§ 3634. Interagency cooperation

§ 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.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3636, 3638 of this title.

§ 3636. Rulemaking

(a) Promulgation of regulations by Secretary of Com

merce

The Secretary, in consultation with the Secretary of the Interior, the Secretary of the Department in which the Coast Guard is operating and the appropriate Regional Fishery Management Council, shall promulgate such regulations as may be necessary to carry out the United States international obligations under the Treaty and this chapter, pursuant to section 3635 of this title, as well as conforming amendatory regulations applicable to the United States Exclusive Economic Zone. Any such regulation may be made applicable, as necessary, to all persons and all vessels subject to the jurisdiction of the United States, wherever located. Such regulations as are necessary and appropriate to carry out obligations of the United States under the Treaty involve a foreign affairs function, and as such shall not be subject to sections 553 through 557 of title 5, or the National Environmental Policy Act (42 U.S.C. 4321 et seq.).

(b) Additions to fishery regimes and Fraser River Panel regulations

The Secretary, in cooperation with the Regional Fishery Management Councils, States, and treaty Indian tribes, may promulgate regulations applicable to nationals or vessels of the United States, or both, which are in addition to, and not in conflict with, fishery regimes and Fraser River Panel regulations adopted under the Treaty. Such regulations shall not discriminate between residents of different States. (c) Judicial review

Regulations promulgated by the Secretary under this chapter shall be subject to judicial review by the district courts of the United States to the extent authorized by, and in accordance with, chapter 7 of title 5; except that section 705 of such title is not applicable, and 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. A civil action filed pursuant to this section shall be assigned for hearing at the earliest possible date, shall take precedence over other matters pending on the docket of the United States district court at that time, and shall be expedited in every way by such court and any appellate court.

(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.)

AMENDMENT OF SUBSECTION (a)

Pub. L. 102-251, title III, §§ 306(b), 308, Mar. 9, 1992, 106 Stat. 66, provided that, effective on the date on which the Agreement between the United States and the Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for the United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until the date on which the Agreement enters into force for the

United States, subsection (a) is amended by inserting "and special areas" after "Exclusive Economic Zone".

REFERENCES IN TEXT

The National Environmental Policy Act, referred to in subsec. (a), probably means the National Environmental Policy Act of 1969, Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally to chapter 55 (§ 4321 et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 4321 of Title 42 and Tables.

EFFECTIVE Date of 1992 AMENDMENT Amendment by Pub. L. 102-251 effective on date on which Agreement between United States and Union of Soviet Socialist Republics on the Maritime Boundary, signed June 1, 1990, enters into force for United States, with authority to prescribe implementing regulations effective Mar. 9, 1992, but with no such regulation to be effective until date on which Agreement enters into force for United States, see section 308 of Pub. L. 102-251, set out as a note under section 773 of this title.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3635, 3638 of this title.

§ 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 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 or inspection described in subparagraph (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; or

(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) Civil penalty

Any person who commits any act that is unlawful under subsection (a) of this section shall be liable to the United States for a civil penalty as provided by section 308 of the Magnuson Act (16 U.S.C. 1858).

(c) Criminal penalty

Any person who commits an act that is unlawful under paragraph (2), (3), (4), or (6) of subsection (a) of this section shall be guilty of an offense punishable as provided by section 309(b) of the Magnuson Act (16 U.S.C. 1859(b)).

(d) Forfeiture

(1) Any vessel (including its gear, furniture, appurtenances, stores, and cargo) used in the commission of an act which is prohibited under subsection (a) of this section, and any fish (or the fair market value thereof) taken or retained, in any manner, in connection with or as a result of the commission of any act which is prohibited by subsection (a) of this section, shall be subject to forfeiture as provided by section 310 of the Magnuson Act (16 U.S.C. 1860).

(2) Any fish seized pursuant to this chapter may be disposed of pursuant to the order of a court of competent jurisdiction or, if perishable, in a manner prescribed by regulation of the Secretary.

