[MSFCMA section 3]
Bycatch, economic discards, and regulatory discards.
Summary: These defined terms are used throughout the amendments
(see 106, national standard 9; 108(a), required provisions;
108(c), discretionary provisions; 117(a), North Pacific bycatch
reduction program; 206, bycatch reduction program). "Bycatch" is
"fish which are harvested in a fishery, but which are not sold or
kept for personal use, and includes economic discards and
regulatory discards." There is an exclusion of fish released
alive under a recreational catch-and-release program. "Economic
discards" are targeted fish that aren't retained because the
harvester doesn't want them (undesirable size, sex, quality,
etc.). "Regulatory discards" are fish (targeted or not) required
by regulation to be discarded, or to be retained but not sold.
Legislative history: The definitions were developed by the House
in H.R. 39. The Senate report (at 10) explains the purpose of
the catch-and-release exclusion is to encourage such programs,
but adds that fish released dead and all regulatory discards are
Issues: These definitions encompass fish species only, not
marine mammals or birds (see definition of "fish" at section
3(12)). That does not mean that Councils and the Secretary
cannot address all forms of incidental catch, just that the new
national standard and other substantive provisions on bycatch are
aimed at fish.
In light of the Senate report, the catch-and-release exclusion
should cover only fish that could legally have been retained.
This means that fish under the minimum size limit that are
released alive in a catch-and-release program are nonetheless
subject to the new national standard and other requirements aimed
at reducing bycatch.
Charter, commercial, and recreational fishing.
Summary: "Charter fishing" is defined as "fishing from a vessel
carrying a passenger for hire...who is engaged in recreational
fishing." The term "commercial fishing" is defined as "fishing
in which the fish harvested, either in whole or in part, are
intended to enter commerce or enter commerce through sale, barter
or trade." "Recreational fishing" means "fishing for sport or
All three terms are used in MSFCMA sections 303(a)(5), (13), and
(14); in 303(b)(3)(B); and in 407(a) and (d). "Commercial
fishing" and "recreational fishing" appear together in 305(f)(2).
"Commercial fishing" is also used in 305(i)(2)(B)(iii) and
312(a)(2). "Recreational fishing" appears in the definition of
"charter fishing" and in sections 201(i), 303(a)(12), and 307(2).
"Commercial" and "recreational" are used frequently as adjectives
throughout the act, modifying "harvest," "fishery(ies)," "fishing
effort," "use," "fishing industry," "fishermen," and "vessels."
Legislative history: Various interest groups have been trying to
pursue their (conflicting) goals through the vehicle of defining
these terms. Some commercial fishermen want their quotas
reserved for full-time, licensed operators and don't want their
markets subjected to competition (or lower-quality seafood) from
part-time fishermen who might sell some of their catch. Other
commercial fishermen view charter operations as encroaching on
commercial quotas. Some recreational fishermen believe their
pastime is tainted by those who call themselves recreational
fishermen but sell some of their catch to offset expenses of the
trip. Other fishermen are simply concerned that landings not be
double-counted, to avoid premature closures.
Some legislators fought for air-tight definitions that they hoped
would prohibit the sale of recreationally caught fish. Those
formulations were rejected, leaving overlapping and ambiguous
NOAA asked for the "intended to enter commerce" language, so that
agents would not have to show that fish had actually entered
commerce before enforcing a commercial fishing restriction.
The Committee-reported version of S. 39 did not define "charter
fishing," but the Senate report said the Committee believes
quotas for charter vessels should be separate from those for
commercial vessels not carrying passengers for hire. In the
managers' amendment, the definition of "charter fishing" was
added, plus specific references to it in sections 303 and 407.
A controversy over the definition of "recreational fishing"
developed at the last minute, as a New Jersey industry
representative put forth the possible interpretation that fishing
"for sport or pleasure" precluded personal consumption of the
harvest. The actual concern may have been that the definition
might be used to favor catch-and-release fishermen over
recreationalists who take home their catch or even sell it.
Congressmen Saxton and Young, invoking NMFS's interpretation that
consumption would not be precluded, conducted a colloquy
establishing that recreational fishermen may indeed eat their
fish. Congressman Pallone warned that the new definition must
not "somehow negatively impact" recreational fishermen.
Issues: NMFS has reviewed existing regulatory definitions of
these terms. While they are not all identical, none was found to
be inconsistent with the new definitions.
The definitions, by themselves, don't change the status quo very
much. They don't ban the sale of recreationally caught fish;
they don't dictate particular allocation decisions. If they are
used as tools for change, to the disadvantage of major
constituencies, Congress will undoubtedly address them again.
Essential fish habitat.
Summary: This term is used in the new sections regarding fish
habitat (see 101, findings; purposes; policy; 108(a)(7),
required provisions; and 110, other requirements and authority.
