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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