(e) Enforcement authority

The Secretary and the Secretary of the Department in which the Coast Guard is operating shall enforce the provisions of this chapter and shall have the authority provided by subsections 311(a), (b)(1), and (c) of the Magnuson Act (16 U.S.C. 1861(a), (b)(1), and (c)).

(f) Jurisdiction

The district courts of the United States shall have exclusive jurisdiction over any case or controversy arising under this section and 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.

(Pub. L. 99-5, § 8, Mar. 15, 1985, 99 Stat. 12.) § 3638. General standard

All actions taken under sections 3632(g), 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

The United States Section shall appoint an advisory committee of not less than twelve but not more than twenty members who are knowl edgeable and experienced with respect to fisheries subject to the Treaty. One-half the membership of the committee shall be residents of the State of Alaska and one member shall be a resident of the State of Idaho. Each member shall serve a term of two years and shall be eligible for reappointment.

(b) Functions

Members of the advisory committee may attend all public meetings of the Commission and Panels and all nonexecutive sessions of the United States Section and United States Panel sections. At nonexecutive meetings of the United States Section and United States Panel sections, members of the advisory committee shall be given the opportunity to examine and to be heard on any nonadministrative matter under consideration.

(c) Compensation

The members of the advisory committee shall receive no compensation for their services as such members.

(d) Meetings

The Chairman of the United States Section shall call a meeting of the advisory committee at least one time each year.

(Pub. L. 99-5, § 10, Mar. 15, 1985, 99 Stat. 13.)

TERMINATION OF ADVISORY COMMITTEES Advisory committees established after Jan. 5, 1973, to terminate not later than the expiration of the 2year period beginning on the date of their establishment, unless, in the case of a committee established by the President or an officer of the Federal Government, such committee is renewed by appropriate action prior to the expiration of such 2-year period, or in the case of a committee established by the Congress, its duration is otherwise provided by law. See section 14 of Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title 5, Government Organization and Employees.

§ 3640. Administrative matters

(a) Compensation of Commissioners and Alternate Commissioners

Commissioners and Alternate Commissioners who are not State or Federal employees shall receive compensation at the daily rate of GS-18 of the General Schedule when engaged in the actual performance of duties for the United States Section or for the Commission.

(b) Compensation of Panel Members and Alternate Panel Members

Panel Members and Alternate Panel Members who are not State or Federal employees shall receive compensation at the daily rate of GS-16 of the General Schedule when engaged in the actual performance of duties for the United States Section or for the Commission.

(c) Travel; other expenses

Travel and other necessary expenses shall be paid for all United States Commissioners, Alternate Commissioners, Panel Members, Alternate Panel Members, members of the Joint Technical Committee, and members of the Advisory Committee when engaged in the actual performance of duties for the United States Section or for the Commission.

(d) Individuals not considered Federal employees

Except for officials of the United States Government, such individuals shall not be considered to be Federal employees while engaged in the actual performance of duties for the United States Section or for the Commission, except for the purposes of injury compensation or tort

§ 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.)

CODIFICATION

Section consists of a part of section 13 of Pub. L. 99-5. The remainder of section 13 of Pub. L. 99-5 provided for the repeal, effective Dec. 31, 1985, of the Sockeye Salmon or Pink Salmon Fishing Act of 1947, act July 29, 1947, ch. 345, 61 Stat. 511, as amended, which was classified to chapter 10A (§ 776 et seq.) of this title.

1 So in original. Probably should be chapter "171".

§ 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.) CHAPTER 57-NATIONAL FISH AND WILDLIFE

Sec. 3701.

3702.

3703.

3704.

3705.

3706.

3707. 3708.

3709.

(c) Relief with respect to certain Foundation acts or failure to act.

United States release from liability. Reservation of right to amend or repeal chapter.

Authorization of appropriations.

(a) Authorization.

(b) Use of amounts appropriated.
(c) Additional authorization.

