of 1985 shall be taken upon the affirmative vote of the United States Commissioner appointed from the list submitted by the Governor of Alaska pursuant to subsection (a). A decision of the United States Section with respect to any salmon fishery regime covered by chapter 4, 5 (except paragraph 2(b) of chapter 5), or 6 of the Pacific Salmon Treaty of 1985 shall be taken upon the affirmative vote of both the United States Commissioner appointed from the list submitted by the Governors of Washington and Oregon pursuant to subsection (a) and the United States Commissioner appointed from the list submitted by the treaty Indian tribes of the State of Idaho, Oregon, or Washington pursuant to subsection (a). Before a decision of the United States Section is made under this paragraph, the voting Commissioner or Commissioners shall consult with the Commissioner who is an official of the United States Government under subsection (a) 3
3 So in original. Probably should be followed by a period.
(3) All decisions and recommendations of the United States Section of the northern, southern, and transboundary Panels shall require the concurring vote of a majority of the United States Panel members present and voting, except that decisions and recommendations of the southern Panel shall require the concurring vote of the members designated in subsections (c)(2) and (c)(3) and one of those members designated in subsection (c)(4).
(4) All decisions and recommendations of the United States Section of the Fraser River Panel shall require the concurring vote of all United States Panel members present and voting, except that orders referred to in article VI(6) of the Treaty may be agreed to on the basis of a majority, provided that the Panel members representing the State and Tribal fishery management authorities concur.
(5) All decisions and recommendations of any joint Panel shall require the concurring votes of each Panel under the voting rules specified in paragraphs (2) and (3).
(6) To assist in the resolution of disputes affecting decisions of the United States Section or of the United States Panel sections, a three-person Conciliation Board may be established. The members of the Conciliation Board shall be selected by the United States Section as follows: each non-Federal Commissioner shall submit a list of no fewer than three qualified nominees; one person shall be selected from each list by consensus decision of the Federal Commissioner and the other two non-Federal Commissioners. The Conciliation Board shall operate under such bylaws as may be established by the United States Section.
(7) In any matter where the Fraser River Panel is unable to act because the United States Fraser River Panel members have been unable to reach a decision in accordance with paragraph (3) of this subsection, and upon a determination by the Chairman of the United States Section that an action of the Panel is required, the United States Section shall act for the United States Panel members in the Fraser River Panel.
(8) In any matter where the Secretary of State determines that the United States is in jeopardy of not fulfilling its international obligations under the Treaty, the Secretary of State shall so certify to the United States Section. Such certification shall include the reasons for such determination and shall specify the date by which a decision by the United States Section is desired. If the United States Section has not reached a decision by the date specified, the Secretary of State, after consultation with the Secretary and the Secretary of the Interior, shall report on the matter to the President.
(i) Consultation
(Pub. L. 99–5, § 3, Mar. 15, 1985, 99 Stat. 8; Pub. L. 99–5, § 16(c), formerly Pub. L. 106–113, div. B, § 1000(a)(1) [title VI, § 623(c)], Nov. 29, 1999, 113 Stat. 1535, 1501A–59, renumbered Pub. L. 109–479, title III, § 302(d)(1), Jan. 12, 2007, 120 Stat. 3623; Pub. L. 106–554, § 1(a)(4) [div. B, title I, § 144(c)(5)], Dec. 21, 2000, 114 Stat. 2763, 2763A–239; Pub. L. 117–286, § 4(a)(118), Dec. 27, 2022, 136 Stat. 4318.)
§ 3633. Authority and responsibility
(a) Secretary of State
The Secretary of State is authorized to—
(1) receive and transmit, on behalf of the United States, reports, requests, recommendations, proposals, and other communications of and to the Commission and Panels;
(2) in consultation with the Secretary and the Secretary of the Interior, approve, disapprove, object to, or withdraw objections to fishery regimes, including enhancement programs and Fraser River Panel regulations proposed in accordance with the Treaty, on the condition that the United States shall be obligated to carry out such regimes or regulations only to the extent that funds are made available for such purposes in appropriation Acts; and
(3) act upon, or refer to other appropriate authority, any communication referred to in paragraph (1) of this subsection other than a proposed fishery regime or Fraser River Panel regulation.
(b) States and treaty Indian tribes
(c) Secretary of Commerce
(Pub. L. 99–5, § 4, Mar. 15, 1985, 99 Stat. 10.)
§ 3634. Interagency cooperation
(a) States, United States agencies, treaty Indian tribes, private institutions and organizations
(b) United States agencies; facilities and personnel
(Pub. L. 99–5, § 5, Mar. 15, 1985, 99 Stat. 11.)
