The Magnuson-Stevens Fishery Conservation and Management Act: Reauthorization Issues

Congressional research reportFeb 7, 2005

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The Magnuson-Stevens Fishery Conservation

and Management Act: Reauthorization Issues

Updated February 7, 2005

Eugene H. Buck

Specialist in Natural Resources Policy

Resources, Science, and Industry Division

Daniel A. Waldeck

Presidential Management Intern

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

The Magnuson-Stevens Fishery Conservation

and Management Act: Reauthorization Issues

Summary

Fishery policy, guided by the Magnuson-Stevens Fishery Conservation and

Management Act (MSFCMA), originally focused on mandates to identify fisheries,

encourage underdeveloped fisheries, and establish databases for socioeconomic

variables. Since that time, new issues have emerged, including a recognition of the

need to identify, measure, and respond to overfishing and to incorporate an ecological

perspective in fishery management through increased attention to habitat. The

MSFCMA was last reauthorized and extensively amended in 1996. Although the

authorization of appropriations under the MSFCMA expired at the end of FY1999,

the Act’s requirements continue in force. At issue for Congress are the terms and

conditions of any provisions designed to reauthorize and amend the Act to address

the concerns of various interest groups.

To identify potential reauthorization issues, CRS queried commercial harvesters,

recreational fishermen, fishery managers, fishery scientists, fish processors, fishery

unions, and environmental organizations to identify matters that they would like to

see discussed during a reauthorization debate. Identified issues include (1) whether

to further specify the approaches to address bycatch and bycatch mortality; (2) how

to define, manage, and protect unique habitats; (3) whether to legislate the

designation of marine protected areas; (4) how to assure that necessary data are

collected; (5) how to manage marine ecosystems; (6) how to assure that regional

council decisions are fair and balanced; (7) how to implement and finance fishing

capacity reduction programs; (8) whether to establish national standards for

individual fishing quota management programs; and (9) whether to authorize user

fees and other charges that could be used for conservation, management, and

enforcement. Other prominent issues may include how to define fishing community,

whether to revise the fishery management plan review process, and how best to

manage highly migratory species. Because of the major changes that have occurred

in marine fisheries since the MSFCMA originated in the mid-1970s, some suggest

that the underlying management structure of U.S. fisheries should be reviewed to

reassess whether fisheries should be managed at the regional or national level. In

addition, both the Pew Oceans Commission and the U.S. Commission on Ocean

Policy have recommended major changes in U.S. fishery management policy.

Potential participants in the reauthorization debate anticipate extended

negotiations on some of these issues and on concerns that have arisen as the 1996

MSFCMA amendments in the Sustainable Fisheries Act have been implemented. In

the House, the Committee on Resources has jurisdiction over any MSFCMA

reauthorization legislation. In the Senate, the Committee on Commerce, Science, and

Transportation has jurisdiction on this issue. Oversight field hearings have been held

and MSFCMA reauthorization bills have been introduced. Most of the issues

discussed in this report are not time-sensitive, and early attention to many of these

issues is not anticipated. This report will be updated as this issue evolves.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Constituencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Recreational Fishing Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Commercial Fishing Sector . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Environmental Groups . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Native Americans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fishery Scientists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fishery Managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Fish and Seafood Consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Magnuson-Stevens Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The Sustainable Fisheries Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Implementation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Subsequent Enactments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Oceans Commissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Issues for Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Biological Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bycatch . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Essential Fish Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Marine Protected Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Overfishing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Harmful Non-Native Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Management Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Data Collection and Management . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Ecosystem vs. Single-Species Management . . . . . . . . . . . . . . . . . . . . 25

Decision-Making by Regional Councils . . . . . . . . . . . . . . . . . . . . . . . 28

Highly Migratory Species . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Review of Fishery Management Plans . . . . . . . . . . . . . . . . . . . . . . . . . 32

Management Based on Maximum Sustainable Yield . . . . . . . . . . . . . 33

Coordination and Oversight of State-Managed Fisheries . . . . . . . . . . 34

Decentralized Fishery Management . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Co-Management and the Role of Native Americans . . . . . . . . . . . . . . 35

Aquaculture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

Review of American Fisheries Act Provisions . . . . . . . . . . . . . . . . . . 36

National Research Agenda . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Observer Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Experimental Fishing Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Socioeconomic Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Fishing Capacity Reduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Individual Fishing Quotas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Fees, Cost Recovery, and Economic Rent . . . . . . . . . . . . . . . . . . . . . . 42

