98020: Fishery, Aquaculture, and Marine Mammal Legislation
in the 105th Congress

Eugene H. Buck
Environment and Natural Resources Policy Division

October 28, 1998

CONTENTS

SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Commercial and Sport Fisheries: Background and Issues

1. Limiting Large Fishing Vessels
2. Coral Reef Ecosystems
3. Pfiesteria
4. Wallop-Breaux Sport Fish Restoration Funding
5. Pacific Salmon
6. Ocean Policy
7. Striped Bass
8. Appropriations
9. Other Miscellaneous Issues

Aquaculture: Background and Issues

1. Aquaculture Policy
2. Other Miscellaneous Issues

Marine Mammals: Background and Issues

1. Eastern Pacific Tuna Fishery and Dolphin Protection
2. Importing Polar Bear Trophies from Canada
3. Good Samaritan Exemption
4. U.S. Whaling Policy

LEGISLATION

SUMMARY

Fish and marine mammals are important resources of open ocean and nearshore coastal areas. A diverse body of law and regulations guides the management of these resources by a multitude of federal agencies.

Commercial and sport fishing are jointly managed by the federal government and individual states. States manage fishery resources in inshore waters where approximately 30% of the annual commercial harvest is taken. Beyond state jurisdiction and out to 200 miles, the federal government manages fisheries under the authority of the Magnuson-Stevens Fishery Conservation and Management Act through the actions of eight regional fishery management councils. Beyond 200 miles, the United States participates in a multitude of international agreements relating to specific areas or species.

Legislation in the 105^th Congress related to commercial and sport fisheries proposes to address numerous concerns, including regulation of large fishing vessels, management of the Atlantic striped bass fishery, protection of coral reef ecosystems, research and control of harmful blooms, reauthorization of Wallop-Breaux sport fish restoration funding, restoration and cooperation with Canada on management of Pacific salmon, and developing a coordinated ocean policy for the 21^st Century.

Aquaculture -- the farming of fish, shellfish, and other aquatic animals and plants in a controlled environment -- is expanding rapidly, both in the United States and abroad. In the United States, important species cultured include catfish, salmon, crawfish, shellfish, and trout.

Legislation in the 105^th Congress related to aquaculture includes proposals to promote private aquaculture development.

Marine mammals are provided extensive protection under the Marine Mammal Protection Act (MMPA) of 1972, as amended. This Act authorizes restricted use ("take") of marine mammals and addresses specific situations of concern, such as dolphin mortality primarily associated with the eastern tropical Pacific tuna fishery.

Legislation in the 105^th Congress related to marine mammals includes proposals to balance dolphin protection in the eastern tropical Pacific with tuna harvesting, modify regulations applicable to importing polar bear trophies from Canada (where limited hunting is legal), and provide an exemption from MMPA constraints for disentangling marine mammals from fishing gear or debris.

Reauthorization of major legislation in this issue area -- the Magnuson-Stevens Fishery Conservation and Management Act and the MMPA -- may be considered in the 106^th Congress. Thus, activities in the second session of the 105^th Congress also may include oversight of implementation of various programs under these major authorities.

(Note that this issue brief references a number of useful Internet sites; these sites are hot-linked in the online version of this product.)

MOST RECENT DEVELOPMENTS

On October 21, 1998, President Clinton signed P.L. 105-277, the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, including a compromise on commercial fishing in Glacier Bay National Park, Alaska (related to S. 1064), the American Fisheries Act (a compromise related to S. 1221), and the National Whale Conservation Fund Act (related to S. 2172). On October 19, 1998, President Clinton signed H.R. 1481, implementing Great Lakes fishery recommendations, into law as P.L. 105-265. On October 12, 1998, the House passed H.R. 3461 approving the extension of a governing international fishery agreement with Poland. On October 7, 1998, the Senate passed H.R. 4079 authorizing construction of temperature control devices at Folsom Dam in California. On September 23, 1998, President Clinton signed P.L. 105-239 conveying the Marion National Fish Hatchery and the Claude Harris National Aquacultural Research Center to the State of Alabama. On September 23, 1998, the House passed H.R. 1481 (amended), implementation of Great Lakes fishery recommendations.