§ 3701. Establishment and purposes of Foundation
(a) Establishment

There is established the National Fish and Wildlife Foundation (hereinafter in this chapter referred to as the "Foundation"). The Foundation is a charitable and nonprofit corporation and is not an agency or establishment of the United States.

(b) Purposes

The purposes of the Foundation are

(1) to encourage, accept, and administer private gifts of property for the benefit of, or in

connection with, the activities and services of the United States Fish and Wildlife Service and the National Oceanic and Atmospheric Administration;

(2) to undertake and conduct such other activities as will further the conservation and management of the fish, wildlife, and plant resources of the United States, and its territories and possessions, for present and future generations of Americans; and

(3) to participate with, and otherwise assist, foreign governments, entities, and individuals in undertaking and conducting activities that will further the conservation and management of the fish, wildlife, and plant resources of other countries.

(Pub. L. 98-244, § 2, Mar. 26, 1984, 98 Stat. 107; Pub. L. 100-240, § 1(a), Jan. 11, 1988, 101 Stat. 1785; Pub. L. 103-232, title I, § 102, Apr. 11, 1994, 108 Stat. 336.)

AMENDMENTS

1994-Subsec. (b)(1). Pub. L. 103-232 inserted before semicolon at end "and the National Oceanic and Atmospheric Administration".

1988-Subsec, (b)(3). Pub. L. 100-240 added par. (3).

SHORT TITLE OF 1994 AMENDMENT

Section 101 of title I of Pub. L. 103-232 provided that: "This title [amending this section and sections 3702 and 3709 of this title and enacting provisions listed in a table of National Environmental Centers set out under section 668dd of this title and provisions set out as notes under section 3702 of this title] may be cited as the 'National Fish and Wildlife Foundation Improvement Act of 1994'."

SHORT TITLE OF 1990 AMENDMENT

Pub. L. 101-593, title I, § 110(a), Nov. 16, 1990, 104 Stat. 2959, provided that: "This section (amending sections 3702 and 3709 of this title] may be cited as the 'National Fish and Wildlife Foundation Establishment Act Amendments of 1990'."

SHORT TITLE

Section 1 of Pub. L. 98-244 provided that: "This Act [enacting this chapter] may be cited as the 'National Fish and Wildlife Foundation Establishment Act"."

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 3703, 3706, 3743 of this title.

§ 3702. Board of Directors of Foundation (a) Establishment and membership

The Foundation shall have a governing Board of Directors (hereinafter referred to in this chapter as the "Board"), which shall consist of 15 Directors, each of whom shall be a United States citizen and

(1) six of whom must be knowledgeable or experienced in fish and wildlife conservation;

and

(2) 4 of whom must be educated and experienced in the principles of fish and wildlife management.

The membership of the Board, to the extent practicable, shall represent diverse points of view relating to fish and wildlife conservation. The Director of the United States Fish and Wildlife Service shall be an ex officio nonvoting

member of the Board. Appointment to the Board shall not constitute employment by, or the holding of an office of, the United States for the purposes of any Federal law.

(b) Appointment and terms

By December 31, 1984, the Secretary of the Interior (hereinafter referred to in this chapter as the "Secretary") shall appoint the Directors of the Board. The Directors shall be appointed for terms of six years; except that the Secretary, in making the initial appointments to the Board, shall appoint three Directors to a term of two years, three Directors to a term of four years, and three Directors to a term of six years. A vacancy on the Board shall be filled within sixty days of said vacancy in the manner in which the original appointment was made. No individual may serve more than two consecutive terms as a Director. The Secretary of the Interior shall consult with the Under Secretary of Commerce for Oceans and Atmosphere before appointing any Director of the Board. (c) Chairman

The Chairman shall be elected by the Board from its members for a two-year term. (d) Quorum

A majority of the current membership of the Board shall constitute a quorum for the transaction of business.

(e) Meetings

The Board shall meet at the call of the Chairman at least once a year. If a Director misses three consecutive regularly scheduled meetings, that individual may be removed from the Board and that vacancy filled in accordance with subsection (b) of this section.

