for America’s Fish and Fishermen

A Review of the Magnuson-Stevens Reauthorization Act of 2006

and the Challenges Ahead

M a r i n e F i s h C o n s e r vat i o n N e t w o r k
M is s io n Statem ent
The Marine Fish Conservation Network advocates national
policies to achieve healthy oceans and productive fisheries.

The Marine Fish Conservation Network (Network) is the

largest national coalition solely dedicated to promoting
the long-term sustainability of marine fish. With more than
190 members—including environmental organizations,
commercial and recreational fishing associations, aquariums,
and marine science groups—the Network uses its distinct
voice and the best available science to educate policymakers,
the fishing industry, and the public about the need for sound
conservation and better management practices.

The Marine Fish Conservation Network is supported by many

individuals, businesses, and foundations. This report and our
work in general is made possible via the generous support of
The Pew Charitable Trusts, Rockefeller Brothers Fund, Curtis and
Edith Munson Foundation, Surdna Foundation, Sandler Family
Supporting Foundation, David and Lucile Packard Foundation,
Norcross Wildlife Foundation, and Patagonia Inc.

600 Pennsylvania Avenue, SE · Suite 210

Washington, DC 20003
phone 202.543.5509 · fax 202.543.5774
www.conservefish.org

September 2007

Photo Credits: All Photos are from the National

Oceanic and Atmospheric Administration Library
Photo: Pete Hendrickson

Executive Summary

I
n December 2006, Congress passed the Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (MSRA), the nation’s primary law regulating fishing activities in federally-
managed waters. The action was bi-partisan, passing the Senate by unanimous consent and by voice
vote in the House. President Bush signed the law on January 12, 2007. This review explains many of the
key changes to the law and their implications for U.S. fisheries management.

Congress’ action came at the behest of public pressure and in response to two recent blue-ribbon
commissions set up to assess the health of America’s oceans. Those commissions reviewed the latest
marine science and found that America’s oceans are in serious trouble and that changes are needed in
a number of areas, including fisheries management. The reauthorized Magnuson-Stevens Act enacts a
number of the recommendations for reform from those reports, including new requirements designed
to end overfishing, strengthen the role of science in fishery management, improve our knowledge of
and expand research capabilities with respect to fish populations, establish secure funding sources for
fishery management activities, and enhance protection of deep sea corals. The new law also enacts
national standards for market-based limited access privilege programs (LAPPs), which are intended to
give managers new tools to address excess fishing capacity and overfishing while preventing the excessive
consolidation of public fishery resources in the hands of a few at the expense of fishing-dependent coastal

Key Improvements to Existing Law

 Catch limits: The new law requires the regional fishery management councils to develop annual catch limits for all
fisheries that are based on scientific recommendations and at a level that prevents overfishing. The law also includes
measures that hold fishery managers accountable when they allow the annual catch limits to be exceeded.

 Overfishing: Within two years of a stock being declared overfished, councils are required to develop and imple-
ment a rebuilding plan that ends overfishing immediately.

 National Environmental Policy Act (NEPA): The law upholds requirements to comply with the nation’s over-
arching environmental law, which requires fishery managers to assess the environmental impacts of proposed fishery
management actions.

 Limited Access Privilege Programs (LAPPs): The law enacts new standards that affirm public ownership of
the fish resources in U.S. waters, include periodic reviews of the programs, contain provisions to protect small-boat
fishermen’s access to fisheries, and specify a term limit of 10 years on quota shares.

 Science and Statistical Committees (SSCs): The law requires SSCs to provide regional fishery management
councils with scientific recommendations for fishing levels. SSC members are also required to disclose financial con-
flicts of interest.
  Cooperative Research: The law requires the Secretary of Commerce to establish a nationwide, regionally-based
cooperative research and monitoring program.

 Habitat Protection: The law authorizes fishery management councils to restrict the use of destructive fishing
gear in areas containing deep sea coral habitat.

 Fisheries Conservation and Management Trust Fund: The law establishes a trust fund for, among other
things, improving fishery data, broadening observer coverage on vessels to monitor for wasteful fishing practices, and
providing financial assistance to fishermen to help them comply with the MSRA.

Major Omissions from the Bill

 Public Involvement in Decision-making: There are no specific measures to broaden council representation to
include a wider range of public interests.

 Bycatch Reduction: The bill makes no definitive advancements toward reducing the catching and killing of
non-target marine fish and other wildlife.

 Ecosystem-based Management: The bill requires the National Marine Fisheries Service to prepare a study within
180 days of enactment of the law which reviews the state of the science for integrating ecosystem considerations in
fishery management. There is no mandate, however, for an ecosystem approach to fisheries management, and
regional fishery management councils are not required to implement fishery ecosystem plans.

 Confidentiality of Fishery Data: The bill missed an opportunity to make fishery-related information more
accessible to the public. Instead, the new law contains troubling new language which could severely restrict public
access to all types of fishery data under the rubric of confidentiality.

