Saving the Oceans: Magnuson-Stevens Act Amendments
New York Law Journal
The world’s oceans are in crisis, as they have been for the past several decades. Although previous attempts to address the crisis have been far too feeble to rescue the world’s depleted fish stocks, recent additions to the fisheries management regime in the United States have shown a bit more muscle.
Late last year, Congress passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA) and President George W. Bush signed it on Jan. 12, 2007.
This article describes the provisions of the MSRA and considers their likely impact on the health of the U.S. ocean areas and fish stocks.
Fisheries management in the United States began with the enactment in 1976 of the Magnuson-Stevens Fishery Conservation and Management Act (MSA), which established fishing regulations within the nation’s 200-mile exclusive economic zone (EEZ). At that time, foreign vessels caught approximately 70 percent of fish caught in the EEZ. Thus, rather than addressing fisheries management or conservation, the MSA was primarily oriented towards minimizing fishing by foreign vessels within the EEZ and promoting domestic vessels’ access to U.S. fisheries.
The MSA also established eight regional Fishery Management Councils (councils) and charged them with developing fishery management plans (FMPs) to address domestic fishing practices and involve fishers in the fisheries management decision-making process. In an early limited attempt to protect the marine ecosystem and to limit bycatch (fish harvested but not sold or kept for personal use), the MSA introduced a maximum sustainable yield (MSY) approach to fisheries management. The MSA also provided an economic hardship exemption from some of its requirements, and over time, the exemption became the norm rather than the exception. Consequently, fish populations continued to decline.
Twenty years later, in 1996, Congress amended the MSA with the Sustainable Fisheries Act (SFA) to emphasize conservation of depleted fish stocks rather than the “Americanization” of the fishing industry. The SFA established requirements to conserve fish stocks, minimize bycatch, and restore and protect fish habitats, among other changes. The SFA also eliminated the loophole that allowed fishing to exceed the MSY and established a 10-year deadline to rebuild depleted stocks by 2008. Despite the somewhat-improved conservation efforts of the SFA, fish stocks continued to decline throughout the 1990s and early 2000s.
In response, two commissions were formed to research and provide recommendations for ocean policy reforms. First, the president established the U.S. Commission on Ocean Policy, which published its report in 2004. Second, the Pew Charitable Trusts established the Pew Oceans Commission (Pew Commission), which published its report in 2003. The two groups formed a Joint Ocean Commission Initiative in early 2005 to provide ongoing support for ocean policy reform.
The Pew Commission’s report estimated that, in North America alone, at least 82 marine fish populations were at risk of extinction, and, of the more than 500 federally managed fish stocks, the government could ensure that only 22 percent were managed sustainably. North Atlantic fisheries were the hardest hit by unsustainable fishing practices - Atlantic halibut were commercially extinct, while New England cod, yellowtail, and flounder all reached historic lows in 1989.
In response to the two commissions’ reports, the National Oceanic and Atmospheric Administration’s (NOAA) National Marine Fisheries Service (NOAA Fisheries, formerly known as NMFS), which administers the MSA, asked Congress for legislation to end overfishing, increase data, expand the use of market-based approaches to fisheries management, and streamline the duplicative administrative process for the MSA and the National Environmental Policy Act. Congress adopted many of the commissions’ recommendations in the MSRA.
Substantive Provisions of the MSRA
The primary goals of the MSRA are to end overfishing, promote market-based fisheries management approaches, improve fisheries science and increase its role in decision-making, and enhance international cooperation with regard to fisheries management. These four goals and the provisions to implement them are discussed below.
• Ending Overfishing. One of the MSRA’s most ambitious goals is to end overfishing in the United States by 2011. To achieve this goal, the MSRA sets new requirements for FMPs, including that the councils must revise annual catch limits to end overfishing by 2010 for fish stocks already subject to overfishing and by 2011 for all other stocks. For overfished stocks, councils must prepare and implement management measures within two years. NOAA Fisheries began the public participation process to develop these new regulations in February 2007.
