Status of Fisheries, Coast Guard and Oceans Legislation 116 th Congress January 8, 2019 There are substantial changes in the committee leadership in the House of Representatives in the 116 th Congress with the switch to a Democratic Party Majority. Congressman Raul Grijalva (D-AZ) is slated to become Chairman of the House Natural Resources Committee. The former Chairman, Congressman Rob Bishop (D-UT), is likely to become the Republican Ranking Member of the full Committee. Subcommittee leadership is unclear at this time. Chairman Grijalva will change the jurisdictions of the subcommittees. One certainty is a change from the current Subcommittee on Water, Power and Oceans to the Water, Oceans and Wildlife (WOW) Subcommittee. It is currently unclear how the new majority will deal with western water issues from fisheries and oceans issues (both subject areas fall within the Water, Power, and Oceans Subcommittee). The structure and scope of the subcommittees will need to be decided before we can get a picture on the likely subcommittee chair and ranking member with responsibility over fisheries. The Republicans have retained the majority in the U.S. Senate. The Senate Commerce, Science, and Transportation Committee has new leadership at the full committee level. Senator John Thune (R-ND) has vacated the chairmanship to become the Assistant Majority Leader. Senator Roger Wicker (R-MS) was named the new Republican Chairman of Senate Commerce. Senator Maria Cantwell (D-WA) will be the new Democrat Ranking Member of the full Committee, replacing Senator Bill Nelson of Florida (lost his re-election). The leadership of the Oceans, Atmosphere, Fisheries and Coast Guard Subcommittee remains the same. Senator Dan Sullivan will continue as Chairman, with Senator Tammy Baldwin (D-WI) serving as the Democrat Ranking Member. Magnuson-Stevens Act Reauthorization Draft legislation circulated in 2017 and 2018 provides some insights into the dynamics of the Magnuson-Stevens Act ( MSA ) reauthorization for the 116 th Congress. A staff working draft was issued from Senator Sullivan s office in early December, 2018. Much of the document reflects work from the prior Congress, with significant input from both Senator Sullivan and Congressman Don Young. These provisions include definitional clarifications; changes to the financial conflict of interest rules for the Regional Fishery Management Councils; changes to the harvest quota requirements for ecosystem component species and short-lived species; flexibility to set harvest quotas over multiple years; consideration for economic, social, and ecological factors in establishing harvest quotas; elimination of the mandatory 10 year rebuilding requirement for overfished fisheries; a requirement for a streamlining review of the overlapping NEPA and MSA evaluations of fishery management plan
amendments; a requirement to modernize and streamline NOAA s fisheries data system; requirements for electronic monitoring going forward; allowance for greater State involvement in fishery data collection; a requirement to assess the impacts on fishery-dependent communities before Limited Access Privilege Programs are approved; and authorization for the Secretary of Commerce to apply revenues to fines and fees from fisheries enforcement actions to improving stock assessments. The proposal also has specific provisions of significance to Alaska: An old provision of the MSA is reauthorized to allow the State of Alaska to manage non- Alaskan vessels operating in federal waters off Alaska if the fishery in question is not the subject of a Fishery Management Plan. A 10% set-aside of any future allocation of harvest quota in the Arctic region (currently subject to an indefinite fishing moratorium) is mandated for a community development quota for coastal villages located within 50 nautical miles from the baseline from which the breadth of the territorial sea is measured north and east of the Bering Strait. Deadlines are established for the Secretary of Commerce to make Fishery Resource Disaster determinations. The State of Alaska is allowed to develop a fishery management plan inside of Glacier Bay, including the transfer of a lifetime access permit to commercial fish in such waters at any time, to an immediate family member of a valid permit holder. Existing law is amended to require the reallocation of pollock quota controlled by the Aleut Corporation in the Aleutian Island sub-region of the Bering Sea to be harvested in the Eastern Bering Sea sub-region. A provision is included to require Pacific cod harvested in the Aleutian Island sub-region to be delivered to shoreplants in either Adak or Atka. The North Pacific Fishery Management Council is given authority to assess fees to charter vessel operators in