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

for AmericA’s fish And fishermen

A Review of the Magnuson-Stevens Reauthorization Act of 2006 and the Challenges Ahead

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

Mission stateMent

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.

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.

overfishing: Within two years of a stock being declared overfished, councils are required to develop and imple-

ment a rebuilding plan that ends overfishing immediately.

national environmental PoliCy aCt (nePa): The law upholds requirements to comply with the nation’s over-

arching environmental law, which requires fishery managers to assess the environmental impacts of proposed fishery

management actions.

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.

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 con-

flicts of interest.

In December 2006, Congress passed the Magnuson-Stevens Fishery Conservation and Management

Reauthorization Act (MSRA), the nation’s primary law regulating fishing activities in federally-

managed 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

exeCutive suMMary

Photo: Pete Hendrickson

CooPerative researCh: The law requires the secretary of commerce to establish a nationwide, regionally-based

cooperative research and monitoring program.

habitat ProteCtion: The law authorizes fishery management councils to restrict the use of destructive fishing

gear in areas containing deep sea coral habitat.

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.

byCatCh reDuCtion: The bill makes no definitive advancements toward reducing the catching and killing of

non-target marine fish and other wildlife.

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.

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 market-

based 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

In December 2006, Congress passed the

Magnuson-Stevens Fishery Conservation

and Management Reauthorization Act

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

nation’s primary law regulating fishing activities

in federally-managed 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.

The MSRA represents a good first step toward

achieving healthy oceans and productive fisheries.

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. The U.S. Commission on Ocean

Policy, appointed by President George W. Bush,

and the Pew Oceans Commission 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. A number of recommendations

from both of these commissions were ultimately

incorporated into the final bill.1

The most significant amendments to the

Magnuson-Stevens Act are aimed at ending

overfishing. Most notably, a new provision requires

regional fishery management councils to set annual

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

waters. Those catch limits are to be accompanied

by measures to ensure that managers are held

accountable should overfishing occur. The Act also

requires preparation of a rebuilding plan within

two years of the time populations are identified

as overfished. Internationally, the MSRA seeks to

improve cooperation among fishery management

organizations to address illegal, unreported, and

unregulated fishing as well as overfishing on highly

migratory and transboundary stocks.

New measures also affirm and strengthen

the role of science in fishery management.

For instance, catch levels may not exceed

the recommendations of the regional fishery

management councils’ science advisors. In

addition, new provisions seek to enhance our

ability to sustain fish populations by establishing

new programs on bycatch reduction engineering,

inTrodUcTion

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,

recreational fisheries registry and data

improvement, deep sea coral research, and

a discretionary Fisheries Conservation and

Management Fund to provide additional funding

for these efforts.

However, the MSRA falls short on a number

of fronts. It fails to require broader public

representation on the councils which propose

regulations to the federal government. There is no

requirement for councils to develop region-specific

bycatch reduction plans. Troubling new language

could be used to further restrict public access to

all manner of fishery observer information under

the rubric of confidentiality. Finally, the Act fails

to advance one of the central recommendations

of the Pew Oceans Commission (2003) and the

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

need for a more ecosystem-based approach to

fisheries management.2 This way of managing

fisheries would treat the fished species’ role in

the ecosystem more explicitly and encourage

managers to address issues such as predator-

prey dynamics in the food web and habitat

conservation. Unfortunately, ecosystem-based

management remains a discretionary action item

under the new law.

Overall, the MSRA represents an important

advancement for fishery conservation. However,

many existing programs are chronically

underfunded, and securing adequate fiscal

resources to implement the new provisions

will be a major challenge. Data limitations and

insufficient management resources will present

ongoing challenges to effective implementation,

particularly with regard to setting catch limits to

end overfishing, limiting the bycatch of non-target

species, and monitoring compliance.

This review of the Magnuson-Stevens Fishery

Conservation and Management Reauthorization Act

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

fisheries management included in the legislation.

This review is not, however, comprehensive and

does not touch upon every new provision in the Act.