(f) Reimbursement of expenses

Members of the Board shall serve without pay, but may be reimbursed for the actual and necessary traveling and subsistence expenses incurred by them in the performance of the duties of the Foundation.

(g) General powers

(1) The Board may complete the organization of the Foundation by

(A) appointing officers and employees; (B) adopting a constitution and bylaws consistent with the purposes of the Foundation and the provisions of this chapter; and

(C) undertaking of other such acts as may be necessary to carry out the provisions of this chapter.

(2) The following limitations apply with respect to the appointment of officers and employees of the Foundation:

(A) Officers and employees may not be appointed until the Foundation has sufficient funds to pay them for their service. Officers and employees of the Foundation shall be appointed without regard to the provisions of title 5 governing appointments in the competitive service, and may be paid without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates.

(B) The first officer or employee appointed by the Board shall be the Secretary of the

Board who (i) shall serve, at the direction of the Board, as its chief operating officer, and (ii) shall be knowledgeable and experienced in matters relating to fish and wildlife conservation.

(Pub. L. 98-244, § 3, Mar. 26, 1984, 98 Stat. 107; Pub. L. 101-593, title I, § 110(b), Nov. 16, 1990, 104 Stat. 2959; Pub. L. 103-232, title I, § 103(a)(1), (b), Apr. 11, 1994, 108 Stat. 336.)

REFERENCES IN TEXT

Provisions of title 5 governing appointments in competitive service, referred to in subsec. (g)(2)(A), are classified to section 3301 et seq. of Title 5, Government Organization and Employees.

AMENDMENTS

1994-Subsec. (a). Pub. L. 103-232, § 103(b), substituted "15 Directors" for "nine Directors" in introductory provisions and “4” for “three" in par. (2).

Subsec. (b). Pub. L. 103-232, § 103(a)(1), inserted at end "The Secretary of the Interior shall consult with the Under Secretary of Commerce for Oceans and Atmosphere before appointing any Director of the Board."

1990-Subsec. (g)(2)(A). Pub. L. 101-593 struck out ", except that no individual so appointed may receive pay in excess of the annual rate of basic pay in effect for grade GS-18 of the General Schedule" after "General Schedule pay rates".

EFFECTIVE DATE OF 1994 AMENDMENT

Section 103(a)(2) of Pub. L. 103-232 provided that: "The amendment made by paragraph (1) [amending this section] shall apply to appointments of Directors of the Board of Directors of the National Fish and Wildlife Foundation made after the date of the enactment of this Act [Apr. 11, 1994]."

INITIAL TERMS OF SIX NEW DIRECTORS

Section 103(c) of Pub. L. 103-232 provided that: "Of the Directors on the Board of Directors of the National Fish and Wildlife Foundation first appointed pursuant to the amendment made by subsection (b)(1) [amending this section], notwithstanding the second sentence of section 3(b) of the National Fish and Wildlife Foundation Establishment Act (16 U.S.C. 3702(b))—

"(1) 2 shall be appointed to a term of 2 years;
"(2) 2 shall be appointed to a term of 4 years; and
"(3) 2 shall be appointed to a term of 6 years;

as specified by the Secretary of the Interior at the time of appointment."

COMPLETION OF APPOINTMENTS

Section 103(d) of Pub. L. 103-232 provided that: "The Secretary of the Interior shall appoint the additional members of the Board of Directors of the National Fish and Wildlife Foundation authorized by the amendment made by subsection (a) [(b)] [amending this section], by not later than 60 days after the date of the enactment of this Act [Apr. 11, 1994]."

AUTHORITY OF BOARD NOT AFFECTED

Section 103(e) of Pub. L. 103-232 provided that: "The authority of the Board of Directors of the National Fish and Wildlife Foundation to take any action otherwise authorized by law shall not be affected by reason of the Secretary of the Interior not having completed the appointment of Directors of the Board of Directors of the National Fish and Wildlife Foundation pursuant to the amendment made by subsection (b)(1) [amending this section]."