Mfcn New Course Report 07

for America’s Fish and Fishermen A Review of the Magnuson-Stevens Reauthorization Act of 2006 and the Challenges Ahead

M a r i n e F i s h C o n s e r vat i o n N e t w o r k

M is s io n Statem ent The Marine Fish Conservation Network advocates national policies to achieve healthy oceans and productive fisheries.

The Marine Fish Conservation Network (Network) is the largest national coalition solely dedicated to promoting the long-term sustainability of marine fish. With more than 190 members—including environmental organizations, commercial and recreational fishing associations, aquariums, and marine science groups—the Network uses its distinct voice and the best available science to educate policymakers, the fishing industry, and the public about the need for sound conservation and better management practices.

The Marine Fish Conservation Network is supported by many individuals, businesses, and foundations. This report and our work in general is made possible via the generous support of The Pew Charitable Trusts, Rockefeller Brothers Fund, Curtis and Edith Munson Foundation, Surdna Foundation, Sandler Family Supporting Foundation, David and Lucile Packard Foundation, Norcross Wildlife Foundation, and Patagonia Inc.

600 Pennsylvania Avenue, SE · Suite 210 Washington, DC 20003 phone 202.543.5509 · fax 202.543.5774 www.conservefish.org September 2007 Photo Credits: All Photos are from the National Oceanic and Atmospheric Administration Library

Photo: Pete Hendrickson

Executive Summary

I

n December 2006, Congress passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA), the nation’s primary law regulating fishing activities in federallymanaged waters. The action was bi-partisan, passing the Senate by unanimous consent and by voice

vote in the House. President Bush signed the law on January 12, 2007. This review explains many of the key changes to the law and their implications for U.S. fisheries management. Congress’ action came at the behest of public pressure and in response to two recent blue-ribbon commissions set up to assess the health of America’s oceans. Those commissions reviewed the latest marine science and found that America’s oceans are in serious trouble and that changes are needed in a number of areas, including fisheries management. The reauthorized Magnuson-Stevens Act enacts a number of the recommendations for reform from those reports, including new requirements designed to end overfishing, strengthen the role of science in fishery management, improve our knowledge of and expand research capabilities with respect to fish populations, establish secure funding sources for fishery management activities, and enhance protection of deep sea corals. The new law also enacts national standards for market-based limited access privilege programs (LAPPs), which are intended to give managers new tools to address excess fishing capacity and overfishing while preventing the excessive consolidation of public fishery resources in the hands of a few at the expense of fishing-dependent coastal

Key Improvements to Existing Law 

Catch limits: The new law requires the regional fishery management councils to develop annual catch limits for all fisheries that are based on scientific recommendations and at a level that prevents overfishing. The law also includes measures that hold fishery managers accountable when they allow the annual catch limits to be exceeded.

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Overfishing: Within two years of a stock being declared overfished, councils are required to develop and implement a rebuilding plan that ends overfishing immediately.

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National Environmental Policy Act (NEPA): The law upholds requirements to comply with the nation’s overarching environmental law, which requires fishery managers to assess the environmental impacts of proposed fishery management actions.

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Limited Access Privilege Programs (LAPPs): The law enacts new standards that affirm public ownership of the fish resources in U.S. waters, include periodic reviews of the programs, contain provisions to protect small-boat fishermen’s access to fisheries, and specify a term limit of 10 years on quota shares.

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Science and Statistical Committees (SSCs): The law requires SSCs to provide regional fishery management councils with scientific recommendations for fishing levels. SSC members are also required to disclose financial conflicts of interest.

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Cooperative Research: The law requires the Secretary of Commerce to establish a nationwide, regionally-based cooperative research and monitoring program.

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Habitat Protection: The law authorizes fishery management councils to restrict the use of destructive fishing gear in areas containing deep sea coral habitat.

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Fisheries Conservation and Management Trust Fund: The law establishes a trust fund for, among other things, improving fishery data, broadening observer coverage on vessels to monitor for wasteful fishing practices, and providing financial assistance to fishermen to help them comply with the MSRA.

Major Omissions from the Bill 

Public Involvement in Decision-making: There are no specific measures to broaden council representation to include a wider range of public interests.

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Bycatch Reduction: The bill makes no definitive advancements toward reducing the catching and killing of non-target marine fish and other wildlife.

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Ecosystem-based Management: The bill requires the National Marine Fisheries Service to prepare a study within 180 days of enactment of the law which reviews the state of the science for integrating ecosystem considerations in fishery management. There is no mandate, however, for an ecosystem approach to fisheries management, and regional fishery management councils are not required to implement fishery ecosystem plans.

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Confidentiality of Fishery Data: The bill missed an opportunity to make fishery-related information more accessible to the public. Instead, the new law contains troubling new language which could severely restrict public access to all types of fishery data under the rubric of confidentiality.