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

a new Course for america’s Fish and Fisherman | �

The National Marine Fisheries Service

(NMFS), the agency responsible

for management of U.S. ocean fish

populations, has acknowledged that the highest

priority in the MSRA is to end overfishing.3 The

new law requires science-based, enforceable

catch limits and accountability measures for all

federally-managed fish species. These overfishing

provisions address a major shortcoming of the

1996 Sustainable Fisheries Act, which established

a maximum limit on catch, but failed to require

all regional fishery management councils to set

such limits based on recommendations of the

councils’ science advisors. The clear intent of

Congress in the MSRA is to end overfishing by

requiring catch limits and enforcing those limits

through accountability measures. Congress also

closed a loophole allowing overfishing to continue

on species already classified as overfished. The

new law specifies that rebuilding plans – plans

managers must develop to restore species

declared overfished – must end overfishing

immediately and not continue, as has been the

case most notably in New England where plans to

restore species have dragged on for years.

Modifying National Standard 1 guidelines:

Need for greater guidance on addressing

uncertainty, ecosystem considerations in

setting catch limits

The new law requires councils to set annual catch

limits for all managed fisheries, accompanied

by measures to ensure accountability.4 This

amendment, together with the stipulation

that catch limits may not exceed the fishing

level recommendations of the councils’ science

and statistical committees,5 implements key

recommendations of the U.S. Commission on Ocean

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

these new requirements is to provide a transparent

accounting mechanism to measure compliance with

overfishing and rebuilding requirements of the MSA.7

endinG overfishinG2

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

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

The requirement of annual catch limits does

not go into effect until 2010 (for overfished

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

apply to species with very short life cycles (one

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

squid and shrimp). NMFS is currently preparing

new guidelines and regulations to implement this

important new requirement. The agency will need

to address many unanswered questions regarding

the implementation of this requirement. For

example, NMFS will need to guide the councils on

setting precautionary buffers between the annual

catch limits and the maximum amount of catch

that is permissible without overfishing in order

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.

Clarification of the MSRA’s

rebuilding plan requirements

The amended Act is clear on the need to take

action on stocks identified as overfished. The

law now requires councils to submit rebuilding

plans for overfished stocks within 2 years of

being identified as overfished or approaching

overfished.9 The Act also clarifies that councils or

the Secretary of Commerce must not only prepare

but also implement a rebuilding plan to end

overfishing immediately10 while maintaining the

existing statutory stipulations that rebuilding shall

be as short as possible and not exceed 10 years in

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

end overfishing” in the statute, Congress made it

clear that overfishing should not occur during the

rebuilding period.12

8 MSRA Sec. 3(33).

9 MSRA Sec. 304(e)(3).

10 MSRA Sec. 304(e)(3)(A).

11 MSRA Sec. 304(e)(4)(A)(i-ii).

12 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.”

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

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

economic interests.

national standard 1: Prevent overfishing, achieve optimum yield

a new Course for america’s Fish and Fisherman | �

The new law requires NMFS, in

consultation with the councils, the

Council on Environmental Quality (CEQ),

and with involvement from the public, to revise

procedures for compliance with the National

Environmental Policy Act (NEPA)13 within 1 year

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

a single environmental impact assessment

procedure for fishery activities (such as fishery

management plans and amendments to fishery

management plans) which effectively involves

the public and is timely and useful for decision-

makers and the public.15

Although the MSRA does not specify what the

revised procedures should look like, Congress

specifically rejected an attempt to eliminate

the requirements for environmental review and

public participation embedded in NEPA. Instead,

Congress favored a process which updates

and streamlines the agency’s procedures while

remaining in compliance with NEPA. NMFS is

currently preparing a revised procedure and is

required to solicit public comment on the proosal.

Both the text of the Act and the legislative

history make clear that fishery management

actions and updated environmental review

procedures must comply with NEPA and the

regulatory guidelines of CEQ. The intent of

Congress was not to exempt the Magnuson-

Stevens Reauthorization Act from NEPA

compliance or to supplant NEPA with a new council

environmental impact assessment procedure, but

to establish a consistent, timely, and predictable

regulatory process for fishery management

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

Chairman of the House Committee on Natural

Resources, underscored that point in a letter sent

to the agency soon after the President signed the

bill into law, emphasizing that the MSRA does not

exempt the agency or the fishery management

councils from complying with the requirements of

NEPA or the CEQ regulations.17

NMFS’ existing regulations clearly lay out the

procedures for NEPA compliance and place the

sTreAmLininG environmenTAL revieW3

NEPA Compliance in MSRA Decision-making

13 42 U.S.C. 4231 et seq.

