108. Fishery management plans.
[MSFCMA section 303]
a. Required provisions.
Summary: FMPs must now specify data to be submitted to the
Secretary with respect to "commercial, recreational, and charter
fishing in" the fishery. Plans must describe these sectors and
quantify trends in landings from them.
Plans must describe and identify essential fish habitat, minimize
"to the extent practicable" adverse effects on such habitat, and
identify other actions to encourage the conservation of such
Fishery impact statements must assess the likely effects of
measures on fishing communities.
FMPs must specify objective and measurable criteria for
identifying whether a fishery is overfished; if a fishery is
overfished or approaching an overfished condition, the plan must
contain measures to prevent overfishing or to end overfishing and
rebuild the fishery. If rebuilding plans call for reduced
harvests, the restrictions and recovery benefits must be fairly
allocated among the harvesters.
Plans must establish standardized reporting methods to assess the
type and amount of bycatch in a fishery; measures must, to the
extent practicable, minimize bycatch and minimize the mortality
of bycatch that cannot be avoided. FMPs with recreational catch-and-release programs must
include measures to minimize mortality
of released fish.
Issues: One issue is whether the change to section 303(a)(5)
means that data must be collected from the commercial,
recreational, and charter sectors and segregated by category.
This might entail overhauls of reporting systems in many
fisheries. Another is the meaning of "standardized" in section
303(a)(11). Rather than regional or national standardization,
the requirement applies to each FMP for the fishery managed under
it. The methodology could vary from one gear type to another, as
long as the bycatch reports yield compatible data.
Summary: Councils must submit FMP amendments containing these
new provisions by October 11, 1998.
Issue: When must FMPs for Atlantic highly migratory species
comply with the new provisions of section 303(a)? The directive
in this paragraph is only to the Councils, which may have been an
c. Discretionary provisions.
Summary: FMPs may limit the sale of fish and may restrict
transshipment of fish under section 204 permits. Plans may
require more than one observer be carried onboard a U.S. fishing
vessel. FMPs may also include harvest incentives to encourage
lower bycatch levels. They may reserve a portion of the
allowable biological catch (ABC) for use in scientific research.
Legislative history: There was no need for any of the amendments
to section 303(b), with the possible exception of the ABC
reservation. At least one FMP (for Atlantic billfish) already
prohibits the sale of fish. Councils already have full authority
to place restrictions on the operation of foreign transshipment
vessels and to require multiple observers. And harvest incentive
programs are permissible FMP measures. (The Senate report says
the Committee "anticipates that the Secretary would assist the
Council in developing measures to address any Constitutional due
process issues that may exist." This comment recognizes the
difficulty the North Pacific Council has had in devising an
"incentive" program that is not actually a penalty program.)
The Senate managers' amendment imported the House provision on
setting aside a portion of the ABC for scientific research.
Although never stated explicitly, the House intended this set-aside as "payment" for private
vessels that might be used to
gather scientific data.
Issues: The payment of private vessels in fish that would
otherwise be available for harvest by all vessels in the fishery
raises important public policy and legal issues. One has been
resolved by the Department of Commerce's Office of General
Counsel, which concluded that "[a]dditional fish or additional
fishing time provided through a competitive solicitation in
exchange for use of a private vessel does not implicate the
concept of an improper augmentation of the Department's
appropriations, because that concept relates to a donation or
receipt of funds by the Department." See also 203 on resource
d. Proposed regulations.
Summary: The rewrite of the section on proposed rules was
intended to place regulatory amendments, as well as regulations
immediately implementing an FMP or amendment, on a timetable with
deadlines for publication of proposed and final rules. See new
section 304(b). Proposed rules implementing an FMP or amendment
must be submitted simultaneously with the plan or amendment.
Regulatory amendments may be submitted at any time.
e. Individual fishing quotas.
Summary: This section imposes a four-year moratorium (until
October 1, 2000) on the submission or approval of new IFQ
programs. Any IFQ program approved after January 4, 1995 (i.e.,
the red snapper program) is repealed. During the moratorium,
Councils may submit and the Secretary may approve amendments to
existing IFQ programs (North Pacific halibut and sablefish, South
Atlantic wreckfish, and Mid-Atlantic surf clam and ocean quahog
(including mahogany quahog)).