• Promoting Market-Based Initiatives. A second goal of the MSRA is to eliminate derby-style fishing through market-based approaches to fisheries management. Derby fishing occurs when a fishery is open for a limited amount of time and fishers race to catch as much as they can during that period. The MSRA’s approach is to authorize limited access privilege programs (LAPPs), which provide for individual, transferable permits that specify the amount of fish a holder may catch in fisheries managed under limited access systems, where the number or size of fishing vessels is restricted. The LAPPs would allow for a combination of quotas and regulations to prevent the “race to fish.” In April 2007, NOAA Fisheries released a draft technical guidance for the LAPPs. The guidance states that the initial allocation of quotas must be “fair and equitable” and that councils must prevent individuals from acquiring an excessive number of quota shares. Individuals, corporations, communities, and regional fishery associations are eligible to hold shares.
• Improving Data Collection and Increasing the Role of Science in Decision-Making. Perhaps the biggest challenge facing fisheries management officials is the lack of data, particularly from the recreational fishing sector. In order to improve scientific research regarding fish stocks and habitats, the MSRA establishes a cooperative research and monitoring program, a regional ecosystem research study, and a Fisheries Conservation and Management Fund. In order to improve data regarding recreational fishing, the MSRA requires that NOAA Fisheries develop a new angler registry and improve the existing Marine Recreational Fishery Statistics Survey.
The MSRA also assigns a stronger role to the councils’ Scientific and Statistical Committees (SSCs), including an enhanced peer review process and new regional pilot programs for ecosystem research. SSCs, comprised of government employees, academicians, and independent experts, assist the councils in data collection and evaluation. The MSRA requires that the councils adopt annual catch limits for each managed fishery, which may not exceed levels that the SSCs recommend. The SSCs will now review the councils’ scientific data relevant to conservation planning, and to assure greater transparency and to avoid the appearance of any conflicts of interest, information regarding SSC members’ lobbying activities will be available on the Internet.
• Enhancing International Cooperation. Fisheries are one of the most difficult resources to manage because many commercially valuable species, such as tuna and swordfish, are highly migratory. Fish consumption in the United States increases every year, but U.S. fishers provide only about 25-30 percent of the fish that Americans consume. And while most nations have enacted sustainable fishing laws, enforcement is unpredictable. Recognizing that broader international cooperation is necessary to ensure that U.S. conservation measures are effective, Congress created a new “secretarial representative for international fisheries,” who will perform the duties of the secretary of Commerce with respect to international agreements involving fisheries and be responsible for increasing the United States’ role in international fisheries management and ensuring that other countries abide by sustainable fishing practices.
The MSRA also authorizes the secretary of Commerce to maintain a list of vessels that engage in illegal, unregulated, or unreported (IUU) fishing. It authorizes NOAA Fisheries to use commercial as well as government remote sensing technology to enforce its rules, to provide technical assistance to developing countries, and to support efforts to equip all vessels with monitoring systems. If host countries for vessels that engage in IUU fishing refuse to enforce their fishing laws, the secretary has the authority to deny port privileges to those countries. The MSRA also directs the secretary of Commerce to promulgate regulations to define IUU fishing. The secretary adopted Congress’ suggested definition verbatim, which was published as a final rule on April 12, 2007.
As with almost any natural resource, fisheries management often pits the economy against ecology in the short term. Finding an appropriate and sustainable balance between the needs of fishing communities, fish consumers, and the fish themselves is difficult. The MSRA attempts to improve on previous efforts to reconcile these competing demands.
In many ways, the MSRA represents a significant step forward in terms of ecosystem-based management and serious conservation efforts. The Joint Ocean Commission Initiative (Joint Commission) recently released its report card for U.S. ocean policy in 2006 and gave the government a “B plus” for fisheries management reform, a significant improvement over the previous year’s “C plus.” The Joint Commission was pleased with the MSRA and lauded it as “an important step toward more effective management of the nation’s fisheries.”
Although many environmentalists and policy experts are pleased with the MSRA’s reforms, a number of policy challenges remain. First, there is no guarantee that annual catch limits will actually prevent overfishing, and the MSRA provides little guidance regarding how to set the catch limits. If overfishing does occur, there are no concrete measures for correcting the problem.
