MAGNUSON-STEVENS: MAKING A GOOD LAW BETTER

 Last Monday, Rep. Jared Huffman (D-CA), Chairman of the House Natural Resources Water, Oceans, and Wildlife Subcommittee, along with Rep. Ed Case (D-HI), introduced the Sustaining America’s Fisheries for the Future Act.  The Act represents the latest effort to reauthorize the Magnuson-Stevens Fishery Conservation and Management Act, and amend that law to better address problems currently facing the living marine resources of the United States.

Magnuson-Stevens has typically been reauthorized every ten years or so; however, the last reauthorization occurred back in 2006, when new requirements to govern all managed fisheries with annual catch limits, to hold fishermen accountable when such limits were exceeded, and to constrain catch in such fisheries to or below the level established by each regional fishery management council’s Scientific and Statistical Committee were added to the law.

The reauthorization before that one produced the Sustainable Fisheries Act of 1996 which, for the first time, created real, legally-enforceable standards for federal fishery managers, led to the elimination of overfishing in most domestic fisheries, and to the complete rebuilding of 47 once-overfished stocks.

For a while, it appeared that each reauthorization effort fine-tuned Magnuson-Stevens just a little bit more, and made it a better and more effective law.

Unfortunately, for a number of years we have seen legislation that, if it had been adopted, would have reversed that trend, and slashed key provisions out of the current law.  Whether we’re talking about H.R. 4742, introduced by Rep. Doc Hastings in the 113^th Congress, or H.R. 1335 (114^th Congress), H.R. 200 (115^th Congress), H.R. 3697 (116^th Congress), or H.R. 59 (117^th Congress), all were sponsored by Rep. Don Young (R-AK), and all would have caused real harm to what is now the most effective, and most successful, marine fishery law in the world.

So we should probably be happy that Magnusson-Stevens was not reauthorized in recent years.

But now, with the introduction of Rep. Huffman’s bill, there is reason to hope that we will see not only a new reauthorization, but also a reauthorization that continues the tradition of fine-tuning Magnuson-Stevens and making it a more effective tool for fishery conservation and management.

Rep. Huffman didn’t draft his bill in haste.  Before embarking upon that process, he first held “listening sessions” in all of the regions represented by fishery management councils; I was invited to speak at the Mid-Atlantic session, where I joined a panel of anglers, commercial fishermen, conservationists, and academics to provide our views on the law.  Similar panels, convened on every coast, gave the Congressman a chance to hear a wide variety of viewpoints, and to understand why stakeholders were calling for change.

After that, “discussion drafts” of the bill were created, and sent out for further comment, to better assure that the bill, once introduced, would be on the right track.

So the bill that was finally introduced this week represented close to two years of inquiry, investigation, and conversation, all aimed at improving the nation’s premier marine fisheries law.

Upon introducing the legislation, Rep. Huffman stated that

“Americans coast-to-coast depend on healthy oceans and fisheries…We know that the MSA has worked well, but new approaches are needed in this era of climate change, new technologies, evolving science needs, and increasing ocean use…With the Sustaining America’s Fisheries for the Future Act we can strengthen fishing communities and ensure a high standard of sustainable fisheries continues well into the future…”

Rep. Case, the bill’s co-sponsor, noted

“…This reauthorization provides critical updates to ensure the long-term sustainability of our fisheries by integrating climate change as a critical consideration.  I’m especially pleased that this bill includes significant reforms to promote accountability, transparency and representation for our nation’s fisheries management councils…These are long overdue and necessary reforms to ensure long-term public trust in the work that these councils are doing on behalf of our nation.”

The Sustaining America’s Fisheries for the Future Act is a broad bill that touches on many different facets of the fishery management process, from funding ways to maintain working waterfronts and addressing the impacts of climate change on regional fisheries to adopting a new, minimum probability tof success for stock rebuilding after the initial rebuilding plan fails and a new plan must be put in place.

So what does the bill do?

Title I is called “Climate-Ready Fisheries,” and tries to force federal fishery managers to come to grips with climate change, which is a particularly serious problem off New England and the upper mid-Atlantic, something Rep. Huffman has acknowledged, saying

“We heard concerns about climate change everywhere.  But the concerns are different depending on where you are.  So in the North Atlantic, it’s ground zero for shifting stocks…”

The bill directs federal fishery managers to take account of climate-related stress in fishery management plans, and to identify the stocks most vulnerable to climate change in order to develop ways to maximize such stocks’ resilience to changing ocean conditions.

Another provision establishes a process for a regional fishery management council, or the Secretary of Commerce, to determine whether a stock has expanded into the jurisdiction of another council, and also to determine how such expansion ought to influence the management process.  Hopefully, such provision might finally offer a solution to the continuing problem of quotas, fixed decades ago when fish were distributed far differently along the coast, that are now held by fishermen located hundreds of miles from the fish, while fishermen who have fish minutes from their docks can’t participate in that abundance, because they have little or no quota at all.

It’s difficult to see any solution to that problem so long as regional fishery management councils continue to side with existing quota holders, instead of embracing change.  For that reason, I’m a little disappointed that the version of the bill that was finally introduced did not call for the creation of a “shifting stocks task force,” composed of people who do not sit on the councils, charged with establishing objective standards for reallocation, and empowered to address the situation existing in any fishery cited in a petition filed by any member of the public.

