109. Action by the Secretary.
[MSFCMA section 2]
a. Secretarial review of plans and regulations.
Summary: Subsections 304(a) and (b) (and 305(a)) are replaced in
their entirety, in an attempt to streamline the review process.
One major change is elimination of the preliminary evaluation of
an FMP or amendment. Once a plan or amendment is transmitted,
NMFS must immediately (within five days of transmittal) publish a
notice of availability. Another change is elimination of the
"fast track" schedule for resubmitted FMPs and amendments; they
are on the same schedule as first submissions. In addition, the
deadline for approval/disapproval of a plan or amendment is no
longer Day 95. Instead, the deadline is 30 days after the end of
the 60-day comment period on the plan or amendment. (This should
work out to the 95th day or shortly thereafter.)
For all proposed regulations, whether submitted with an FMP or
amendment or submitted as regulatory amendments, NMFS is to
immediately evaluate whether they are consistent with the FMP or
amendment, the Act, and other applicable law. If yes, NMFS
publishes the proposed rule for a comment period of 15 to 60
days. If no, NMFS returns the proposed rule to the Council for
revision. NMFS's determination is to be made within 15 days, but
no deadline is provided for publication of the proposed rule.
NMFS must promulgate a final rule within 30 days after the end of
the comment period on the proposed rule. In theory, this shaves
15 days off the schedule for publication of a final rule. In
practice, however, the deadline for the final rule will depend on
when the proposed rule was published and the length of the
comment period. NMFS is to consult with the Council before
making any revisions between the proposed rule and the final
Legislative history: The preliminary evaluation of FMPs was
eliminated as "duplicative of the broader evaluation" and
providing little benefit, according to the Senate report.
The Senate report had discerned the futility of the Day 95
"automatic approval" of FMPs and amendments: "As a practical
matter...plans and amendments cannot become effective without
action by the Secretary." Between the mark-up and the managers'
amendment, however, the automatic approval language was
Issues: There is no need to change the current practice under
the "starting the clock" memo; that is, the transmittal date
should not be declared until the regulatory package is complete.
Completeness includes the proposed rules, which under section
303(c) must be submitted simultaneously with the FMP or
Some might argue that FMPs and their implementing regulations are
now completely divorced, with FMPs on one timetable under section
304(a), and the rules on another under section 304(b). That
interpretation ignores section 303(c) requiring simultaneous
submission of implementing rules. A two-track process could
result in proposed rules trailing far behind the review process
for FMPs, since there is no deadline for publication of proposed
rules and the comment period can be as long as 60 days. The
deadline for approving the FMP could occur before the end of the
comment period on the implementing rules, so that comments
revealing national standard or other violations arrive too late
to affect the approval/disapproval decision. NMFS should
implement these provisions by meshing the two timetables as much
as possible. Ideally, proposed rules would be published soon
after the initial determination that they are consistent with
applicable law, so the comment period on the proposed rule would
expire before the FMP approval deadline.
NMFS and the Office of the Federal Register have agreed that the
comment period on plans and amendments will be calculated to end
on the 60th day after publication of the notice of availability
(later if it falls on a weekend or holiday).
NMFS will retain 45 days as the norm for comment periods on
proposed rules implementing FMPs or amendments, based on the
previous practice. Congress allowed for shorter comment periods
at NOAA's request, since regulatory amendments are now controlled
by this section.
The requirement for NMFS to consult with Councils on changes to
final rules must mean consultation with Council staff, since most
Councils do not meet frequently enough for consultation within
the 30 days between the end of the comment period and the
deadline for promulgation.
Note this anomaly: A plan or amendment inconsistent with the Act
has to go out for public comment, while the regulations proposed
to implement such a plan or amendment can be returned to the
Council without publication.
Also note: This amendment has no effect on rules that are
published without a comment period, such as framework notice
b. Preparation by the Secretary.
Summary: The revision to section 304(c)(1) covers Secretarial
plans or amendments responding to overfishing determinations. A
requirement for hearings is added, as well as consultation with
State and Coast Guard. Proposed rules to implement a Secretarial
plan or amendment must be submitted to the Council. The comment
period on such rules is 60 days, but may be shortened for minor
revisions to existing rules. Final rules are to be published
within 30 days of the end of the proposed rule comment period.
Section 304(c)(3) is amended to reaffirm current law, that only
fisheries under the authority of Councils need Council approval
for limited-access systems. In other words, the Secretary may
institute such systems in FMPs for Atlantic highly migratory
species. (Some had argued that this section required Council
approval of limited access for HMS plans, despite the lack of an
"appropriate" Council for fisheries managed by the Secretary.)
c. Individual fishing quota and community development quota fees.
Summary: The Secretary is directed to collect fees to recover
the costs of managing and enforcing IFQ and CDQ programs. The
fee is not to exceed 3 percent of the ex-vessel value of fish
harvested. It is to be collected on landing, on filing of a
landing report, when fish is sold, or at the end of the year.