halibut Regulatory Areas 2C and 3A. The fees would be used to fund the Recreational Quota Entity program, halibut conservation and research, and other activities promoting the halibut resource. The staff working draft does not include the provision clarifying that the MSA process supersedes the Marine Sanctuaries Act, the Antiquities Act, and the ESA in the regulation of fishing activity in federal waters. This provision was originally included in H.R. 200, the House bill sponsored by Congressman Young in the last Congress. Mr. Young was forced to drop the provision from the final bill that passed the full House due to insufficient support. The Democrats were ardently opposed to this provision in the House, as were a number of Republicans. Its absence from last year s House-passed bill and absence from the current
Senate draft reflect the fact that there are not sufficient votes in the Congress to overcome opposition. Many of the provisions dealing with recreational fisheries in the last Congress are not likely to surface again in this Congress. The Congress passed S. 1520, the Modernizing Recreational Fisheries Management Act of 2018, at the tail end of the 115 th Congress, and the President signed it into law on December 31. The legislation requires a study on the allocation of fishing privileges in the South Atlantic and Gulf of Mexico; reaffirms that the Regional Fishery Management Councils can use a combination of extraction rates, fishery mortality rates, and harvest control rules to regulate recreational fisheries; requires the National Academy of Sciences to conduct an impacts study of Limited Access Privilege Programs (e.g. IFQs and other catch history allocation programs) in all regions of the country except the North Pacific and the Pacific; and requires a report to Congress on recommendations to improve cooperative data and stock surveys with respect to recreational data collection. With respect to the House, Mr. Young is now in the minority. We believe he will reintroduce some version of H.R. 200, but the Democrats will surface their version of an MSA reauthorization and it will serve as the basis for the initial legislation before the House Natural Resources Committee. In 2017, Representative Jared Huffman (D-CA) circulated an MSA draft as a counter to H.R. 200. Rep. Huffman is a potential candidate to chair the Natural Resources WOW Subcommittee handling oceans and fisheries. Three issues from Rep. Huffman s initial 2017 draft that jump out as having possible significance to Alaska. Forage Fish: The Huffman draft would include a definition of forage fish in the MSA. The draft does not prescribe any specific conservation and management goals, objectives, or statutory requirements for forage fish species. We know from the past that this issue can be a lightning rod. In 2014, a MSA staff draft issued from then Senator Mark Begich s office identified as a priority the conservation and management of forage fish as a target species. Environmental NGOs have long pushed for specific fishery management of forage species around the country. The Begich proposal fell under intense criticism from Alaskans concerned about the impact of a forage fish conservation program on existing federal fisheries. The legislative approach contained in last year s H.R. 200 and the Sullivan staff draft takes the polar opposite approach, allowing forage species to be managed as ecosystem component species without target species Allowable Catch Levels ( ACLs ). The proposal to include a forage fish definition in the Huffman draft indicates that the issue remains active and may resurface this year. Fish Habitat: The Huffman draft would change the existing MSA requirements for fish habitat. Existing law requires the conservation, protection, and management of essential fish habitat. The draft would require the Regional Councils to also adopt policies to recover habitat. It is unclear how a Council can require habitat recovery, other than creating no fishing zones. This is an ambiguous term which would be subject to interpretation by NMFS, the Councils, and the courts. Bycatch: The Huffman draft would require the implementation of a bycatch reduction plan, including a process to prioritize bycatch of species with high ecological, economic,
