It is the policy of the Secretary that preemption proceedings will be conducted expeditiously. The administrative law judge and counsel or other representative for each party are encouraged to make every effort at each stage of the proceedings to avoid delay.
(a) The two factual findings for Federal preemption of state management authority over a fishery are:
(1) The fishing in a fishery that is covered by an FMP implemented under the Magnuson-Stevens Act is engaged in predominately within the EEZ and beyond such zone.
(2) A 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 FMP.
(b) Whether fishing is engaged in “predominately” within or beyond the EEZ will be determined after consideration of relevant factors, including but not limited to, the catch (based on numbers, value, or weight of fish caught, or other relevant factors) or fishing effort during the appropriate period, and in light of historical patterns of the distribution of catch or fishing effort for such stock or stocks of fish.
(c) Whether relevant effects are substantial will be determined after consideration of the magnitude of such actual or potential effects. Relevant to this determination are various factors, including but not limited to, the proportion of the fishery (stock or stocks of fish and fishing for such stocks) that is subject to the effects of a particular state's action or omission, the characteristics and status (including migratory patterns and biological condition) of the stock or stocks of fish in the fishery, and the similarity or dissimilarity between the goals, objectives, or policies of the state's action or omission and the management goals or objectives specified in the FMP for the fishery or between the state and Federal conservation and management measures of the fishery.
(a) Notice of proposed preemption.
(1) If a proceeding under this part is deemed necessary, the Administrator must issue a notice of proposed preemption to the Attorney General of the State or States concerned. The notice will contain:
(i) A recital of the legal authority and jurisdiction for instituting the proceeding.
(ii) A concise statement of the § 600.610 factual findings for Federal preemption upon which the notice is based.
(iii) The time, place, and date of the hearing.
(2) The notice of proposed preemption will also be published in the Federal Register. This notification may be combined with any notice of proposed rulemaking published under paragraph (d)(1) of this section.
(b) Response. The state will have the opportunity to respond in writing to the notice of proposed preemption.
(c) Amendment. The Administrator may, at any time prior to the Secretary's decision, withdraw the notice of proposed preemption. Upon motion of either party before the record is closed, the administrative law judge may amend the notice of proposed preemption.
(d) Proposed regulations -
(1) In general. If additional regulations are required to govern fishing within the boundaries of a state, the Administrator may publish proposed regulations in the Federal Register concurrently with issuing the notification indicated in paragraph (a) of this section.
(2) Emergency actions. Nothing in this section will prevent the Secretary from taking emergency action under section 305(c) of the Magnuson-Stevens Act.
(a) The civil procedure rules of the NOAA currently set forth in 15 CFR part 904, subpart C (or as subsequently amended), apply to the proceeding after its commencement by service of notice (pursuant to § 600.615) and prior to the Secretary's decision (§ 600.625), except that the following sections will not apply:
(1) 15 CFR 904.201 (Definitions);
(2) 15 CFR 904.206(a)(1) (Duties and powers of Judge); and
(3) 15 CFR 904.272 (Administrative review of decision).
(b) Additional duties and powers of judge -
(1) Time periods. The administrative law judge is authorized to modify all time periods pertaining to the course of the hearing (under §§ 600.615 and 600.620) to expedite the proceedings, upon application and appropriate showing of need or emergency circumstances by a party.
(2) Intervention. Intervention by persons not parties is not allowed.
(a) The Secretary will, on the basis of the hearing, record the administrative law judge's recommended decision:
(1) Accept or reject any of the findings or conclusions of the administrative law judge and decide whether the factual findings exist for Federal preemption of a state's authority within its boundaries (other than in its internal waters) with respect to the fishery in question;
(2) Reserve decision on the merits or withdraw the notice of proposed preemption; or
(3) Remand the case to the administrative law judge for further proceedings as may be appropriate, along with a statement of reasons for the remand.
(1) If the factual findings for Federal preemption are determined to exist, the Secretary will notify in writing the Attorney General of that state and the appropriate Council(s) of the preemption of that state's authority. The Secretary will also direct the Administrator to promulgate appropriate regulations proposed under § 600.615(d) and otherwise to begin regulating the fishery within the state's boundaries (other than in its internal waters).
(2) If the factual findings for Federal preemption are determined not to exist, the Secretary will notify, in writing, the Attorney General of the state and the appropriate Council(s) of that determination. The Secretary will also direct the Administrator to issue a notice withdrawing any regulations proposed under § 600.615(d).
(a) Application or notice.
(1) At any time after the promulgation of regulations under § 600.625(b)(1) to regulate a fishery within a state's boundaries, the affected state may apply to the Secretary for reinstatement of state authority. The Secretary may also serve upon such state a notice of intent to terminate such Federal regulation. A state's application must include a clear and concise statement of:
(i) The action taken by the State to correct the action or omission found to have substantially and adversely affected the carrying out of the FMP; or
(ii) Any changed circumstances that affect the relationship of the state's action or omission to take action to the carrying out of the FMP (including any amendment to such plan); and
(iii) Any laws, regulations, or other materials that the state believes support the application.
(2) Any such application received by the Secretary or notice issued to the State will be published in the Federal Register.
(b) Informal response. The Secretary has sole discretion to accept or reject the application or response. If the Secretary accepts the application or rejects any responses and finds that the reasons for regulation of the fishery within the boundaries of the state no longer prevail, the Secretary will promptly terminate such regulation and publish in the Federal Register any regulatory amendments necessary to accomplish that end.
(c) Hearing. The Secretary has sole discretion to direct the Administrator to schedule hearings for the receipt of evidence by an administrative law judge. Hearings before the administrative law judge to receive such evidence will be conducted in accordance with § 600.620. Upon conclusion of such hearings, the administrative law judge will certify the record and a recommended decision to the Secretary. If the Secretary, upon consideration of the state's application or any response to the notice published under § 600.630(a)(2), the hearing record, the recommended decision, and any other relevant materials finds that the reasons for regulation of the fishery within the boundaries of the state no longer prevail, the Secretary will promptly terminate such regulation and publish in the Federal Register any regulatory amendments necessary to accomplish that end.