Fees are to be deposited in the Limited Access System
Administration Fund (see section 305(h)(5)(B)), except for the
portion reserved to finance IFQs for small-vessel or entry-level
Issues: CDQ fees are limited to programs that set aside a
percentage of the total allowable catch. Since the western
Pacific fisheries generally do not involve TACs, Senator Inouye
is probably correct that fees would not be applied to WestPac CDQ
Congress would not allow NMFS to collect fees at the beginning of
a season. We now have several options for collecting as fish are
harvested, or we can wait until the end of the year.
One oddity is that section 304(d)(2)(A) seems to authorize fees
for IFQ and CDQ programs, whether they were developed under the
Magnuson Act or under other authority (such as the Northern
Pacific Halibut Act). The language is not expressly limited to
fees authorized by FMPs (cf. section 304(d)(1)); Congress
obviously meant to include halibut IFQ programs since sablefish
and halibut were identified as the only two fisheries for which
IFQ fees may be collected until 2000.
d. Delay of fees. [no MSFCMA amendment]
Summary: No IFQ fees can be collected until January 1, 2000, in
the surf clam and wreckfish fisheries. This means the only fees
that will be collected in the next few years are for IFQs in the
North Pacific halibut and sablefish fisheries, and for North
Summary: The old section 304(e) on research is moved to the new
section 404. Its replacement is the substantive treatment of
overfishing. NMFS must report annually to Congress and the
Councils, identifying fisheries that are overfished or
approaching that condition. "Approaching a condition of being
overfished" means an estimate that the fishery will become
overfished within two years, based on trends in effort and other
For FMP fisheries, overfishing criteria in the FMP are to be used
in determining the status; for fisheries under international
management, criteria specified in the international agreement are
to be used.
If NMFS determines at any time that a fishery is overfished,
we're not to wait for the annual report, but immediately to
notify the Council and publish a notice in the Federal Register.
Within a year of any identification of an overfished (or
approaching overfished) fishery, the Council (or the Secretary
for Atlantic HMS fisheries) is to prepare an FMP, amendment, or
proposed rules to end overfishing and rebuild the stocks, or to
prevent overfishing from occurring when the fishery is
approaching that condition.
The plan must specify a time period for rebuilding that is "as
short as possible," taking into account the status and biology of
the stocks, the needs of fishing communities, international
recommendations, and stock interaction with the ecosystem. The
time period may not exceed ten years, except where "the biology
of the stock of fish, other environmental conditions, or
management measures under an international agreement in which the
United States participates dictate otherwise." Overfishing
restrictions and recovery benefits must be fairly allocated among
user groups. For fisheries managed internationally, the
rebuilding plan must reflect traditional participation by U.S.
fishermen relative to foreign fleets.
If the Council fails to submit the required FMP, amendment, or
regulations, NMFS must prepare them within nine months. For
highly migratory fisheries under Secretarial management,
revisions to FMPs and rules must be made "immediately."
All FMPs and regulations must be reviewed at least every two
years to see if adequate progress is being made to end
overfishing and rebuild stocks. If not, the Secretary must
immediately revise a 302(a)(3) FMP, or immediately notify the
appropriate Council and make recommendations for measures to
achieve adequate progress. Those measures must then, by cross
reference to paragraph (3), be prepared within a year.
Interim measures addressing overfishing may be implemented under
section 305(c), even if they are not sufficient in and of
themselves to stop overfishing.
Legislative history: This is essentially the same language as in
H.R. 39. While the previous Magnuson Act, read with the national
standard guidelines, already required the Councils and the
Secretary to take steps to end overfishing and rebuild depleted
stocks, the annual requirement of specific identification of
overfished stocks, the deadlines for response, and the ten-year
limit on rebuilding programs are certainly steps forward.
Cong. Young said in a floor statement that the phrase "other
environmental factors," in the exceptions to the ten-year limit
on rebuilding schedules, includes "factors beyond the control of
the rebuilding program." However, the phrase "other
environmental factors" cannot be interpreted to encompass
anything but environmental factors. He was incorrect in saying
that H.R. 39 contained a more specific list of exceptions.
Cong. Young also said that the Secretary should "take action"
within nine months of the Council's failure to do so. That is
contrary to the statutory language, which says the Secretary
"shall prepare" a plan or amendment within that timeframe;
implementation would follow within 90 days.
The provision for interim measures stems from NOAA's long-standing interpretation of national
standard 1 that small steps
to ameliorate overfishing didn't meet the standard. Now we can
take minimal actions, but only for a year while the curative
amendment is being prepared.
Issues: See discussions of "optimum" and "overfished."
Just as the definition of "overfished" and "overfishing" confuses
status with activity, so does the identification of overfished
fisheries confuse the two by reference to using the "criteria for
overfishing" in FMPs. Most of the FMPs now contain definitions
of "overfishing" that are linked to mortality rates, as the
national standard guidelines instruct. This will be fixed in a
couple of years, when all FMPs are amended under section
If there are no relevant criteria in an FMP or international
agreement, is NMFS relieved of identifying a fishery? Surely the
answer is no.