There remain significant challenges ahead. First, the National Marine Fisheries Service must write strong regulations to translate the letter and spirit of the law into on-the-water reality. This includes developing a set of rules to end overfishing, comply with the National Environmental Policy Act, and regulate marketbased fishery quota programs. Second, the regional fishery management councils must genuinely and fully implement the new law. In the past, loopholes written into regulations allowed overfishing to continue. Poor implementation by the councils dimmed the bright promise of previous amendments designed to end overfishing, minimize wasteful fishing practices, and protect fish habitat. Ten years after passage of those mandates, overfishing remains a problem, wasteful fishing practices continue, and fish habitats receive little protection. Third, the new law failed to advance one of the central recommendations of the U.S. Commission on Ocean Policy – to manage marine fish populations as part of an ecosystem and employ an ecosystem-based approach to fishery management. We must now take the difficult first steps to implement this approach, starting with attention to forage fish conservation, bycatch reduction, and habitat protection. Lastly, while the new law outlines a strategy for securing additional funding to support the research and data necessary for sustainable fisheries management, an effective mechanism for generating those funds must now be created.

“The time has come for us to alter our course and set sail for a new vision for America, one in which the oceans, coasts, and Great Lakes are healthy and productive, and our use of their resources is both profitable and sustainable.” — USCOP (2004) Photo: Dann Blackwood, USGS

introduction

I

n December 2006, Congress passed the

The most significant amendments to the

Magnuson-Stevens Fishery Conservation

Magnuson-Stevens Act are aimed at ending

and Management Reauthorization Act

overfishing. Most notably, a new provision requires

(referred to here as the MSRA, or Act), the

regional fishery management councils to set annual

nation’s primary law regulating fishing activities

catch limits for all managed fish populations in U.S.

in federally-managed waters. The action was

waters. Those catch limits are to be accompanied

bi-partisan, passing the Senate by unanimous

by measures to ensure that managers are held

consent and by voice vote in the House. President

accountable should overfishing occur. The Act also

Bush signed the law on January 12, 2007.

requires preparation of a rebuilding plan within

The MSRA represents a good first step toward

two years of the time populations are identified

achieving healthy oceans and productive fisheries.

as overfished. Internationally, the MSRA seeks to

Congress’ action came at the behest of public

improve cooperation among fishery management

pressure and in response to two recent blue-

organizations to address illegal, unreported, and

ribbon commissions set up to assess the health of

unregulated fishing as well as overfishing on highly

America’s oceans. The U.S. Commission on Ocean

migratory and transboundary stocks.

Policy, appointed by President George W. Bush,

New measures also affirm and strengthen

and the Pew Oceans Commission reviewed the

the role of science in fishery management.

latest marine science and found that America’s

For instance, catch levels may not exceed

oceans are in serious trouble and that changes are

the recommendations of the regional fishery

needed in a number of areas, including fisheries

management councils’ science advisors. In

management. A number of recommendations

addition, new provisions seek to enhance our

from both of these commissions were ultimately

ability to sustain fish populations by establishing

incorporated into the final bill.1

new programs on bycatch reduction engineering,

1. See: S. Rep. 109-229 on S. 2012 (April 4, 2006): pp. 3-4.

 | A New Course for America’s Fish and Fisherman

cooperative research and management,

managers to address issues such as predator-

recreational fisheries registry and data

prey dynamics in the food web and habitat

improvement, deep sea coral research, and

conservation. Unfortunately, ecosystem-based

a discretionary Fisheries Conservation and

management remains a discretionary action item

Management Fund to provide additional funding

under the new law.

for these efforts.

Overall, the MSRA represents an important

However, the MSRA falls short on a number

advancement for fishery conservation. However,

of fronts. It fails to require broader public

many existing programs are chronically

representation on the councils which propose

underfunded, and securing adequate fiscal

regulations to the federal government. There is no

resources to implement the new provisions

requirement for councils to develop region-specific

will be a major challenge. Data limitations and

bycatch reduction plans. Troubling new language

insufficient management resources will present

could be used to further restrict public access to

ongoing challenges to effective implementation,

all manner of fishery observer information under

particularly with regard to setting catch limits to

the rubric of confidentiality. Finally, the Act fails

end overfishing, limiting the bycatch of non-target

to advance one of the central recommendations

species, and monitoring compliance.

of the Pew Oceans Commission (2003) and the

This review of the Magnuson-Stevens Fishery

U.S. Commission on Ocean Policy (2004): the

Conservation and Management Reauthorization Act

need for a more ecosystem-based approach to

of 2006 explains many of the key changes to U.S.

fisheries management.2 This way of managing

fisheries management included in the legislation.

fisheries would treat the fished species’ role in

This review is not, however, comprehensive and

the ecosystem more explicitly and encourage

does not touch upon every new provision in the Act.