There remain significant challenges ahead. First, the National Marine Fisheries Service must write strong
regulations to translate the letter and spirit of the law into on-the-water reality. This includes developing
a set of rules to end overfishing, comply with the National Environmental Policy Act, and regulate market-
based fishery quota programs. Second, the regional fishery management councils must genuinely and fully
implement the new law. In the past, loopholes written into regulations allowed overfishing to continue.
Poor implementation by the councils dimmed the bright promise of previous amendments designed to
end overfishing, minimize wasteful fishing practices, and protect fish habitat. Ten years after passage of
those mandates, overfishing remains a problem, wasteful fishing practices continue, and fish habitats
receive little protection. Third, the new law failed to advance one of the central recommendations of
the U.S. Commission on Ocean Policy – to manage marine fish populations as part of an ecosystem and
employ an ecosystem-based approach to fishery management. We must now take the difficult first steps
to implement this approach, starting with attention to forage fish conservation, bycatch reduction, and
habitat protection. Lastly, while the new law outlines a strategy for securing additional funding to support
the research and data necessary for sustainable fisheries management, an effective mechanism for
generating those funds must now be created.

“The time has come for us to alter our course and set sail for a new vision for
America, one in which the oceans, coasts, and Great Lakes are healthy and
productive, and our use of their resources is both profitable and sustainable.”
— USCOP (2004)

Photo: Dann Blackwood, USGS

 introduction
I
n December 2006, Congress passed the
Magnuson-Stevens Fishery Conservation
and Management Reauthorization Act
(referred to here as the MSRA, or Act), the
nation’s primary law regulating fishing activities
in federally-managed waters. The action was
bi-partisan, passing the Senate by unanimous
consent and by voice vote in the House. President
Bush signed the law on January 12, 2007.
The MSRA represents a good first step toward
achieving healthy oceans and productive fisheries.
Congress’ action came at the behest of public
pressure and in response to two recent blue-
ribbon commissions set up to assess the health of
America’s oceans. The U.S. Commission on Ocean
Policy, appointed by President George W. Bush,
and the Pew Oceans Commission reviewed the
latest marine science and found that America’s
oceans are in serious trouble and that changes are
needed in a number of areas, including fisheries
management. A number of recommendations
from both of these commissions were ultimately
incorporated into the final bill.1
1. See: S. Rep. 109-229 on S. 2012 (April 4, 2006): pp. 3-4.
The most significant amendments to the
Magnuson-Stevens Act are aimed at ending
overfishing. Most notably, a new provision requires
regional fishery management councils to set annual
catch limits for all managed fish populations in U.S.
waters. Those catch limits are to be accompanied
by measures to ensure that managers are held
accountable should overfishing occur. The Act also
requires preparation of a rebuilding plan within
two years of the time populations are identified
as overfished. Internationally, the MSRA seeks to
improve cooperation among fishery management
organizations to address illegal, unreported, and
unregulated fishing as well as overfishing on highly
migratory and transboundary stocks.
New measures also affirm and strengthen
the role of science in fishery management.
For instance, catch levels may not exceed
the recommendations of the regional fishery
management councils’ science advisors. In
addition, new provisions seek to enhance our
ability to sustain fish populations by establishing
new programs on bycatch reduction engineering,
 | A New Course for America’s Fish and Fisherman
cooperative research and management,
recreational fisheries registry and data
improvement, deep sea coral research, and
a discretionary Fisheries Conservation and
Management Fund to provide additional funding
for these efforts.
However, the MSRA falls short on a number
of fronts. It fails to require broader public
representation on the councils which propose
regulations to the federal government. There is no
requirement for councils to develop region-specific
bycatch reduction plans. Troubling new language
could be used to further restrict public access to
all manner of fishery observer information under
the rubric of confidentiality. Finally, the Act fails
to advance one of the central recommendations
of the Pew Oceans Commission (2003) and the
U.S. Commission on Ocean Policy (2004): the
need for a more ecosystem-based approach to
fisheries management.2 This way of managing
fisheries would treat the fished species’ role in
the ecosystem more explicitly and encourage
2. See USCOP (2004): p. 295.
managers to address issues such as predator-
prey dynamics in the food web and habitat
conservation. Unfortunately, ecosystem-based
management remains a discretionary action item
under the new law.
Overall, the MSRA represents an important
advancement for fishery conservation. However,
many existing programs are chronically
underfunded, and securing adequate fiscal
resources to implement the new provisions
will be a major challenge. Data limitations and
insufficient management resources will present
ongoing challenges to effective implementation,
particularly with regard to setting catch limits to
end overfishing, limiting the bycatch of non-target
species, and monitoring compliance.
This review of the Magnuson-Stevens Fishery
Conservation and Management Reauthorization Act
of 2006 explains many of the key changes to U.S.
fisheries management included in the legislation.
This review is not, however, comprehensive and
does not touch upon every new provision in the Act.
 A New Course for America’s Fish and Fisherman | 

2 ending overfishing
Annual Catch Limits, Accountability Measures, and Rebuilding Plans for Overfished Stocks

