105. Foreign fishing and international fishery agreements.

[MSFCMA section 2]

a. Authority to operate under transshipment permits.[MSFCMA section 201]

Summary:

Except one, these are all technical amendments, mainly intended to conform various provisions of section 201 to the Secretary's new authority to issue transshipment permits under section 204(d) and permits under Pacific Insular Areas Fisheries Agreements (PIAFAs) under section 204(e). The first revision allows foreign operations under transshipment permits or PIAFA permits. The second revision updates a cross-reference to the observer regulations, which are recodified from paragraph 201(i) to paragraph 201(h). Although the third revision purports to remove paragraph 201(f) ("Foreign Allocation Report"), it had already been removed in 1994 by section 139 of Public Law 103-236. The fourth revision redesignates paragraphs to adjust section 201 to the removal of paragraph (f). The fifth revision allows a waiver to the general observer requirements under section 201(h) for PIAFA fishing under an observer program developed by the island Governor that is "at least equal in effectiveness to the program established by the Secretary." The sixth revision updates a cross-reference to the MSFCMA section under which FMPs are implemented.

Legislative History:

See the discussion under 105(d).

Issues:

NMFS needs to review the current (or most recent) observer program for foreign fishing in U.S. waters to compare it in effectiveness to observer programs developed by an island Governor and included in a Marine Conservation Plan under section 204(e).

b. International fishery agreements. [MSFCMA section 202]

Summary:

The first revision is a technical one to allow foreign fishing under PIAFAs. The second is a new paragraph (201(h)) directing the Secretary of State to seek international agreements setting standards and measures for bycatch reduction, as he and the Secretary of Commerce determine is "necessary and appropriate." The agreements are to contain standards and measures "comparable" to those imposed in fisheries regulated under the MSFCMA. The Secretary of Commerce must make an annual report to Congress, beginning January 1, 1997, on actions under this subsection.

Legislative history:

This is a "level playing field" provision aimed at requiring foreign fishermen to operate under similar bycatch regulations as those to which U.S. fishermen might be subjected; the instigation was the development of fish excluder devices in the Gulf shrimp fishery. It began as the "Hayes Amendment" to H.R. 39, added by Cong. Jimmy Hayes (LA) on the floor of the House. That amendment would have prohibited the import of any fish into the U.S. unless the Secretary of Commerce certified that the country of origin required fish excluder devices comparable to requirements in domestic fisheries. The Senate version of the Hayes Amendment was the revision to section 201, plus an amendment to section 205 that would have resulted in an embargo of fish products if the Secretary of State certified he was unable to negotiate a bycatch agreement with a particular country. Opposition from Commerce, State, and USTR resulted in deletion of the embargo provision. The President's signing statement objects to the directive in subsection 201(h) and says he will treat the provision as advisory.

Issues:

NMFS has reviewed all MSFCMA fisheries to determine whether any require fish excluder devices or other measures aimed at bycatch reduction, and whether any international agreement is "necessary and appropriate." The conclusion in February 1997 was negative, but NMFS will review Amendment 9 to the Gulf shrimp FMP, if it is approved, under this provision.

c. Period for Congressional review of international fishery agreements. [MSFCMA section 203]

Summary:

These are technical amendments to include PIAFAs and bycatch reduction agreements under the GIFA section. The time period is doubled from 60 to 120 days (not counting days when Congress has adjourned sine die.)

d. Transshipment permits and Pacific insular area fishing. [MSFCMA section 204]

Summary:

The section makes technical revisions to facilitate the issuance of transshipment permits, and mandates that all foreign fishing permits require the owner and operator to comply with "any applicable Federal or State fishing regulations," rather than just regulations implementing an FMP or PMP. A new paragraph (d) is added to section 204 authorizing the Secretary to allow foreign vessels to receive fish or fish products at sea in the U.S. EEZ, or in state waters with the concurrence of the state, and to transport that fish outside the United States. A transshipment permit is issued outside the GIFA process, after the application is transmitted to the Departments of State and Transportation, and in consultation with the appropriate Council and Marine Fisheries Commission. Among other things, the Secretary must determine that no U.S. vessel is interested in performing the transshipment at a "fair and reasonable" rate. The Secretary may place conditions on the permit in addition to the standard restrictions set forth at section 204(b)(7). The fee collected under 204(d) may recover only the costs of issuing the permit; even that fee must be waived if the government of the applicant vessel would not collect a transshipment fee from a U.S. vessel. A new paragraph (e) is added to section 204 authorizing the Secretary of State to enter into a PIAFA (Pacific Insular Area Fishery Agreement) with a foreign nation that would allow vessels of that nation to fish in the EEZ of Guam, the Commonwealth of the Northern Mariana Islands (CNMI), American Samoa, or other U.S. possessions in the Pacific. Fishing under a PIAFA must comply with any applicable FMP, and harvest levels must fall within TALFF. A PIAFA can be effective for up to three years, and may be concluded only with the concurrence of the appropriate Governor, if any. A PIAFA may be concluded only after a Marine Conservation Plan (MCP) for the insular area has been developed by the Governor (in the case of Guam, CNMI, and American Samoa) or by the Western Pacific Fishery Management Council (in the case of other western Pacific territories). An MCP identifies conservation and management objectives for the marine and coastal environment of the island area, and prioritizes those objectives. Section 204(e)(4)(A) specifies five necessary components of each MCP, the most problematic of which will probably be establishing an observer program "equal in effectiveness" to NOAA's observer programs. Each MCP must be approved by the Council and by NOAA. While the Act does not prevent the State Department from entering into a PIAFA before the underlying MCP is approved by the Council and NOAA, a foreign government is not likely to sign a PIAFA before key elements, such as observer costs and coverage, are well defined. Fees collected under a PIAFA for fishing around Guam, CNMI, or American Samoa are deposited in the treasury of the island government; the Governor may spend the funds only to implement an approved MCP, to compensate the Council or the State Department for various administrative or travel expenses, or to carry out other purposes of section 204(e). Fees collected for fishing around other island possessions are deposited into a Western Pacific Sustainable Fisheries Fund, which may be disbursed by the Secretary to the Western Pacific Council to implement section 204(e) (particularly an MCP); if money remains unspent, the Secretary may allow the Council to use the Fund for conservation and management objectives in the State of Hawaii. After reimbursement to all involved entities for the "direct costs of the enforcement action," all fines and penalties collected after October 11, 1996, for MSFCMA violations in the EEZs off Guam, CNMI, or American Samoa are to be deposited in the appropriate island treasury and used for implementation of an MCP.

Legislative History:

The transshipment permit provision was originally promoted to help remote Alaskan communities that lack transport facilities to sell salmon catch. Some legal transshipment by foreign vessels has occurred off Alaska at spots designated "roadsteads" by NOAA. See also, the Atlantic herring transshipment discussion under section 105(e) below. The PIAFA provisions were developed by the Working Group on Federal Fisheries Policy in the Pacific, which included representatives of NMFS, the State Department, the Department of the Interior, the Council, and the governments of the CNMI, Guam, and American Samoa. The Working Group met seven times between October 1994 and 1996. The first implementing legislation, introduced by Delegate Underwood (D-Guam) in 1995, included authority to issue permits for domestic fishing around the Pacific islands; the domestic component was stripped from the legislation before it was added to S. 39. PIAFAs are viewed by the island governments as treaties they help negotiate, and more importantly, from which they will directly receive economic benefits. As Del. Underwood remarked as the House considered S. 39, "...the legislative intent is to...give us [the island governments] a mechanism for charging such fees in a manner similar to current arrangements with foreign nations."

Issues:

NMFS must revise 50 CFR part 600 to conform the foreign fishing regulations to the new transshipment and PIAFA provisions. NMFS must decide whether to provide a more detailed description of the permitting process by formal regulation. Both processes also involve "collections of information" under the Paperwork Reduction Act, which may or may not be covered by existing OMB Control Numbers. NOAA's most difficult determination before issuing a transshipment permit may be whether any U.S. vessel owner who is capable of performing the transshipment has indicated to the Secretary a willingness to do the transshipment at a "fair and reasonable rate." While the statute does not direct NOAA to publish notice of an application, public notice seems the best means of assuring that U.S. vessel owners don't cry foul. The PIAFA program may provide some income to the territorial governments of the western Pacific. NMFS and the Council are providing the island governments guidance about the form and content of an acceptable MCP. The Secretary has implicit, not explicit, authority to disapprove an MCP. The value and extent of fisheries stocks in the EEZs of the western Pacific is not well understood; therefore, the value of permits to foreign nations is difficult to estimate and may amount to much less than the islands hoped for. Presumably, tuna, swordfish, wahoo, and billfish stocks will be the target of foreign fishing. The Western Pacific Pelagics FMP does not employ quotas, and defines TALFF in non-numeric terms and for the longline fishery only; it is not clear whether the current TALFF determination covers tuna, which was not originally managed under the FMP. Before PIAFA fishing commences, the Council must revisit the declaration of TALFF. While not explicit in 204(e), the Department of State and NOAA consider the level of fees to be negotiable. Money spent by an island Governor to implement an MCP presumably will be spent according to the priorities established in the Plan, so not all of the items described in 204(e)(4)(A) need to be implemented. No agency of the Federal government is explicitly charged in 204(e) with overseeing the use of the funds deposited in the island treasuries. Until NOAA approves an MCP, fines and penalties deposited in an island treasury may not be spent; the method NOAA uses to determine the amount of fees and penalties that is spent for "direct enforcement" costs before the remainder goes to the islands may become an issue.