§ 3635. Preemption
If any State or treaty Indian tribe has taken any action, or omitted to take any action, the results of which place the United States in jeopardy of not fulfilling its international obligations under the Treaty, or any fishery regime or Fraser River Panel regulation adopted thereunder, the Secretary shall inform the State or tribe of the manner in which the action or inaction places the United States in jeopardy of not fulfilling its international obligations under the Treaty, of any remedial action which would relieve this concern, and of the intention to promulgate Federal regulations if such remedial actions are not undertaken within fifteen days unless an earlier action is required to avoid violation of United States Treaty obligations. Should United States action be required to meet Treaty obligations to Canada in respect to treaty Indian fisheries conducted in terminal areas subject to the continuing jurisdiction of a United States district court, such action shall be taken within the framework of such court jurisdiction. Otherwise, regulations may be promulgated by the Secretary pursuant to section 3636(a) of this title which shall supersede any State or treaty Indian tribal law, regulation or order determined by the Secretary to place the United States in jeopardy of not fulfilling its international obligations under the Treaty. Timely notice of all such determinations shall be disseminated by electronic media and shall be published in local newspapers in the major fishing ports affected and in the Federal Register. In order to enable the United States to fulfill its obligations under article IV(7) of the Treaty, the States of Alaska, Idaho, Oregon and Washington and the treaty Indian tribes shall advise the Secretary of all pertinent laws or regulations pertaining to the harvest of Pacific salmon, together with such amendments thereto as may be adopted from time to time.
(Pub. L. 99–5, § 6, Mar. 15, 1985, 99 Stat. 11.)
§ 3636. Rulemaking
(a) Promulgation of regulations by Secretary of Commerce
(b) Additions to fishery regimes and Fraser River Panel regulations
(c) Judicial review
(Pub. L. 99–5, § 7, Mar. 15, 1985, 99 Stat. 12; Pub. L. 102–251, title III, § 306(b), Mar. 9, 1992, 106 Stat. 66.)
§ 3637. Prohibited acts and penalties
(a) Unlawful acts
It is unlawful for any person or vessel subject to the jurisdiction of the United States—
(1) to violate any provision of this chapter, or of any regulation adopted hereunder, or of any Fraser River Panel regulation approved by the United States under the Treaty;
(2) to refuse to permit any officer authorized to enforce the provisions of this chapter to board a fishing vessel subject to such person’s control for purposes of conducting any search, investigation, or inspection in connection with the enforcement of this chapter;
(3) to forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search, investigation, or inspection described in paragraph (2);
(4) to resist a lawful arrest for any act prohibited by this section;
(5) 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 chapter;
(6) 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.
(b) Additional prohibitions and enforcement
(Pub. L. 99–5, § 8, Mar. 15, 1985, 99 Stat. 12; Pub. L. 114–81, title I, § 104, Nov. 5, 2015, 129 Stat. 657.)
§ 3638. General standard
All actions taken under sections 3632(g),1
1 See References in Text note below.
3633, 3635, and 3636 of this title shall—(a) take into account the best scientific information available;
(b) result in measures necessary and appropriate for the conservation, management, utilization and development of the Pacific salmon resource, with due consideration of social and economic concerns; and
(c) be consistent with United States obligations under the Treaty, domestic Indian treaties and other applicable law.
(Pub. L. 99–5, § 9, Mar. 15, 1985, 99 Stat. 13.)
§ 3639. Advisory committee
(a) Appointment; membership
(b) Functions
(c) Compensation
(d) Meetings
(Pub. L. 99–5, § 10, Mar. 15, 1985, 99 Stat. 13.)
§ 3640. Administrative matters
(a) Compensation of Commissioners and Alternate Commissioners
(b) Compensation of Panel Members and Alternate Panel Members
(c) Travel; other expenses
(d) Individuals not considered Federal employees
(Pub. L. 99–5, § 11, Mar. 15, 1985, 99 Stat. 14.)
§ 3641. Authorization of appropriations
There are authorized to be appropriated from time to time such sums as may be necessary for carrying out the purposes and provisions of the Treaty and this chapter including—
(a) necessary travel expenses of the Commissioners, Panel members, alternate Commissioners, alternate Panel members, United States members of joint technical committees established under article IV of the Treaty, and advisory committee members in accordance with the Federal Travel Regulations and sections 5701, 5702, 5704 through 5708, and 5731 of title 5;
(b) the United States share of the joint expenses of the Commission: Provided, That the United States Commissioners and Panel members and alternates shall not, with respect to commitments concerning the United States share of the joint expenses of the Organization, be subject to section 262b of title 22 insofar as it limits the authority of United States representatives to international organizations with respect to such commitments;
(c) amounts for research, enhancement, and other activities necessary to carry out the purposes of the Treaty and this chapter; and
(d) such amounts as may be due to settle accounts upon termination of the International Pacific Salmon Fisheries Commission.
