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 habitat. 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.

b. Implementation.

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 oversight.

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 assessments.

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 303(d)(4). 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 vessels. 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 those lengths.

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, public comment).

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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