111. Pacific community fisheries.

[MSFCMA section 305]

a. Harold Sparck memorial community development quota program.

Summary:

This adds a new provision providing specific statutory authority for the CDQ programs for pollock, sablefish, halibut, groundfish, and crab, already approved by the North Pacific Council, and authorizing the Western Pacific Council to establish community development programs. New section 305(i)(1) requires the North Pacific Council and the Secretary to establish a western Alaska CDQ that allocates a percentage of the TAC of any Bering Sea fishery. The section sets out eligibility requirements for participation in the program that are the same as in the current regulations at 50 CFR 679.30, except it adds a requirement that communities must meet "criteria developed by the Governor of Alaska, approved by the Secretary, and published in the Federal Register." It imposes a moratorium until October 1, 2001, on submission to the Secretary of any CDQ program allocating a percentage of TAC that was not approved by the Council before October 1, 1995, and allows an extension of CDQ programs that expire during the period of the moratorium if they meet the other requirements of the section. It also provides that, for pending CDQ programs and proposed extensions of current programs, the Secretary cannot increase the percentage of TAC allocated to any CDQ program over the amount the Council approved as of October 1, 1995. Section 305(i)(1)(C)(iii) phases in the percentage of crab TAC allocated to the multispecies CDQ program under the license limitation program: 3.5 percent of the crab TAC in 1998, 5 percent of the crab TAC in 1999, and up to 7.5 percent of the crab TAC in 2000 and thereafter. It further specifies that the Council is not required to amend the percentages proposed in the multispecies CDQ program and resubmit it to the Secretary. Finally, the provision authorizes the Secretary to deduct from the fees collected from CDQ participants under section 304(d)(2) costs incurred for observer and reporting requirements imposed on the CDQ fishery that are in addition to such requirements imposed on other participants in the fisheries from which the CDQ allocations were made.

Legislative history:

This section is the result of Senator Stevens' strong support for the western Alaska CDQ program. According to the Senate report and Congressman Young's statements on the floor, the intent is for the agency to combine all the existing and proposed Bering Sea CDQ programs into a single, more efficient western Alaska CDQ program. Senator Gorton described the CDQ provisions as the "most objectionable" in the bill because it "is an entitlement program that will be paid for largely by the Washington fishing industry." He claimed credit for the managers' amendment's phase-in of the CDQ allocations of crab, based on the poor condition of crab stocks. Senator Murray opposed the CDQ provisions, alleging the Washington industry fishing in the Bering Sea would bear the burden alone. The Senate report states Congressional intent that a portion of the fees collected by the Secretary from CDQ participants under section 304(d)(2)(C)(ii) would be passed to the State of Alaska for reimbursement of costs directly related to management of the CDQ program. Congressman Young clarified that the Council is not required to resubmit to the Secretary the multi-species CDQ program it approved in June 1995 in order for the Secretary to implement the phase-in of the percentage allocation from the crab fishery. He also claimed it is the intent of both houses that CDQ allocations be "large enough to enable communities...to accomplish the program's objectives, and particularly the objective of establishing a sustainable local economy in each participating community."

Issues:

NOAA-GC does not interpret the word "any" in section 305(i)(1)(A) to mean that every fishery in the Bering Sea must be included in the umbrella CDQ program. Rather, every fishery for which a percentage of TAC is allocated to a CDQ program must come under the umbrella. The Act does not outline the process for amending the crab CDQ program recommended by the Council to conform it with the phase-in required by the Act. NMFS plans to amend the program and explain the changes in the preamble to the proposed rule. If the program is not implemented in 1998, it can begin in 1999 with 5 percent of the TAC. The pollock CDQ program, which expires by its own terms in 1998, must be resubmitted by the Council. Section 305(i)(1)(D) refers to the multispecies and crab CDQ programs, which the Council approved in the summer of 1995, while the second sentence in section 305(i)(1)(C) addresses the pollock program. The section authorizing the deduction of costs for additional observer and reporting costs will raise innumerable issues as it is implemented. How will industry determine observer and reporting costs? Will this include, for example, the costs of scales, observer sampling stations, observer meals and lodging? Or does it mean only the costs of hiring observers? If it includes all costs associated with observers and reporting, the costs may approach 3 percent of the ex-vessel value of the fish. The costs associated with administering such a system may be substantial. NMFS's experience with the Research Plan showed that "offsets" of this nature are extremely difficult to administer.

a. Western Pacific CDQ programs.

