December 1, 1992 



MEMORANDUM FOR: Maggie Hayes 



FROM: Mariam McCall 



SUBJECT: MFCMA and ATCA — quota language 



An liSsue presented by the 1990 Amendments is the mandate to 

 the Secretary on quotas or allocations authorized by relevant 

 international fishery agreements. The amendment to the MFCMA 

 requires that the Secretary "provide fishing vessels of the 

 United States with a reasonable opportunity to harvest" an 

 allocation or quota authorized under a relevant international 

 fishery agreement. The requirement, however, under the 

 amendment to the Tunas Act provides that no regulation 

 promulgated by the Secretary under the authority of the Tunas 

 Act "may have the effect of Increasing or decreasing any 

 allocation or quota of fish to the United States agreed to 

 pursuant to a recommendation of the [ICCAT] Commission." 



The legislative history reveals how this inconsistency 

 occurred and gives credence to an agency interpretation that the 

 Tunas Act provision is to be disregarded or read to be 

 consistent with the MFCMA language because the Inconsistency was 

 unintentional. The Senate committee apparently passed a version 

 of the bill that' included identical language for both sections, 

 the language now" in the Tunas Act provision. The Senate staff 

 subsequently changed the highly migratory species provision in 

 response to comments by Senator Bentson and to ensure passage of 

 the bill.* However, a concurrent change to the Tunas Act 

 provision apparently was overlooked. Thus, the agency's 

 interpretation that the "reasonable opportunity" language is the 

 controlling language has support in the legislative history and 

 would be consistent with Congressional intent. 



Of course, the threshold determination is whether the 

 recommendation involves a quota or allocation. The agency has 



'Senator Bentsen wanted to retain the Secretary's 

 flexibility to take appropriate action. In his October 11, 

 1990, floor statement, the Senator stated that he had been 

 assured that "implicit in subsection E, and the Magnuson Act 

 itself, is a strong presumption of conservation and balance, 

 that we are not tying the Secretary's hands by limiting any 

 appropriate action he or she might deem necessary to meet 

 conservation goal." 