2. See USCOP (2004): p. 295.

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2

ending overfishing

Annual Catch Limits, Accountability Measures, and Rebuilding Plans for Overfished Stocks

T

he National Marine Fisheries Service

declared overfished – must end overfishing

(NMFS), the agency responsible

immediately and not continue, as has been the

for management of U.S. ocean fish

case most notably in New England where plans to

populations, has acknowledged that the highest

restore species have dragged on for years.

priority in the MSRA is to end overfishing.3 The

provisions address a major shortcoming of the

Modifying National Standard 1 guidelines: Need for greater guidance on addressing uncertainty, ecosystem considerations in setting catch limits

1996 Sustainable Fisheries Act, which established

The new law requires councils to set annual catch

a maximum limit on catch, but failed to require

limits for all managed fisheries, accompanied

all regional fishery management councils to set

by measures to ensure accountability.4 This

such limits based on recommendations of the

amendment, together with the stipulation

councils’ science advisors. The clear intent of

that catch limits may not exceed the fishing

Congress in the MSRA is to end overfishing by

level recommendations of the councils’ science

requiring catch limits and enforcing those limits

and statistical committees,5 implements key

through accountability measures. Congress also

recommendations of the U.S. Commission on Ocean

closed a loophole allowing overfishing to continue

Policy (USCOP) (2004).6 The Congressional intent of

on species already classified as overfished. The

these new requirements is to provide a transparent

new law specifies that rebuilding plans – plans

accounting mechanism to measure compliance with

managers must develop to restore species

overfishing and rebuilding requirements of the MSA.7

new law requires science-based, enforceable catch limits and accountability measures for all federally-managed fish species. These overfishing

3. Annual Catch Limits (ACLs) and Accountability Measures (AMs): Requirements of the 2006 Amendments to the Magnuson-Stevens Act (MSA). Public information handout prepared by NMFS Office of Sustainable Fisheries, Silver Spring, MD. March 14, 2007. 4 MSRA Sec. 303(a)(15) (16 U.S.C. 1853(a)(15)) 5 MSRA Sec. 302(h)(6) (16 U.S.C. 1852(h)(6)) 6 See USCOP (2004), Recommendations 19-1, 19-2, and 19-3 requiring regional FMCs to set catch limits within the bounds recommended by the councils’ science and statistical committees. 7 Senate Report 109-229 on S. 2012 (April 4, 2006), p. 21.

 | A New Course for America’s Fish and Fisherman

National Standard 1: Prevent Overfishing, Achieve Optimum Yield National Standard 1 of the Magnuson-Stevens Act stipulates that, “conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery” (MSA Sec. 301(a)(1); 16 U.S.C. 1851). The law is clear that optimum yield (OY) may not exceed the estimated maximum sustainable yield (MSY) value for a given fish stock, designated as the maximum fishing mortality threshold (MFMT) or overfishing level (OFL). It does not follow, however, that OY should be set equal to the maximum permissible fishing rate, or OFL. The agency’s own technical guidance on NS1 urged a precautionary approach to the setting of OY by specifying an OY value that is safely below the limit reference point (OFL) as a buffer against uncertainty in the scientific advice and other relevant factors (Restrepo et al. 1998). The inherent scientific uncertainties and difficulties associated with estimating MSY for wild fish stocks should require fishery management councils to implement precautionary buffers against uncertainty. Up to now, however, councils have too often permitted fishing to the

to account for both scientific inaccuracies and uncertainties in nature. The new law authorizes fishery managers to adjust catch levels to account for economic, social, or ecological factors, including protection of ecosystems,8 but the law does not provide guidance on how to reduce the catch limits to address ecosystem considerations. In the absence of greater guidance from NMFS, efforts to account for ecosystem considerations in the setting of annual catch limits will proceed very slowly, if at all. NMFS guidelines and regulations will be key to addressing these concerns directly when setting annual catch limits.

maximum limit or well beyond the limit in pursuit of short-sighted economic interests.

Clarification of the MSRA’s rebuilding plan requirements

The requirement of annual catch limits does

The amended Act is clear on the need to take

not go into effect until 2010 (for overfished

action on stocks identified as overfished. The

species) and 2011 (for all others) and does not

law now requires councils to submit rebuilding

apply to species with very short life cycles (one

plans for overfished stocks within 2 years of

year or less, including some “forage fish,” such as

being identified as overfished or approaching

squid and shrimp). NMFS is currently preparing

overfished.9 The Act also clarifies that councils or

new guidelines and regulations to implement this

the Secretary of Commerce must not only prepare

important new requirement. The agency will need

but also implement a rebuilding plan to end

to address many unanswered questions regarding

overfishing immediately10 while maintaining the

the implementation of this requirement. For

existing statutory stipulations that rebuilding shall

example, NMFS will need to guide the councils on

be as short as possible and not exceed 10 years in

setting precautionary buffers between the annual

most cases.11 By inserting “immediately” after “to

catch limits and the maximum amount of catch

end overfishing” in the statute, Congress made it

that is permissible without overfishing in order

clear that overfishing should not occur during the rebuilding period.12

8 9 10 11 12

MSRA Sec. 3(33). MSRA Sec. 304(e)(3). MSRA Sec. 304(e)(3)(A). MSRA Sec. 304(e)(4)(A)(i-ii). S. Rep. 109-229 on S. 2012 (April 4, 2006), p. 22: “...plans must establish a reasonable end date for fishing beyond sustainable levels, particularly because it is necessary to ensure that overfishing during the rebuilding period will not undermine rebuilding goals.”