BACKGROUND AND ANALYSIS

Commercial and Sport Fisheries: Background and Issues

Historically, coastal states managed marine sport and commercial fisheries in nearshore waters, where most marine seafood was caught. However, as fishing techniques improved, fishermen ventured farther offshore. Before the 1950s, the federal government assumed limited responsibility for marine fisheries, responding primarily to international fishery concerns and treaties (by enacting implementing legislation for treaties; e.g., the Northern Pacific Halibut Act in 1937) as well as to interstate fishery conflicts (by consenting to interstate fishery compacts; e.g., the Pacific Marine Fisheries Compact in 1947).

In the late 1940s and early 1950s, several Pacific coast Latin American nations proclaimed marine jurisdictions extending 200 miles offshore. This was denounced by those within the United States and other distant-water fishing nations who sought to preserve access for far-ranging fishing vessels.

Beginning in the 1950s (Atlantic) and 1960s (Pacific), increasing numbers of foreign fishing vessels steamed into the offshore waters of the United States to catch the predominantly undeveloped seafood resources. Since the United States then claimed only a 3-mile jurisdiction (in 1964, P.L. 88-308 prohibited fishing by foreign-flag vessels within 3 miles of the coast; in 1966, P.L. 89-658 proclaimed an expanded 12-mile exclusive U.S. fishery jurisdiction), foreign vessels could fish many of the same stocks fished by U.S. fishermen. U.S. fishermen deplored this "foreign encroachment" and alleged that overfishing was causing stress on, or outright depletion of, fish stocks. The unsuccessful Law of the Sea Treaty negotiations in the 1970s provided impetus for unilateral U.S. action.

The enactment of the Fishery Conservation and Management Act (FCMA) in 1976 (later renamed the Magnuson Fishery Conservation and Management Act after the late Senator Warren G. Magnuson, and more recently the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) http://www.nmfs.gov/sfa/magact/ after Senator Ted Stevens) ushered in a new era of federal marine fishery management. The FCMA was signed into law on April 13, 1976, after several years of debate. On March 1, 1977, marine fishery resources within 200 miles of all U.S. coasts came under federal jurisdiction, and an entirely new multifaceted regional management system began allocating fishing rights, with priority given to domestic enterprise. Primary federal management authority was vested in the National Marine Fisheries Service (NMFS) http://www.noaa.gov/nmfs/ within the National Oceanic and Atmospheric Administration of the Department of Commerce. The 200-mile fishery conservation zone was superseded by an Exclusive Economic Zone (EEZ), proclaimed by President Reagan on March 10, 1983 (Presidential Proclamation 5030).

Eight Regional Fishery Management Councils http://www.noaa.gov/nmfs/councils.html were created by the FCMA. Councils members are appointed by the Secretary of Commerce from lists of candidates, knowledgeable of fishery resources, provided by coastal state Governors. The Councils prepare fishery management plans (FMPs) for those fisheries that they determine require active federal management. After public hearings, revised FMPs are submitted to the Secretary of Commerce for approval. Approved plans are implemented through regulations published in the Federal Register. Together these Councils have implemented 34 FMPs for various fish and shellfish resources, with 11 additional plans in various stages of development. Some plans are created for an individual or a few closely related species (e.g., FMPs for red drum by the South Atlantic Council, for northern anchovy by the Pacific Council, and for shrimp by the Gulf of Mexico Council). Others are developed for larger species assemblages inhabiting similar habitats (e.g., FMPs for Gulf of Alaska groundfish by the North Pacific Council and for reef fish by the Gulf of Mexico Council). Many of the implemented plans have subsequently been amended (one more than 30 times), and three plans have been developed and implemented jointly by two or more Councils. The MSFCMA was last reauthorized in 1996 by P.L. 104-297, the Sustainable Fisheries Act http://kingfish.ssp.nmfs.gov/sfa/sfaguide/.

