One More on Magnuson

Why the Hastings reauthorization bill just sucks

Photo by Capt. John McMurray

Photo by Capt. John McMurray

Last week I tried to give a general description of the Magnuson-Stevens Fishery Conservation and Management Act, how it works once the rubber meets the road, and why it’s actually been quite good for anglers in the Mid Atlantic. You can read that post here:  Understanding the Magnuson Act.

If you read that post and others I’ve written recently, you know  the act is currently up for reauthorization. Back in December the House Natural Resources Committee Chairman Doc Hastings put out a draft bill called the Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.It is only a “discussion document” at this point, but if you are at all concerned about managing for abundance and opportunity (if you are an angler, you absolutely should be) you should know that it is really awful on a number of levels – a terrible start.

So, let’s start with Section 3 “Flexibility in Rebuilding Fish Stocks” I’m gonna try not to harp on the use of the term “flexibility” too much, because I’ve decried it to the point where I’m beginning to sound like a broken record. But the bottom line is that the law already permits considerable flexibility when it is biologically necessary; giving mangers any more flexibility will merely perpetuate overfishing, as it has in the past.

Currently, the law requires federal fishery managers to rebuild stocks in a timeframe that is as “short as possible” and generally not to exceed 10 years, except in fisheries where such a timeline is unreasonable or just impossible. In some cases (e.g. to account for the biology/life history of a species, other environmental conditions or management measures under an international agreement), the law already allows for extended rebuilding plans. More than half of current management plans already include extended rebuilding deadlines that take into account such conditions. But this isn’t the sort of flexibility the Hastings document seems to be suggesting.

Current law gives managers no more than two years to develop and implement plans to end overfishing. Yet the Hastings bill would allow managers to “phase-in the rebuilding plan over a 3-year period to lessen economic harm to fishing communities.” Thus, mangers could permit overfishing to continue for up to five years, maybe even longer if coupled with some of the bill’s other provisions.

Five-plus years of willful overfishing? Is that what we really want?

I’m not averse to lessening economic impacts when it’s practical, but this would inject way too much risk. Sometimes, overfishing doesn’t result just in diminished stocks. We’ve already seen some cases where stocks are so weakened that they no longer respond to management measures and may be permanently harmed.

The Hastings bill would replace the 10-year rebuilding timeframe with a rule that rebuilding “may not exceed the time the stock would be rebuilt without fishing occurring plus one mean generation.” That’s actually close to the standard already used for longer lived/slow growing species (the biological exception I referenced above), so it really doesn’t sound unreasonable to me, although figuring out the relevant time periods for data-poor stocks may be practically impossible. But that provision is followed up by a list of “exceptions,” most of which are patently unreasonable.

Photo By Capt. John McMurray

Photo By Capt. John McMurray

In fact, the only rational exception is probably unnecessary, as it’s included in the current law: when the biology of the stock, environmental conditions or management under international agreements dictate otherwise. No need to say any more here.

After that, the exceptions go downhill fast.

The second is when the cause of depletion is outside the jurisdiction of the council. There are certainly a lot of things contributing to fisheries decline that councils can say are out of their jurisdiction. Like, I dunno, everything? Climate change, loss of habitat, coastal development, runoff, pollution, failure of the states to properly manage their resources. I mean, literally you could point to anything and everything as an excuse to avoid rebuilding. And given the political pressure to allow continued overfishing, I have no doubt the councils will do just that.

I’m certainly not saying that such non-fishing factors don’t adversely affect fish stocks. They do. But fishing has been a large contributing factor, if not the primary factor, in the decline of just about every troubled stock. Yes, non-fishing stressors can make stocks less resilient. But if managers don’t control overfishing, which is the only thing they can directly control, stocks will never rebuild.

We have to remember that what really matters is total mortality, which is the sum of all mortality, whether or not fishing-related. When non-fishing factors contribute significantly to declines, it is even more important to end overfishing in order to have rebuilt stocks that are more resilient to environmental stresses. Non-fishing mortality should never be used to justify the overharvest of a depleted stock. I never have bought the whole “it’s-not-our-fault-so-we-should-be-able-to-kill-them-all” argument. The larger point may be that fishing is the only thing we can realistically control. And the councils and National Marine Fisheries Service (NMFS) certainly have an obligation to do so, regardless of other sources of mortality.