T
he National Marine Fisheries Service
(NMFS), the agency responsible
for management of U.S. ocean fish
populations, has acknowledged that the highest
priority in the MSRA is to end overfishing.3 The
new law requires science-based, enforceable
catch limits and accountability measures for all
federally-managed fish species. These overfishing
provisions address a major shortcoming of the
1996 Sustainable Fisheries Act, which established
declared overfished – must end overfishing
immediately and not continue, as has been the
case most notably in New England where plans to
restore species have dragged on for years.
Modifying National Standard 1 guidelines:
Need for greater guidance on addressing
uncertainty, ecosystem considerations in
setting catch limits
The new law requires councils to set annual catch

a maximum limit on catch, but failed to require limits for all managed fisheries, accompanied

all regional fishery management councils to set by measures to ensure accountability.4 This

such limits based on recommendations of the amendment, together with the stipulation

councils’ science advisors. The clear intent of that catch limits may not exceed the fishing

Congress in the MSRA is to end overfishing by level recommendations of the councils’ science

requiring catch limits and enforcing those limits and statistical committees,5 implements key

through accountability measures. Congress also recommendations of the U.S. Commission on Ocean

closed a loophole allowing overfishing to continue Policy (USCOP) (2004).6 The Congressional intent of

on species already classified as overfished. The these new requirements is to provide a transparent

new law specifies that rebuilding plans – plans accounting mechanism to measure compliance with

managers must develop to restore species overfishing and rebuilding requirements of the MSA.7

3. Annual Catch Limits (ACLs) and Accountability Measures (AMs): Requirements of the 2006 Amendments to the Magnuson-Stevens Act (MSA). Public
information handout prepared by NMFS Office of Sustainable Fisheries, Silver Spring, MD. March 14, 2007.
4 MSRA Sec. 303(a)(15) (16 U.S.C. 1853(a)(15))
5 MSRA Sec. 302(h)(6) (16 U.S.C. 1852(h)(6))
6 See USCOP (2004), Recommendations 19-1, 19-2, and 19-3 requiring regional FMCs to set catch limits within the bounds recommended by the
councils’ science and statistical committees.
7 Senate Report 109-229 on S. 2012 (April 4, 2006), p. 21.
 | A New Course for America’s Fish and Fisherman
National Standard 1: Prevent
Overfishing, Achieve Optimum Yield
National Standard 1 of the Magnuson-Stevens Act stipulates
that, “conservation and management measures shall prevent
overfishing while achieving, on a continuing basis, the optimum
yield from each fishery” (MSA Sec. 301(a)(1); 16 U.S.C. 1851).
The law is clear that optimum yield (OY) may not exceed the
estimated maximum sustainable yield (MSY) value for a given fish
stock, designated as the maximum fishing mortality threshold
(MFMT) or overfishing level (OFL). It does not follow, however,
that OY should be set equal to the maximum permissible fishing
rate, or OFL. The agency’s own technical guidance on NS1 urged
a precautionary approach to the setting of OY by specifying an
OY value that is safely below the limit reference point (OFL) as
a buffer against uncertainty in the scientific advice and other
relevant factors (Restrepo et al. 1998). The inherent scientific
uncertainties and difficulties associated with estimating MSY
for wild fish stocks should require fishery management councils
to implement precautionary buffers against uncertainty. Up to
now, however, councils have too often permitted fishing to the
maximum limit or well beyond the limit in pursuit of short-sighted
economic interests.
The requirement of annual catch limits does
not go into effect until 2010 (for overfished
species) and 2011 (for all others) and does not
apply to species with very short life cycles (one
year or less, including some “forage fish,” such as
squid and shrimp). NMFS is currently preparing
new guidelines and regulations to implement this
important new requirement. The agency will need
to address many unanswered questions regarding
the implementation of this requirement. For
example, NMFS will need to guide the councils on
setting precautionary buffers between the annual
catch limits and the maximum amount of catch
that is permissible without overfishing in order
8 MSRA Sec. 3(33).
9 MSRA Sec. 304(e)(3).
10 MSRA Sec. 304(e)(3)(A).
11 MSRA Sec. 304(e)(4)(A)(i-ii).
12 S. Rep. 109-229 on S. 2012 (April 4, 2006), p. 22: “...plans must establish a reasonable end date for fishing beyond sustainable levels, particularly
because it is necessary to ensure that overfishing during the rebuilding period will not undermine rebuilding goals.”
to account for both scientific inaccuracies and
uncertainties in nature.
The new law authorizes fishery managers
to adjust catch levels to account for economic,
social, or ecological factors, including protection
of ecosystems,8 but the law does not provide
guidance on how to reduce the catch limits to
address ecosystem considerations. In the absence
of greater guidance from NMFS, efforts to account
for ecosystem considerations in the setting of
annual catch limits will proceed very slowly, if at
all. NMFS guidelines and regulations will be key to
addressing these concerns directly when setting
annual catch limits.
Clarification of the MSRA’s
rebuilding plan requirements
The amended Act is clear on the need to take
action on stocks identified as overfished. The
law now requires councils to submit rebuilding
plans for overfished stocks within 2 years of
being identified as overfished or approaching
overfished.9 The Act also clarifies that councils or
the Secretary of Commerce must not only prepare
but also implement a rebuilding plan to end
overfishing immediately10 while maintaining the
existing statutory stipulations that rebuilding shall
be as short as possible and not exceed 10 years in
most cases.11 By inserting “immediately” after “to
end overfishing” in the statute, Congress made it
clear that overfishing should not occur during the
rebuilding period.12
Photo: Getty Images
3 Streamlining environmental review
NEPA Compliance in MSRA Decision-making
T
he new law requires NMFS, in
consultation with the councils, the
Council on Environmental Quality (CEQ),
and with involvement from the public, to revise
procedures for compliance with the National
Environmental Policy Act (NEPA) within 1 year 13
of the MSRA’s enactment.14 The goal is to develop
a single environmental impact assessment
procedure for fishery activities (such as fishery
management plans and amendments to fishery
management plans) which effectively involves
the public and is timely and useful for decision-
makers and the public.15
Although the MSRA does not specify what the
revised procedures should look like, Congress
specifically rejected an attempt to eliminate
the requirements for environmental review and
public participation embedded in NEPA. Instead,
Congress favored a process which updates
and streamlines the agency’s procedures while
remaining in compliance with NEPA. NMFS is
currently preparing a revised procedure and is
13 42 U.S.C. 4231 et seq.
14 Amended MSA Sec. 304 (16 U.S.C. 1854).
15 Amended MSA Sec. 304(i)(1-2)
16 Senate Report 109-229 on S. 2012 (April 4, 2006): p. 6.
17 Public Comment Letter to NMFS by Nick J. Rahall, II, Chairman, Committee on Natural Resources. April 20, 2007.
Photo: Getty Images
A New Course for America’s Fish and Fisherman | 
required to solicit public comment on the proosal.
Both the text of the Act and the legislative
history make clear that fishery management
actions and updated environmental review
procedures must comply with NEPA and the
regulatory guidelines of CEQ. The intent of
Congress was not to exempt the Magnuson-
Stevens Reauthorization Act from NEPA
compliance or to supplant NEPA with a new council
environmental impact assessment procedure, but
to establish a consistent, timely, and predictable
regulatory process for fishery management
decisions.16 Representative Nick Rahall (D-WV),
Chairman of the House Committee on Natural
Resources, underscored that point in a letter sent
to the agency soon after the President signed the
bill into law, emphasizing that the MSRA does not
exempt the agency or the fishery management
councils from complying with the requirements of
NEPA or the CEQ regulations.17
NMFS’ existing regulations clearly lay out the
procedures for NEPA compliance and place the
10 | A New Course for America’s Fish and Fisherman