Essential fish habitat (EFH) is defined as "those waters and
substrate necessary to fish for spawning, breeding, feeding or
growth to maturity."
Legislative history: The House and Senate developed different
definitions of EFH in their bills. Both versions included the
idea that EFH must be waters, as opposed to upland areas that may
also be important, such as buffer zones along anadromous fish
streams. Both versions also included the idea that these waters
must be "necessary" to the fish, presumably to prevent inclusion
of less important habitat. The Senate version expanded the House
definition to include "substrate" necessary to fish, as well as
waters. The Senate also included "feeding" as a habitat use that
was not in the House bill. Generally, the Senate language is a
little broader than the House, but the general concept that EFH
is habitat necessary for fish is the same in both.
Issues: The Office of Habitat Conservation (HC) formed a working
group to develop the guidelines and work on other implementation
issues. The group has divided the definition into its key
components and analyzed each.
First, "waters" will include aquatic areas and their associated
physical, chemical, and biological properties that are used by
fish, and may include historic areas, where appropriate. For
example, each species has certain requirements for temperature,
dissolved oxygen, depth, current flow, and prey species.
Second, "substrate" includes sediments, geologic features
underlying the waters, and associated biological communities such
as coral reefs or submerged aquatic vegetation. For example,
different species have different requirements regarding the type
of sediment, such as clay, sand, gravel, natural or artificial
reefs, submerged aquatic vegetation, or coral.
Third, "necessary" means the habitat required to support a
managed species or assemblage at a target production level,
reflecting conscientious stewardship. HC is considering how best
to tie "necessary" to the idea of rebuilding depleted stocks or
maintaining stocks that are in good shape. HC wants to tie
"necessary" to Magnuson-Stevens Act goals for rebuilding stocks
rather than maintaining them at depleted levels. Historic EFH
may also come into play because, if habitat is a limiting factor
for a depleted stock, then it may be necessary to look at habitat
that was once essential, but is no longer, as a means to rebuild.
Fourth, "spawning, breeding, feeding or growth to maturity"
covers a species' full life cycle. The inclusion of "feeding"
may mean that predator-prey relationships should be considered.
Although the Senate listed only certain critical life stages, it
would be illogical to protect only those stages and not
transition times and access to these areas. Finally, EFH may
include habitat for individual species or an assemblage of
species, depending on the species and FMPs. Some of the plans
include many more than one species, so it would be easier to
consolidate the habitats into one EFH designation.
Summary: The term is defined as "a community which is
substantially dependent on or substantially engaged in the
harvest or processing of fishery resources to meet social and
economic needs" including various fishery participants based in
such community. The term is used in new national standard 8; in
section 303(a)(9) for fishery impact statements; in section
303(b)(6)(E) on limited access systems; at several places in the
IFQ report; in section 304(e) on rebuilding programs; and in
section 312(a) on disaster relief.
Legislative history: H.R. 39 used the term "local coastal
communities" in the individual quota section (e.g., an IQ system
should "minimize negative social and economic impacts of the
system on local coastal communities"). While the term was not
defined in H.R. 39, several House members felt the Senate bill
diluted these "protections." Cong. Miller said that S. 39
defines fishing communities "far too broadly." Cong. Furse
believed the Senate bill "removes safeguards for coastal
communities." Cong. Riggs said the Senate bill includes under
"fishing community" the "home ports of the distant water,
corporately held, factory trawlers."
The definition of "fishing community" in the bill reported out of
the Senate Commerce Committee was changed very little in the
managers' amendment. Instead, the understanding of the
definition seems to have evolved over the summer from the
drafters' hope that it was the equivalent of the House's "local
coastal communities" to a near-consensus that it includes any
place where vessel owners, operators, and crew or U.S. fish
processors are based. The Washington delegation insisted on this
interpretation, because they did not want their residents
disadvantaged (see Gorton's and Murray's floor statements).
Issues: Rather than trying to define "substantially dependent"
or "substantially engaged," NMFS might use an excess employment
theory, historical landings, or cultural adaptation to fishing in
deciding what communities to cover. (See discussions below of
sections using the term "fishing community.")
Individual fishing quota.
Summary: The term is defined as "a Federal permit under a
limited access system to harvest a quantity of fish, expressed by
a unit or units representing a percentage of the total allowable
catch of a fishery that may be received or held for exclusive use
by a person." It expressly excludes community development
quotas. The definition is critical, because 108(e) places a
four-year moratorium on new IFQs.
Vessel bycatch accounts (allocations of regulatory discards) are
not included under the IFQ moratorium, because 117(a), adding
MSFCMA section 313(g)(2)(A), made VBAs an exception to section
303(d). The North Pacific Council may submit VBA proposals at
any time. The amendments also clarify that the FMP amendment for
the mahogany quahog IFQ system may be submitted (see 108(e)).
