Magnuson-Stevens Fishery Conservation and Management Act, United States
On September 28, 1945, President Truman issued a proclamation aimed at implementing conservation measures outside and adjacent to American territorial waters. The 1945 Truman Proclamation, claiming U.S. jurisdiction over U.S. continental shelf resources adjacent to the U.S. coast, has been viewed as the advent of coastal nations extending territorial seas and declaring fishery and economic zones. President Truman did not declare an “exclusive economic zone” nor claim rights to exclusive fishing, but his unilateral proclamations (on the seabed, its subsoil, and certain “conservation zones”) served as the conceptual underpinnings of subsequent extensions.
In the late 1940s and early 1950s, several Latin American nations proclaimed marine jurisdictions extending 200 miles off their Pacific coasts. This action was denounced by those within the United States and other distant-water fishing nations who sought to preserve and expand access for far-ranging fishing vessels.
Beginning in the 1950s (Atlantic) and 1960s (Pacific), increasing numbers of foreign fishing vessels steamed into waters offshore of the United States to catch the substantially unexploited living marine resources. Since the United States then claimed only a 3-mile jurisdiction (a 12-mile U.S. contiguous fishery zone was proclaimed in 1966), foreign vessels could fish many of the same stocks caught by U.S. fishermen. U.S. fishermen deplored this “foreign encroachment” and alleged that overfishing was causing stress on, or outright depletion of, fish stocks. Complex and inconclusive Law of the Sea Treaty negotiations in the 1970s provided impetus for unilateral U.S. action on ocean management jurisdiction.
The enactment of the Fishery Conservation and Management Act (FCMA) in 1976 (renamed in 198022 to honor the late Senator Warren G. Magnuson, and in 199623 to include Senator Ted Stevens) ushered in a new era of federal marine fishery management. After several years of debate, the FCMA was signed into law on April 13, 1976, as P.L. 94-265. Under the FCMA, on March 1, 1977, marine fishery resources beyond state jurisdiction but within 200 miles of all U.S. coasts came under federal jurisdiction. A new regional management system began allocating fishing privileges, with priority given to domestic enterprise. Primary federal management authority was vested in the National Marine Fisheries Service (NMFS, sometimes popularly referred to as “NOAA Fisheries”) within the National Oceanic and Atmospheric Administration (NOAA) of the U.S. Department of Commerce. The FCMA’s 200-mile fishery conservation zone was superseded by an Exclusive Economic Zone (EEZ) proclaimed by President Reagan on March 10, 1983.
The FCMA created eight regional fishery management councils and their associated advisory committees. Based on provisions in the FCMA and guidelines provided by NMFS, the regional councils prepare fishery management plans (FMPs) for those fisheries that they determine require active federal management. After public hearings, revised FMPs and draft implementing regulations are submitted to the Secretary of Commerce for approval. Approved plans are implemented through regulations published in the Federal Register. Together these regional councils have implemented 40 FMPs for various fish and shellfish resources, with 9 additional plans in various stages of development. Some plans are created for single species or for several closely related species (e.g., FMPs for red drum by the South Atlantic Regional Council and for shrimp by the Gulf of Mexico Regional Council). Others are developed for multi-species assemblages inhabiting a similar habitat (e.g., FMPs for Gulf of Alaska groundfish by the North Pacific Regional Council and for reef fish by the Gulf of Mexico Regional Council). Many of the implemented plans have undergone subsequent amendment (one more than 30 times), and three plans have been developed and implemented jointly by two regional councils.
Initially, a substantial portion of fishery resources in federal offshore waters was allocated for foreign fishing. However, foreign allocations diminished as domestic fishing and processing industries expanded. Under the FCMA, foreign catch from the U.S. EEZ declined from about 3.8 billion pounds in 1977 to zero since 1992. Triggering this decline of foreign catch, domestic offshore catch increased dramatically, from about 1.6 billion pounds (1977) to more than 5.9 billion pounds (2002). Thus, the share of fish caught by foreign nations from the U.S. Exclusive Economic Zone (EEZ) declined from 71% in 1977 to zero in 1992; foreign fishing has not been permitted in the U.S. EEZ since 1992. For combined inshore and offshore domestic harvest in 2002, the marine recreational finfish catch was 0.2 billion pounds, while the commercial sector landed 9.4 billion pounds of finfish and shellfish.
The Sustainable Fisheries Act
In 1996, Congress approved and President Clinton signed the Sustainable Fisheries Act (SFA; P.L. 104-297), amending the MSFCMA with new requirements to (1) conserve fish stocks and restore overfished populations, (2) assure that membership on regional councils is fair and balanced, (3) impose a moratorium on creating new individual fishing quota programs, (4) increase emphasis on social benefits that might better preserve traditional small-scale fishermen, and (5) strengthen provisions to minimize bycatch and restore and protect habitat.
