2

The Magnuson Fishery Conservation and Management Act

The need for coordinated fisheries management became apparent as the United States approached the mid-1970s. In the early 1970s, it was recognized that intensive foreign fishing off U.S. coasts had depleted many fish stocks and reduced the profitability of U.S. fishermen and U.S. processors. As a result, the United States extended its fishing jurisdiction to 200 miles from shore in the mid-1970s (an action that had already been taken by many other coastal nations). The reductions in fish stocks also raised the issues of efficiency, waste, and conservation to prominence, thus providing the impetus for the articulation of a new scheme for managing U.S. fishery resources —the Fishery Conservation and Management Act of 1976 (FCMA).

The Fishery Conservation and Management Act of 1976 (Public Law 94-265, 16 U.S.C. 1801 et seq.) was signed into law on April 13, 1976, and went into effect on March 1, 1977. The Act was officially retitled “The Magnuson Fishery and Conservation and Management Act” in 1980 by Public Law 95-561, to honor the late Senator Warren Magnuson, who was instrumental in developing and passing the original legislation. With the enactment of the FCMA, the United States established a physical zone within which fish populations would be managed and a set of mechanisms for controlling marine fishing activities.

The principles and purposes of the MFCMA are summarized below.

  1. Establish a geographic zone adjacent to the United States over which the U.S. government is responsible for fishery resource management, with limited exceptions.



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Improving the Management of U.S. Marine Fisheries 2 The Magnuson Fishery Conservation and Management Act The need for coordinated fisheries management became apparent as the United States approached the mid-1970s. In the early 1970s, it was recognized that intensive foreign fishing off U.S. coasts had depleted many fish stocks and reduced the profitability of U.S. fishermen and U.S. processors. As a result, the United States extended its fishing jurisdiction to 200 miles from shore in the mid-1970s (an action that had already been taken by many other coastal nations). The reductions in fish stocks also raised the issues of efficiency, waste, and conservation to prominence, thus providing the impetus for the articulation of a new scheme for managing U.S. fishery resources —the Fishery Conservation and Management Act of 1976 (FCMA). The Fishery Conservation and Management Act of 1976 (Public Law 94-265, 16 U.S.C. 1801 et seq.) was signed into law on April 13, 1976, and went into effect on March 1, 1977. The Act was officially retitled “The Magnuson Fishery and Conservation and Management Act” in 1980 by Public Law 95-561, to honor the late Senator Warren Magnuson, who was instrumental in developing and passing the original legislation. With the enactment of the FCMA, the United States established a physical zone within which fish populations would be managed and a set of mechanisms for controlling marine fishing activities. The principles and purposes of the MFCMA are summarized below. Establish a geographic zone adjacent to the United States over which the U.S. government is responsible for fishery resource management, with limited exceptions.

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Improving the Management of U.S. Marine Fisheries Promote conservation and achieve optimum yields from the nation's fishery resources. Social and economic factors are to be given equal importance for modifying optimum yield. Create a legal and economic environment that stimulates harvest of fisheries resources within the area of extended jurisdiction, and subsequent processing of such catches by U.S. fishermen and companies. Establish an institutional structure and enforcement authority that allows the United States to carry out the goals and objectives explicit and implicit within the Act. Ensure that conservation and management under the Act is based on the best scientific information available. The Act sets goals for fishery management via a set of seven national standards in Title III, Section 301 (a): Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. Conservation and management measures shall be based upon the best scientific information available. To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. Conservation and management measures shall, where practicable, promote efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose. Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication.” The MFCMA has four major titles. Title I describes the United States ' rights and authority regarding fish and fishery resources. Title II contains the international aspects of the Act. Title III describes the management scheme designed to regulate domestic and foreign fishing within the EEZ. Title IV