or cultural importance. The Regional Councils would be required to implement amendments to existing Fishery Management Plans within two years and to review the status of bycatch plans after five years. The MSA currently has provisions requiring the Regional Councils to regulate and reduce bycatch. Prioritization of bycatch species is a vague concept, which would be subject to interpretation by the agency, the Councils, and the courts. The North Pacific Council has spent years on a number of controversial regulations to reduce halibut and salmon bycatch in the Gulf of Alaska and Bering Sea. The provision, as drafted, would require the North Pacific Council to repeat this process and to assign priority to bycatch species. We expect Senator Sullivan to officially introduce an MSA reauthorization in the early part of 2019 and negotiate with the Democrats to develop a bipartisan bill that can move in the Senate. Timing in the House is unclear due to the change in majority and the potential reorganization of subcommittees within House Resources. Young Fishermen s Development Act There was considerable discussion in the 115 th Congress about creating a federally funded vocational training program for young fishermen. The objective of the program would be to address the decline in younger Americans entering the commercial fishing fleet (commonly referred to as the graying of the fleet ). Representatives Don Young and Seth Moulton (D-MA) introduced The Young Fishermen s Development Act, H.R. 2079, to create a grant program through the Department of Commerce to support training, education, and workplace development for commercial fishermen (nine additional cosponsors from New England, Florida, and California). Senator Dan Sullivan introduced companion legislation, S. 1323, in the Senate (six cosponsors, including Senator Lisa Murkowski and senators from Washington State and New England). The legislation would authorize up to $200,000 per year in competitive grants through NOAA s Sea Grant Program to support new and established local and regional training, education, outreach, and technical assistance initiatives for young fishermen. These programs, workshops and service include: seamanship, navigation, electronics, and safety; vessel and engine care, maintenance, and repair; innovative conservation fishing gear engineering and technology; entrepreneurship and good business practices; direct marketing, supply chain, and traceability; and financial and risk management, including vessel, permit, and quota purchasing. Senator Sullivan s staff included a constructive version of the legislation in the MSA reauthorization staff working draft in December that differed slightly from the original text of S.1323. Each grant could be for three years, funding limited to $200,000 per fiscal year. There would be a 25% non-federal cash or in-kind contribution match. Eligible grant recipients include Sea Grant institutions; Federal, State or Tribal agencies; community-based NGOs; fishermen s cooperatives and permit banks; Alaska Native Corporations; and institutions of higher education. Grant recipients would select participants. Fishermen with less than ten
years of experience or beginning fishermen would qualify to participate. The legislation would prohibit the funds from being used to purchase fishing licenses, permits, quota, or other harvesting rights. The Alaska Vocational Technical Center ( AVTEC ) in Seward already offers a young fishermen s vocational program. We have spoken with AVTEC. They believe that a federal grant program could provide significant additional resources to expand their outreach to Alaskans. The University of Alaska community college system could take advantage of potential grant funding to assist Alaska fishermen. There has also been some interest expressed from the seafood processing industry about broadening the scope of the program to offer opportunities for young people to develop a career path in the seafood processing industry. We expect this issue to get early attention in the 116 th Congress. Saltonstall-Kennedy Grant Program Last August the Senate passed S.1322, the American Fisheries Advisory Committee Act, introduced by Senator Dan Sullivan and cosponsored by Senators Lisa Murkowski, Maria Cantwell (D-WA), and Elizabeth Warren (D-MA). Representative Don Young introduced a different version of the legislation, H.R. 214, on the first day of the 115 th Congress. The legislation failed to clear the House before the Congress adjourned in December. There has been considerable criticism of the National Marine Fisheries Service over the last decade on how it allocates the Saltonstall-Kennedy grants. According to the Congressional Research Service--.