Initially under FCMA authority, a substantial portion of fishery resources in federal offshore waters was allocated for foreign fishing. However, foreign allocations diminished as domestic fishing and processing industries expanded. Foreign catch from the U.S. EEZ declined from about 3.8 billion pounds in 1977, to zero in 1992 and subsequent years. Commensurate with the decline of foreign catch, domestic offshore catch increased dramatically, from about 1.6 billion pounds (1977) to more than 6.3 billion pounds (1993). Thus, the percent of fish caught by foreign nations from the U.S. EEZ declined from 71% in 1977 to 0% in 1992 and subsequently. Total offshore fishery landings from the U.S. EEZ increased about 24% between 1977 and 1986-1988 to a peak of 6.65 billion pounds, but declined slightly and stabilized over the next decade.

Today, individual states manage marine fisheries in inshore and coastal waters (generally within 3 miles of the coast). Interstate coordination occurs through three regional (Atlantic, Gulf, and Pacific) interstate marine fishery commissions, created by congressionally approved compacts. Beyond state waters, out to 200 miles, the federal government manages fish and shellfish resources for which management plans have been developed under the MSFCMA. Individual states manage fishermen operating state-registered vessels under state regulations consistent with any existing federal FMP when fishing in inshore state waters and, in the absence of a federal FMP, wherever they fish.

In 1996, U.S. commercial fishermen landed almost 7.5 billion pounds of edible fish and shellfish http://remora.ssp.nmfs.gov/commercial/landings/index.html, worth more than $3.3 billion at the dock. Imports supplied another 3.2 billion pounds, worth more than $6.7 billion. After converting processed imports to comparable landed weight, 45.1% of the U.S. supply of fish and shellfish came from imports in 1996. U.S. consumers spent $41.2 billion on edible seafood in 1996, with more than $27.7 billion of that amount spent in restaurants. Marine recreational anglers http://remora.ssp.nmfs.gov/recreational/mrf_why.html caught an estimated 313 million fish in 1996, of which the retained catch was about 208 million pounds. A nationwide survey estimated that saltwater recreational anglers spent almost $10 billion in 1990 pursuing their sport.

1. Limiting Large Fishing Vessels

a. North Atlantic Herring and Mackerel Fishery. To process fish from one of the few remaining underdeveloped fisheries off the New England coast, a Dutch company proposed bringing in a 369-foot length factory trawler (ownership 51% U.S./49% Dutch) to process herring and mackerel at the dock in Gloucester, MA, primarily for the export market. While some supported this venture as a way to bolster local employment suffering from declining traditional fisheries, others opposed the size of this effort as potentially damaging to traditional fisheries and habitat through encouraging the overfishing and depletion of herring upon which other important fish feed. Later, the proposed project appeared to alter its focus to offshore harvesting and processing only, and concerns arose that the operation could harvest a significant portion of the total allowable catch (TAC) of herring. As such, the project would increase competition, rather than employment, for U.S. fishermen trying to switch to herring. Additional concerns related to current herring harvest levels and whether NMFS has been sufficiently conservative in calculating the herring TAC http://www.greenpeaceusa.org/reports/biodiversity/herring/intro.html.

Congressional Action. Several measures (H.R. 1855/S. 1035, S. 1192, and H.R. 1575) have been introduced to prohibit the use of large factory trawlers unless specifically allowed by the Regional Fishery Management Councils and the Atlantic States Marine Fisheries Commission, and to require NMFS to complete new stock assessments. H.R. 1855 was passed by the House, amended, on July 28, 1997. Subsequently, language was adopted in Section 616(a) of P.L. 105-119 (FY1998 appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and related agencies) that voided the permits or authorizations of vessels exceeding 165 feet in registered length necessary for participating in Atlantic herring/mackerel fisheries during FY1998. Subsequently, Section 617 of P.L. 105-277 extended these restrictions through FY1999.

