---
kind: "section"
citation: "16 U.S.C. § 5106"
title: "16"
title_heading: "Conservation"
number: "5106"
heading: "Secretarial action"
release: "119-102"
date: "2026-07-12"
url: "https://uscodex.org/usc/16/5106"
units:
  - "Chapter 71 — Atlantic Coastal Fisheries Cooperative Management"
---

# §5106. Secretarial action

- (a) **Secretarial review of Commission determination of noncompliance—** Within 30 days after receiving a notification from the [Commission](/usc/16/5102.md?p=3) under [section 5105(b) of this title](/usc/16/5105.md?p=b) and after review of the [Commission](/usc/16/5102.md?p=3)’s determination of noncompliance, the [Secretary](/usc/16/5102.md?p=12) shall make a finding on—
  - (1) whether the [State](/usc/16/5102.md?p=13) in question has failed to carry out its responsibility under [section 5104 of this title](/usc/16/5104.md); and
  - (2) if so, whether the measures that the [State](/usc/16/5102.md?p=13) has failed to [implement and enforce](/usc/16/5102.md?p=10) are necessary for the [conservation](/usc/16/5102.md?p=4) of the [fishery](/usc/16/5102.md?p=8) in question.
- (b) **Consideration of comments—** In making a finding under [subsection (a)](#a), the [Secretary](/usc/16/5102.md?p=12) shall—
  - (A) give careful consideration to the comments of the [State](/usc/16/5102.md?p=13) that the [Commission](/usc/16/5102.md?p=3) has determined under [section 5105(a) of this title](/usc/16/5105.md?p=a) is not in compliance with a [coastal fishery management plan](/usc/16/5102.md?p=1), and provide such [State](/usc/16/5102.md?p=13), upon request, with the opportunity to meet with and present its comments directly to the [Secretary](/usc/16/5102.md?p=12); and
  - (B) solicit and consider the comments of the [Commission](/usc/16/5102.md?p=3) and the appropriate [Councils](/usc/16/5102.md?p=5).
- (c) **Moratorium—**
  - (1) Upon making a finding under [subsection (a)](#a) that a [State](/usc/16/5102.md?p=13) has failed to carry out its responsibility under [section 5104 of this title](/usc/16/5104.md) and that the measures it failed to [implement and enforce](/usc/16/5102.md?p=10) are necessary for [conservation](/usc/16/5102.md?p=4), the [Secretary](/usc/16/5102.md?p=12) shall declare a moratorium on [fishing](/usc/16/5102.md?p=9) in the [fishery](/usc/16/5102.md?p=8) in question within the waters of the noncomplying [State](/usc/16/5102.md?p=13). The [Secretary](/usc/16/5102.md?p=12) shall specify the moratorium’s effective date, which shall be any date within 6 months after declaration of the moratorium.
  - (2) If after a moratorium is declared under [paragraph (1)](#c-1) the [Secretary](/usc/16/5102.md?p=12) is notified by the [Commission](/usc/16/5102.md?p=3) that the [Commission](/usc/16/5102.md?p=3) is withdrawing under [section 5105(c) of this title](/usc/16/5105.md?p=c) the determination of noncompliance, the [Secretary](/usc/16/5102.md?p=12) shall immediately determine whether the [State](/usc/16/5102.md?p=13) is in compliance with the applicable plan. If so, the moratorium shall be terminated.
- (d) **Implementing regulations—** The [Secretary](/usc/16/5102.md?p=12) may issue regulations necessary to implement this section. Such regulations—
  - (1) may provide for the possession and use of [fish](/usc/16/5102.md?p=7) which have been produced in an aquaculture operation, subject to applicable [State](/usc/16/5102.md?p=13) regulations; and
  - (2) shall allow for retention of [fish](/usc/16/5102.md?p=7) that are subject to a moratorium declared under this section and unavoidably taken as incidental catch in [fisheries](/usc/16/5102.md?p=8) directed toward menhaden if—
    - (A) discarding the retained [fish](/usc/16/5102.md?p=7) is impracticable;
    - (B) the retained [fish](/usc/16/5102.md?p=7) do not constitute a significant portion of the catch of the vessel; and
    - (C) retention of the [fish](/usc/16/5102.md?p=7) will not, in the judgment of the [Secretary](/usc/16/5102.md?p=12), adversely affect the [conservation](/usc/16/5102.md?p=4) of the species of [fish](/usc/16/5102.md?p=7) retained.
- (e) **Prohibited acts during moratorium—** During the time in which a moratorium under this section is in effect, it is unlawful for any [person](/usc/16/5102.md?p=11) to—
  - (1) violate the terms of the moratorium or of any implementing regulation issued under [subsection (d)](#d);
  - (2) engage in [fishing](/usc/16/5102.md?p=9) for any species of [fish](/usc/16/5102.md?p=7) to which the moratorium applies within the waters of the [State](/usc/16/5102.md?p=13) subject to the moratorium;
