Sunday, October 28, 2018


Over the past few weeks, we’ve seen a renewed drive by the angling and boatbuilding industries, who are urging the Senate to pass S. 1520, the Modernizing Recreational Fisheries Management Act (Modern Fish Act), before the 115th Congress comes to an end.

S. 1520, as its proponents continually remind us, would amend the Magnuson-Stevens Fishery Conservation and Management Act(Magnuson-Stevens), although such amendments are relatively narrow in scope and would not materially affect the conservation provisions of federal fisheries law.

There is no active counterpart to S. 1520 in the House of Representatives. Instead, the House chose to pass H.R. 200, the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act which, unlike S. 1520, would change key provisions of Magnuson-Stevens, and represents a full reauthorization of that law. When H.R. 200 was marked up by the House Natural Resources Committee, it was amended to include many Modern Fish act provisions, although they make up only a small percentage of the overall bill.

As a result, S. 1520’s supporters have embraced the much broader, and potentially much more harmful, H.R. 200, as a vehicle that might allow their long-desired changes to Magnuson-Stevens to be signed into law. They are willing to ignore all of the House bill’s destructive provisions, which could permit continued overfishing of certain fish stocks and indefinitely delay the rebuilding of depleted fish populations, in order to achieve their own, much more limited, goals.

Thus, there is a real possibility that Magnuson-Stevens could undergo a “stealth” reauthorization, with S. 1520 being referred to a conference committee along with H.R. 200, and a small handful of legislators putting together a composite bill without a full and public Senate debate. While the Senate would ultimately have to approve whatever legislation emerged from such conference, its involvement in the process would be far less extensive, and far less detailed, than it would otherwise be. And that sort of institutional detachment makes it far more likely that bad provisions from H.R. 200 would, in the end, become law.

Despite that danger, S. 1520’s proponents are aggressively seeking to have the Modern Fish Act passed before the end of this year.

Observing all of their breathless haste, it’s hard not to ask, “What’s the rush?”
Magnuson-Stevens still works very well.
Under its auspices, the National Marine Fisheries Service (NMFS) has fully rebuilt 44 once-overfished stocks of fish. At the same time, the number of stocks that remain overfished or are still experiencing overfishing have hit new lows. Its provisions have allowed the Pacific and Mid-Atlantic fishery management councils to create new protections for the forage fish that cement the ocean’s food web. And in the Gulf of Mexico, NMFS has employed provisions of Magnuson-Stevens to issue exempted fishing permits that allow recreational fishermen to enjoy a longer red snapper season, and so largely eliminated one of the issues that gave rise to S. 1520 in the first place.

That doesn’t mean that Magnuson-Stevens is perfect. It can still benefit from a few tweaks that would improve both the law and the management process.
Some of those tweaks are already suggested by S. 1520. While that bill still contains problematic provisions, it also includes some valuable proposals that would improve the current law.
The best of those was included during the Senate Committee on Commerce, Science and Transportation’s mark-up process, when legislators addressed the problem of failed management plans.

Ever since the matter of Natural Resources Defense Council v. Daley was decided by a federal appellate court in 2000, the law has required every federal fisheries management plan, amendment or management measure to have at least a 50% chance of preventing overfishing and/or rebuilding an overfished stock within a specified period of time. That’s not a very demanding standard to meet, as it still means that half of the management measures will probably fail. Under current law, upon such failure, managers are free to adopt new measures that have no greater a chance of success.

Under a provision added to S. 1520 during markup, should a fishery management plan fail to rebuild an overfished stock within the allotted time period, any follow-up rebuilding plan would have to be more conservative than the plan that failed, and have at least a 75% chance of success. Insisting on such higher probability of success makes sense after a rebuilding failure, yet a similar provision, proposed for H.R. 200, was voted down by the House Natural Resources Committee. Thus, if S. 1520 was passed, there is no guarantee that such provision would survive the conference process.
Fisheries managers also need more and better data on which to base their decisions. Both S. 1520 and H.R. 200 include provisions intended to increase the quantity of data that could be included in stock assessments and other technical analyses, but neither guarantees that the quality of such data will meet scientific standards. There is little reason to push through a bill that could result in a flood of low-quality data when, by taking a little more time, both the quantity and the quality of fisheries information could be improved.
There are also a host of issues that S.1520 never addressed.
The need to consider the ecosystem impacts of fishing, and particularly forage fish harvest, may be foremost among them. While some regional fishery management councils have already given forage fish stocks some additional protections, most forage fish species, in most U.S. waters, are still vulnerable to high-volume, low-value fisheries such as those targeting menhaden and Atlantic herring.

Such fisheries remove many millions of pounds of forage fish from the ocean, merely to turn them into industrial oils and fish meals, or bait for use in other fisheries. While they may be “sustainable” by current single-species standards, with landings well below maximum sustainable yield, they are a long-term detriment to the ecosystem, causing localized, if not general, depletion of vital forage fish populations and a weakening of the marine food web.

That’s the sort of issue that a thoughtful, deliberate Magnuson-Stevens reauthorization could address. And it wouldn’t be hard to think of quite a few more, such as habitat loss, federal/state interactions, and the impacts of warming oceans.
That being the case, why rush the legislative process? Why compete with the mid-term elections, outstanding budget issues and the other hot-button issues that dominate the current news cycle? There is no good argument to support a slap-dash effort to amend Magnuson-Stevens, whether through S. 1520’s piecemeal approach or through the more comprehensive, and much more damaging, H.R. 200.
Instead, by leaving Magnuson-Stevens reauthorization up to the next Congress, we can better assure that the resulting bill will be thoughtful, comprehensive, and a true reflection of the needs and desires of not just a few special interests, but of everyone who cares about the long-term health of the nation’s fish stocks.
This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at

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