b. Other Areas and Fisheries. In the North Pacific, controversy surrounds the use of about 35 large at-sea harvesting/processing vessels (some of which have significant foreign ownership) as opposed to smaller vessels delivering to shoreside processing facilities (some of which also have significant foreign investment). Particularly in Alaskan offshore waters, controversy focuses on the use of factory trawlers based in and delivering to Seattle http://www.atsea.org/info.html as opposed to small vessels delivering to shoreside processors in Alaska http://www.alaskanjobs.com/pr980204.htm. Additional concerns relate to a perception by some that 15 or more of these large foreign-built factory trawlers were brought into the United States under a loophole in P.L. 100-239, the Commercial Fishing Industry Vessel Anti-Reflagging Act of 1987, created by the controversial U.S. Coast Guard interpretation of a "grandfather clause" included in the law.

Congressional Action. S. 1221, the American Fisheries Act, was introduced to prevent foreign ownership and control of U.S. flag vessels in fisheries and prevent the issuance of fishery privileges for certain vessels. This legislation would eventually eliminate all factory trawlers larger than 165 feet in length from U.S. waters, and force companies owning large vessels fishing in U.S. waters to restructure to meet a 75% U.S. ownership requirement. Any company so restructuring would be required to sell any vessels brought into the United States under the grandfather clause of P.L. 100-239, with any U.S. companies purchasing such vessels forced to retire vessels of equal or greater size. H.R. 4180 was introduced to address similar concerns, but received no action. On October 21, 1998, President Clinton signed P.L. 105-277, the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, including a compromise on the American Fisheries Act (related to S. 1221). The enacted provisions: (1) amend current law regarding the ownership requirements for eligibility of a vessel to receive a fishery endorsement to operate in certain fisheries and under certain terms and conditions; and sets forth procedures for implementation and penalties for noncompliance; (2) establish allocations regarding the total allowable catch in the Bering Sea pollock fishery; (3) authorize a buyout program of certain catcher/processors operating in the Bering Sea pollock fishery, to be financed through $20,000,000 in federal payments, and $75,000,000 in direct loans to be repaid through a fee on pollock harvested in the fishery; (4) authorize a direct loan program for the western Alaska community development quota program for the purchase of certain vessels and shoreside processors in the pollock fishery; and (5) set forth certain requirements for protection and conservation measures for other fisheries in the North Pacific.

2. Coral Reef Ecosystems

Background. Coral reef ecosystems are viewed as fragile, unique, and in need of additional protection http://www.noaa.gov/public-affairs/coral-reef.html. Although most coral reef ecosystems are outside U.S. jurisdiction, many seek to encourage protection of these resources and U.S. coral reefs in Florida, Hawaii, and various island possessions. For more information, see CRS Report 91-671 ENR, Corals and Coral Reef Protection.

Congressional Action. H.Con.Res. 8 declares that Congress recognizes the significance of maintaining the health and stability of coral reef ecosystems by: (1) promoting comprehensive stewardship for coral reef ecosystems; (2) discouraging unsustainable fisheries or other practices harmful to coral reefs and human health; (3) encouraging research, monitoring, and assessment of and education about such ecosystems; (4) improving the coordination of coral reef activities of federal agencies, academic institutions, nongovernmental organizations, and industry; and (5) promoting preservation and sustainable use of coral reef resources worldwide. After the House approved H.Con.Res. 8, amended, on April 23, 1997, and the Senate approved it, amended, on October 9, 1997, the House agreed to the Senate's amendment of this measure on October 21, 1997. H.R. 2233 would direct the Secretary of Commerce to use amounts in a Coral Reef Conservation Fund (to be established by the bill) to provide grants for the conservation of coral reefs. This measure was passed by the House on November 13, 1997. No action has been taken on H.Res. 87, expressing United States' and United Nations' condemnation of harmful coral reef fisheries and promoting the development of sustainable practices.