The third exception would slow rebuilding if the overfished fishery is part of a mixed-stock fishery and cannot be rebuilt without significant economic harm. Some “stock complexes” are managed as a “mixed stock” (e.g. New England groundfish). Pursuant to this exception, if one of the species in the stock complex is depleted, fishermen still could target all the others, even if such fishing might do real harm to the depleted stock.

For example, if the bycatch of cod in New England’s haddock fishery was so high that it prevented the cod from recovering, such recovery would be sacrificed so the haddock fishery could continue. Fishermen wouldn’t be required to take it easy on the mixed fishery in order to allow cod to recover, even though that would seem like the most reasonable way to manage a mixed-stock fishery.

Photo by Capt. John McMurray

Photo by Capt. John McMurray

The fourth exception would slow rebuilding if the recruitment, distribution or life history of the stock are affected by informal transboundary agreements under which activities outside of the U.S. EEZ hinder rebuilding. I’m not entirely sure what “informal” transboundry agreements are, but formal international agreements already are covered in the current version of Magnuson.

The fifth exception is if the stock has been affected by unusual events that make rebuilding impossible without significant economic harm. That’s broad enough to take in just about everything. Just more of the “it’s not really our fault so we should be able to continue to beat up on a stock that is already in bad shape.”

The Hastings document also requires regular review of rebuilding targets, rebuilding progress and environmental impacts on rebuilding progress. I don’t have a huge problem with that, but again, it seems to put emphasis on environmental impacts that may be slowing down or prohibiting rebuilding. Seems like just another way to find excuses not to rebuild – except that if you couldn’t find an excuse the first time, this provision would give you a second chance.

The discussion document then suggests allowing councils to terminate a rebuilding plan if it can be determined that a fishery is not depleted. This can occur either after two years or completion of the next stock assessment. This is some serious legislative sleight-of-hand. It wants you to ask the question, “If it isn’t depleted, then why rebuild?” But “not depleted” and “rebuilt” mean two very different things. A stock can make it out of “depleted” (or, in current law, “overfished”) status, but still be nowhere near “rebuilt”; most stocks are no longer considered “overfished” once they exceed just 50 percent of the rebuilding target.

So, even when a stock is a very long way from being “recovered,” the entire rebuilding plan can be disregarded two years after the plan went into effect or after a new stock assessment is completed. Under such a provision, no stock need ever be fully rebuilt; fishermen could be forced to settle for the proverbial “half a loaf” forever. Like most other things in the Hastings bill, the provision is just another devious excuse to continue fishing hard on an unrecovered stock. That’s a long way from what recreational fisherman need; it means managing for harvest instead of the kind of abundance that anglers need to be successful.

The Hastings bill goes on to address modifications to annual catch limits (ACLs). To understand these, please see my last blog. The bill would establish several exemptions from the current requirements that ACLs be established for all managed species. It would exempt ecosystem component species (non-targeted stocks in the fishery) and stocks with a short lifecycle. It also suggests taking international agreements into account when setting ACLs and authorizing multi-year specifications. I suppose I’m good with all that stuff. But then it gets bad again.

It proposes the following revision: The ANNUAL CATCH LIMIT CAP is amended by striking “fishing” and inserting “overfishing.” This change would move the council’s ceiling on setting acceptable biological catch (ABC) from the Science and Statically Committee’s recommended ABC to the overfishing limit (OFL).

This is really terrible. (Readers need to read and understand my last blog if they want to understand this part.) Setting ACLs at the OFL (what is essentially Maximum Sustainable Yield, or MSY) is incredibly risky. It assumes that the science and all related calculations are perfect, which is a statistical impossibility. Such assumptions will, on average, result in actual overfishing around half of the time. It’s pretty much what we did prior to the 2006 Magnuson reauthorization. It didn’t work. It is stupid risky and just bad public policy.

The Hastings bill then goes on to suggest replacing “overfished” with “depleted” throughout the Magnuson Act. It would require the secretary’s annual report to distinguish between fisheries that are depleted as a result of fishing and fisheries that are depleted because of non-fishing factors. If fishing is the cause, the report also must identify whether the cause was directed fishing.

Once again, we see the bill’s sponsor lending credence to the argument that when fishing isn’t the sole cause of a stock’s decline, fishermen shouldn’t have harvest reductions imposed. That might strike fishermen as “fair,” but it’s just not gonna do anything to rebuild stocks or maintain them at any sustainable level.