Photo: Getty Images

Photo: Getty Images

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3

Streamlining environmental review

NEPA Compliance in MSRA Decision-making

T

he new law requires NMFS, in

required to solicit public comment on the proosal.

consultation with the councils, the

Both the text of the Act and the legislative

Council on Environmental Quality (CEQ),

history make clear that fishery management

and with involvement from the public, to revise

actions and updated environmental review

procedures for compliance with the National

procedures must comply with NEPA and the

Environmental Policy Act (NEPA) within 1 year

regulatory guidelines of CEQ. The intent of

of the MSRA’s enactment.14 The goal is to develop

Congress was not to exempt the Magnuson-

a single environmental impact assessment

Stevens Reauthorization Act from NEPA

procedure for fishery activities (such as fishery

compliance or to supplant NEPA with a new council

management plans and amendments to fishery

environmental impact assessment procedure, but

management plans) which effectively involves

to establish a consistent, timely, and predictable

the public and is timely and useful for decision-

regulatory process for fishery management

makers and the public.15

decisions.16 Representative Nick Rahall (D-WV),

Although the MSRA does not specify what the

Chairman of the House Committee on Natural

revised procedures should look like, Congress

Resources, underscored that point in a letter sent

specifically rejected an attempt to eliminate

to the agency soon after the President signed the

the requirements for environmental review and

bill into law, emphasizing that the MSRA does not

public participation embedded in NEPA. Instead,

exempt the agency or the fishery management

Congress favored a process which updates

councils from complying with the requirements of

and streamlines the agency’s procedures while

NEPA or the CEQ regulations.17

remaining in compliance with NEPA. NMFS is

NMFS’ existing regulations clearly lay out the

currently preparing a revised procedure and is

procedures for NEPA compliance and place the

13

13 14 15 16 17

42 U.S.C. 4231 et seq. Amended MSA Sec. 304 (16 U.S.C. 1854). Amended MSA Sec. 304(i)(1-2) Senate Report 109-229 on S. 2012 (April 4, 2006): p. 6. Public Comment Letter to NMFS by Nick J. Rahall, II, Chairman, Committee on Natural Resources. April 20, 2007.

10 | A New Course for America’s Fish and Fisherman

Fishery Management Councils Should Not Assess the Environmental Impacts of Actions Council representation and processes are not structured to provide full and objective consideration of environmental and human impacts, being focused primarily on resource use. The councils do not have the training, expertise, or resources needed to develop adequate NEPA analyses; their decisionmaking routinely takes place independent of NEPA in a political negotiation among vested fishery interests. Finally, the councils are advisors to NMFS, not the legally responsible agency under the law. Any revised environmental review process which supplants NEPA compliance with a council-led environmental

agency in the lead role for NEPA compliance in fishery management decision-making. NMFS should affirm the current procedure that recognizes the agency is the decision-maker and is responsible for signing off on the complete and final analysis of all environmental impacts and assuring compliance of the environmental analyses and proposed management measures with all applicable law.18

review procedure is certain to provoke litigation and conflict.

18 See: William T. Hogarth Memorandum to Regional Administrators, NMFS; Chairs, Regional Fishery Management Councils. 18 July 21. Also see: NOAA Administrative Order 216-6.

Photo: US Fish and Wildlife Service

Photo: Pete Hendrickson

A New Course for America’s Fish and Fisherman | 11

4

Expanding management tools

Market-based Limited Access Privilege Programs (LAPPs)

I

n 1996, Congress placed a moratorium

participation is largely unlimited), which has been

on the establishment of individual fishing

characterized somewhat simplistically as “too

quota (IFQ) programs pending further

many people chasing too few fish.” LAPPs have

study. These controversial economic allocation

the potential to correct this problem, but NMFS’

schemes are designed to limit participation and

own technical guidance on the subject notes that

grant exclusive access to fisheries as a means of

changing “too many people” to “just the right

addressing excess capacity and the so-called “race

number of people” is a very complicated social

for fish” among too many competitors. The MSRA

and economic challenge. Poorly conceived or

ends years of debate on the subject of limited

structured LAPPs can have serious unintended

access fishing quotas by authorizing councils to

consequences.20 The first program enacted

create market-based “limited access privilege

following the lifting of the moratorium, the Bering

programs” (LAPPs). Under this limited access

Sea crab program, is an example of a limited

system, eligible fishermen or fishing businesses

access effort that has consolidated the benefits of

may catch a quantity of fish (usually a fixed

the fishery into the hands of a few multinational

percentage of an annual catch quota).19 Unlike

fishing companies. It is squeezing out family-

traditional IFQ programs, however, the new MSRA

owned fishing businesses and creating economic

provisions permit fishing communities and fishing

incentives for the remaining participants to throw

associations to participate in LAPPs if they meet

away vast numbers of legal size crabs.

the eligibility criteria.