Second, the LAPP provisions do not solve the long-standing problem of how to allocate permits. The MSRA provides little guidance regarding the initial allocation of permits, beyond that it be “fair and equitable” and that councils consider economics, participation, and cultural issues when allocating permits. The act offers no guidance regarding how permits should or could be managed to address consolidation of permit holders following the initial allocation.
Third, the MSRA gives the councils wide discretion, which could be subject to abuse, in directing the Conservation Fund, appointing SSC members, and establishing peer review procedures that could be used in place of SSC recommendations. Although Congress followed the Pew Commission’s recommendations to increase the role of science in fisheries management, it did so only to a limited extent, providing (1) input on conservation decisions but not decision-making by technical experts, (2) an ecosystem study rather than ecosystem-based planning, and (3) council discretion rather than citizen enforcement mechanisms.
Fourth, the MSRA does not go far enough in addressing pressing international fisheries management issues. While the international provisions of the act are certainly commendable, there is broad bipartisan agreement that the United States is long overdue to join the United Nations Convention on the Law of the Sea. As a nonparty to the convention, the United States is unable to participate as a member on key bodies that guide activities in national and international waters, thus losing opportunities to benefit from and protect ocean resources of economic and ecological importance.
Despite its shortcomings, the MSRA lays a strong foundation for more effective fisheries management in the United States. While it is too soon to know whether the MSRA will achieve its goal of ending U.S. overfishing by 2011, the MSRA, if implemented effectively, is clearly an important, if overdue, step in the right direction.
Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case, direct the Environmental Practice Group at Carter Ledyard & Milburn. Elizabeth C. Black, a student at Georgetown University Law Center, assisted in the preparation of this article.
Reprinted with permission from the August 24, 2007 edition of The New York Law Journal© 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.
 We described some of those efforts in three articles in 2003. See NYLJ, “Saving the Oceans - Part 1,” Aug. 29, 2003; NYLJ, “Saving the Oceans - Part 2,” Oct. 28, 2003; NYLJ, “Saving the Oceans - Part 3,” Dec. 26, 2003.
 Pub. L. No. 109-479, 120 Stat. §3575 (2007).
 16 USC §§1801-1882.
 See NOAA, Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006: An Overview (March 2007), available at http://www.nmfs.noaa.gov/msa2005/MSA%202006%20Implementation%20Overview.pdf (last accessed Aug. 7, 2007) (hereinafter MSRA Overview).
 MSRA, 120 Stat. 3575 (2007), at §104(b).
 MSRA, 120 Stat. 3575 (2007), at §105(a)(2).
 MSRA, 120 Stat. 3575 (2007), at §208.
 MSRA, 120 Stat. 3575 (2007), at §103(i).
 MSRA, 120 Stat. 3575 (2007), at §103(b)(1).
 MSRA, 120 Stat. 3575 (2007), at §103(c)(3).
 MSRA, 120 Stat. 3575 (2007), at §§103(b)(1), 103(i).
 See Peter H. Flourney, ABA Section of Environment, Energy, and Resources Quick Teleconference, Magnuson-Stevens Act: Aspirations of the Reauthorization of the MSA (May 22, 2007).
 See id.
 MSRA, 120 Stat. 3575 (2007), at §408. (NOAA and NOAA Fisheries are agencies within the Department of Commerce.)
 MSRA, 120 Stat. 3575 (2007), at §§401-403.
 See 50 CFR §300.201 (2007).
 See Joint Ocean Commission Initiative, U.S. Ocean Policy Report Card (2006), available at: http://www.jointoceancommission.org/images/report-card-06.pdf (last accessed Aug. 7, 2007) (hereinafter, 2006 Joint Commission Report Card); Joint Ocean Commission Initiative, U.S. Ocean Policy Report Card (2005), available at: http://www.jointoceancommission.org/images/US-Ocean-Policy-Report-Card-2005.pdf (last accessed Aug. 7, 2007).
 See 2006 Joint Commission Report Card.
 MSRA, 120 Stat. 3575 (2007) at §105(a)(4).
 Madeline June Kass, “Fishery Conservation and Management Act Reauthorization: ‘A’ for Effort, ‘C’ for Substance,” 2 Nat. Res. & Envt. 52, 53 (Spring 2007).