agency in the lead role for NEPA compliance in

Fishery Management Councils
Should Not Assess the fishery management decision-making. NMFS
Environmental Impacts of Actions
should affirm the current procedure that
Council representation and processes are not structured to
provide full and objective consideration of environmental
recognizes the agency is the decision-maker and
and human impacts, being focused primarily on resource use. is responsible for signing off on the complete
The councils do not have the training, expertise, or resources
needed to develop adequate NEPA analyses; their decision- and final analysis of all environmental impacts
making routinely takes place independent of NEPA in a political and assuring compliance of the environmental
negotiation among vested fishery interests. Finally, the councils
are advisors to NMFS, not the legally responsible agency under analyses and proposed management measures
the law. Any revised environmental review process which
with all applicable law.18
supplants NEPA compliance with a council-led environmental
review procedure is certain to provoke litigation and conflict.

18 See: William T. Hogarth Memorandum to Regional Administrators, NMFS; Chairs, Regional Fishery Management Councils. 18 July 21. Also see: NOAA
Administrative Order 216-6.
Photo: US Fish and Wildlife Service
4 Expanding management tools
Market-based Limited Access Privilege Programs (LAPPs)
I
n 1996, Congress placed a moratorium
on the establishment of individual fishing
quota (IFQ) programs pending further
study. These controversial economic allocation
schemes are designed to limit participation and
grant exclusive access to fisheries as a means of
addressing excess capacity and the so-called “race
for fish” among too many competitors. The MSRA
ends years of debate on the subject of limited
access fishing quotas by authorizing councils to
create market-based “limited access privilege
programs” (LAPPs). Under this limited access
system, eligible fishermen or fishing businesses
may catch a quantity of fish (usually a fixed
percentage of an annual catch quota).19 Unlike
traditional IFQ programs, however, the new MSRA
provisions permit fishing communities and fishing
associations to participate in LAPPs if they meet
the eligibility criteria.
Limited access privilege programs, like
individual fishing quota programs, are intended
to address the chronic management problem
associated with open access fisheries (where
19 MSA Sec. 3(26).
20 Lee G. Anderson and Mark C. Holliday (Eds.), The Design and Use of Limited Access Privilege Programs, NOAA Technical Memorandum NMFS-F/
SPO-May 2007: p. 11.
Photo: Pete Hendrickson
A New Course for America’s Fish and Fisherman | 11
participation is largely unlimited), which has been
characterized somewhat simplistically as “too
many people chasing too few fish.” LAPPs have
the potential to correct this problem, but NMFS’
own technical guidance on the subject notes that
changing “too many people” to “just the right
number of people” is a very complicated social
and economic challenge. Poorly conceived or
structured LAPPs can have serious unintended
consequences.20 The first program enacted
following the lifting of the moratorium, the Bering
Sea crab program, is an example of a limited
access effort that has consolidated the benefits of
the fishery into the hands of a few multinational
fishing companies. It is squeezing out family-
owned fishing businesses and creating economic
incentives for the remaining participants to throw
away vast numbers of legal size crabs.
The fact that LAPPs are defined as privileges
rather than rights is a victory for public efforts to
prevent privatization of the oceans. The limited
access privilege is a permit to catch fish and does
not confer a right to compensation if a council
12 | A New Course for America’s Fish and Fisherman
decides to replace a LAPP with another type of
regulation.20 The law provides further clarification
by defining limited access privilege as a permit
issued for a period of not more than 10 years that
(1) will be renewed before the end of the period
unless otherwise modified or revoked; and (2) will
be modified or revoked if the holder is found by the
Secretary of Commerce after due process to have
failed to comply with the terms of the privilege.21
Nevertheless, public vigilance will be needed to
prevent councils from turning exclusive access
programs into de facto privatization schemes
under the pretext of reducing excess fishing
capacity and “rationalizing” fisheries.
The new provisions also require councils
to avoid excessive consolidation in LAPPs.
Consolidation is the biggest threat to family
fishermen and coastal communities because
exclusive access quota programs can concentrate
the fishery quota into fewer and fewer hands.
When family fishermen sell quota to larger
interests, coastal communities suffer from loss
of direct and indirect income. With consolidation,
fishing families face the “end of the line” when
21 MSA Sec. 303A(f).
Why We Need National
Guidelines for LAPPs
Proponents claim that LAPPs will reduce overcapitalization
(the number of fishing vessels in a fishery), promote conservation,
improve market conditions, and promote safety. Critics charge
that LAPPs will create disincentives for conservation, consolidate
ownership, limit new entrants into the fishery due to the high
cost of quota shares, increase management costs, and create
a range of negative socioeconomic impacts including loss of
employment in coastal communities and inequitable distribution
of initial allocation of quotas. The new fishery law sets standards
for LAPPs intended to prevent privatization of public resources,
achieve conservation goals for our nation’s fisheries, prevent
excessive consolidation of fisheries benefits into the hands of
a powerful few, and protect family fishermen. Without clear
regulatory guidance from NMFS, however, regional fishery
managers may implement the standards in ways that undermine
conservation and exclude family fishermen.
younger generations cannot afford to purchase
quota and participate in the fishery.
Importantly, councils must still meet the Act’s
other conservation and management objectives
in the design of LAPPs. Specifically, LAPPs must
achieve goals for ending overfishing, rebuilding
overfished stocks, conserving fish habitat,
reducing or avoiding bycatch of non-target species,
and meeting other national standards.