The fact that LAPPs are defined as privileges

Limited access privilege programs, like

rather than rights is a victory for public efforts to

individual fishing quota programs, are intended

prevent privatization of the oceans. The limited

to address the chronic management problem

access privilege is a permit to catch fish and does

associated with open access fisheries (where

not confer a right to compensation if a council

19 MSA Sec. 3(26). 20 Lee G. Anderson and Mark C. Holliday (Eds.), The Design and Use of Limited Access Privilege Programs, NOAA Technical Memorandum NMFS-F/ SPO-May 2007: p. 11.

12 | A New Course for America’s Fish and Fisherman

decides to replace a LAPP with another type of regulation.20 The law provides further clarification

Why We Need National Guidelines for LAPPs

by defining limited access privilege as a permit

Proponents claim that LAPPs will reduce overcapitalization

issued for a period of not more than 10 years that

(the number of fishing vessels in a fishery), promote conservation,

(1) will be renewed before the end of the period

improve market conditions, and promote safety. Critics charge that LAPPs will create disincentives for conservation, consolidate

unless otherwise modified or revoked; and (2) will

ownership, limit new entrants into the fishery due to the high

be modified or revoked if the holder is found by the

a range of negative socioeconomic impacts including loss of

Secretary of Commerce after due process to have

employment in coastal communities and inequitable distribution

failed to comply with the terms of the privilege.21

for LAPPs intended to prevent privatization of public resources,

Nevertheless, public vigilance will be needed to prevent councils from turning exclusive access programs into de facto privatization schemes under the pretext of reducing excess fishing

cost of quota shares, increase management costs, and create

of initial allocation of quotas. The new fishery law sets standards achieve conservation goals for our nation’s fisheries, prevent excessive consolidation of fisheries benefits into the hands of a powerful few, and protect family fishermen. Without clear regulatory guidance from NMFS, however, regional fishery managers may implement the standards in ways that undermine conservation and exclude family fishermen.

capacity and “rationalizing” fisheries. The new provisions also require councils

younger generations cannot afford to purchase

to avoid excessive consolidation in LAPPs.

quota and participate in the fishery.

Consolidation is the biggest threat to family

Importantly, councils must still meet the Act’s

fishermen and coastal communities because

other conservation and management objectives

exclusive access quota programs can concentrate

in the design of LAPPs. Specifically, LAPPs must

the fishery quota into fewer and fewer hands.

achieve goals for ending overfishing, rebuilding

When family fishermen sell quota to larger

overfished stocks, conserving fish habitat,

interests, coastal communities suffer from loss

reducing or avoiding bycatch of non-target species,

of direct and indirect income. With consolidation,

and meeting other national standards.

fishing families face the “end of the line” when

21 MSA Sec. 303A(f).

A New Course for America’s Fish and Fisherman | 13

5

improving science and data in fisheries management

Strengthening the Role of Science in the Fishery Management Councils

T

he new amendments require all regional

eliminate the need for policy and value judgments

fishery management councils to set catch

in the face of scientific uncertainty, nor will they

limits within the bounds recommended

guarantee that precautionary or conservation-

by the councils’ science and statistical committees

minded outcomes prevail without public oversight

(SSCs), whose role is affirmed and clarified.22 These

and involvement in the management process.

amendments incorporate the main features of the

The new law also implements a USCOP

USCOP recommendations to strengthen the role

recommendation to improve recreational

of the councils’ scientific advisors and require the

fisheries data collection and quality by requiring

councils to heed their advice. The new legislation

the Secretary of Commerce to (1) implement a

also includes recommendations calling for

regionally based registry program for recreational

independent peer review of scientific information

fishermen in each of the eight fishery management

in council decision-making and for a council

regions, and (2) improve the quality and

member training program.

accuracy of information generated by the Marine

Previously there was no requirement to heed

Recreational Fishery Statistics Survey (MRFSS).24

scientific advice on issues such as recommendations

The MRFSS program must take into consideration

for annual catch limits, a gap which enabled

and implement the recommendations of the

councils to exceed overfishing levels even when

National Research Council 2006 report Review of

presented with good scientific information.23 The

Recreational Fisheries Survey Methods. The MSRA

new provisions significantly constrain the councils’

also imposes a deadline of January 1, 2009 for

ability to ignore the advice of SSCs and establish

completion of this revamping of the MRFSS as well

an independent peer review process for evaluating

as a report within 24 months of establishment of

the quality of that advice. While representing

the program describing the progress made toward

significant improvements, these provisions will not

achieving the goals and objectives of the program.

22 MSA Sec. 302(g). 23 USCOP. An Ocean Blueprint for the 21st Century, Final Report (2004): p. 276. 24 MSA Sec. 401(g) (16 U.S.C. 1881).