14 Amended MSA Sec. 304 (16 U.S.C. 1854).

15 Amended MSA Sec. 304(i)(1-2)

16 Senate Report 109-229 on S. 2012 (April 4, 2006): p. 6.

17 Public Comment Letter to NMFS by Nick J. Rahall, II, Chairman, Committee on Natural Resources. April 20, 2007.

Photo: Getty Images Photo: Getty Images

10 | a new Course for america’s Fish and Fisherman

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

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 decision-

making 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

review procedure is certain to provoke litigation and conflict.

fishery management Councils should not assess the environmental impacts of actions

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.

a new Course for america’s Fish and Fisherman | 11

In 1996, Congress placed a moratorium

on the establishment of individual fishing

quota (IFQ) programs pending further

study. These controversial economic allocation

schemes are designed to limit participation and

grant exclusive access to fisheries as a means of

addressing excess capacity and the so-called “race

for fish” among too many competitors. The MSRA

ends years of debate on the subject of limited

access fishing quotas by authorizing councils to

create market-based “limited access privilege

programs” (LAPPs). Under this limited access

system, eligible fishermen or fishing businesses

may catch a quantity of fish (usually a fixed

percentage of an annual catch quota).19 Unlike

traditional IFQ programs, however, the new MSRA

provisions permit fishing communities and fishing

associations to participate in LAPPs if they meet

the eligibility criteria.

Limited access privilege programs, like

individual fishing quota programs, are intended

to address the chronic management problem

associated with open access fisheries (where

participation is largely unlimited), which has been

characterized somewhat simplistically as “too

many people chasing too few fish.” LAPPs have

the potential to correct this problem, but NMFS’

own technical guidance on the subject notes that

changing “too many people” to “just the right

number of people” is a very complicated social

and economic challenge. Poorly conceived or

structured LAPPs can have serious unintended

consequences.20 The first program enacted

following the lifting of the moratorium, the Bering

Sea crab program, is an example of a limited

access effort that has consolidated the benefits of

the fishery into the hands of a few multinational

fishing companies. It is squeezing out family-

owned fishing businesses and creating economic

incentives for the remaining participants to throw

away vast numbers of legal size crabs.

The fact that LAPPs are defined as privileges

rather than rights is a victory for public efforts to

prevent privatization of the oceans. The limited

access privilege is a permit to catch fish and does

not confer a right to compensation if a council

exPAndinG mAnAGemenT TooLs4

Market-based Limited Access Privilege Programs (LAPPs)

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.

Photo: US Fish and Wildlife ServicePhoto: US Fish and Wildlife Service Photo: Pete Hendrickson

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

by defining limited access privilege as a permit

issued for a period of not more than 10 years that

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

unless otherwise modified or revoked; and (2) will

be modified or revoked if the holder is found by the

Secretary of Commerce after due process to have

failed to comply with the terms of the privilege.21

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

capacity and “rationalizing” fisheries.

The new provisions also require councils

to avoid excessive consolidation in LAPPs.

Consolidation is the biggest threat to family

fishermen and coastal communities because

exclusive access quota programs can concentrate

the fishery quota into fewer and fewer hands.

When family fishermen sell quota to larger

interests, coastal communities suffer from loss

of direct and indirect income. With consolidation,

fishing families face the “end of the line” when

younger generations cannot afford to purchase

quota and participate in the fishery.

Importantly, councils must still meet the Act’s

other conservation and management objectives

in the design of LAPPs. Specifically, LAPPs must

achieve goals for ending overfishing, rebuilding

overfished stocks, conserving fish habitat,

reducing or avoiding bycatch of non-target species,

and meeting other national standards.

