[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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