14 | A New Course for America’s Fish and Fisherman

6

Reducing and accounting for bycatch

E

xisting law requires fishery managers

minimize bycatch, bycatch mortality, and seabird

to implement measures to minimize

interactions. Any specific measures instituting

bycatch (the catching and killing of non-

bycatch quotas and limits on total allowable

target marine fish and wildlife). This requirement

bycatch in any fishery under the councils’

was augmented by a new section in the MSRA

jurisdiction are purely discretionary.28

directing NMFS to establish a “bycatch reduction

Importantly, the new provision authorizes

engineering program” designed to minimize

NMFS to work with the Fish and Wildlife Service in

bycatch, bycatch mortality, seabird interactions,

cooperation with the fishing industry to improve

and discards of catch that do not meet size, sex, or

technologies designed specifically to reduce

other regulatory restrictions. The new provision

seabird bycatch. It also requires NMFS to submit

authorizes any fishery management plan to

an annual report to Congress that (1) describes

contain incentives to reduce bycatch by accounting

the funding provided to implement this provision,

for it in setting catch limits (including issuing

(2) describes the developments in gear technology

bycatch quotas), and promoting fishing gears or

achieved by the program, and (3) describes efforts

other measures that will lower bycatch rates.

to reduce seabird bycatch and interactions.

However, there is no requirement to develop

The requirement of annual Congressional

region-specific bycatch reduction plans with clear

reports serves as a regular performance

performance goals and timelines for achieving

assessment of the councils’ progress in reducing

them. While a new bycatch reduction engineering

bycatch. Regular performance assessments may

program must be established within 1 year of the

also help to keep bycatch issues in the public

law’s enactment,27 the focus is on development

spotlight, which may make it easier to appropriate

of technological and engineering changes which

funds for bycatch reduction programs.

25

26

25 26 27 28

MSA Sec. 301(a)(9). MSA Sec. 316 (16 U.S.C. 1865). MSA Sec. 316(a). MSA Sec. 316(b).

Photo: Getty Images

A New Course for America’s Fish and Fisherman | 15

7

expanding Cooperative research

Improving Data Collection

A

new provision implements a key USCOP

authorizing NMFS to conduct a cooperative

recommendation by adding a section

research program to assess herring in the

establishing a cooperative research and

northwest Atlantic, including herring’s role in the

management program, which is to be implemented

ecosystem as a forage fish for other commercially

on a regional basis and conducted through

important stocks.30 The formal establishment of a

partnerships to address critical management

cooperative research and management program

needs.29 Projects receiving funding must address

in the new law should enhance support for the

regional needs and form part of a coherent

existing NMFS cooperative research program,

program of research giving priority to: (1) projects

which began receiving small amounts of funding

contributing to improved data collection for stock

in FY2001 and whose program objectives are

assessments, (2) projects assessing the amount

identical to those of the cooperative research and

and types of bycatch or post-release mortality,

management program in the MSRA.31 It remains

(3) conservation engineering projects designed to

to be seen, however, whether the cooperative

reduce bycatch, (4) projects for the identification

research and management program outlined in

and conservation of habitat areas of particular

the Act will enhance the ability of NMFS to expand

concern, and (5) projects designed to collect and

upon existing cooperative research projects or

compile socioeconomic data.

secure greater funding for cooperative research

Congress provided an example in the MSRA

more generally.

of what such projects might encompass by

29 MSA Sec. 318 (16 U.S.C. 1867). 30 MSA Sec. 319 (16 U.S.C. 1868). 31 National Marine Fisheries Service National Cooperative Research Program, FY2005 Funded Projects Report.

16 | A New Course for America’s Fish and Fisherman

8

Enhancing habitat protection Authority

Deep Sea Corals

S

hallow-water coral reefs in warm,

the fishery management councils. An important

subtropical seas are familiar to most

difference from the EFH provision, however,

people, but science has only begun to

is the Congressional intent that the “measures

discover the rich diversity of deep-water corals

do not need to be linked to a determination that

in colder, high-latitude waters. Using remotely

the corals comprise essential fish habitat for the

operated submersible video cameras and other

relevant fishery.”33 To underscore this point,

modern technology, scientists have revealed

the reauthorized law includes a new provision

a previously unknown world of deep sea coral

authorizing the use of measures to conserve

reefs which require centuries to build up and

non-target species and habitats, considering

provide essential habitat for many marine fish

the variety of ecological factors affecting fishery

species. These deep-water “coral gardens” are

populations.34 The intent of this provision is to

also extremely vulnerable to destructive bottom-

promote a proactive approach toward deep sea

tending fishing gears that can topple large reef

coral protection; councils now can protect deep sea

structures in one tow of a fishing net.

corals in their own right as important components

The new law explicitly authorizes councils to

of the marine ecosystem.35

designate zones where deep sea corals are found

Another related and new provision requires

and to restrict the use of destructive gear types

NMFS, in consultation with other federal agencies

within known areas of deep sea coral habitat.

and regional fishery management councils, to

As with the Act’s existing essential fish habitat

establish a coordinated program of deep sea coral

(EFH) provisions, any action to protect deep sea

research to (1) identify existing research, (2) locate

coral habitat is purely discretionary on the part of

and map locations, (3) monitor activity in coral

32

32 33 34 35

This provision does not relate to the Coral Reef Conservation Act, which only covers shallow water corals. See S. Rep. 109-229 on S. 2012 (April 4, 2006): p. 11. MSA Sec. 303(b)(12) (16 U.S.C. 1853(b)(12). Steven Lutz, MCBI. Personal communication.

