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
Issues: A definition of subsidies will be needed.
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