5 improving science and data in fisheries management
Strengthening the Role of Science in the Fishery Management Councils
T
he new amendments require all regional
fishery management councils to set catch
limits within the bounds recommended
by the councils’ science and statistical committees
(SSCs), whose role is affirmed and clarified.22 These
amendments incorporate the main features of the
USCOP recommendations to strengthen the role
of the councils’ scientific advisors and require the
councils to heed their advice. The new legislation
also includes recommendations calling for
independent peer review of scientific information
in council decision-making and for a council
member training program.
Previously there was no requirement to heed
scientific advice on issues such as recommendations
for annual catch limits, a gap which enabled
councils to exceed overfishing levels even when
presented with good scientific information.23 The
new provisions significantly constrain the councils’
ability to ignore the advice of SSCs and establish
an independent peer review process for evaluating
the quality of that advice. While representing
significant improvements, these provisions will not
22 MSA Sec. 302(g).
23 USCOP. An Ocean Blueprint for the 21st Century, Final Report (2004): p. 276.
24 MSA Sec. 401(g) (16 U.S.C. 1881).
A New Course for America’s Fish and Fisherman | 13
eliminate the need for policy and value judgments
in the face of scientific uncertainty, nor will they
guarantee that precautionary or conservation-
minded outcomes prevail without public oversight
and involvement in the management process.
The new law also implements a USCOP
recommendation to improve recreational
fisheries data collection and quality by requiring
the Secretary of Commerce to (1) implement a
regionally based registry program for recreational
fishermen in each of the eight fishery management
regions, and (2) improve the quality and
accuracy of information generated by the Marine
Recreational Fishery Statistics Survey (MRFSS).24
The MRFSS program must take into consideration
and implement the recommendations of the
National Research Council 2006 report Review of
Recreational Fisheries Survey Methods. The MSRA
also imposes a deadline of January 1, 2009 for
completion of this revamping of the MRFSS as well
as a report within 24 months of establishment of
the program describing the progress made toward
achieving the goals and objectives of the program.
 14 | A New Course for America’s Fish and Fisherman
6 Reducing and accounting for bycatch
E
xisting law requires fishery managers
to implement measures to minimize
bycatch (the catching and killing of non-
target marine fish and wildlife). This requirement
25
was augmented by a new section in the MSRA
directing NMFS to establish a “bycatch reduction
engineering program” designed to minimize
bycatch, bycatch mortality, seabird interactions,
and discards of catch that do not meet size, sex, or
other regulatory restrictions. The new provision
26
authorizes any fishery management plan to
contain incentives to reduce bycatch by accounting
for it in setting catch limits (including issuing
bycatch quotas), and promoting fishing gears or
other measures that will lower bycatch rates.
However, there is no requirement to develop
region-specific bycatch reduction plans with clear
performance goals and timelines for achieving
them. While a new bycatch reduction engineering
program must be established within 1 year of the
law’s enactment,27 the focus is on development
of technological and engineering changes which
25 MSA Sec. 301(a)(9).
26 MSA Sec. 316 (16 U.S.C. 1865).
27 MSA Sec. 316(a).
28 MSA Sec. 316(b).
minimize bycatch, bycatch mortality, and seabird
interactions. Any specific measures instituting
bycatch quotas and limits on total allowable
bycatch in any fishery under the councils’
jurisdiction are purely discretionary.28
Importantly, the new provision authorizes
NMFS to work with the Fish and Wildlife Service in
cooperation with the fishing industry to improve
technologies designed specifically to reduce
seabird bycatch. It also requires NMFS to submit
an annual report to Congress that (1) describes
the funding provided to implement this provision,
(2) describes the developments in gear technology
achieved by the program, and (3) describes efforts
to reduce seabird bycatch and interactions.
The requirement of annual Congressional
reports serves as a regular performance
assessment of the councils’ progress in reducing
bycatch. Regular performance assessments may
also help to keep bycatch issues in the public
spotlight, which may make it easier to appropriate
funds for bycatch reduction programs.
 Photo: Getty Images
7 expanding Cooperative research
Improving Data Collection
A
