102 Definitions

[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 considered "bycatch."

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 pleasure." 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 definitions. 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.

Fishing community

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.

Optimum.

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 being exceeded."

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 provision.

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.

Special areas.

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 amendments.

Legislative history:

The Coast Guard asked for this definition, but it has no effect since the term does not appear in operative text.
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