Proponents claim that LAPPs will reduce overcapitalization

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

improve market conditions, and promote safety. Critics charge

that LAPPs will create disincentives for conservation, consolidate

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

cost of quota shares, increase management costs, and create

a range of negative socioeconomic impacts including loss of

employment in coastal communities and inequitable distribution

of initial allocation of quotas. The new fishery law sets standards

for LAPPs intended to prevent privatization of public resources,

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.

Why We need national guidelines for laPPs

21 MSA Sec. 303A(f).

a new Course for america’s Fish and Fisherman | 13

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).

The new amendments require all regional

fishery management councils to set catch

limits within the bounds recommended

by the councils’ science and statistical committees

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

amendments incorporate the main features of the

USCOP recommendations to strengthen the role

of the councils’ scientific advisors and require the

councils to heed their advice. The new legislation

also includes recommendations calling for

independent peer review of scientific information

in council decision-making and for a council

member training program.

Previously there was no requirement to heed

scientific advice on issues such as recommendations

for annual catch limits, a gap which enabled

councils to exceed overfishing levels even when

presented with good scientific information.23 The

new provisions significantly constrain the councils’

ability to ignore the advice of SSCs and establish

an independent peer review process for evaluating

the quality of that advice. While representing

significant improvements, these provisions will not

eliminate the need for policy and value judgments

in the face of scientific uncertainty, nor will they

guarantee that precautionary or conservation-

minded outcomes prevail without public oversight

and involvement in the management process.

The new law also implements a USCOP

recommendation to improve recreational

fisheries data collection and quality by requiring

the Secretary of Commerce to (1) implement a

regionally based registry program for recreational

fishermen in each of the eight fishery management

regions, and (2) improve the quality and

accuracy of information generated by the Marine

Recreational Fishery Statistics Survey (MRFSS).24

The MRFSS program must take into consideration

and implement the recommendations of the

National Research Council 2006 report Review of

Recreational Fisheries Survey Methods. The MSRA

also imposes a deadline of January 1, 2009 for

completion of this revamping of the MRFSS as well

as a report within 24 months of establishment of

the program describing the progress made toward

achieving the goals and objectives of the program.

imProvinG science And dATA in fisheries mAnAGemenT5

Strengthening the Role of Science in the Fishery Management Councils

14 | a new Course for america’s Fish and Fisherman

Existing law requires fishery managers

to implement measures to minimize

bycatch (the catching and killing of non-

target marine fish and wildlife).25 This requirement

was augmented by a new section in the MSRA

directing NMFS to establish a “bycatch reduction

engineering program” designed to minimize

bycatch, bycatch mortality, seabird interactions,

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

other regulatory restrictions.26 The new provision

authorizes any fishery management plan to

contain incentives to reduce bycatch by accounting

for it in setting catch limits (including issuing

bycatch quotas), and promoting fishing gears or

other measures that will lower bycatch rates.

However, there is no requirement to develop

region-specific bycatch reduction plans with clear

performance goals and timelines for achieving

them. While a new bycatch reduction engineering

program must be established within 1 year of the

law’s enactment,27 the focus is on development

of technological and engineering changes which

minimize bycatch, bycatch mortality, and seabird

interactions. Any specific measures instituting

bycatch quotas and limits on total allowable

bycatch in any fishery under the councils’

jurisdiction are purely discretionary.28

Importantly, the new provision authorizes

NMFS to work with the Fish and Wildlife Service in

cooperation with the fishing industry to improve

technologies designed specifically to reduce

seabird bycatch. It also requires NMFS to submit

an annual report to Congress that (1) describes

the funding provided to implement this provision,

(2) describes the developments in gear technology

achieved by the program, and (3) describes efforts

to reduce seabird bycatch and interactions.