A New Course for America’s Fish and Fisherman | 17

locations, (4) conduct research, and (5) develop

biennial reports to Congress on their progress in

technologies to reduce interactions with fishing

identifying, monitoring, and protecting deep sea

gear.36 NMFS would have to highlight funds in its

corals may help to keep the spotlight on these

annual budget for this activity, however, and no

living habitats and increase the likelihood of future

money has been appropriated for this program in

funding, but that remains to be seen.

2008.35 The requirement that councils must submit Deep, Cold-water Coral Reefs Found Throughout U.S. Waters

Source: Oceana. “Deep Sea Corals: Out of Sight, But No Longer Out of Mind.” <northamerica.oceana.org/uploads/oceana_coral_report_final.pdf>

36 MSRA Sec. 408.

*Known deep, cold-water reefs (reef area not to scale)

18 | A New Course for America’s Fish and Fisherman

9

Access to fishery information

Confidentiality of Fishery Observer Data

T

he new law maintains the existing

Fortunately, a provision in an earlier version of

stipulation that any information

the reauthorization bill that would have exempted

submitted to NMFS in compliance with

such information from disclosure under the

the Act shall be confidential and shall not be

Freedom of Information Act (FOIA) was removed

disclosed, with specified exceptions for carrying

from the final legislation. Nevertheless, the

out management and enforcement responsibilities,

new definition of observer information seems

complying with court orders, reviewing LAPP

intended to further restrict public access to

petitions, and related matters. In addition, the

fishery information. Restrictions on public access

Act contains a provision specifying that fishery

to fishery data have serious implications for the

observer information shall be confidential and shall

public’s ability to participate effectively in decision-

not be disclosed, with exceptions for reporting

making and to make independent assessments of

bycatch data in the Alaska groundfish fisheries

the scope and impacts of management actions on

and for other management purposes.38 The new

fisheries, on non-target species, and on the marine

definition of “observer information” is broad

environment generally. The nation’s fisheries are

enough to encompass all manner of fishery-related

held in public trust and restrictions on public access

research, economic data, and other pertinent

to such information are contrary to principles

information.

of public trust management and “sunshine in

37

government.”

37 MSRA Sec. 402(b) (16 U.S.C. 1881a(b)). 38 MSRA Sec. 402(b)(2).

A New Course for America’s Fish and Fisherman | 19

10

challenges ahead

Implementing the New Legislation Will Require Clear Federal Guidance, Sustained Public Oversight, and Adequate Congressional Funding

O

verall, the MSRA represents a

overfishing.39 Successful implementation of the

potentially significant advance for fish

new legal requirements for annual catch limits

and fishermen, but major challenges to

and accountability measures will require clear,

effective implementation lie ahead. The National

unambiguous guidance from NMFS to ensure

Marine Fisheries Service currently has three

that catch levels are based on scientific advice,

separate rulemaking processes underway to

overfishing is ended, overfished stocks are given

implement provisions of the new law addressing

adequate time to rebuild, and fishery managers are

overfishing standards, environmental impact

held accountable for meeting those requirements.

assessment procedures under NEPA, and the scope

Greater guidance on how to set buffers between

of limited access privilege programs (LAPPs).

overfishing levels and catch limits is also needed, as

The effectiveness of the implementation of the

is advice on the means of accounting for ecosystem

amendments is directly linked to the course NMFS

considerations.

charts in those regulations. A host of other MSRA

Data limitations and uncertainties in scientific

programs and initiatives risk becoming unfunded

advice present challenges for managers in setting

mandates due to lack of adequate appropriations

catch limits. For instance, although maximum

from Congress or other sources of funding.

sustainable yield (MSY) is the benchmark for overfishing in the law, the level of information

NS1 guidelines on annual catch limits and the goal of ending overfishing

required to estimate MSY is lacking for most fish

The highest priority in this reauthorization

the data-collection and monitoring infrastructure

was to strengthen the MSA to bring an end to

required to provide reliable catch accounting

stocks in most regions. Many regions currently lack

39 Annual Catch Limits (ACLs) and Accountability Measures (AMs): Requirements of the 2006 Amendments to the Magnuson-Stevens Act (MSA). Public information handout prepared by NMFS Office of Sustainable Fisheries, Silver Spring, MD. March 14, 2007.

20 | A New Course for America’s Fish and Fisherman

and adequate information for development of

history demonstrate that the new process must

stock assessments. Without effective monitoring

comply fully with NEPA and with the Council on

and accurate catch accounting, overfishing

Environmental Quality (CEQ) regulations, which

levels could be exceeded regardless of catch

have provided guidance on how federal agencies

limits. Public involvement and oversight will be

should implement and interpret NEPA for three

absolutely essential to ensure that councils are

decades.

living up to the letter (and spirit) of the law and the regulations.

