[Federal Register Volume 61, Number 117 (Monday, June 17, 1996)]
[Rules and Regulations]
[Pages 30543-30544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15323]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Chapter VI
[Docket No. 960606161-6161-01; I.D. 051796E]
RIN 0648-XX63
Limit on Fishery Management Plan Development; Public Law 104-134;
Interpretation
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interpretation.
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SUMMARY: NMFS is issuing this document to provide its interpretation of
the limitations placed on the use of appropriated funds by the
Department of Commerce and Related Agencies Appropriations Act of 1996
(Act) for fiscal year 1996. The Act states that no appropriated funds
may be used to develop or implement new fishery management plans
(FMPs), FMP amendments, or regulations that create new individual
fishing quota (IFQ), individual transferable quota (ITQ), or new
individual transferable effort allocation programs, until offsetting
fees to fund such programs are authorized under the Magnuson Fishery
Conservation and Management Act (Magnuson Act). The purpose of this
interpretation is to provide guidance to the regional fishery
management councils and the public on the programs for which funds may
not be expended through the end of the fiscal year.
EFFECTIVE DATE: June 17, 1996.
FOR FURTHER INFORMATION CONTACT: Margaret F. Hayes, Assistant General
Counsel for Fisheries, 301-713-2231.
SUPPLEMENTARY INFORMATION:
Background
The President signed the Act (Public Law 104-134) on April 26,
1996. The Act provides funds for the Department of Commerce through
September 30, 1996. Section 210 of the Act states the following:
None of the funds appropriated under this Act or any other Act
may be used to develop new fishery management plans, amendments or
regulations which create new individual fishing quota, individual
transferable quota, or new individual transferable effort allocation
programs, or to implement any such plans, amendments or regulations
approved by a Regional Fishery Management Council or the Secretary
of Commerce after January 4, 1995, until offsetting fees to pay for
the cost of administering such plans, amendments or regulations are
expressly authorized under the Magnuson Fishery Conservation and
Management Act (16 U.S.C. 1801 et seq.). This restriction shall not
apply in any way to any such programs approved by the Secretary of
Commerce prior to January 4, 1995.
This provision is intertwined with bills currently pending in both
Houses of Congress to reauthorize and amend the Magnuson Act. The
House-passed bill, H.R. 39, would establish fees to be used to
administer individual quota systems. The term ``individual quota'' is
defined in section 16(b) of the House bill as ``a grant of permission
to harvest or process a quantity of fish in a fishery, during each
fishing season for which the permission is granted, equal to a stated
percentage of the total allowable catch for the fishery.''
The Senate bill, S. 39, which has not yet passed the Senate, also
would establish fees to fund an IFQ program. The bill (section 103)
defines ``individual fishing quota'' to mean ``a revocable Federal
permit under a limited access system to harvest a quantity of fish that
is expressed by a unit or units representing a percentage of the
allowable catch of a fishery that may be received or held for exclusive
use by a person.''
Congress' intent in section 210 of the Act apparently was to halt
the development and implementation of any individual quota system--
whether the quotas are transferable or not--pending passage of a law
amending the Magnuson Act to establish fees to finance such systems.
The Senate added the term ``new individual transferable effort
allocation program,'' to section 210 of the Act although that sort of
effort control is not mentioned in either bill to amend the Magnuson
Act.
Interpretation
NMFS interprets the term ``individual fishing quota'' as it is
defined in S. 39. That definition is functionally similar to the
definition of ``individual quota'' in H.R. 39. NMFS believes
``individual transferable quota'' is the same as an IFQ, with the
additional aspect of transferability of quota among those eligible to
hold ITQs. Neither term encompasses ``community development quotas,''
allocations to western Alaska communities that are treated separately
in both bills.
NMFS interprets ``individual transferable effort allocation
program'' to mean systems allowing fishermen to transfer among
themselves or consolidate units of effort, such as days at sea (DAS) or
number of traps. Proposals for such programs have been discussed by the
New England Fishery Management Council for the Atlantic sea scallop and
American lobster fisheries.
Programs Affected
Because they are funded through Federal appropriations, the
regional fishery management councils must suspend work until the end of
the fiscal year on portions of FMPs, amendments, or regulations that
relate to new IFQs, ITQs, or individual transferable effort allocation
programs. NMFS has notified each council of pending proposals it
believes are within the scope of this restriction, as follows:
North Pacific Council: (1) IFQs for the Alaska pollock fishery,
whereby a vessel owner would be allocated annually a certain percentage
of the pollock total allowable catch. (2) Vessel bycatch accounts,
allocations of an allowable take of prohibited species bycatch to an
individual vessel owner or to groups of vessel owners.
Pacific Council: Cumulative trip limits in the non-trawl sablefish
fishery, whereby an allowable catch would be divided among a fixed
number of permit holders, based either on historic harvest of the
vessel or on an equal allocation
[[Page 30544]]
among all vessels. The cumulative trip limit is the equivalent of a
percentage share the vessel owner is entitled to harvest.
Gulf Council: Red snapper ITQ amendment. While the amendment was
approved and final regulations published in 1995, the ITQ system has
not yet been implemented. Section 210 prohibits any work on
implementing the system until the end of this fiscal year.
Mid-Atlantic Council: An ITQ system for mahogany quahogs. Although
this provision is a modification of an approved ITQ system under
Amendment 8 to the Surf Clam and Ocean Quahog FMP, its characteristics
(e.g., the unit of allocation and the period of landings on which it is
calculated) differ so substantively that it must be viewed as a new ITQ
system.
New England Council: Aspects of proposed Amendment 6 to the
Atlantic Sea Scallop FMP relating to transferability or consolidation
of DAS, and proposed Amendment 5 to the American Lobster FMP relating
to transferable quotas and traps.
Classification
This final rule is issued under the Magnuson Act, 16 U.S.C. 1801 et
seq.
In that this rule merely interprets a provision of Public Law 104-
134 without creating any new rights or duties, it is not subject to the
requirement to provide prior notice and opportunity for public comment
under 5 U.S.C. 553(b)(A). Similarly, as an interpretive rule, it is not
subject to a 30-day delay in effective date pursuant to authority set
forth at 5 U.S.C. 553(d)(2).
This rule has been determined to be not significant for the
purposes of E.O. 12866.
Dated: June 11, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
[FR Doc. 96-15323 Filed 6-14-96; 8:45 am]
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