3. Pfiesteria

Background. In the mid-1990s, harmful planktonic organisms were identified as causing increasing problems in U.S. coastal areas. Along the mid-Atlantic coast, a group of organisms resembling Pfiesteria were thought to be responsible for large fish kills and certain human health problems http://www.nal.usda.gov/wqic/pfiest.html. For more detail, see CRS Report 97-1047 ENR, Pfiesteria and Related Harmful Blooms: Natural Resource and Human Health Concerns.

Congressional Action. Legislation seeks to assist in efforts to better understand these organisms and their impact. S. 1219, establishing a research and grant program to eradicate or control Pfiesteria and other aquatic toxins, was reported, with amendment, by the Senate Committee on Environment and Public Works on November 4, 1997 (S.Rept. 105-132). No action has been taken on H.R. 2565 (the House companion to S. 1219). In the Senate, the Commerce Subcommittee on Oceans and Fisheries held a hearing on S. 1480 (authorizing NOAA appropriations to research, monitor, educate, and manage for control and eradication of harmful blooms including Pfiesteria) on May 20, 1998, but no action has been taken on similar House legislation (H.R. 4235). However, Section 9(a) of P.L. 105-160 authorized as much as $3 million for competitive grants under the National Sea Grant College Program for university research on Pfiesteria and other harmful blooms. More than $13 million was appropriated for FY1998 to fund federal agency efforts to understand and possibly control these blooms. No action has been taken on S. 2218, proposing that the U.S. Army Corps of Engineers develop and implement a strategic plan to address Pfiesteria problems.

4. Wallop-Breaux Sport Fish Restoration Funding

Background. The Federal Aid in Sport Fish Restoration (Dingell-Johnson/Wallop-Breaux) Program was initiated in 1950 and expanded in 1984 to distribute federal excise tax revenues collected on sport fish equipment to individual states for improving the sport fish resource, aquatic habitat, and angler access http://www.fws.gov/r9fedaid/sfr/fasfr.html. The 1984 amendments brought together sport fish restoration and boating safety programs and expanded these programs by authorizing the transfer of a portion of the tax revenues collected on non-highway motor fuels to fund their activities. Although the basic transfer of excise tax revenues is a permanent appropriation, the transfer of non-highway motor fuel tax revenues must be reviewed for reauthorization periodically. The authority to transfer these funds expired in September 1997.

Congressional Action. Ensnared in a much broader debate on transportation, Section 9 of P.L. 105-130 authorized the transfer of non-highway motor fuel tax revenues only through the end of FY1998. A hearing was held on H.R. 2973 (amending the Federal Aid in Fish Restoration Act to direct funding for new programs) by the House Resources Subcommittee on Fisheries Conservation, Wildlife, and Oceans on March 3, 1998. On March 12, 1998, the Senate approved S. 1173 (the Intermodal Surface Transportation Efficiency Act of 1997) as amended in Section 6002(b)(1)(B) to authorize the transfer of non-highway motor fuel tax revenues for use in the Federal Aid in Sport Fish Restoration program through the end of FY2003 and to include modified language of H.R. 2973 amending the Federal Aid in Sport Fish Restoration Act as Subtitle F (Sections 3601-3605). On April 1, 1998, the House passed H.R. 2400 (Building Efficient Surface Transportation and Equity Act of 1998) as amended in Section 1102(c)(2)(A) to authorize the transfer of non-highway motor fuel tax revenues for use in the Federal Aid in Sport Fish Restoration program through the end of FY2003 in essentially the same manner as agreed to by the Senate. The House-passed H.R. 2400 did not include the provisions of H.R. 2973. On April 2, 1998, the Senate amended H.R. 2400 to incorporate the language of S. 1173, and passed the amended measure. While the House-passed H.R. 2400 contains language in Section 1104(a) restoring funds (3.4 cents per gallon for FY2000 and 6.8 cents per gallon for FY2001-FY2003) to the Sport Fish Restoration program diverted since 1990 for deficit reduction, the Senate-passed version does not. In the conference report on H.R. 2400 (H.Rept. 105-550), the sportfishing and boating safety provisions in Sections 3601-3605 of the Senate bill were accepted with several changes, including a reduction in funding for boating infrastructure projects. The conference agreement extends the expenditure authority for this funding through September 30, 2003, and provides for a partial increase in the revenue transfer as provided for in Section 1104(a) of the House bill. The conference agreement provides an additional 1.5 cents per gallon of taxes imposed during FY2002-FY2003 and an additional 2 cents per gallon thereafter. On June 9, 1998, President Clinton signed this measure into law as P.L. 105-178.