e. Atlantic herring transshipment. [no MSFCMA amendment]

Summary:

This section instructs the Secretary to issue up to 14 transshipment permits to Canadian transport vessels that are not equipped for fishing or processing. Transshipments under the permits may occur within Maine waters or within the EEZ east of 69 degrees 30 minutes west and within 12 nautical miles of Maine's seaward boundary. The herring has to be harvested by domestic fishermen within these areas and used solely for sardine processing. These permits are issued under revised section 204(d). The only provisions made specially applicable to the herring transshipment permits are that they must be issued within 30 days, and that the observer requirement must be waived. Legislative history: This provision was supported by Senator Snowe from Maine. Its origin was a July 10, 1996, boarding of a Maine herring seiner in waters off northern Maine by the Coast Guard. The boarding officer learned that the vessel had pumped its catch from the seine net into a Canadian vessel operating in U.S. waters. Further investigation of the incident led to a discovery that this practice has been going on for years. These Canadian carriers deliver the herring to ports in New Brunswick. During years when the herring stock is more abundant in Canadian waters, U.S. carriers are allowed to operate there and bring the herring back to Maine ports. Since Canada has no GIFA with the U.S., the operation of Canadian carriers in U.S. waters had been unauthorized. Senators Chafee, Snowe, and Stevens conducted a colloquy to the effect that the transshipment permits have to be consistent with "all relevant herring management measures approved by the Atlantic States Marine Fisheries Commission." The statutory language, however, requires only that the transshipment vessels comply with "Federal or State monitoring and reporting requirements."

Issues:

NMFS intends to begin issuing permits before amending the foreign fishing regulations. If more than 14 applications are submitted, additional permits may be issued under 204(d), unless the number was intended as a limitation.

f. Large scale driftnet fishing. [MSFCMA section 206]

Summary:

Two items have been deleted from the contents of reports to Congress on large-scale driftnet fishing.

g. Russian fishing in the Bering Sea. [no MSFCMA amendment]

Summary:

This section requires the North Pacific Council, in conjunction with the North Pacific and Bering Sea Advisory Body, to prepare a report on Russian fishing in the Bering Sea and to submit the report by September 30, 1997, to the Senate and House Committees. The report must describe "the institutional structures in Russia pertaining to stock assessment, management, and enforcement for fishery harvests in the Bering Sea" and must include "recommendations for improving coordination between the United States and Russia for managing and conserving Bering Sea fishery resources of mutual concern."

Legislative History:

This provision apparently arose from discussions Ambassador David Colson, U.S. State Department, had with the Council. At one of the Council meetings, he reported on the difficulties the State Department faced in trying to negotiate with the Russians because the Department could not figure out who was in charge -- local or central governments -- and was unable to obtain data on stocks and on management responsibilities. He asked the Council's help in figuring out who the United States should contact on various issues. In any event, scientists have determined that the United States and Russia are conducting fisheries in their respective waters on the same stocks of pollock, and perhaps other species as well. These stocks also were exploited in the Central Bering Sea in the 1980s before fishing was halted pursuant to the Donut Hole Convention. Russian fisheries in the northern Bering Sea Navarin Area are of particular concern because they are conducted under an aggressive exploitation strategy and harvest a large proportion of U.S.-origin juvenile pollock. NMFS fishery scientists believe that excessive harvests of juvenile pollock will reduce the yield throughout the northern Bering Sea and specifically in the U.S. EEZ. NMFS fishery managers and scientists and North Pacific fishing industry representatives have concerns about the institutional structures in Russia pertaining to stock assessment, management, and enforcement for fishery harvests in Russian waters in the Bering Sea. The U.S. already has raised these concerns to the Russian delegation during bilateral discussions in October 1996. The Russian delegation agreed that each side should understand fully how pollock fisheries are managed in their respective waters and further agreed to convene three working groups of scientists, managers/enforcers, and industry representatives to meet before the next U.S./Russia Intergovernmental Consultative Committee meeting scheduled for March/April 1997 in the Russian Far East.

Issues:

New 105(g) gives the North Pacific Council an explicit role in international fisheries in the Bering Sea that will, to some extent, duplicate efforts of NMFS and the State Department.
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