Meshing the language on Secretarial amendments in this section
with section 304(c) produces a schedule whereby NMFS would,
within nine months of a Council's failure to respond to a notice
of overfishing, prepare a plan or amendment to submit to Councils
and the public. Final rules would be published 90 days later.
Existing rebuilding programs should be reviewed immediately, to
see whether they comply with the ten-year schedule. Note that
economic and social considerations, while they can be considered
in developing a rebuilding program within the ten-year timeframe,
are not a basis for extending the program beyond ten years.
The requirement to reflect traditional participation by U.S.
fishermen in internationally managed fisheries means that
American fishermen aren't to be hit a lot harder than their
foreign competitors in rebuilding an overfished stock. Some
observers have noted that this section in its entirety, however,
would seem to require that rebuilding programs in international
management organizations must restore stocks to the capacity to
Paragraph (1) says we should identify fisheries with each
Council's geographical area of authority. This should be
interpreted as all fisheries within the EEZ, since it describes
geography rather than management responsibility. Therefore the
identification in paragraph (1) covers Atlantic HMS fisheries as
well as fisheries for which the Councils have responsibility.
That, plus the explicit mention of section 302(a)(3) fisheries in
paragraph (3), means the Secretary must prepare an FMP for an
overfished HMS fishery within one year of identification.
f. Fisheries under authority of more than one Council.
Summary: Previous section 304(f)(3) (giving authority over
Atlantic HMS to the Secretary) is deleted, since it now appears
at section 302(a). This deletion created a technical problem
with the cross-reference in section 304(f)(1).
g. Atlantic highly migratory species.
Summary: Most of new 304(g)(1) is basically the same as old
304(f), with the addition of advisory panels for each FMP.
Section 302(g) requires that the Secretary establish advisory
panels to assist in the collection and evaluation of information
relevant to the development of any FMP or plan amendment for an
HMS fishery. Each panel is to participate in all aspects of
development of the plan or amendment; be balanced in its
representation of commercial, recreational, and other interests;
and consist of no fewer than seven individuals who are
knowledgeable about the fishery for which the plan or amendment
is developed and are selected from among members of the ICCAT
advisory committees and species working groups and other
The same provisions apply to HMS advisory panels as to advisory
panels established by Councils -- including procedural
requirements and exemption from FACA.
Another modification to this section is a new requirement that
the Secretary promote, to the extent practicable, implementation
of scientific research programs that include the tagging and
release of Atlantic HMS.
New 304(g) provides that fish harvested in a commercial fishery
managed by the Secretary under this subsection or the Atlantic
Tunas Convention Act that are not regulatory discards, and that
are tagged and released alive under a scientific tagging and
release program, shall not be considered bycatch, as that term is
defined in section 3(2).
Legislative history: Various approaches to management of HMS
were discussed during the amendment process. Early consideration
was given to establishing a ninth "super" Council for HMS, or to
returning authority back to the current Councils. H.R. 39 would
have required the Secretary to establish plan development teams
to participate in the development of plans and amendments;
S. 39's change to advisory panels seems to provide a somewhat
different role for the panels.
There is no explanation for the exclusion of regulatory discards
(such as undersized swordfish) from the definition of "bycatch,"
but this last-minute change certainly seems to vitiate the
Issues: NMFS must determine the procedures it will follow in
establishing and utilizing the advisory panels. These may
disappoint some constituents who have an unfounded expectation
that the panels will be used to advise NMFS on in-season
implementation of FMPs; the statute clearly states that the
panels' role is to assist in developing FMPs.
h. Comprehensive management system for Atlantic pelagic longline. [no MSFCMA
Summary: Section 109(h) provides that the Secretary establish an
advisory panel under section 302(g)(4) for pelagic longline
fishing vessels that participate in fisheries for Atlantic HMS,
and, among other specified actions, complete by January 1, 1998,
a comprehensive study on the feasibility of implementing a
comprehensive management system for pelagic longline fishing
vessels. The Secretary may, after October 1, 1998, implement a
comprehensive management system for these vessels, with the
restriction that such a system may not implement an individual
fishing quota program until after October 1, 2000.
Legislative history: There is no written explanation for the
requirement to establish an advisory panel for the pelagic
Issues: NMFS must determine how the longline advisory panel and
the requirement for a study on a "comprehensive management
system" squares with the requirement to establish advisory panels
that are fishery, not gear, specific. Resolution of this issue
is important but will be difficult; the agency should begin
i. Repeal or revocation of a fishery management plan.
Summary: In response to NMFS's proposal to repeal six FMPs in
early 1996, Congress required a three-quarters Council vote for
Legislative history: NOAA repeatedly objected that this
provision is constitutionally infirm (under the Appointments
Clause) and inconsistent with regulatory reform. The President's
signing statement directs the Secretary to treat this provision
"as advisory, not mandatory."
Issues: NOAA has decided not to repeal any of the FMPs, except
for American lobster (see below).
j. American lobster fishery. [no MSFCMA amendment]
Summary: Congress excluded the lobster FMP from the three-quarters requirement,
because the New England Council is known to support repeal once the ASMFC amends its plan.
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