The SFA established requirements that each FMP include a definition of overfishing, a plan for rebuilding overfished stocks (including stopping overfishing within two years and developing a plan to rebuild overfished fisheries within 10 years), conservation and management measures to minimize bycatch, and a description of essential fish habitat (EFH) for the species involved (including conservation and management measures to protect habitat).
Bycatch is the incidental catch of non-targeted fish species. These species are typically discarded (often dead) either because they are illegal to retain or because they are of an undesirable species, size, or sex. Such discards trigger concerns about environmental harm and economic waste. The SFA mandated that FMPs include standardized reporting to assess the amount and type of bycatch in managed fisheries. The SFA also mandates conservation measures to minimize bycatch and the mortality of unavoidable bycatch to the extent practicable.
Based on concerns that certain fish stocks had declined due to habitat loss, the SFA established a national program to facilitate long-term protection of EFH. The SFA requires regional councils to identify and describe EFH for each managed fishery; identify and assess the harm and potential harm caused by fishing and non-fishing activities; minimize as much as possible the harm caused by fishing, which may include gear restrictions or time/area closures; identify harm to habitat of proposed fishing and non-fishing activities requiring federal or state approval or permits; and assist NMFS in recommending measures to conserve, enhance, and restore EFH.
NMFS and the eight regional councils were responsible for implementing the provisions and requirements mandated in the SFA. Regional councils were given two years (until October 11, 1998) to revise or write FMPs to meet all the new requirements. To comply with SFA requirements, NMFS drafted a strategy detailing the necessary implementation tasks. Through this process, NMFS and the regional councils have addressed most of the SFA requirements. The NMFS Implementation Activity List indicates what has been accomplished.
The provisions and requirements of the SFA reflect significant changes to the goals and objectives of the MSFCMA, and full implementation of these provisions has been of great concern to many groups. Accordingly, there has been considerable interest in the actions of regional councils and NMFS in implementing the SFA.
Of particular concern to environmental groups and some Members of Congress is the progress of NMFS and regional councils in implementing SFA requirements. In their review of proposed FMP amendments, some of the more critical interests suggest that regional councils have instituted only incremental changes to current management practices. These critics contend that regional councils have satisfied only the minimum requirements and, in some cases, failed to comply with the law, rather than fully embracing the new goals and objectives. Moreover, they suggest that NMFS precipitated the poor performance of regional councils by delaying implementation guidance and by allowing substantial latitude in how regional councils implement the SFA provisions.
Some commercial fishermen contend that the standards established by NMFS guidelines are unrealistic, given the dearth of scientific information. They contend that this has resulted in assumption-based and model-based goals that are at odds with implementing meaningful protection. Moreover, some commercial fishing interests contend that, given the magnitude of tasks set before regional councils and NMFS, the timetables established by the SFA were unrealistic and hence delays were inevitable.
NMFS has not formally commented on the criticisms. They indicate that their efforts have focused on accomplishing the myriad tasks set forth in the SFA and implementing the law, rather than on addressing the concerns of citizens who disagreed with their strategy or progress.
The MSFCMA has been amended and modified a number of times to address specific concerns since the last comprehensive reauthorization in 1996. On October 23, 1998, President Clinton signed into law modified language from S. 1221 (the American Fisheries Act, or AFA) as part of the Omnibus Consolidated and Emergency Supplemental Appropriations for Fiscal Year 1999 (Title II of P.L. 105- 277, 112 Stat. 2681-616). These provisions (1) require owners of all U.S.-flag fishing vessels to retain at least a 75% U.S.-controlling interest; (2) identify eligible participants for the Bering Sea and Aleutian Islands walleye pollock fishery; (3) include a vessel buy-back program for nine catcher/processor vessels financed by federal and private sector funds; (4) establish pollock allocations for three separate industry sectors; and (5) establish protocols for fishermen’s and fish processor’s cooperatives in the Bering Sea and Aleutian Islands walleye Pollock fishery. The AFA prohibits any new fishing vessel exceeding 165 feet in length, or 750 tons, or with engines that produce greater than 3,000 horsepower from entering any MSFCMA managed fishery, unless the Secretary of Commerce and the relevant regional council approve the use of the vessel.
In the 106th Congress, P.L. 106-31 included language in §3025 making permanent a one-year moratorium (included in P.L. 105-277) on operating large fishing vessels in the North Atlantic herring and mackerel fisheries until regional action is taken. In addition, Title VI of P.L. 106-450 authorized the Secretary of Commerce to acquire and equip fishery survey vessels, and P.L. 106-557 prohibited shark finning in U.S. waters.