The requirement of annual Congressional

reports serves as a regular performance

assessment of the councils’ progress in reducing

bycatch. Regular performance assessments may

also help to keep bycatch issues in the public

spotlight, which may make it easier to appropriate

funds for bycatch reduction programs.

redUcinG And AccoUnTinG for BycATch6

25 MSA Sec. 301(a)(9).

26 MSA Sec. 316 (16 U.S.C. 1865).

27 MSA Sec. 316(a).

28 MSA Sec. 316(b).

a new Course for america’s Fish and Fisherman | 15

A new provision implements a key USCOP

recommendation by adding a section

establishing a cooperative research and

management program, which is to be implemented

on a regional basis and conducted through

partnerships to address critical management

needs.29 Projects receiving funding must address

regional needs and form part of a coherent

program of research giving priority to: (1) projects

contributing to improved data collection for stock

assessments, (2) projects assessing the amount

and types of bycatch or post-release mortality,

(3) conservation engineering projects designed to

reduce bycatch, (4) projects for the identification

and conservation of habitat areas of particular

concern, and (5) projects designed to collect and

compile socioeconomic data.

Congress provided an example in the MSRA

of what such projects might encompass by

authorizing NMFS to conduct a cooperative

research program to assess herring in the

northwest Atlantic, including herring’s role in the

ecosystem as a forage fish for other commercially

important stocks.30 The formal establishment of a

cooperative research and management program

in the new law should enhance support for the

existing NMFS cooperative research program,

which began receiving small amounts of funding

in FY2001 and whose program objectives are

identical to those of the cooperative research and

management program in the MSRA.31 It remains

to be seen, however, whether the cooperative

research and management program outlined in

the Act will enhance the ability of NMFS to expand

upon existing cooperative research projects or

secure greater funding for cooperative research

more generally.

exPAndinG cooPerATive reseArch7

Improving Data Collection

redUcinG And AccoUnTinG for BycATch

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.

Photo: Getty Images

1� | a new Course for america’s Fish and Fisherman

Shallow-water coral reefs in warm,

subtropical seas are familiar to most

people, but science has only begun to

discover the rich diversity of deep-water corals

in colder, high-latitude waters. Using remotely

operated submersible video cameras and other

modern technology, scientists have revealed

a previously unknown world of deep sea coral

reefs which require centuries to build up and

provide essential habitat for many marine fish

species. These deep-water “coral gardens” are

also extremely vulnerable to destructive bottom-

tending fishing gears that can topple large reef

structures in one tow of a fishing net.

The new law explicitly authorizes councils to

designate zones where deep sea corals are found

and to restrict the use of destructive gear types

within known areas of deep sea coral habitat.32

As with the Act’s existing essential fish habitat

(EFH) provisions, any action to protect deep sea

coral habitat is purely discretionary on the part of

enhAncinG hABiTAT ProTecTion AUThoriTy8

Deep Sea Corals

the fishery management councils. An important

difference from the EFH provision, however,

is the Congressional intent that the “measures

do not need to be linked to a determination that

the corals comprise essential fish habitat for the

relevant fishery.”33 To underscore this point,

the reauthorized law includes a new provision

authorizing the use of measures to conserve

non-target species and habitats, considering

the variety of ecological factors affecting fishery

populations.34 The intent of this provision is to

promote a proactive approach toward deep sea

coral protection; councils now can protect deep sea

corals in their own right as important components

of the marine ecosystem.35

Another related and new provision requires

NMFS, in consultation with other federal agencies

and regional fishery management councils, to

establish a coordinated program of deep sea coral

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

and map locations, (3) monitor activity in coral

32 This provision does not relate to the Coral Reef Conservation Act, which only covers shallow water corals.

33 See S. Rep. 109-229 on S. 2012 (April 4, 2006): p. 11.

34 MSA Sec. 303(b)(12) (16 U.S.C. 1853(b)(12).

35 Steven Lutz, MCBI. Personal communication.

a new Course for america’s Fish and Fisherman | 1�

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

technologies to reduce interactions with fishing

gear.36 NMFS would have to highlight funds in its

annual budget for this activity, however, and no

money has been appropriated for this program in

2008.35 The requirement that councils must submit

biennial reports to Congress on their progress in

identifying, monitoring, and protecting deep sea

corals may help to keep the spotlight on these

living habitats and increase the likelihood of future

funding, but that remains to be seen.