(Pub. L. 99–5, § 12, Mar. 15, 1985, 99 Stat. 14.)
§ 3642. Disposition of property of International Pacific Salmon Fisheries Commission
The Secretary of State shall dispose of any United States property held by the International Pacific Salmon Fisheries Commission on the date of its termination in a manner which would further the purposes of this chapter.
(Pub. L. 99–5, § 13 (part), Mar. 15, 1985, 99 Stat. 15.)
§ 3643. Savings provision
This chapter shall not be interpreted or applied so as to affect or modify rights established in existing Indian treaties and other existing Federal laws, including the Order entered in Confederated Tribes and Bands of the Yakima Indian Nation v. Baldrige, Civil No. 80–342 (WD WASH.). This section shall not be interpreted or applied so as to affect or modify any rights or obligations of the United States pursuant to the Treaty.
(Pub. L. 99–5, § 14, Mar. 15, 1985, 99 Stat. 15.)
§ 3644. Restriction on spending authority
New spending authority or authority to enter into contracts provided in this chapter shall be effective only to such extent, or in such amounts, as are provided in advance in appropriation Acts.
(Pub. L. 99–5, § 15, Mar. 15, 1985, 99 Stat. 15.)
§ 3645. Northern and Southern Funds; treaty implementation; additional authorization of appropriations
(a) Northern Fund and Southern Fund
(1) As provided in the June 30, 1999, Agreement of the United States and Canada on the Treaty Between the Government of the United States and the Government of Canada Concerning Pacific Salmon, 1985 (hereafter referred to as the “1999 Pacific Salmon Treaty Agreement”) there are hereby established a Northern Boundary and Transboundary Rivers Restoration and Enhancement Fund (hereafter referred to as the “Northern Fund”) and a Southern Boundary Restoration and Enhancement Fund (hereafter referred to as the “Southern Fund”) to be held by the Pacific Salmon Commission. The Northern Fund and Southern Fund shall be invested in interest bearing accounts, bonds, securities, or other investments in order to achieve the highest annual yield consistent with protecting the principal of each Fund. Income from investments made pursuant to this paragraph shall be available until expended, without appropriation or fiscal year limitation, for programs and activities relating to salmon restoration and enhancement, salmon research, the conservation of salmon habitat, and implementation of the Pacific Salmon Treaty and related agreements. Amounts provided by grants under this subsection may be held in interest bearing accounts prior to the disbursement of such funds for program purposes, and any interest earned may be retained for program purposes without further appropriation. The Northern Fund and Southern Fund are subject to the laws governing Federal appropriations and funds and to unrestricted circulars of the Office of Management and Budget. Recipients of amounts from either Fund shall keep separate accounts and such records as are reasonably necessary to disclose the use of the funds as well as to facilitate effective audits.
(2)Fund Management.—
(A) As provided in the 1999 Pacific Salmon Treaty Agreement, amounts made available from the Northern Fund pursuant to paragraph (1) shall be administered by a Northern Fund Committee, which shall be comprised of three representatives of the Government of Canada, and three representatives of the United States. The three United States representatives shall be the United States Commissioner and Alternate Commissioner appointed (or designated) from a list submitted by the Governor of Alaska for appointment to the Pacific Salmon Commission and the Regional Administrator of the National Marine Fisheries Service for the Alaska Region. Only programs and activities consistent with the purposes in paragraph (1) which affect the geographic area from Cape Caution, Canada to Cape Suckling, Alaska may be approved for funding by the Northern Fund Committee.
(B) As provided in the 1999 Pacific Salmon Treaty Agreement, amounts made available from the Southern Fund pursuant to paragraph (1) shall be administered by a Southern Fund Committee, which shall be comprised of three representatives of Canada and three representatives of the United States. The United States representatives shall be appointed by the Secretary of Commerce: one shall be selected from a list of three qualified individuals submitted by the Governors of the States of Washington and Oregon; one shall be selected from a list of three qualified individuals submitted by the treaty Indian tribes (as defined by the Secretary of Commerce); and one shall be the Regional Administrator of the National Marine Fisheries Service for the Northwest Region. Only programs and activities consistent with the purposes in paragraph (1) which affect the geographic area south of Cape Caution, Canada may be approved for funding by the Southern Fund Committee.
(b) Pacific Salmon Treaty implementation
(1) None of the funds authorized by this section for implementation of the 1999 Pacific Salmon Treaty Agreement shall be made available until each of the following conditions to the 1999 Pacific Salmon Treaty Agreement has been fulfilled—
(A) stipulations are revised and court orders requested as set forth in the letter of understanding of the United States negotiators dated June 22, 1999. If such orders are not requested by December 31, 1999, this condition shall be considered unfulfilled; and
(B) a determination is made that—
(i) the entry by the United States into the 1999 Pacific Salmon Treaty Agreement;
(ii) the conduct of the Alaskan fisheries pursuant to the 1999 Pacific Salmon Treaty Agreement, without further clarification or modification of the management regimes contained therein; and
(iii) the decision by the North Pacific Fisheries Management Council to continue to defer its management authority over salmon to the State of Alaska are not likely to cause jeopardy to, or adversely modify designated critical habitat of, any salmonid species listed under Public Law 93–205, as amended [16 U.S.C. 1531 et seq.], in any fishery subject to the Pacific Salmon Treaty.
