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23 Ocean L. Memo 1 (1983)

handle is hein.journals/ocoaslme23 and id is 1 raw text is: Ocean and Coastal Law Center * School of Law * University of Oregon - Euge :97403 Ocean La --Memo ADMINISTRATION OF THE FISHERIES CONSERVATION AND MANAGEMENT ACT In 1976 Congress enacted the Magnuson Fisheries Conservation and Man- agement Act, P.L. 94-265, codified at 16 U.S.C. SS 1801 et seq. Since its passage there have been several changes, perhaps the most extensive coming in 1980 when the foreign allocation provisions, 16 U.S.C. S 1821, were amended to affirma- tively reflect the legislative dedication to the fish and chips policy which has become the centerpiece of United States fisheries policy. See 94 Stat. 3275, P.L. 96-561 codified at 16 U.S.C. SS 1801 et seq. Congress, in 1982, further re- fined that policy in amendments to vari- ous provisions of the MFCMA. See 96 Stat. 2481, P.L. 97-453, to be codified at 16 U.S.C. SS 1801 et seq. This memo will discuss those amendments, as well as important procedural shifts embodied in the same legislation. After discussing the 1982 amend- ments, this memo will examine two impor- tant developments in state-federal rela- tions under the MFCMA. The first con- cerns the relation between the consis- tency requirements of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1456(e) (1), and federal fishery manage- ment plans (FMPs) under the MFCMA. The other development is the preemption of state fishery regulation in territorial waters by federal authorities under 16 U.S.C. § 1856(b). I. 1982 MFCMA AMENDMENTS The initial justification for the MFCMA was to provide for the conserva- tion and management of important fishery resources found off the coasts of the U.S. More recently, management author- ity over fishery resources in the fishery conservation zone (FCZ), 16 U.S.C. § 1811, has been used to further the inter- ests of the domestic fishing industry as well as to rationally manage the re- source. Active promotion of U.S. fishing industry interests officially began with passage of the American Fisheries Promotion Act, P.L. 96-561 supra. This shift in emphasis from general good management to rational management aimed at maximally benefiting U.S. interests has been termed the fish and chips policy. One important aspect of this policy is using foreign fishing allocations as leverage to advance the development of our industry. Kronmiller, Remarks Before the Fishery Law Symposium 2 (Seattle, WA., Oct. 15, 1982); see eLg., 16 U.S.C. S 1821(d). In general, the 1982 MFCMA amend- ments reflect congressional adherence to fish and chips policy. Central com- ponents of this approach are foreign nation resource allocation provisions and foreign fishing compliance mechanisms. Both of these aspects of the MFCMA were amended in 1982 and will be treated first. Procedural amendments aimed at streamlining the entire MFCMA process will be discussed after fish and chips policy matters. Miscellaneous changes will be noted last. FOREIGN FISHING A. Observer Program There have been various estimates of the extent of foreign wrongdoing under the MFCMA allowed by insufficient obser- ver coverage. Widespread underreporting of foreign catches allegedly has occur- red. The low level of foreign vessel observer coverage has been attributed to lack of appropriations, a condition that excuses the Secretary of Commerce (Secre- tary) from compliance with the 100% coverage requirement of 16 U.S.C. § 1821(i)(1). See 16 U.S.C. 5 1821(i)(2)(C). The addition of 16 U.S.C. S 1821(i)(5) in 1980, providing a Foreign Fishing Observer Fund separate from the general revenues, did not solve the ap- propriations problem. In 1982 Congress added a new subsec- tion to 5 1821(i) which is intended to ensure that 100% observer coverage will be a reality whether observer funds are appropriated or not. See 16 U.S.C. § 1821(i)(6). The Secretary is directed to establish a pool of qualified observers who will be available to foreign Distributed by: OSU Extension Service' Sea Grant Marine Advisory Program, Corvallis, OR 97331 Issue 23 May 1983

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