Legislative history: H.R. 39 had a definition of "individual
quota" in the section restricting IQs. The Senate Committee
mark-up was silent on whether CDQs were included, although the
report language said CDQs were not IFQs.
The meaning of IFQ has already been the subject of controversy,
since section 210 of the 1996 appropriations bill, Pub.L. 104-134, signed in April 1996,
prohibited the expenditure of any
appropriated funds for development of new IFQ programs. NMFS
published an interpretive rule on June 17, 1996 (61 Fed.Reg.
30543), excluding CDQs from, but including vessel bycatch
accounts and certain cumulative trip limits within, the
definition of IFQ. (The ban in section 210 also covered
transferable units of effort, such as days-at-sea, but the S. 39
definition of IFQ clearly does not.) Litigation ensued when the
State of Washington challenged the exclusion of CDQs.
Washington's request for a temporary restraining order was denied
on September 4, shortly after the managers' amendment for S. 39
explicitly excluded CDQs. The case is now closed. An attempt to
have cumulative trip limits in the Pacific sablefish fishery
exempted from the S. 39 definition failed.
Issues: During the IFQ moratorium, the Councils will propose
management measure that test the limits of the IFQ definition.
Large-scale driftnet fishing.
Summary: The change from 1.5 miles to 2.5 kilometers conforms
the definition to that in the High Seas Driftnet Fisheries
Enforcement Act and to international usage.
Summary: The definition has been revised (in (28)(A)) to require
considering the protection of marine ecosystems in setting
optimum yield. It clarifies (in (28)(B)) that social, economic,
or ecological factors may be used to set OY lower than the
maximum sustainable yield, but not higher. And it specifies (in
(28)(C)) that, for an overfished fishery, the OY must provide for
rebuilding to a level consistent with producing the MSY.
Legislative history: H.R. 39 would have allowed healthy
fisheries to be harvested at an OY level higher than MSY, but
required the OY in overfished fisheries to be lower than MSY, to
allow for rebuilding. The Senate bill removed that flexibility.
The Senate report says this change "is not meant to preclude the
Secretary, the Councils and the scientific and statistical
committees of the Councils from using other appropriate
scientific measures of sustained yield where there are
insufficient data to determine the maximum sustainable yield of a
fishery" (at 11). The summary of the managers' amendment states
that the change "prevents the maximum sustainable yield from
Issues: This definition intersects with the new provision at
109(e) requiring rebuilding programs for overfished fisheries.
What does "rebuilding" mean? Read together, 109(e) and the new
definition of "optimum" yield require a program that, at the end
of the time period, restores a stock to the level that can then
produce MSY on a continuing basis.
It has been suggested that rebuilding to a level "consistent with
producing the MSY" means merely a level that could someday be
restored to MSY. That interpretation is contrary to the intent
of Congress, the Administration, and the environmentalists who
lobbied for these amendments. Probably all our overfished stocks
are right now at levels that have the potential to be restored to
MSY production. Setting a standard that low would not enhance
the cause of conservation.
This issue should be addressed in the revision to the guidelines
for national standard 1.
Note: The framework provision for royal red shrimp in the Gulf
shrimp FMP allows optimum yield to be set at MSY plus 30 percent;
the change in the statutory definition will affect use of that
Overfished and overfishing.
Summary: These terms are defined as "a rate or level of fishing
mortality that jeopardizes the capacity of a fishery to produce
the maximum sustainable yield on a continuing basis."
Legislative history: NMFS' definition of "overfishing" from the
national standard 1 guidelines was the basis for this language,
but Congress deleted the qualifier "long-term" before "capacity."
The intent was to apply the "overfished" label to more fisheries
by focusing on the current capacity to produce MSY. See the
discussion of "optimum."
Issues: Congress may have confused the situation by lumping an
adjective (describing a fishery) and a verb (describing an
activity) in the same definition. The activity of overfishing
may occur in a fishery that is not in an overfished status;
harvest in an overfished fishery may not be overfishing. These
usages should be addressed in the national standard 1 guidelines.
Pacific Insular Area.
Summary: The definition lists the islands, reefs, and atolls
considered to be PIAs.
Summary: This is the same definition that was added by Pub.L.
102-251. It was to take effect when/if the maritime boundary
agreement with the Russian Federation is ratified. Now,
following some confusion occasioned by amendments to the MMPA,
the definition has been added unconditionally, but defines a term
that is not used in any operative provision of the MSFCMA.
United States harvested fish.
Summary: In this definition and other sections of the Act, the
simpler phrase "regulated under this Act" has been substituted
for the language covering FMPs and PMPs.
Vessel subject to the jurisdiction of the United States.
Summary: This term does not appear anywhere in the Act or its
Legislative history: The Coast Guard asked for this definition,
but it has no effect since the term does not appear in operative
Return to Table of Contents?