The discussion document then addresses transparency and public process for scientific and management actions. Most of what it says here is benign; the Mid-Atlantic Council already is doing most of it. There is some stuff about requiring the Scientific and Statistical Committees (SSCs) to develop advice in a transparent manner that allows for “public involvement.” That carries some danger, as anecdotal information may be used to challenge data-driven decisions and scientists acting as “hired guns” for interested parties may try to dilute the findings of independent researchers. But I have some faith that the scientists who sit on our SSCs will carry out their duties to make objective scientific decisions. Sure, anecdotal info may be biased, but the SSC can only benefit by having such on-the-water info, which adds context to the data in front of them.

The Hastings bill would also ditch the National Environmental Policy Act with respect to fishery management decisions: Any fishery management plan, amendment or management measure that is prepared in accordance with applicable provisions of the MSA shall be considered to satisfy NEPA requirements. NEPA requires broad, impartial environmental review of the impacts of management actions and the development of alternatives to minimize impacts. Exempting fishery management actions from properly conducted NEPA analyses could narrow managers’ outlooks, giving them less input with respect to the overall impact of various options. I  understand the desire to streamline the process, because things move very slowly right now. But exempting fishery management from NEPA’s broad environmental review isn’t a good idea.

I don’t have any issues with the bill’s treatment of catch share programs. It creates a new definition for such programs, which to me doesn’t seem terribly different than the last one. It would also require a referendum among eligible permit holders in the affected fishery; implementation of any new program would require the approval of a majority of such permit holders. That does nothing more than assure community buy-in of any such “ownership” program” prior to its implementation.

However, I have a problem with the section of the bill that deals with data collection and data confidentiality. To the extent that it mandates the development and implementation of video survey technologies and the expanded use of acoustic survey technologies, it’s on the right track, for such approaches should give us better and more accurate data.

The bill’s handling of confidentiality of data, on the other hand, goes badly awry. Such confidential information would be exempt from disclosure and may be used only for purposes of management and enforcement; however, NMFS would be prohibited from issuing any regulations addressing the use of electronic data for law enforcement purposes, so the value of even that limited disclosure is questionable. The bill also would prohibit the disclosure of vessel specific or aggregate vessel information from a fishery for the purposes of coastal and marine spatial planning.

Under this proposal, public access to fisheries data from onboard observers, electronic monitoring systems and cooperative research programs among fishermen, universities and government scientists would be restricted. Public members of the regional fishery management councils, ENGO scientists, fishermen and the public no longer would be able to analyze the scientific information that is paid for by taxpayer dollars and used to manage public resources. I think that’s wrong.

I also have no idea why we would want to exclude the use of such data for marine spatial planning. There are management actions that relate to coastal and marine spatial planning. Why would we not want to use that data here? I understand the need to avoid “harm to the competitive position” of any fishing operation, but again, we have to remember this is a resource owned by the public and the public is entitled to that information.

This section also suggests allowing the secretary to use funds received as fisheries enforcement penalties for data collection. The funds would be used for surveys and assessments for data-poor fisheries and cooperative research activities. I certainly don’t have an issue with that, provided that such use of the funds doesn’t detract from regular enforcement activities. We have to remember that regulations designed to rebuild and maintain fisheries are only as good as their enforceability.

I believe that the section addressing council jurisdiction for overlapping fisheries is absolutely necessary. Such a provision would add an additional member to both the Mid-Atlantic and New England fishery management councils, essentially giving voting rights to existing council liaisons. In view of the many stocks that are responding to climate change by moving north, the section makes sense. Yet, being the dark, pessimist   I am, I can’t help but think its primary purpose would be to open the door to New England trying to get a bigger piece of Mid-Atlantic fisheries allocations. It’s probably safe to say that we don’t really want Massachusetts “helping” to manage fluke…

I’m not a fan of the final section, which would give the councils, through the Magnuson Act, authority to decide fisheries-related issues arising out of the National Marine Sanctuaries Act and the Endangered Species Act.

I’m not all that concerned about the National Marine Sanctuaries Act. It pretty much means we won’t see any more arbitrarily closed areas, which is probably a good thing. But the ESA part concerns me a little. It would give the regional fisheries management councils the authority to decide how the Endangered Species Act should be applied to animals such as sea turtles and whales. I understand the rationale. There are those who believe measures designed to reduce interactions with protected species should be developed by the Council that has regulatory control over the fishery in question.