  - (3) land, attempt to land, or possess [fish](/usc/16/5102.md?p=7) that are caught, taken, or harvested in [violation](/usc/16/620e.md?p=11) of the moratorium or of any implementing regulation issued under [subsection (d)](#d);
  - (4) fail to return to the water immediately, with a minimum of injury, any [fish](/usc/16/5102.md?p=7) to which the moratorium applies that are taken incidental to [fishing](/usc/16/5102.md?p=9) for species other than those to which the moratorium applies, except as provided by regulations issued under [subsection (d)](#d);
  - (5) refuse to permit any officer authorized to enforce the provisions of this chapter to board a [fishing](/usc/16/5102.md?p=9) vessel subject to such [person](/usc/16/5102.md?p=11)’s control for purposes of conducting any search or inspection in connection with the enforcement of this chapter;
  - (6) forcibly assault, resist, oppose, impede, intimidate, or interfere with any such authorized officer in the conduct of any search or inspection under this chapter;
  - (7) resist a lawful arrest for any act prohibited by this section;
  - (8) ship, transport, offer for sale, sell, purchase, import, or have custody, control, or possession of, any [fish](/usc/16/5102.md?p=7) taken or retained in [violation](/usc/16/620e.md?p=11) of this chapter; or
  - (9) interfere with, delay, or prevent, by any means, the apprehension or arrest of another [person](/usc/16/5102.md?p=11), knowing that such other [person](/usc/16/5102.md?p=11) has committed any act prohibited by this section.
- (f) **Civil and criminal penalties—**
  - (1) Any [person](/usc/16/5102.md?p=11) who commits any act that is unlawful under [subsection (e)](#e) shall be liable to the United States for a civil penalty as provided by section 308 of the Magnuson-Stevens [Fishery](/usc/16/5102.md?p=8) [Conservation](/usc/16/5102.md?p=4) and Management Act ([16 U.S.C. 1858](/usc/16/1858.md)).
  - (2) Any [person](/usc/16/5102.md?p=11) who commits an act prohibited by paragraph [(5)](#e-5), [(6)](#e-6), [(7)](#e-7), or [(9)](#e-9) of subsection (e) is guilty of an offense punishable as provided by section 309(a)(1) and (b) of the Magnuson-Stevens [Fishery](/usc/16/5102.md?p=8) [Conservation](/usc/16/5102.md?p=4) and Management Act ([16 U.S.C. 1859(a)(1)](/usc/16/1859.md?p=a-1) and (b)).
- (g) **Civil forfeitures—**
  - (1) Any vessel (including its gear, equipment, appurtenances, stores, and cargo) used, and any [fish](/usc/16/5102.md?p=7) (or the fair market value thereof) taken or retained, in any manner, in connection with, or as the result of, the [commission](/usc/16/5102.md?p=3) of any act that is unlawful under [subsection (e)](#e), shall be subject to forfeiture to the United States as provided in section 310 of the Magnuson-Stevens [Fishery](/usc/16/5102.md?p=8) [Conservation](/usc/16/5102.md?p=4) and Management Act ([16 U.S.C. 1860](/usc/16/1860.md)).
  - (2) Any [fish](/usc/16/5102.md?p=7) 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 in regulation.
- (h) **Enforcement—** A [person](/usc/16/5102.md?p=11) authorized by the [Secretary](/usc/16/5102.md?p=12) or the [Secretary](/usc/16/5102.md?p=12) of the department in which the Coast Guard is operating may [take](/usc/16/3102.md?p=18) any action to enforce a moratorium declared under [subsection (c)](#c) of this section that an officer authorized by the [Secretary](/usc/16/5102.md?p=12) under section 311(b) of the Magnuson-Stevens [Fishery](/usc/16/5102.md?p=8) [Conservation](/usc/16/5102.md?p=4) and Management Act ([16 U.S.C. 1861(b)](/usc/16/1861.md?p=b)) may [take](/usc/16/3102.md?p=18) to enforce that Act [[16 U.S.C. 1801](/usc/16/1801.md) et seq.]. The [Secretary](/usc/16/5102.md?p=12) may, by agreement, on a reimbursable basis or otherwise, utilize the personnel, services, equipment (including aircraft and vessels), and facilities of any other Federal department or agency and of any agency of a [State](/usc/16/5102.md?p=13) in carrying out that enforcement.

## Source credit

(Pub. L. 103–206, title VIII, § 807, Dec. 20, 1993, 107 Stat. 2451; Pub. L. 106–555, title I, § 122(b)(3), Dec. 21, 2000, 114 Stat. 2766.)

## Notes

### Editorial Notes

### References in Text

The Magnuson-Stevens Fishery Conservation and Management Act, referred to in subsec. (h), is Pub. L. 94–265, Apr. 13, 1976, 90 Stat. 331, which is classified principally to chapter 38 (§ 1801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section 1801 of this title and Tables.

### Amendments

2000—Subsecs. (f) to (h). Pub. L. 106—555 substituted “Magnuson-Stevens Fishery” for “Magnuson Fishery” wherever appearing.

### Statutory Notes and Related Subsidiaries

### Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.