[t}he Saltonstall-Kennedy (S-K) Act, as amended (15 U.S.C. 713c-3), established a fund (known as the S-K Fund) that the Secretary of Commerce uses to finance projects and cooperative agreements for fishery research and development. Under this authority, projects or cooperative agreements are selected annually on a competitive basis to assist NOAA Fisheries (previously known as the National Marine Fisheries Service) in addressing concerns related to U.S. commercial and recreational fisheries. The S-K Fund is capitalized through annual transfers under a permanent appropriation to the Secretary of Commerce of 30% of the gross receipts collected by the Secretary of Agriculture under the customs laws on imports of fish and fish products. [I]n 1980, Congress enacted formal program authority to fund fishing industry development projects and expanded this authority in 1983, establishing a minimum percentage of S-K funds to be used to provide financial assistance to projects. The balance of S-K funds were to be used by the Secretary of Commerce for a national program of fisheries research and development to address aspects of U.S. fisheries not adequately addressed by funded industry projects. Beginning in FY1979, increasing amounts of S-K dollars have been transferred to the
Department of Commerce s National Oceanic and Atmospheric Administration s (NOAA s) Operations, Research, and Facilities (ORF) account, reducing the funds and percentage of funds available for fishing industry projects and the national program. Since FY1982, the S-K program has never allocated the minimum amount (50% after FY1980 and 60% after FY1983) specified by law for industry projects. The current NOAA Fisheries grant program states The goal of the S-K program is to fund projects that address the needs of fishing communities, optimize economic benefits by building and maintaining sustainable fisheries, and increase other opportunities to keep working waterfronts viable. The FY19 solicitation seeks applications that fall into one of three priorities: Promotion, Development, and Marketing Marine Aquaculture Support of Science that Maximizes Fishing Opportunities, Revenue and Jobs in U.S. Fisheries While Ensuring the Long-Term Sustainability of Marine Resources. Critics of NOAA s current program initiative have argued that NOAA has allocated the limited grant funding to projects that reflect internal NOAA Fisheries priorities, and not the need to promote and develop the seafood industry. S. 1322 and H.R. 214 would establish an advisory committee to guide the grant funding toward the original intended purposes of promoting and developing the seafood industry. S. 1322 and H.R. 214 are structurally similar. The two differences are in the size of the advisory committee, and the scope of the intended beneficiaries. H.R. 214 has fewer advisory committee members, with appointment among five regions of one seafood harvester and one seafood processor. At large members of the advisory committee would include mass market food distribution; mass market food retail or food service; seafood marketing; aquaculture; and the National Marine Fisheries Service (fisheries research). S. 1322 breaks representation into six regions of three members each. Seafood harvester and processor representation is combined into one seat, with the recreational/commercial fisher/marine aquaculture allocated one seat, and science community (or Regional Fishery Management Council) picking up a seat by region. The standard used to identify beneficiaries is also different. H.R. 214 would identify the beneficiaries as the seafood industry, defined as harvesters, marketers, growers, processors, and persons providing them with goods and services. S. 1322 would identify the beneficiaries as fishing community, defined as harvesters, marketers, growers, processors, recreational fishermen, charter fishermen, and persons providing them with goods and services. H.R. 214 is more tailored to benefiting the commercial sector (wild fish and marine aquaculture). H.R. 1322 provides for a broader grant authority, including projects to benefit recreational and charter sectors and the science community. We expect the legislation to be reintroduced quickly in the Senate and move forward in the Spring. Its prognosis in the House is uncertain at this time.
From: Brad Gilman <mackerel@hsgblaw-dc.com> Sent: Thursday, January 10, 2019 10:46 AM To: Mike Tvenge <mtvenge@city.kodiak.ak.us>; Michael Powers <mpowers@kodiakak.us> Cc: John Whiddon <jbwhiddon52@gmail.com>; Nova Javier <njavier@kodiakak.us>; 'Marlar, Debra' <dmarlar@city.kodiak.ak.us>; 'Rick E. Marks' <rem@hsgblaw-dc.com>; Sebastian O'Kelly <tarpon@hsgblaw-dc.com> Subject: fr: Gilman Mike/Michael: I promised John Whiddon I would put something together for the KFWG early this year on potential fisheries legislation starting in the 116 th Congress. Rick and I put the attached together. Some of it is cut-and-paste from the last status report, but we ve tried to look forward a bit to anticipate issues. The KFWG might want to look at the Young Fishermen s Development Act. It might provide some training opportunities for young men and women in Kodiak. Seward AVTEC already has a program in its infancy. This program could expand the outreach of AVTEC or the University community college system. Brad