new provision implements a key USCOP
recommendation by adding a section
establishing a cooperative research and
management program, which is to be implemented
on a regional basis and conducted through
partnerships to address critical management
needs.29 Projects receiving funding must address
regional needs and form part of a coherent
program of research giving priority to: (1) projects
contributing to improved data collection for stock
assessments, (2) projects assessing the amount
and types of bycatch or post-release mortality,
(3) conservation engineering projects designed to
reduce bycatch, (4) projects for the identification
and conservation of habitat areas of particular
concern, and (5) projects designed to collect and
compile socioeconomic data.
Congress provided an example in the MSRA
of what such projects might encompass by
29 MSA Sec. 318 (16 U.S.C. 1867).
30 MSA Sec. 319 (16 U.S.C. 1868).
31 National Marine Fisheries Service National Cooperative Research Program, FY2005 Funded Projects Report.
A New Course for America’s Fish and Fisherman | 15
authorizing NMFS to conduct a cooperative
research program to assess herring in the
northwest Atlantic, including herring’s role in the
ecosystem as a forage fish for other commercially
important stocks.30 The formal establishment of a
cooperative research and management program
in the new law should enhance support for the
existing NMFS cooperative research program,
which began receiving small amounts of funding
in FY2001 and whose program objectives are
identical to those of the cooperative research and
management program in the MSRA.31 It remains
to be seen, however, whether the cooperative
research and management program outlined in
the Act will enhance the ability of NMFS to expand
upon existing cooperative research projects or
secure greater funding for cooperative research
more generally.
 16 | A New Course for America’s Fish and Fisherman
8 Enhancing habitat protection Authority
Deep Sea Corals
S
hallow-water coral reefs in warm,
subtropical seas are familiar to most
people, but science has only begun to
discover the rich diversity of deep-water corals
in colder, high-latitude waters. Using remotely
operated submersible video cameras and other
modern technology, scientists have revealed
a previously unknown world of deep sea coral
reefs which require centuries to build up and
provide essential habitat for many marine fish
species. These deep-water “coral gardens” are
also extremely vulnerable to destructive bottom-
tending fishing gears that can topple large reef
structures in one tow of a fishing net.
The new law explicitly authorizes councils to
designate zones where deep sea corals are found
and to restrict the use of destructive gear types
within known areas of deep sea coral habitat.
As with the Act’s existing essential fish habitat
(EFH) provisions, any action to protect deep sea
coral habitat is purely discretionary on the part of
32 This provision does not relate to the Coral Reef Conservation Act, which only covers shallow water corals.
33 See S. Rep. 109-229 on S. 2012 (April 4, 2006): p. 11.
34 MSA Sec. 303(b)(12) (16 U.S.C. 1853(b)(12).
35 Steven Lutz, MCBI. Personal communication.
the fishery management councils. An important
difference from the EFH provision, however,
is the Congressional intent that the “measures
do not need to be linked to a determination that
the corals comprise essential fish habitat for the
relevant fishery.”33 To underscore this point,
the reauthorized law includes a new provision
authorizing the use of measures to conserve
non-target species and habitats, considering
the variety of ecological factors affecting fishery
populations.34 The intent of this provision is to
promote a proactive approach toward deep sea
coral protection; councils now can protect deep sea
corals in their own right as important components
of the marine ecosystem.35
Another related and new provision requires
NMFS, in consultation with other federal agencies
32
and regional fishery management councils, to
establish a coordinated program of deep sea coral
research to (1) identify existing research, (2) locate
and map locations, (3) monitor activity in coral
 A New Course for America’s Fish and Fisherman | 17

locations, (4) conduct research, and (5) develop
technologies to reduce interactions with fishing
gear.36 NMFS would have to highlight funds in its
annual budget for this activity, however, and no
money has been appropriated for this program in
2008.35 The requirement that councils must submit
biennial reports to Congress on their progress in
identifying, monitoring, and protecting deep sea
corals may help to keep the spotlight on these
living habitats and increase the likelihood of future
funding, but that remains to be seen.