In the 107th Congress, §10107 of P.L. 107-171 (the Farm Security and Rural Investment Act of 2002) appropriated “such sums as are necessary” to support a voluntary fishing capacity reduction program for the New England multispecies commercial fishery, within one year of enactment. P.L. 107-206 included (1) language to make Fisheries Finance Program Account funds available to subsidize gross obligations for the principal amount of direct loans not to exceed $5 million for individual fishing quota loans, and not to exceed $19 million for traditional loans; (2) $11 million in economic assistance to New England fishermem and fishing communities (§210); (3) $5 million of direct economic assistance to New England fishermen and communities to support port security (§211); and (4) a $0.5 million loan guarantee for a $50 million capacity reduction program for the West Coast groundfish fishery (§212). Section 624(a) of P.L. 107-77 extended state authority to manage the West Coast Dungeness crab fishery through FY2006. In addition, several enactments amended the AFA to address specific concerns:
- Section 2202 of P.L. 107-20 altered provisions relating to the applicability of U.S. ownership standards to banks holding commercial fishing vessel mortgages;
- Section 211 of P.L. 107-77 deleted a sunset provision, effectively making permanent a prohibition on direct pollock fishing by non- AFA catcher/processors; and
- Section 205 of P.L. 107-117 made the entire $100 million for the AFA’s fishing capacity reduction program available as a loan under Title XI of the Merchant Marine Act, 1936.
In the 108th Congress, P.L. 108-7 included provisions creating a West Coast Groundfish Fishing Capacity Reduction Program, directing NOAA Fisheries to establish a Regional Office for the Pacific Area, and providing $100 million in fishery disaster funding. Section 801 (Division B) of P.L. 108-199 directed the Secretary of Commerce to approve the Bering Sea and Aleutian Islands crab rationalization program, including individual processor quota; §802 established a Gulf of Alaska rockfish demonstration program; and §803 reopened an Aleutian Islands Pollock fishery. Also included in P.L. 108-199, §105 (Division H) prohibited the spending of FY2004 funds to implement new regulations to reduce overfishing and rebuild fish stocks off New England. Section §304 of P.L. 108-219 repealed the P.L. 108-199 prohibition on FY2004 New England fisheries expenditures; in addition, §401 of P.L. 108-219 amended the MSFCMA to recognize the Pacific Albacore Treaty with Canada. Section 224 of P.L. 108-293 required the Coast Guard and NOAA to (1) improve consultations with each other and with state and local authorities in coordinating fishery law enforcement and (2) submit annual summary reports on fisheries law enforcement. P.L. 108-447 authorized capacity reduction funding for the Southeast Alaska purse seine salmon fishery ($50 million; §209, Division B), the Gulf of Mexico reef fish longline fishery ($35 million; §218, Division B), the Bering Sea Aleutian Island non-pollock groundfish fishery ($75million; §219(b), Division B), the U.S. distant water tuna fleet ($40 million; Fisheries Finance Program Account, Division B), and the menhaden fishery ($19 million; Fisheries Finance Program Account, Division B). Action taken by the 109th Congress is discussed and summarized in CRS Issue Brief IB10139, Fishery, Aquaculture, and Marine Mammal Legislation in the 109th Congress, by Eugene H. Buck.
Some of the more controversial issues associated with The Magnuson-Stevens Fishery Conservation and Management Act are:
- whether to further specify the approaches to address bycatch and bycatch mortality;
- how to define, manage, and protect unique habitats;
- whether to legislate the designation of marine protected areas;
- how to assure that necessary data are collected;
- how to manage marine ecosystems;
- how to assure that regional council decisions are fair and balanced;
- how to implement and finance fishing capacity reduction programs;
- whether to establish national standards for individual fishing quota management programs; and
- whether to authorize user fees and other charges that could be used for conservation, management, and enforcement.
- Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. §67 (1943-1948).
- CRS Issue Brief IB95010, The Law of the Sea Convention and U.S. Policy: Issue Brief, by Marjorie A. Browne.
- Jamison E. Colburn. “Turbot Wars: Straddling Stocks, Regime Theory, and a New U.N. Agreement,” Florida State University Journal of Transnational Law & Policy, vol. 6, no. 2 (1997), note 73.
- Proclamation No. 5030, Exclusive Economic Zone of the United States of America, 3 C.F.R. Comp. (1983), p. 22
- Fishery Management Plans
- Eugene H. Buck, National Patterns and Trends of Fishery Development in the North Pacific (Anchorage, AK: Arctic Environmental Information and Data Center, Univ. of Alaska, 1973),
- CRS Issue Brief IB95036, Magnuson Fishery Conservation and Management Act Reauthorization, by Eugene H. Buck
- U.S. Dept. of Commerce, National Marine Fisheries Service, Sustainable Fisheries Act Implementation Plan (1996)
- NMFS Implementation Activities List
- The Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change
- U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century
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