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Lame Duck Congress Reauthorizes and Revamps Magnuson-Stevens Fishery Conservation and Management Act

January 10, 2007

In its last hours, the 109th Congress surprised many observers by passing a bill[1] reauthorizing and overhauling the Magnuson-Stevens Fishery Conservation and Management Act.[2] The bill largely reflects consensus by the fishing industry, environmental groups, and the government on overdue management reforms needed for effective long-term stewardship of the nation’s fisheries resources and related ecosystems. The Magnuson-Stevens Act was first enacted in 1976 to govern fishing activities in federal waters, and was last amended in 1996. It strengthened American fisheries by phasing out foreign fishing within three to 200 miles of the nation’s coasts, and established a system of regional fishery management councils[3] to govern fishing activities, set harvest limits and manage conservation efforts. The fishery management councils prepare fishery management plans for finfish, shellfish and crustaceans. While the original act accomplished the goal of protecting American resources for harvest by Americans, it did not prevent the overfishing of certain fish stocks, and did not comprehensively address the problems created by overcaptization of the fishing industry in many fisheries. The reauthorization legislation requires the councils to end overfishing beginning in 2010 by setting catch limit quotas each year below the overfishing level established by the best available science. The legislation also allows the councils to put greater emphasis on ecosystem management with specific authority to prepare measures to conserve non-target species and habitat.

Other major changes in the legislation include:

  • Greater Consideration of Science in Setting Annual Catch Limits. Councils must set an annual catch limit for each managed fishery so that optimum yield is not exceeded.[4] For the first time, fishing limits will be required to be set within the range of scientific recommendations. Previously, although most councils would set limits within the recommended range, they were not legally compelled to do so, and at times some did not follow the recommendations. The councils now must consult with their Science and Statistical Committees, which must consist of federal and state employees, independent experts or academicians, before acting on a major management issue. The standard will continue to be the use of the “best available” science. Science information used to advise the councils about the conservation and management a fishery may be subjected to a peer review process for the first time. The Science and Statistical Committees and the councils will also work together to develop multi-year research priorities. The councils themselves will be strengthened through the implementation of a formal training program for new council members on such topics as fishery science and economics, tribal treaty rights and legal requirements.
  • Limited Access Programs. The legislation authorizes the establishment of limited access privilege programs (LAPPs) that would issue federal permits determining which persons would be allowed to harvest fish. The legislation directs NOAA to consider a complicated series of factors, such as traditional fishing practices, the cultural and social framework of the fishery, and the severity of projected economic and social impacts of the LAPP in developing the criteria for eligibility for participation in the programs. In a shift to a more market-based approach, the permits will include individual fishing quotas. The LAPPs are meant to avoid the “fishing derby” style of fishing, where too many vessels are competing to catch a limited resource, resulting in extremely short fishing seasons with the danger of overfishing combined with significant safety risks as boats stay out regardless of conditions. Similar measures have already been established and implemented in North Pacific fisheries, but will be a brand new way of doing things in some Pacific, New England and Gulf of Mexico fisheries.
  • State/Federal Fisheries Enforcement. The bill allows state law enforcement officials to be deputized to enforce federal fisheries law and regulations and increases civil and criminal penalties.
  • Registry of Recreational Fishing. Previously, the Magnuson-Stevens Act regulated only commercial fisheries. The legislation will establish a regional registry system for recreational fishers (individuals and vessels). No fees can be charged as a result of the registry until January 1, 2011. Recreational fishers or charter fishing vessels licensed, permitted or registered through state programs may be exempt, if the data collected through the state program is sufficient for federal uses.

The legislation, while welcomed by NOAA, also places a tremendous administrative burden on the agency to revise its programs in a timely fashion. For example, new regulations will need to be written with respect to the mandate to end overfishing and to establish the rules for the creation of LAPPs. Although the legislation authorizes significant appropriations for its implementation ranging from approximately $338 million in fiscal year 2007 to approximately $397 million in fiscal year 2013, there is no guarantee that all or part of these amounts will be appropriated. In fact, NOAA’s current operating budget was reduced by 20% of under the continuing resolution passed by the 109th Congress to keep the government running until mid-February 2007. Thus, while the reauthorization reflects important policy shifts with regard to how the nation’s fisheries should be managed, timely implementation of those policies will likely be a challenge.

President Bush applauded Congress “for working in a bipartisan manner to pass a stronger Magnuson-Stevens Act.”[5] He praised the legislation for “embrac[ing] my priorities of ending overfishing and rebuilding our Nation’s fish stocks through more effective, market-based management and tougher enforcement.” He continued, “This landmark legislation also provides stronger tools to achieve progress internationally to ensure healthy fish stocks, promote better management, and halt destructive fishing practices based on sound science.”[6] Bill Hogarth, the director of the National Marine Fisheries Service (NMFS) of the National Oceanographic and Atmospheric Administration (NOAA), said the “new and welcome” mandates give NOAA and the eight regional fishery management councils “stronger authorities, which will help them to be better stewards of America’s ocean resources.”[7]

The Magnuson Act reauthorization takes care of several long-overdue fishery management reforms and frees the 100th Congress to consider new oceans initiatives. Bills have already been introduced in the House and Senate with proposals such as a coordinated national ocean exploration program at NOAA focused on deep sea regions, the location of historic shipwrecks and submerged sites. Proposed administrative tweaks include the establishment of a “National Oceans Adviser" for the president and federal advisory bodies on ocean policy and the formal authorization of NOAA. The proposals would continue the trend toward ecosystem-based planning with an emphasis on regional cooperation. It remains to be seen whether Congress will take on the sensitive topic of licensing aquaculture in the open ocean, but it is clear that with the Magnuson Act out of the way, the policy dialogue will move to new topics.

[1] H.R. 5946, available at http://www.nmfs.noaa.gov/sfa/2007reauth_notsigned.pdf.

[2] 16 U.S.C. §§1801-1883.

[3] Council members include representatives of commercial and recreational fishing groups, scientists, and state and federal fisheries managers.

[4] “Optimum yield” is defined in the Magnuson-Stevens Act as the amount of fish in a particular fishery which (a) will provide the greatest overall benefit to the nation taking into account the protection of marine ecosystems; (b) is prescribed on the basis of maximum sustainable yield, as reduced by any relevant social, economic, or ecological factor; and (c) in the case of an overfished fishery, provides for rebuilding to a level consistent with maximum sustainable yield. 16 U.S.C. §1802(28). “Maximum sustainable yield” involves a scientific appraisal of the upper limit of harvest that can be taken consistently on an annual basis without diminishing the fish stock so that stock is perpetually renewable. See 50 C.F.R. § 600.310.

[5] News release, http://www.whitehouse.gov/news/releases/2006/12/20061209-8.html.

[6] Id.

[7] News release, http://www.noaanews.noaa.gov/stories2006/s2762.htm.

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