Fishery Subsidies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

Fishing Communities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Small Boat Fleets and Family Fishermen . . . . . . . . . . . . . . . . . . . . . . 47

Transfer Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

The Definition of Recreational Fishing . . . . . . . . . . . . . . . . . . . . . . . . 47

The Private Cost of Resource Management . . . . . . . . . . . . . . . . . . . . . 47

Federal Assistance to Fishermen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Fishing Vessel and Crew Safety . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Adequacy of Appropriations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Congressional Outlook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Appendix: Oceans Commissions’ Recommendations . . . . . . . . . . . . . . . . . . . . . 50

The Magnuson-Stevens Fishery

Conservation and Management Act:

Reauthorization Issues

Introduction

The Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA)

(P.L. 94-265, as amended; 16 U.S.C. §§1801, et seq.) provides authority for federal

fishery management in the waters of the U.S. Exclusive Economic Zone.1 It was

reauthorized and extensively amended in the 1996 Sustainable Fisheries Act (P.L.

104-297). Although the MSFCMA’s authorization for appropriations expired at the

end of FY1999, the Act’s requirements remain in force and funding has continued,

even without reauthorization. At issue for Congress are the terms and conditions of

any provisions designed to reauthorize and amend the Act to address the concerns of

various interest groups. Congress will be asked to review the direction and criteria

provided by the MSFCMA for allocating fish and shellfish harvest among domestic

interests in an era of mounting private and public demands for these resources.

To identify the breadth of issues that might be brought before Congress during

the ongoing reauthorization debate, CRS asked commercial harvesters, recreational

fishermen, fishery managers, fishery scientists, fish processors, fishery unions, and

environmental groups about their concerns and expectations for the debate. This

report discusses the concerns of a broad cross-section of federal marine fishery

management and conservation interests, to facilitate understanding the differing

positions and to outline options for addressing policy concerns.2

Congress has been active in and supportive of fishery conservation and

management issues for many years, responding primarily to concerns of

environmental interests, Native Americans, and commercial and recreational fishing

groups. Congress generally seems to view the MSFCMA as working well, while

possibly needing certain changes to address concerns that have arisen since the 1996

amendments were enacted. In the House, the Committee on Resources has

jurisdiction over MSFCMA reauthorization legislation. In the Senate, the Committee

The MSFCMA defines this zone as contiguous to the territorial sea of the United States

and extending seaward 200 nautical miles measured from the baseline from which the

territorial sea is measured. Generally, the federal government, through the National Marine

Fisheries Service/NOAA Fisheries, has jurisdiction in waters from the outer boundary of

state waters out to 200 nautical miles offshore.

Respondents were guaranteed anonymity to facilitate a candid discussion of issues.

Presentation of constituent opinion in this report represents a sampling, not a quantitative

assessment.

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on Commerce, Science, and Transportation has jurisdiction over legislation on this

issue. Since the enactment of the Sustainable Fisheries Act in 1996, these

committees have held numerous oversight hearings to review MSFCMA

implementation and issues. Reauthorization bills were introduced in the 106th,

107th, and 108th Congresses, and one was reported in the House during the 107th

Congress, but no further action was taken. Action on reauthorization legislation

introduced in the 109th Congress will be discussed in CRS Issue Brief IB10139,

Fishery, Aquaculture, and Marine Mammal Legislation in the 109th Congress, by

Eugene H. Buck.

Constituencies

An array of groups and individuals hold common and conflicting interests in our

nation’s fisheries. Despite their diversity, they generally share the goals of ensuring

sustainable fisheries and maintaining healthy ecosystems. These groups, however,

often disagree about how best to achieve these goals and use our common resources,

and conflicts arise. The following descriptions are general characterizations. There

is enormous variability and crossover of membership among these groups, which

often blurs the distinction among the concerns within each group. For example,

fishery scientists may act as objective independent analysts or serve as advocates for

a specific sector, with the same scientist performing multiple roles on different

issues. As Congress considers reauthorization of the MSFCMA, these diverse groups

will advocate a wide variety of policies.

