117. North Pacific and Northwest Atlantic ocean fisheries.
a. North Pacific fisheries conservation. [MSFCMA section 313]
Summary: This section applies only to the North Pacific Council.
It amends section 313 to redesignate the section as "North
Pacific Fisheries Conservation" instead of "North Pacific
Fisheries Research Plan." It adds several new subsections to
section 313 relating to bycatch reduction, total catch
measurement, and increased retention and utilization.
New subsection 313(f) requires that the Council submit to the
Secretary conservation and management measures to lower for at
least four years the total amount of economic discards (see
Definitions above) occurring in the fisheries under its
jurisdiction. New subsection 313(g)(1) says, notwithstanding
109(d), that the North Pacific Council may submit a system of
"fines", up to $25,000 per vessel per season, to provide
incentives to reduce bycatch. Any "fines" collected will be
deposited in the North Pacific Fishery Observer Fund. The funds
may be (1) used to offset costs related to the reduction of
bycatch in the fishery from which the fines were derived, and (2)
transferred to the State of Alaska to offset costs.
New section 313(g)(2)(A) says, notwithstanding the IFQ moratorium
and in addition to the authority in new section 303(b)(10), that
the North Pacific Council may submit conservation and management
measures that allocate regulatory discards to individual vessels
as an incentive to reduce individual vessel bycatch and bycatch
rates in a fishery, provided that the individual vessel bycatch
and bycatch rates are not transferable for money and meet other
New section 313(h) requires that by June 1, 1997, the Council
submit to the Secretary conservation and management measures to
ensure total catch measurement in each fishery under the
jurisdiction of the Council. The measures must ensure accurate
enumeration of at least target species, economic discards, and
regulatory discards. It also requires, to the extent the
measures do not require U.S. fish processors and fish processing
vessels (as defined in chapter 21 of title 46, U.S.C.) to weigh
fish, that the Council and the Secretary must submit a plan to
the Congress by January 1, 1998, to allow for weighing, including
recommendations to assist such processors and processing vessels
in acquiring the necessary equipment, unless the Council
determines that such weighing is not necessary to ensure total
New section 313(i) requires the Council to submit to the
Secretary by October 1, 1998, a report on the advisability of
requiring full retention by fishing vessels, and full utilization
by U.S. fish processors of economic discards if the economic
discards or their mortality cannot be avoided. The report must
address the projected impacts of such requirements on
participants in the fishery and describe any full retention and
full utilization requirements that have been implemented. The
report must also address the advisability of measures to minimize
processing waste, including standards setting minimum
percentages that must be processed for human consumption.
Legislative history: Bycatch and waste were additional issues
dividing the Washington and Alaska delegations. Senator Stevens
in his floor statement claimed that in 1995, 60 factory trawlers
discarded nearly as much fish in the Bering Sea as was retained
in the New England lobster fishery, the Atlantic mackerel
fishery, the Gulf of Mexico shrimp fishery, the Pacific sablefish
fishery, and the North Pacific halibut fishery combined. He said
waste in the Bering Sea trawl fisheries was as great as the total
catch of all the major fisheries in the EEZ, and that the 60
factory trawlers threw overboard about one out of every four fish
they caught. Senator Gorton responded that he never objected to
the waste and bycatch reduction provisions of the bill, but
objected to the singling out of factory trawlers as wasteful. He
cited the Greenpeace allegations of the factory trawlers' alleged
waste in the Bering Sea pollock fishery and said policy should be
based upon sound science and not on the "uninformed rantings" of
New section 313(f) is meant to ensure that the bycatch reduction
requirements would result in actual significant reduction in the
total amount of economic discards in North Pacific fisheries.
Reductions in regulatory discards, or bycatch that fishermen are
required by regulation not to retain, would be accomplished
primarily through other sections of the revised Act.
New section 313(g) initially authorized the Council to recommend
a system of fees in a fishery to provide incentives to reduce
bycatch and bycatch rates. It limited the fees to no more than 1
percent of the estimated ex-vessel value of the target species in
the fishery. At some point, "fees" was changed to "fines" (for
technical reasons and because a couple of fishermen thought
"penalties" sounded harsher than "fines"). The Senate report
says the Council could not submit and the Secretary could not
approve any vessel bycatch allocation measures unless they would
result in an actual reduction in regulatory discards, and unless
an accurate enumeration of the target species, economic discards,
and regulatory discards is available in the fishery.
The Senate report clarifies that the Council may submit and the
Secretary may approve full retention and full utilization plans
for economic discards and other bycatch prior to October 1998, as
long as they are consistent with the other requirements of the
Issues: The process for reviewing "plans" in section 313(c) does
not apply to new subsections (f), (g), and (h). The conservation
and management measures in 313(f) and (h) clearly are FMP
provisions, as are the fines, VBAs, and other restrictions in
313(g). The "plan" to be submitted to Congress under 313(h)(2)
is puzzling. An FMP would not be submitted to Congress, nor a
313(c) research plan. Our best interpretation is that Congress
wants a recommendation for legislation concerning a weighing
program, since funding for installation of very expensive scales
might be required.
The new provision for "fines" doesn't repeal the current vessel
incentive program (VIP), under which civil penalties in excess of
$25,000 per vessel per year have been assessed. NOAA-GC will
continue to process these cases until the VIP is rescinded.
This section also requires deposit of the "fines" collected into
the Observer Fund established under section 313(d). This
provision appears to take precedence (in time and specificity)
over the section 311(e) Enforcement Fund.
Sections 313(h)(1) and (2) deal directly with the catch
measurement issue that the Alaska region has been working on for
at least three years. The terms "total catch measurement" and
"accurate enumeration" in subsection (h)(1) are contradictory,
because the groundfish fisheries off Alaska are managed by
weight, and the word "enumeration" means "to count." Subsection
(h)(1) should be interpreted to mean "accurate weight
measurement" and not enumeration.
If "total catch measurement" in (h)(1) is construed to mean that
all catch must be weighed on a scale, all catch from all fishing
vessels and processor vessels would have to be weighed before it
is processed or discarded. However, subsection (h)(2) refers
only to U.S. fish processors and processing vessels under title
46 U.S.C. This would exclude at-sea discards from all catcher
vessels and any processor vessel that only freezes whole, bled,
or headed and gutted fish -- which would mean all longline and
pot processor vessels and some trawl catcher/processors.
As of May 1996, there were a total of 67 trawl catcher/
processors, five motherships, 62 longline catcher/processors, and
two pot catcher/processors. Twenty-seven of the 67 trawl
processor vessels produced headed and gutted products only and
would not be considered U.S. processor vessels under title 46.
The most conservative number of processor vessels that could be
affected by this section is 40 trawl catcher/processors. The
Council's current recommendation to require weighing by all
processor vessels in the BSAI pollock fishery would affect about
50 processor vessels, some of those not falling within the
definition of processor vessels under title 46.
Subsection (i) requires a report on the advisability of requiring
full retention and full utilization. What do the terms "full
retention," "full utilization," and "human consumption" mean?
Does this requirement apply to crab, salmon, scallops, and
Note that all the usual provisions of the MSFCMA and other law
still apply; proposals made under section 313 still have to have
administrative records justifying them.
b. Northwest Atlantic Ocean Fisheries. [MSFCMA section 314]
Summary: This extends the authorization for $5 million each for
FY 1998 and 1999, for the Northwest Atlantic Ocean Fisheries Reinvestment Program.
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