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
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
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
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
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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