36 MSRA Sec. 408.

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

1� | a new Course for america’s Fish and Fisherman

Access To fishery informATion9

Confidentiality of Fishery Observer Data

The new law maintains the existing

stipulation that any information

submitted to NMFS in compliance with

the Act shall be confidential and shall not be

disclosed, with specified exceptions for carrying

out management and enforcement responsibilities,

complying with court orders, reviewing LAPP

petitions, and related matters.37 In addition, the

Act contains a provision specifying that fishery

observer information shall be confidential and shall

not be disclosed, with exceptions for reporting

bycatch data in the Alaska groundfish fisheries

and for other management purposes.38 The new

definition of “observer information” is broad

enough to encompass all manner of fishery-related

research, economic data, and other pertinent

information.

Fortunately, a provision in an earlier version of

the reauthorization bill that would have exempted

such information from disclosure under the

Freedom of Information Act (FOIA) was removed

from the final legislation. Nevertheless, the

new definition of observer information seems

intended to further restrict public access to

fishery information. Restrictions on public access

to fishery data have serious implications for the

public’s ability to participate effectively in decision-

making and to make independent assessments of

the scope and impacts of management actions on

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

environment generally. The nation’s fisheries are

held in public trust and restrictions on public access

to such information are contrary to principles

of public trust management and “sunshine in

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 | 1�

Overall, the MSRA represents a

potentially significant advance for fish

and fishermen, but major challenges to

effective implementation lie ahead. The National

Marine Fisheries Service currently has three

separate rulemaking processes underway to

implement provisions of the new law addressing

overfishing standards, environmental impact

assessment procedures under NEPA, and the scope

of limited access privilege programs (LAPPs).

The effectiveness of the implementation of the

amendments is directly linked to the course NMFS

charts in those regulations. A host of other MSRA

programs and initiatives risk becoming unfunded

mandates due to lack of adequate appropriations

from Congress or other sources of funding.

NS1 guidelines on annual catch limits

and the goal of ending overfishing

The highest priority in this reauthorization

was to strengthen the MSA to bring an end to

chALLenGes AheAd10

Implementing the New Legislation Will Require Clear Federal Guidance,

Sustained Public Oversight, and Adequate Congressional Funding

overfishing.39 Successful implementation of the

new legal requirements for annual catch limits

and accountability measures will require clear,

unambiguous guidance from NMFS to ensure

that catch levels are based on scientific advice,

overfishing is ended, overfished stocks are given

adequate time to rebuild, and fishery managers are

held accountable for meeting those requirements.

Greater guidance on how to set buffers between

overfishing levels and catch limits is also needed, as

is advice on the means of accounting for ecosystem

considerations.

Data limitations and uncertainties in scientific

advice present challenges for managers in setting

catch limits. For instance, although maximum

sustainable yield (MSY) is the benchmark for

overfishing in the law, the level of information

required to estimate MSY is lacking for most fish

stocks in most regions. Many regions currently lack

the data-collection and monitoring infrastructure

required to provide reliable catch accounting

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

stock assessments. Without effective monitoring

and accurate catch accounting, overfishing

levels could be exceeded regardless of catch

limits. Public involvement and oversight will be

absolutely essential to ensure that councils are

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

regulations.

NEPA environmental impact assessments

and fishery management

In its basic essence, NEPA is intended to make

certain that federal officials make informed

decisions in a process that is transparent

and open to the public. As applied to federal

fisheries management, NEPA requires thorough

environmental review of proposed fishing

regulations and provides opportunities for all

sectors of the public to be heard in the fisheries

decision-making process. These activities are

complementary to the MSRA and help fishery

managers make better management decisions

involving public resources. Some of the regional

fishery management councils have proposed to

radically weaken environmental review and public

participation. Under the councils’ proposal, for

example, the environmental impacts of fishery

management actions would be evaluated by the

councils despite the clear conflicts of interest

among council members with vested interests in

the fisheries they manage.

New agency rules for NEPA compliance must

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

maker and responsible for ensuring compliance

with environmental analyses and other laws.

Both the language of the MSRA and its legislative

history demonstrate that the new process must

comply fully with NEPA and with the Council on

Environmental Quality (CEQ) regulations, which

have provided guidance on how federal agencies

should implement and interpret NEPA for three

decades.