Summary:

The section authorizes the Western Pacific Council and the Secretary to establish community development programs for any fishery under the authority of the Council, for the purpose of providing access to such fishery to western Pacific communities that participate in the program. This section results from concern that communities consisting of descendants of indigenous peoples in the Council's area have not been appropriately sharing in the benefits from the area's fisheries. The statute sets forth five eligibility standards that a community must satisfy. (1) It must be located within the Western Pacific Regional Fishery Management Council Area, which is defined later in this section as the area under the jurisdiction of the Western Pacific Council, or an island within such area. (2) It must meet criteria developed by the Council, approved by the Secretary, and published in the Federal Register. (3) The community must consist of residents who are descended from the aboriginal people indigenous to the area who conducted commercial or subsistence fishing using traditional fishing practices in the waters of the Western Pacific Region. (4) The community may not have previously developed harvesting or processing capability sufficient to support substantial participation in fisheries in the Area. (5) The community must develop and submit a Community Development Plan to the Western Pacific Council and the Secretary. The section further provides that the Council must base the criteria for eligibility on traditional fishing practices in or dependence on the fishery, the cultural and social framework relevant to the fishery, and economic barriers to access to the fishery. The section also states that, notwithstanding any other provision of the Act, the Council must take into account traditional indigenous fishing practices in preparing any fishery management plan. Although the definitions section of the Act includes the term "fishing community," these words are not used together in this section; it appears that there was no intention that this term have any relevance to this section.

Legislative History:

The Senate report's discussion is about a version of this section that is quite different from the bill enacted into law, and thus is not helpful to understanding what was passed. Senator Inouye said in a floor statement, "Measures to enhance access might include regulation of limited entry permits, area closures, fishing zones, and vessel size. Joint venture agreements for the harvesting and processing of fish might also be employed as they are in the north Pacific region."

Issues:

Since a community is required to submit a Community Development Plan to the Council and the Secretary, NMFS should provide guidance on how to do that. Presumably, an FMP amendment and implementing regulations would be required. The entire process, including the criteria and the standards, could be explained in one Federal Register publication. It is worth noting that the western Pacific community development program does not require the use of a quota allocation program. The Council and the Secretary have been provided discretion respectively to develop and to approve programs for eligible communities for the purpose of providing access to the fisheries under the authority of the Council. The range of acceptable content of these programs will be determined by the Council and the Secretary working together through the FMP process.

b. Western Pacific demonstration program.

Summary:

This section provides that the Secretary of Commerce and the Secretary of the Interior are authorized to make direct grants to eligible "western Pacific communities," as defined in section 305(i)(2)(A), for the purpose of establishing not less than three nor more than five demonstration projects to foster and promote traditional indigenous fishing practices. The total amount of the grants is not to exceed $500,000 in each fiscal year. The projects are to foster and promote the involvement of western Pacific communities in western Pacific fisheries. Paragraph (2) states what the projects may do, but this is not mandatory language, so it should be read as illustrative. This section also requires the Council to establish an advisory panel under section 302(g), in consultation with the Secretary of Commerce, to evaluate and rank grant applications, and sets forth the qualifications for the eight members required to make up the panel. If a Secretary awards grants not in accord with the panel's ranking, that Secretary must provide a written explanation (presumably to the Council). The Council is directed to provide Congress with annual reports on the status and progress of the demonstration projects. Federal agencies are authorized to provide technical assistance to western Pacific community-based entities to carry out this section.

Issues:

The award of grants will be dependent upon the determination that a community is an eligible western Pacific community. The grant process therefore must necessarily follow the completion of a number of actions under section 305(i)(2)(A). The source of funds for these grants is an issue still to be resolved, as well as the necessity or desirability of promulgating regulations to implement the grant program.
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