I don’t believe this is a terribly good idea. Sure, fishermen should be providing input into the decision-making process, but the final shape of any regulations should be and currently are created by those with real expertise in the needs of the listed animal rather than fishermen who may be more concerned with the viability of their fishery than with the ultimate fate of the species in question.

This was a very long piece. Sorry about that. But if you made it this far, it means you are seriously concerned, and are likely a fish-geek, like me.

Yes, the Hastings bill sucks on so many levels. But again, it’s just a “discussion document” intended to address the concerns of coastal fishermen. I’d like to think that some of the suggestions are so outrageous and would set us so far back that this bill has no chance. But given a lot of the conversations I’m hearing, I don’t know.

The good news is that the Senate’s version of a Magnuson Reauthorization Bill, sponsored by Senator Begich of Alaska was just released.  It’s much longer and more detailed than the Hastings Document, so it will take me a week or two to digest, but having just perused it, it appears to be much more reasonable.   Not surprising given the dynamics of the Alaskan fisheries.  Most of the fishermen out that way seem to support the statutory rebuilding requirements contained in the 1996 and 2006 reauthorizations.  I know the title of this blog is “One More on Magnuson”, but stay tuned as I’ll write about the Senate Bill just as soon as I’ve had a chance to give it a thorough review.


After obtaining an undergraduate degree in Political Science from Loyola College in Maryland, Captain John McMurray served in the US Coast Guard for four years as a small-boat coxswain and marine-fisheries law enforcement officer. He was then recruited to become the first Executive Director of the Coastal Conservation Association New York. He is currently the Director of Grants Programs at the Norcross Wildlife Foundation in New York. He is the owner and primary operator of “One More Cast” Charters. John is a well known and well published outdoor writer, specializing in fisheries conservation issues. In 2006 John was awarded the Coastal Conservation Association New York Friend of Fisheries Conservation Award.

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One comment on “One More on Magnuson
  1. John…I thought I would try to expand on and briefly explain our position regarding how ESA works with MSA and the changes we would like to see. As you know it is a complex topic but I will keep it simple.

    When a species receives an ESA listing determination a Section 7 biological opinion is conducted to determine if a fishery and its interactions with that listed species may inhibit or “jeopardize” its recovery. Depending upon the outcome and results of the biological opinion, Reasonable and Prudent Measures or Alternatives may be needed to reduce the impact of fisheries on the species.

    RPA’s and RPM’s are often in the form of regulations like gear modifications, closed areas, closed seasons or a combination of all three.

    We feel strongly that when these types of regulatory measures are necessary to reduce the impacts on an ESA species, the fishery measures should be developed by the Council that has regulatory control over the fishery in question.

    This requirement does not impact the ESA process but it will allow for a more deliberative process whereby modifications to a fishery will not only reduce the risk to an ESA species but also avoid a unnecessary burden on the fishing industry.

    Thank you
    Greg DiDomenico
    Garden State Seafood Association

5 Pings/Trackbacks for "One More on Magnuson"
  1. […] where things stand with the Magnuson reauthorization…pretty critical of the Hastings draft bill:…/one-magnuson/ It'll be interesting to see what the Begich's Senate bill looks like once it gets read […]

  2. […] boat captain and Mid-Atlantic Council member John McMurray wrote a blog for saying the Doc Hastings Magnuson-Stevens Act reauthorization draft “is really […]

  3. […] The first is that NOAA Fisheries asked the Marine Fisheries Advisory Committee (MAFAC) to explore the creation of a NOAA certification mark or other acknowledgement that could certify sustainability of domestic wild-caught and aquaculture fishery products. MAFAC has organized a working group to investigate the topic and develop a recommendation. The topic is also quite relevant in that it appears to be included in the Senate version of the Magnuson reauthorization I mentioned in my last post. […]

  4. […] Enter H.R. 4742. Several posts ago I discussed the reauthorization of the Magnuson Stevens Act, specifically the House Natural Resources Committee “discussion document” put out by Rep. Doc Hastings. I went into some detail regarding why the proposal is terrible for recreational fishermen. You can read that here: Why the Hastings reauthorization bill just sucks. […]

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