That sort of task force might have finally forced the resolution of existing quota problems, yet even without it, the bill would take us to a better place than we were in before.

Title II deals with strengthening fishing communities.  It’s where issues such as fisheries disaster relief, supporting working waterfronts, and aid with seafood marketing is housed.  They’re important issues, but not directly tied to conservation, so I’ll leave them for others to describe.

Title III is referenced “Strengthening public process and transparency,” which makes its purpose pretty clear.  Although not directly addressing conservation issues, it would create an environment where good public policy, including conservation measures, could more easily thrive. 

One way it would do that is to make some meaningful changes on the federal fishery management councils, increasing tribal representation on the Pacific and North Pacific fishery management councils, and providing for a voting seat for a New England Fishery Management Council liaison on the Mid-Atlantic Fishery Management Council and a voting seat for a Mid-Atlantic liaison on the New England Council.  The latter two liaison seats are intended to protect the interests of fisheries that cross jurisdictional borders, and are just one more example of how the Sustaining America’s Fisheries for the Future Act is addressing issues caused by shifting stocks driven by climate change.

For all regional fishery management councils, the bill would require roll call votes on all non-procedural matters, so every member’s voting history would be a matter of public record.  Councils are directed to try to hold meetings in person, but to also make remote meeting and voting available.  The bill would also shore up conflict of interests standards somewhat, get a greater diversity of stakeholders, including members of the academic and environmental communities, into council seats, and expand protections against sexual harassment and assault.  One notable provision would require at least one seat on each council to be filled by individuals who have no financial interest in the fisheries being managed.

Title IV addresses one of the hottest issues in fishery management, and particularly in recreational fishery management, modernizing fishery science and data.  It encourages the expansion and improvement of electronic technologies used in fishery management, along with uniform standards for such technologies.  Title IV also includes language that would require the Secretary of Commerce to provide a detailed report on the stock assessment process, including the methods used, the assessments completed and not completed during the previous year, a schedule of planned assessments, a description of data needs, and a description of the technologies that are and could be employed to collect needed information.  Recognizing that cooperative research may provide the means to fill some research needs, Title IV creates a comprehensive framework for authorizing and funding such research, and also authorizes a Northeast Regional Pilot Research Trawl Survey and Study to complement current studies conducted in the region by the National Marine Fisheries Service.

Recreational data concerns are included in Title IV as well.  One of the bill’s provisions would provide, in part, that

“If recreational catch data for a stock of fish come from more than one survey program, such as Federal and non-Federal sources, including from States or Marine Fisheries Commissions, the Secretary shall implement measures, which may include the use of calibration methods, as needed for the timely integration of such data to ensure consistent methods and approaches are used for monitoring of catch against the relevant annual catch limits and for other fishery science and management purposes.”

Such language, should the bill become law, should go a long way to avoid the sort of debacle that recently occurred at the Gulf of Mexico Fishery Management Council where recreational fishermen, trying to avoid the consequences of their excess red snapper landings, deferred the needed data calibration process for two more years, and thus exposed the rebuilding red snapper stock to additional, and unnecessary, risk.  Another provision would initiate a long-term data improvement process, in which data needs, and the ways that managers might fulfill them, would be subject to periodic and ongoing review.

Finally, Title V would address traditional fishery and habitat conservation concerns.  The essential fish habitat section of Magnuson-Stevens, which is in many ways the current law’s most toothless provision, would be generally bolstered, while provisions dealing with habitat areas of particular concern would be significantly strengthened.  Language would also be added to strengthen provisions designed to eliminate or minimize bycatch in federal fisheries. 

Title V would strengthen the language that requires managers to end overfishing.  It would also add new criteria for determining when a fishery management plan is failing, and must either be amended in order to achieve rebuilding by the specified rebuilding date or, in the alternative, declared a failure and replaced with a new plan.  

In what might be one of the shortest but most significant provisions in the entire bill, the legislation provides that, in the event that a fishery management plan fails to rebuild a stock by the required time, any subsequent rebuilding plan must have at least a 75% probability of success, instead of the 50% probability established as a minimum standard in Natural Resources Defense Council v. Daley two decades ago.  Should such standard ever become law, it is possible that shattered stocks such as Georges Banks or Gulf of Maine cod, or Southern New England/Mid-Atlantic winter flounder, might finally have a fighting chance to rebuild.

And because healthy stocks of larger fish depend upon having healthy stocks of forage to feed on, the bill would create new protections for forage fish stocks, to assure that they will be able to fill their role in the food web.

As long as it was, the above review only hit the high points of the Sustaining America’s Fisheries for the Future Act, and concentrated on those provisions directly related to the conservation of fish stocks.

Capitol Hill is a strange place, particular over the past few years, and it is impossible to predict whether the law will find passage before the 117^th Congress ends about 17 months from now, or what it will look like if it does.  For the bill still has a long way to go, past committee hearings, staff negotiations, floor votes, and—if everything happens as we hope—the President’s desk.  A lot can happen, and a lot of changes can be made, over that time.

But right now, we’re in a win-win situation.  If the bill fails to achieve passage, U.S. fisheries will still be governed by the best fisheries management law in the world.  And if the bill is finally is signed into law, we’ll still be governed by Magnuson-Stevens, but the best fisheries management law in the would will be even better than it had been before.