5. Pacific Salmon

Background. Five species of salmon spawn in Pacific coastal rivers and lakes and mature in North Pacific ocean waters. Since these fish may cross several state and national boundaries during their lifespan, management is complicated http://kingfish.ssp.nmfs.gov/salmon/salmon.html. Threats to salmon include hydropower dams blocking rivers, sport and commercial harvest, habitat damage by competing resource industries and human development, and hatcheries seeking to supplement natural production but unintentionally causing genetic or developmental concerns. In response to declining salmon populations in Washington, Oregon, Idaho, and California, discrete populations have been listed as endangered or threatened species under the Endangered Species Act. For background on this issue, see CRS Report 91-267 ENR, Pacific Salmon and Steelhead: Potential Impacts of Endangered Species Act Listings and CRS Issue Brief 97046, Endangered Species: Continuing Controversy.

To address some of these concerns, the United States and Canada negotiated a bilateral agreement on Pacific salmon in 1985. However, by the mid-1990s controversy stalled renegotiations to adjust cooperative management of these fish, and U.S.-Canada relations became more antagonistic http://newsworld.cbc.ca/news/indepth/salmon.html, culminating in the blockade of an Alaska state ferry by British Columbia fishermen in Prince Rupert, BC, in July 1997.

Congressional Action. Current legislative efforts seek to increase attention to salmon recovery and to address concerns over contentious negotiations with Canada. S.Res. 109, condemning Canada for failure to accept responsibility for the blockade of an Alaska state ferry, was passed by the Senate on July 23, 1997. H.Con.Res. 124, condemning aggression by Canadians in the Pacific salmon fishery, was passed by the House on July 28, 1997. No action has been taken on H.R. 1088, authorizing appropriations to purchase salmon licenses and vessels in Washington state. H.R. 4294/S. 1904, amending the Elwha River Ecosystem and Fisheries Restoration Act to allow removal of Elwha Dam, keep Glines Canyon Dam for at least 12 years, and allow no major changes to Snake or Columbia River dams without congressional approval, have not received any action. H.R. 3973, proposing to reauthorize and amend the Trinity River Basin Fish and Wildlife Management Act of 1984, has received no action. In the conference report (H.Rept. 105-271) for P.L. 105-62 (FY1998 Energy and Water Appropriations), the Northwest Power Planning Council, with assistance from its Independent Scientific Advisory Board, was directed to conduct a thorough review of all federally funded hatchery programs operating in the Columbia River basin and produce a formal recommendation on a coordinated policy for future operations by June 1998. No action has been taken on H.Res. 470, expressing the sense of the House regarding illegal driftnet use in the North Pacific and Bering Sea. The Senate Energy and Natural Resources' Subcommittee on Water and Power held a hearing July 14, 1998, on S. 2111, proposing to establish conditions under which the Bonneville Power Administration and other federal agencies could enter into a memorandum of agreement concerning management of the Columbia/Snake River Basin. H.R. 4079 would authorize the construction of temperature control devices at Folsom Dam, CA, to benefit salmon. This measure passed the House by voice vote on September 15, 1998, and passed the Senate on October 7, 1998. H.R. 4335 would transfer authority under the Endangered Species Act from NMFS to the U.S. Fish and Wildlife Service. Field hearings were held on H.R. 4335 by the House Committee on Resources on September 2-3, 1998.