(2) If the requests for orders in subparagraph (1)(A) are withdrawn after December 31, 1999, or if such orders are not entered by March 1, 2000, amounts in the Northern Fund and the Southern Fund shall be transferred to the general fund of the United States Treasury.
(3) During the term of the 1999 Pacific Salmon Treaty Agreement, the Secretary of Commerce shall determine whether Southern United States fisheries are likely to cause jeopardy to, or adversely modify designated critical habitat of, any salmonid species listed under Public Law 93–205, as amended, before the Secretary of Commerce may initiate or reinitiate consultation on Alaska fisheries under such Act.
(4) During the term of the 1999 Pacific Salmon Treaty Agreement, the Secretary of Commerce may not initiate or reinitiate consultation on Alaska fisheries under section 7 of Public Law 93–205, as amended [16 U.S.C. 1536], until—
(A) the Pacific Salmon Commission has had a reasonable opportunity to implement the provisions of the 1999 Pacific Salmon Treaty Agreement, including the harvest responses pursuant to paragraph 9, chapter 3 of Annex IV to the Pacific Salmon Treaty; and
(B) he determines, in consultation with the United States Section of the Pacific Salmon Commission, that implementation actions under the 1999 Agreement will not return escapements as expeditiously as possible to maximum sustainable yield or other biologically-based escapement objectives agreed to by the Pacific Salmon Commission.
(5) The Secretary of Commerce shall notify the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Resources of the House of Representatives of his intent to initiate or reinitiate consultation on Alaska fisheries.
(6)
(A) For purposes of this section, “Alaska fisheries” means all directed Pacific salmon fisheries off the coast of Alaska that are subject to the Pacific Salmon Treaty.
(B) For purposes of this section, “Southern United States fisheries” means all directed Pacific salmon fisheries in Washington, Oregon, and the Snake River basin of Idaho that are subject to the Pacific Salmon Treaty.
(c) Omitted
(d) Authorization of appropriations
(1) Pacific Salmon Treaty
(A) For capitalizing the Northern Fund there is authorized to be appropriated in fiscal years 2000, 2001, 2002, and 2003 a total of $75,000,000.
(B) For capitalizing the Southern Fund there is authorized to be appropriated in fiscal years 2000, 2001, 2002, and 2003 a total of $65,000,000.
(C) To provide economic adjustment assistance to fishermen pursuant to the 1999 Pacific Salmon Treaty Agreement, there is authorized to be appropriated in fiscal years 2000, 2001, and 2002 a total of $30,000,000.
(2) Pacific coastal salmon recovery
(A) For salmon habitat restoration, salmon stock enhancement, sustainable salmon fisheries, and salmon research, including the construction of salmon research and related facilities, there is authorized to be appropriated for each of fiscal years 2000, 2001, 2002, and 1
1 So in original. The word “and” probably should not appear.
2003, 2005, 2006, 2007, 2008, and 2009, $90,000,000 to the States of Alaska, Washington, Oregon, Idaho, Nevada, and California. Amounts appropriated pursuant to this subparagraph shall be made available as direct payments. The State of Alaska may allocate a portion of any funds it receives under this subsection to eligible activities outside Alaska.(B) For salmon habitat restoration, salmon stock enhancement, salmon research, and supplementation activities, there is authorized to be appropriated in each of fiscal years 2000, 2001, 2002, and 2003, $10,000,000 to be divided between the Pacific Coastal tribes (as defined by the Secretary of Commerce) and the Columbia River tribes (as defined by the Secretary of Commerce).
(Pub. L. 99–5, § 16, formerly Pub. L. 106–113, div. B, § 1000(a)(1) [title VI, § 623], Nov. 29, 1999, 113 Stat. 1535, 1501A–56; Pub. L. 106–553, § 1(a)(2) [title VI, § 628], Dec. 21, 2000, 114 Stat. 2762, 2762A–108; Pub. L. 108–447, div. B, title II, Dec. 8, 2004, 118 Stat. 2881; renumbered Pub. L. 99–5, § 16, and amended Pub. L. 109–479, title III, § 302(d), Jan. 12, 2007, 120 Stat. 3623; Pub. L. 111–8, div. B, title I, § 110, Mar. 11, 2009, 123 Stat. 569.)