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 requirements. 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 catch measurement. 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 "meretricious activists." 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 Magnuson Act.

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 groundfish? 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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