Deep, Cold-water Coral Reefs

Found Throughout U.S. Waters

Source: Oceana. “Deep Sea Corals: Out of Sight, But No Longer Out of Mind.”
<northamerica.oceana.org/uploads/oceana_coral_report_final.pdf> *Known deep, cold-water reefs (reef area not to scale)

36 MSRA Sec. 408.

 18 | A New Course for America’s Fish and Fisherman
9 Access to fishery information
Confidentiality of Fishery Observer Data
T
he new law maintains the existing
stipulation that any information
submitted to NMFS in compliance with
the Act shall be confidential and shall not be
disclosed, with specified exceptions for carrying
out management and enforcement responsibilities,
complying with court orders, reviewing LAPP
petitions, and related matters. In addition, the
37
Act contains a provision specifying that fishery
observer information shall be confidential and shall
not be disclosed, with exceptions for reporting
bycatch data in the Alaska groundfish fisheries
and for other management purposes.38 The new
definition of “observer information” is broad
enough to encompass all manner of fishery-related
research, economic data, and other pertinent
information.
37 MSRA Sec. 402(b) (16 U.S.C. 1881a(b)).
38 MSRA Sec. 402(b)(2).
Fortunately, a provision in an earlier version of
the reauthorization bill that would have exempted
such information from disclosure under the
Freedom of Information Act (FOIA) was removed
from the final legislation. Nevertheless, the
new definition of observer information seems
intended to further restrict public access to
fishery information. Restrictions on public access
to fishery data have serious implications for the
public’s ability to participate effectively in decision-
making and to make independent assessments of
the scope and impacts of management actions on
fisheries, on non-target species, and on the marine
environment generally. The nation’s fisheries are
held in public trust and restrictions on public access
to such information are contrary to principles
of public trust management and “sunshine in
government.”

10 challenges ahead
Implementing the New Legislation Will Require Clear Federal Guidance,
Sustained Public Oversight, and Adequate Congressional Funding
O
verall, the MSRA represents a
potentially significant advance for fish
and fishermen, but major challenges to
effective implementation lie ahead. The National
Marine Fisheries Service currently has three
separate rulemaking processes underway to
implement provisions of the new law addressing
overfishing standards, environmental impact
assessment procedures under NEPA, and the scope
of limited access privilege programs (LAPPs).
The effectiveness of the implementation of the
amendments is directly linked to the course NMFS
charts in those regulations. A host of other MSRA
programs and initiatives risk becoming unfunded
mandates due to lack of adequate appropriations
from Congress or other sources of funding.
NS1 guidelines on annual catch limits
and the goal of ending overfishing
The highest priority in this reauthorization
was to strengthen the MSA to bring an end to
39 Annual Catch Limits (ACLs) and Accountability Measures (AMs): Requirements of the 2006 Amendments to the Magnuson-Stevens Act (MSA).
Public information handout prepared by NMFS Office of Sustainable Fisheries, Silver Spring, MD. March 14, 2007.
A New Course for America’s Fish and Fisherman | 19
overfishing.39 Successful implementation of the
new legal requirements for annual catch limits
and accountability measures will require clear,
unambiguous guidance from NMFS to ensure
that catch levels are based on scientific advice,
overfishing is ended, overfished stocks are given
adequate time to rebuild, and fishery managers are
held accountable for meeting those requirements.
Greater guidance on how to set buffers between
overfishing levels and catch limits is also needed, as
is advice on the means of accounting for ecosystem
considerations.
Data limitations and uncertainties in scientific
advice present challenges for managers in setting
catch limits. For instance, although maximum
sustainable yield (MSY) is the benchmark for
overfishing in the law, the level of information
required to estimate MSY is lacking for most fish
stocks in most regions. Many regions currently lack
the data-collection and monitoring infrastructure
required to provide reliable catch accounting
20 | A New Course for America’s Fish and Fisherman
and adequate information for development of
stock assessments. Without effective monitoring
and accurate catch accounting, overfishing
levels could be exceeded regardless of catch
limits. Public involvement and oversight will be
absolutely essential to ensure that councils are
living up to the letter (and spirit) of the law and the
regulations.
NEPA environmental impact assessments
and fishery management
In its basic essence, NEPA is intended to make
certain that federal officials make informed
decisions in a process that is transparent
and open to the public. As applied to federal
fisheries management, NEPA requires thorough
environmental review of proposed fishing
regulations and provides opportunities for all
sectors of the public to be heard in the fisheries
decision-making process. These activities are
complementary to the MSRA and help fishery
managers make better management decisions
involving public resources. Some of the regional
fishery management councils have proposed to
radically weaken environmental review and public
participation. Under the councils’ proposal, for
example, the environmental impacts of fishery
management actions would be evaluated by the
councils despite the clear conflicts of interest
among council members with vested interests in
the fisheries they manage.
New agency rules for NEPA compliance must
affirm that NMFS, not the councils, is the decision-
maker and responsible for ensuring compliance
with environmental analyses and other laws.
Both the language of the MSRA and its legislative
history demonstrate that the new process must
comply fully with NEPA and with the Council on
Environmental Quality (CEQ) regulations, which
have provided guidance on how federal agencies
should implement and interpret NEPA for three
decades.
Limited Access Privilege Programs
Although the Act’s new LAPP provisions are billed
as “national standards,” they do not constitute
national guidelines and are subject to the
interpretation of fishery management councils
on a number of critical points. For instance, key
provisions on cost recovery and transferability
of limited access privileges from one individual
to another provide little in the way of guidance,
leaving it up to the councils to establish policies,
criteria, and methodologies for compliance. In the
absence of clear regulatory guidance from NMFS,
it is entirely possible that a council may adopt
measures which lead to unwarranted consolidation
of fishing opportunities and benefits in the hands
of the most powerful and influential participants,
at the expense of coastal communities. New rules
must ensure that LAPPs achieve their conservation
goals and prevent consolidation of fishery benefits
at the expense of family fishermen in coastal
communities.
Ecosystem-based fishery management
Congress failed to move forward on one of the
key recommendations of the ocean commissions,
namely, to manage our ocean resources using
an ecosystem-based approach which recognizes
that fish are part of complex ecosystems whose
structure and functioning can be damaged