Limited Access Privilege Programs

Although the Act’s new LAPP provisions are billed

as “national standards,” they do not constitute

national guidelines and are subject to the

interpretation of fishery management councils

on a number of critical points. For instance, key

provisions on cost recovery and transferability

of limited access privileges from one individual

to another provide little in the way of guidance,

leaving it up to the councils to establish policies,

criteria, and methodologies for compliance. In the

absence of clear regulatory guidance from NMFS,

it is entirely possible that a council may adopt

measures which lead to unwarranted consolidation

of fishing opportunities and benefits in the hands

of the most powerful and influential participants,

at the expense of coastal communities. New rules

must ensure that LAPPs achieve their conservation

goals and prevent consolidation of fishery benefits

at the expense of family fishermen in coastal

communities.

Ecosystem-based fishery management

Congress failed to move forward on one of the

key recommendations of the ocean commissions,

namely, to manage our ocean resources using

an ecosystem-based approach which recognizes

that fish are part of complex ecosystems whose

structure and functioning can be damaged

a new Course for america’s Fish and Fisherman | 21

irreversibly by unsustainable fishing practices.

The new law only requires NMFS to prepare a

study assessing the state of the science with

respect to ecosystem-based fishery management.

This requirement represents an elaborate

delay tactic because the 1996 amendments to

the law required the same type of study. That

study was completed in 1999 and urged fishery

managers to move forward with ecosystem-based

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

NMFS has already missed the statutory deadline

for completing this report.)

The scientific community has endorsed

ecosystem-based management as a key feature

of sustainable resource use. Up until now,

however, fisheries management has lagged far

behind terrestrial management in the application

of ecosystem-based approaches. Currently

ecosystem considerations and ecosystem-based

fisheries management are discretionary action

items under the MSRA and receive low priority

at the councils, although NOAA’s long-range

strategic plan includes the adoption of ecosystem-

based management principles as a framework for

managing marine fisheries.

The challenge ahead is to convert principles into

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

is to implement ecosystem-based management

measures to protect forage fish populations that

serve as the primary food base for larger predatory

fish, marine mammals, and seabirds. Today, the

largest fisheries in the United States target forage

fish species such as herring, menhaden, sardine,

squid, hake, and Alaska pollock. NMFS and the

councils use the same rules for setting catch

levels for forage fish as for predator fish, which

is inappropriate given the central role that these

species play in the ocean food web.

Alternative funding mechanisms

and unfunded mandates

Without additional sources of funding above

current Congressional appropriations, many of the

Act’s programs risk becoming unfunded mandates

– well-intentioned but never realizing their

potential. The new law establishes the Fisheries

Conservation and Management Fund with the

purpose of:

improving fishery catch data collection

developing cooperative fishery research

developing methods and technologies to improve the

quality and value of fish landed

conducting analyses of seafood for health benefits

and risks

marketing U.s. fishery products

With the establishment of this fund, Congress

responded to a recommendation by the USCOP

calling for dedicated funding for fishery-specific

activities not funded under current law.40 Deposits

to the fund would come primarily from any “quota

set-asides,” revenues generated from a portion

of the retained catch. Other sources of revenues

could potentially include states and other public or

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

appropriations would continue to supply the vast

majority of funding for programs.

Current appropriations are woefully inadequate

to support expanded cooperative research on

the scale needed. The challenge ahead is to

increase funding on a short-term basis through

increased Congressional appropriations for

fishery management, while working over the

longer-term to establish a dedicated fund that is

independent of the appropriations process in order

to supplement what Congress allocates to NMFS

every year.

Pacific Council

New England Council

Mid-Atlantic Council

South Atlantic Council

Caribbean Council

Gulf of Mexico Council

Indicates where two adjacent Councils overlap

Western PacificCouncil

North Pacific Council

u.s. ocean territories and regional

fishery management Councils

600 Pennsylvania avenue, se · suite 210 · Washington, DC 20003 · Phone 202.543.5509 · fax 202.543.5774WWW.Conservefish.org