Congress states that IFQs may be ended or limited, without
compensation to permit holders, and do not create any right to
fish before they are harvested. IFQs and other limited access
permits may be sanctioned.
A Council may submit a program reserving up to 25 percent of fees
collected in IFQ fisheries (halibut and sablefish only until
January 1, 2000), to finance the purchase of IFQs by "fishermen
who fish from small vessels" or the first-time purchase of IFQs
by "entry level fishermen" (see 108(g) for definitions of these
terms and mandatory requirements for halibut and sablefish).
When the moratorium is lifted, the Councils and the Secretary
must consider the recommendations in the IFQ report by the
National Academy of Sciences. Any new IFQ program must provide
for (1) review and revision of its terms; (2) effective
enforcement, including observer coverage; (3) fees to recover
actual costs; (4) fairness in initial allocations (considering
entry-level fishermen, small vessel owners, and crew members);
and (5) prevention of any person's acquiring excessive shares.
Legislative history: Both houses of Congress are hostile or at
least suspicious toward IFQ systems. The House report criticized
NMFS for "forcing" Councils to adopt IFQs. It said IFQ systems
have the potential "to fundamentally alter fisheries management
in the U.S." and must be used with great caution. The House
approach was to set forth new requirements for IFQ programs, some
of which were carried over into S. 39. Some that did not survive
were a seven-year limit on any IFQ, non-transferability, and a
requirement that the IFQ holder participate in the fishery.
Other specifics (who can hold IFQs, citizenship requirements) are
now to be studied by the National Academy of Sciences.
The Senate took a different approach: a four-year moratorium and
the NAS study (see the following section). Proponents of IFQ
systems, particularly the Washington delegation, threatened to
kill the entire bill over this issue. Right before the August
recess, a "compromise" was reached: a shorter moratorium (shorter
only because passage of the bill had been delayed so long),
elimination of the super-majority vote for IFQs after the
moratorium, and limitations on and a study of community
development quotas (see discussion of 108(h) and 111(a)).
Issues: NMFS should wait until the NAS study is complete and
Congress has decided what to do with IFQs before trying to
formulate guidance on new IFQ systems.
An interesting issue is whether an individual quota system
established under a different statute, if carried over into a
Magnuson Act FMP, would be considered a "new" IFQ program subject
to the four-year moratorium. This is not a hypothetical
question, since NMFS is beginning work on a tunas (or highly
migratory species) FMP that would have to consider the existing
individual purse seine quotas for purse seine vessels harvesting
Atlantic bluefin tuna under the Atlantic Tunas Convention Act.
f. Individual fishing quota report. [no MSFCMA amendment]
Summary: The NAS is to submit to Congress a comprehensive report
on IFQs by October 1, 1998 (a year before reauthorization of the
Act expires). The report is to analyze effects of limiting or
prohibiting transferability of IFQs, or limiting their duration;
mechanisms to prevent foreign control of U.S. fisheries;
individual processor quotas; mechanisms to avoid adverse impacts
on fishing communities and to ensure fairness in allocations;
monitoring and enforcement; criteria for candidate fisheries;
social and economic costs and benefits; and value created.
There's an equally long list of factors the Academy is to study
in the three existing IFQ programs. It's also supposed to look
at alternatives to IFQs.
Two review groups (one Pacific, the other Atlantic/Gulf) must be
appointed by the Secretary to assist the Academy. The Secretary
must hold hearings in each Council region to gather comments for
the Academy's use. A draft of the report is to be prepared by
January 1, 1998, and made available for public comment.
This section repeals section 210 of the 1996 appropriations act,
which had restricted work on new IFQ systems; however, the act
had expired 11 days before S. 39 was enacted.