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Improving the Management of U.S. Marine Fisheries contains miscellaneous provisions. This report focuses on provisions found in Titles I and III. Title I of the Act, “United States Rights and Authority Regarding Fish and Fishery Resources, ” established a FCZ (Fisheries Conservation Zone, later changed to the EEZ) extending 197 miles from the seaward boundary of the then existing 3-mile U.S. territorial sea. States retain management authority within the territorial sea, unless state action infringes substantially upon a federal fishery management plan, and within the EEZ in instances where no federal fishery-management plan exists. For fish species that live on or above U.S. continental shelves, and for species that live part of their lives in inland waters (anadromous species), the MFCMA's claimed fishery-management authority was not limited to the region within 200 miles of shore. The United States claimed the right to manage all living resources of the continental shelf—even beyond 200 miles, such as in parts of the Bering Sea—and to manage anadromous species throughout their range in the ocean. Originally, the MFCMA exempted highly migratory species (e.g., tuna) from its regulatory coverage. However, the 1990 amendments brought tuna under exclusive U.S. fisheries jurisdiction within the U.S. EEZ, effective January 1, 1992. Beginning with the Presidential Proclamation of a U.S. Exclusive Economic Zone in 1983, and culminating in 1986 with PL 99-659, the EEZ superseded the Fisheries Conservation Zone as the coastal area within which the United States exerts the right to control marine fishing activity. Title III of the Act specifies the seven national standards (listed earlier) and establishes a management scheme designed to regulate domestic and foreign fishing within the EEZ through the development of fishery management plans. Eight regional fishery management councils were established to draft these plans: the New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf, Pacific, North Pacific, and Western Pacific Fishery Management Councils. These councils are an imaginative combination of local and federal expertise. They were designed to consider the social and economic needs of fishermen and fishing communities, the biological characteristics and ecological relationships of each species under consideration, and the interests of domestic and foreign consumers of fishery products. The MFCMA was successful in reducing the amount of foreign fishing in the U.S. EEZ. Foreign fishing comprised 61% of the total EEZ commercial catch in 1981 and only 1% in 1991, as U.S. fishing expanded. (This apparent Americanization of the harvesting and processing sectors of fisheries conducted in the U.S. EEZ obscures the fact that although the fisheries are now conducted by U.S. citizens, many of them may in large part be owned by foreign entities, particularly in the Pacific Northwest and Alaska.) The MFCMA successfully established a framework for fishery management that gave preference to U.S. fishing over foreign fishing in the EEZ, and provided for public participation in the decision-making process. Within the established framework, the Secretary

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Improving the Management of U.S. Marine Fisheries of Commerce and the regional fishery management councils have made substantial progress in implementing fishery management; as of September 1, 1993, 33 fishery management plans have been put into effect and a number of others are in various stages of preparation. The MFCMA could hardly have anticipated the rapid rate of expansion of the U.S. industry, and did not provide for adequate controls on capitalization and fishing effort. Furthermore, the expansion of the U.S. industry was accelerated when Congress passed the Processor Preference Amendment, which gave priority to U.S. fish processors over foreign floating fish processors, and the American Fisheries Promotion Act, which stimulated the export of U.S. fish products. The implementation of federal programs for financing fishing vessels, for example, the Fishing Vessel Obligation Guarantee Program and the Fishing Vessel Capital Construction Fund Program, also contributed to the rapid expansion of the U.S. fleet. As a result, domestic fishing quickly replaced foreign fishing in the U.S. EEZ, and the stocks depleted by foreign fishing did not have sufficient time to rebuild before the U.S. fishing pressure increased. Over the 17 years since enactment of the MFCMA, fisheries law has reacted to events rather than anticipated problems. Indeed, the MFCMA has been amended at least 18 times since its enactment, with major amendments adopted in 1978, 1980, 1983, 1986, and 1990. Many of the earlier problems continue to exist in varying degrees as described by Parsons in reference to U.S. fisheries: “continued overfishing of some stocks; lack of coordination between councils and the NOAA/National Marine Fisheries Service in setting research agendas; conflicts among users; the vulnerability of the fishery management process to delays and political influence; lack of accountability; inconsistency in state and federal management measures; and adoption of unenforceable management measures.”1 Reauthorization of the MFCMA provides an opportunity to address fishery management problems that relate to provisions in the existing law. The National Research Council's Committee on Fisheries has identified four problem areas that need to be addressed during the reauthorization in order to move our nation towards sustainable fishery management: 1) uncontrolled entry, excess capitalization, and overfishing, including its definition in relationship to an optimum yield definition; 2) institutional structure; 3) the quality of fishery science and data; and 4) an ecosystem approach to fishery management, including bycatch and fish habitats. These critical issues in fishery management are discussed in detail in Chapter 3, and the committee's recommendations pertaining to each appear in Chapter 4. 1   Parsons, L.S. 1993. Management of Marine Fisheries in Canada. Canadian Bulletin of Fisheries and Aquatic Sciences, 225:763pp.