irreversibly by unsustainable fishing practices.
The new law only requires NMFS to prepare a
study assessing the state of the science with
respect to ecosystem-based fishery management.
This requirement represents an elaborate
delay tactic because the 1996 amendments to
the law required the same type of study. That
study was completed in 1999 and urged fishery
managers to move forward with ecosystem-based
management (EPAP 1999). (As of this printing,
NMFS has already missed the statutory deadline
for completing this report.)
The scientific community has endorsed
ecosystem-based management as a key feature
of sustainable resource use. Up until now,
however, fisheries management has lagged far
behind terrestrial management in the application
of ecosystem-based approaches. Currently
ecosystem considerations and ecosystem-based
fisheries management are discretionary action
items under the MSRA and receive low priority
at the councils, although NOAA’s long-range
strategic plan includes the adoption of ecosystem-
based management principles as a framework for
managing marine fisheries.
The challenge ahead is to convert principles into
practice. A good starting point for U.S. fisheries
is to implement ecosystem-based management
measures to protect forage fish populations that
serve as the primary food base for larger predatory
fish, marine mammals, and seabirds. Today, the
largest fisheries in the United States target forage
fish species such as herring, menhaden, sardine,
40 Senate Report 109-229 on S. 2012, April 4, 2006, pp. 12-13.
41 MSA 208(c)(2)(A-B).
A New Course for America’s Fish and Fisherman | 21
squid, hake, and Alaska pollock. NMFS and the
councils use the same rules for setting catch
levels for forage fish as for predator fish, which
is inappropriate given the central role that these
species play in the ocean food web.
Alternative funding mechanisms
and unfunded mandates
Without additional sources of funding above
current Congressional appropriations, many of the
Act’s programs risk becoming unfunded mandates
– well-intentioned but never realizing their
potential. The new law establishes the Fisheries
Conservation and Management Fund with the
purpose of:
 improving fishery catch data collection
 developing cooperative fishery research
 developing methods and technologies to improve the
quality and value of fish landed
 conducting analyses of seafood for health benefits
and risks
 marketing U.S. fishery products
With the establishment of this fund, Congress
responded to a recommendation by the USCOP
calling for dedicated funding for fishery-specific
activities not funded under current law.40 Deposits
to the fund would come primarily from any “quota
set-asides,” revenues generated from a portion
of the retained catch. Other sources of revenues
could potentially include states and other public or
private entities.41 In short, deposits to the fund are
22 | A New Course for America’s Fish and Fisherman
entirely discretionary. In any case, congressional
appropriations would continue to supply the vast
majority of funding for programs.
Current appropriations are woefully inadequate
to support expanded cooperative research on
the scale needed. The challenge ahead is to
increase funding on a short-term basis through
increased Congressional appropriations for
fishery management, while working over the
longer-term to establish a dedicated fund that is
independent of the appropriations process in order
to supplement what Congress allocates to NMFS
every year.
U.S. Ocean Territories and Regional North
Pacific
Fishery Management Councils Council

New England
Council

Mid-Atlantic
Council
Pacific Council

South Atlantic
Council

Indicates where two Gulf of Mexico

adjacent Councils overlap Council

Caribbean
Council

Western Pacific
Council
www.conservefish.org 600 Pennsylvania Avenue, SE · Suite 210 · Washington, DC 20003 · phone 202.543.5509 · fax 202.543.5774