Issues: The subsection on hearings and public comment is unclear
as to whether the hearings are to occur early on, for use in the
draft report, or after the draft report is released. The Academy
has told Congress it is unwilling to issue a draft report anyway,
and would like an amendment to this section to revise the
procedures. On February 25, 1997, NMFS published a Federal
Register notice requesting nominations for the advisory panels;
the notice limits each panel to 15 members and describes the
roles the members will play.
g. North Pacific loan program. [no MSFCMA amendment]
Summary: This provision requires that by October 1, 1997, the
North Pacific Council develop a loan guarantee program to assist
"fishermen who fish from small vessels" and "entry level
fishermen" in purchasing IFQs for the halibut and sablefish
fishery off Alaska. The guarantee program must use the full 25
percent of the fees collected under section 304(d)(2) from any
IFQ program and any CDQ program that allocates a percentage of
the TAC of a fishery to such program (section 304(d)(2) limits
the overall fee to 3 percent of the ex-vessel value of fish
harvested under such programs). This section in effect requires
the North Pacific Council to develop specifically for the halibut
and sablefish IFQ fishery the type of loan guarantee program that
the Councils generally are authorized to develop under section
This section also defines "fishermen who fish from small vessels"
as fishermen who want to purchase IFQs for use from Category B,
Category C, or Category D vessels, as defined in the CFRs that
were in effect on October 1, 1995; whose aggregate ownership of
IFQs will not exceed the equivalent of a total of 50,000 pounds
of halibut and sablefish harvested in the fishing year in which
the guarantee application is made if the guarantee is approved;
who will participate aboard the fishing vessel when the IFQ fish
is harvested; who have at least 150 days of experience working as
harvesting crew in any U.S. commercial fishery; and who do not
own in whole or in part Category A or B vessels, as defined in
the referenced regulations.
The applicable regulations defined Category A vessels as a
freezer vessel of any length; Category B vessels, as catcher
vessels greater than 60 feet in length overall; Category C
vessels, as catcher vessels less than or equal to 60 feet in
length overall for sablefish, or catcher vessels greater than 35
feet but less than or equal to 60 feet in length overall for
halibut; and Category D vessels, as catcher vessels that are less
than or equal to 35 feet in length overall for halibut. The
regulations also defined freezer vessels and catcher vessels. In
effect, these loan guarantees will be used to purchase IFQs for
use on vessels that do not process fish. It effectively is an
allocation to onshore interests and away from at-sea processor
The section also defines "entry level fishermen" as fishermen who
do not own any IFQs, who wish to obtain the equivalent of not
more than 8,000 pounds of halibut and sablefish harvested in the
fishing year in which a guarantee application is made if the
guarantee is approved, and who will participate aboard the
fishing vessel when IFQ fish are harvested.
Issues: Can the IFQ loan guarantee program be financed from fees
collected from the CDQ program or only from the IFQ program? The
wording of the section says the program would use the full amount
of fees authorized under section 303(d)(4), which provides that
up to 25 percent of any fees collected from a fishery under
section 304(d)(2) may be used to issue obligations. Section
304(d)(2) authorizes the collection of fees from any IFQ program
and any CDQ program based on a percentage of TAC. Despite the
wording, the Senate report indicates Congress intended that the
North Pacific IFQ loan guarantee program would be financed from
fees collected from the IFQ fishery and not from the CDQ fishery.
A related issue is the meaning of the ex-vessel value of fish
harvested from the IFQ fishery. The North Pacific Council faced
difficulties in defining this phrase during development of the
North Pacific Fisheries Research Plan, which also defined a fee
in terms of ex-vessel value of fish harvested.
A third issue is whether defining phrases in terms of regulatory
definitions in effect on October 1, 1995, in any way restricts
the Secretary's ability to amend the definitions of Category A,
B, C, and D vessels as he deems necessary for managing the IFQ
program. In NOAA-GC's view, the Secretary's authority is not
restricted. There always will be vessels with the
characteristics of vessels in the A, B, C, and D categories, and
the agency should be able to fulfill Congressional intent that
fishermen should be able to purchase IFQs for use on vessels of
h. Community development quota report. [no MSFCMA amendment]
Summary: Another NAS study, on CDQs in the North Pacific and
Western Pacific, is due October 1, 1998. The report is to
evaluate whether CDQs have provided communities the means to
develop commercial fishing activities; whether community
residents have found employment or capital to invest in
commercial fisheries; whether alternative employment
opportunities exist in these communities; and economic impacts on
participants in the affected fisheries. Unlike the IFQ report,
there are no procedural requirements (draft report, hearings,
Legislative history: This report was part of the compromise
between the Washington and Alaska delegations.
i. Existing quota plans. [no MSFCMA amendment]
Summary: This is simply a statement that the 1996 amendments do
not require any reallocation of IFQs under existing programs.
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