116. Transition to sustainable fisheries.

a. Transition to sustainable fisheries. [MSFCMA section 312]


Summary:

Section 312 provides the Secretary with independent statutory authority to establish disaster relief and fishing capacity reduction programs. Subsection (a) authorizes the Secretary to make a determination, at the request of a fishing community or Governor of an affected State, whether a commercial fishery failure exists due to a fishery resource disaster as a result of natural causes, man-made causes beyond the control of fishery managers to mitigate (read: logging and dams), or undetermined causes. Upon making such a determination, the Secretary can make funds available for any activity that the Secretary thinks is appropriate to restore the fishery or prevent a similar failure. This broad discretion is tempered by a 75 percent cap on the Federal share of the cost of any activity, and by the condition that the activity must not expand the commercial fishery failure into another fishery. Subsection (b) authorizes the Secretary, at the request of the appropriate Council or Governor, to conduct a fishing capacity reduction program if the Secretary determines that it is necessary to prevent or end overfishing, rebuild fishery stocks, or achieve measurable improvement in the conservation and management of the fishery. The statute also establishes certain program parameters, such as cost efficiency, compliance with the FMP, and some form of limited entry that will prevent any removed capacity from being replaced by new entrants. Subsection (b) also incorporates the current Interjurisdictional Fisheries Act (IFA) provision for vessel reuse as an alternative to scrapping; this allows a vessel to be subjected to title restrictions that would permanently prevent its use for fishing in U.S. waters. Subsection (c) allows the Secretary to fund a capacity-reduction program in four ways: (1) Saltonstall-Kennedy (S-K) funds; (2) funds appropriated for this purpose; (3) an industry fee system; or (4) funds from any State or other public or private sources. Subsection (d) provides guidelines for the industry fee system outlined in (c), and states that the Secretary may conduct a referendum among the fishing community before establishing such a system. Upon approval by the referendum, the Secretary may establish appropriate landing fees that will service NOAA's debt for the initial program outlay. Subsection (e) tracks the current implementation process followed under the IFA, i.e., a 60-day comment period, publication of a final rule and response to comments, and various hearings and consultations with relevant parties.

Legislative history:

Section 312 stems from a bipartisan process to bring disaster aid to New England. The Administration originally funded a $30 million disaster program under the California Earthquake Emergency Supplemental Bill; using diverse statutory authority, it established fisheries-related programs such as fishing family assistance centers, job retraining, and grants for research on underutilized species. Governor Weld of Massachusetts then sought to bring aid to his State by requesting FEMA funding for Massachusetts fishermen under the Stafford Act. That statute, however, confines the definition of "emergency" to situations where action is needed to save lives or protect property and public health and safety. Congressman Torkildsen backed the Governor's request, but the effort was unsuccessful. Senator Kerry supported disaster relief under the IFA, which defines disaster in broader terms. NOAA was working on a separate process to amend the IFA, which was crucial to the Northwest Emergency Assistance Plan and any New England fishing capacity reduction program. The IFA amendments were passed in April 1996, in the Omnibus Appropriations Act. As the Magnuson reauthorization proceeded, Rep. Torkildsen proposed an amendment that was broad enough to encompass almost any disaster situation. Senator Kerry supported a similar but more detailed provision, which became section 312.

Issues:

Section 312 provides broader and more flexible authority in the determination of a fishery resource disaster. In contrast to the IFA, which requires natural resource disaster causation, section 312 allows man-made and undetermined causes as well as natural causes. The Secretary may provide sums directly to a State or fishing community due to undetermined causes, or to reduce capacity to prevent overfishing. A significant policy issue that may arise in implementing a fishing capacity reduction program is whether the Federal Government should spend taxpayer money to buy out a privilege to catch a public resource. Certain Congressional staffers recently criticized NOAA's current buy-out efforts and specifically opposed a proposed Northeast groundfish latent capacity reduction program. One staffer is worried that paying money for permits will open the door to Fifth Amendment "takings" claims when IFQ allocations are reduced or canceled due to fishery conservation policies. The staffers also argued that no Council will revoke excess permits through unpopular but inexpensive "use it or lose it" regulations if the Federal Government continues to fund these buy-out programs. These programs, however, are popular with State and local officials, the Councils, the environmental community, the fishing industry, and many members of Congress. The statute states that the Secretary may not adopt a plan involving industry fees or debt obligation unless the fee system has been approved by a referendum. Success of the IFA-authorized programs in the Northwest and Northeast will determine whether fishermen recognize a positive effect on the fishery and are thus willing to share the costs of a larger program. Since the $65 million allocated to disaster relief under the IFA is almost fully expended, and no new funds have been appropriated, an industry fee system may be the only funding option remaining. Such a system would be more palatable to those who oppose Federal funding for these programs.

b. Study of Federal investment. [no MSFCMA amendment]

Summary:

The Secretary must establish a task force and report to Congress within two years on the role of the Federal government in subsidizing fishing capacity reduction and expansion programs, and otherwise influencing the aggregate capital investments in fisheries.

Issues:

A definition of subsidies will be needed.
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