Limited Access Privilege Programs Although the Act’s new LAPP provisions are billed

NEPA environmental impact assessments and fishery management

as “national standards,” they do not constitute

In its basic essence, NEPA is intended to make

interpretation of fishery management councils

certain that federal officials make informed

on a number of critical points. For instance, key

decisions in a process that is transparent

provisions on cost recovery and transferability

and open to the public. As applied to federal

of limited access privileges from one individual

fisheries management, NEPA requires thorough

to another provide little in the way of guidance,

environmental review of proposed fishing

leaving it up to the councils to establish policies,

regulations and provides opportunities for all

criteria, and methodologies for compliance. In the

sectors of the public to be heard in the fisheries

absence of clear regulatory guidance from NMFS,

decision-making process. These activities are

it is entirely possible that a council may adopt

complementary to the MSRA and help fishery

measures which lead to unwarranted consolidation

managers make better management decisions

of fishing opportunities and benefits in the hands

involving public resources. Some of the regional

of the most powerful and influential participants,

fishery management councils have proposed to

at the expense of coastal communities. New rules

radically weaken environmental review and public

must ensure that LAPPs achieve their conservation

participation. Under the councils’ proposal, for

goals and prevent consolidation of fishery benefits

example, the environmental impacts of fishery

at the expense of family fishermen in coastal

management actions would be evaluated by the

communities.

national guidelines and are subject to the

councils despite the clear conflicts of interest among council members with vested interests in

Ecosystem-based fishery management

the fisheries they manage.

Congress failed to move forward on one of the

New agency rules for NEPA compliance must

key recommendations of the ocean commissions,

affirm that NMFS, not the councils, is the decision-

namely, to manage our ocean resources using

maker and responsible for ensuring compliance

an ecosystem-based approach which recognizes

with environmental analyses and other laws.

that fish are part of complex ecosystems whose

Both the language of the MSRA and its legislative

structure and functioning can be damaged

A New Course for America’s Fish and Fisherman | 21

irreversibly by unsustainable fishing practices.

squid, hake, and Alaska pollock. NMFS and the

The new law only requires NMFS to prepare a

councils use the same rules for setting catch

study assessing the state of the science with

levels for forage fish as for predator fish, which

respect to ecosystem-based fishery management.

is inappropriate given the central role that these

This requirement represents an elaborate

species play in the ocean food web.

delay tactic because the 1996 amendments to study was completed in 1999 and urged fishery

Alternative funding mechanisms and unfunded mandates

managers to move forward with ecosystem-based

Without additional sources of funding above

management (EPAP 1999). (As of this printing,

current Congressional appropriations, many of the

NMFS has already missed the statutory deadline

Act’s programs risk becoming unfunded mandates

for completing this report.)

– well-intentioned but never realizing their

The scientific community has endorsed

potential. The new law establishes the Fisheries

ecosystem-based management as a key feature

Conservation and Management Fund with the

of sustainable resource use. Up until now,

purpose of:

the law required the same type of study. That

however, fisheries management has lagged far behind terrestrial management in the application



improving fishery catch data collection

of ecosystem-based approaches. Currently



developing cooperative fishery research

ecosystem considerations and ecosystem-based



developing methods and technologies to improve the quality and value of fish landed

fisheries management are discretionary action items under the MSRA and receive low priority



and risks

at the councils, although NOAA’s long-range strategic plan includes the adoption of ecosystem-

conducting analyses of seafood for health benefits



marketing U.S. fishery products

based management principles as a framework for managing marine fisheries.

With the establishment of this fund, Congress

The challenge ahead is to convert principles into

responded to a recommendation by the USCOP

practice. A good starting point for U.S. fisheries

calling for dedicated funding for fishery-specific

is to implement ecosystem-based management

activities not funded under current law.40 Deposits

measures to protect forage fish populations that

to the fund would come primarily from any “quota

serve as the primary food base for larger predatory

set-asides,” revenues generated from a portion

fish, marine mammals, and seabirds. Today, the

of the retained catch. Other sources of revenues

largest fisheries in the United States target forage

could potentially include states and other public or

fish species such as herring, menhaden, sardine,

private entities.41 In short, deposits to the fund are

40 Senate Report 109-229 on S. 2012, April 4, 2006, pp. 12-13. 41 MSA 208(c)(2)(A-B).

22 | A New Course for America’s Fish and Fisherman

entirely discretionary. In any case, congressional

increased Congressional appropriations for

appropriations would continue to supply the vast

fishery management, while working over the

majority of funding for programs.

longer-term to establish a dedicated fund that is

Current appropriations are woefully inadequate

independent of the appropriations process in order

to support expanded cooperative research on

to supplement what Congress allocates to NMFS

the scale needed. The challenge ahead is to

every year.

increase funding on a short-term basis through

U.S. Ocean Territories and Regional Fishery Management Councils

North Pacific Council

New England Council

Mid-Atlantic Council Pacific Council

South Atlantic Council

Indicates where two adjacent Councils overlap

Gulf of Mexico Council Caribbean Council

Western Pacific Council

www.conservefish.org

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