Recreational Fishing Interests.3 In 2002, more than 10.5 million anglers

fished in marine recreational fisheries, accounting for 73 million fishing trips.4 The

marine finfish catch was estimated to be 421 million fish, of which more than 55%

were reported to have been released alive.5 The estimated weight of the total harvest

was 228 million pounds.6 The overall economic impact of marine recreational

fishing in 1996 was $25.1 billion.7 In 2001, marine angler expenditures totaled $8.4

Many marine recreational fisheries occur entirely within state waters. Therefore,

depending on the fishery, federal management under the MSFCMA may not be an issue.

U.S. Dept. of Commerce, National Marine Fisheries Service, Fisheries of the United

States, 2002. Current Fishery Statistics No. 2002 (Sept. 2003), p. 26 (hereafter “NMFS

Fishery Statistics”). A different estimate (9.1 million anglers accounting for nearly 72

million fishing trips) is provided by U.S. Dept. of the Interior, Fish and Wildlife Service and

U.S. Dept. of Commerce, Bureau of Census, 2001 National Survey of Fishing, Hunting, and

Wildlife-Associated Recreation (Oct. 2002), p. 6 (hereafter “FWS Fishing Survey”).

NMFS Fishery Statistics, p. 26. The National Marine Fisheries Service does not provide

an estimate of mortality after release. Several respondents note that, in some instances,

mortality after release may be quite high.

NMFS Fishery Statistics, p. 26.

U.S. Dept. of Commerce, National Marine Fisheries Service, Accomplishment Report

under the Recreational Fishery Resources Conservation Plan (1997). See [http://www.

nmfs.noaa.gov/irf/recaccmp97.html], visited Aug. 11, 2004.

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billion.8 Components of the recreational sector include extractive (e.g., individual

fishermen) and non-extractive users (e.g., divers who do not spear, gather, or

otherwise harvest marine life) as well as charter and other commercial operations

catering to sport anglers.

A principal objective of this group is to receive equal consideration (relative to

the commercial fishing sector) in decisions affecting access to and participation in

U.S. fisheries. They are concerned that the substantial economic benefits to the

nation of recreational fishing are not adequately recognized. Moreover, for fish

conservation and habitat protection, recreational interests would like federal

managers to distinguish between the impacts of recreational fishing and those of

commercial fish harvesting. The balance between commercial and recreational

interests varies widely among issues, species, and regions, with many regulations that

restrict the activities of commercial fishermen, such as closed areas and quota

restrictions, having little parallel for the recreational sector.

Commercial Fishing Sector. In 2001, there were more than 64,000

commercial fishing boats and vessels operating in U.S. marine fisheries,9 and 3,410

processing and wholesale plants, employing 71,533 individuals.10 In 2002, the total

catch of marine fish in the 50 states was 9.4 billion pounds, with an estimated exvessel value11 of $3.1 billion.12 For 2002, the overall economic contribution of

commercial fishing to gross national product (in value added) was estimated to be

$28.4 billion.13

This sector is chiefly concerned with ensuring sustainable fisheries that balance

environmental protection with the continued viability and sustainability of their

industry and communities. This sector includes a diverse group of interests, each

with specific concerns regarding the rational use of living marine resources and the

equitable allocation of resources among user groups. These sectors divide according

to scale of operation; type of activity (fishermen, catcher-processor, processor); type

of fishing gear used (trawl, longline, gillnet, pots, seine); and location (inshore or

offshore), with most of these subdivisions represented by an association that seeks

to communicate constituent values and influence policy.

Environmental Groups. More than 50 national and many more regional and

local U.S. environmental organizations focus primarily or largely on marine fishery

FWS Fishing Survey, p. 8.

NMFS Fishery Statistics, p. 94. This number is a significant underestimate since estimates

are not available for nine coastal states.

NMFS Fishery Statistics, p. 95. This number represents individuals employed by

processors and wholesale plants, an indeterminate portion of which are employed on floating

processors at sea. It does not include catching, transporting, or retail marketing of

commercially-caught fish, nor does it include jobs supported by commercial fisheries.

Ex-vessel value is the money paid to the harvester for fish, shellfish, and other aquatic

plants and animals (i.e., the dollar value of the harvest when it is off-loaded from the vessel).

NMFS Fishery Statistics, p. iv.

NMFS Fishery Statistics, p. v.

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issues or some aspect thereof. Membership in these groups ranges into the millions,

including many recreational and commercial fishermen. Relative to the MSFCMA,

environmental groups are principally concerned with overfishing of certain fish

stocks, the lack of assessment data for many managed stocks, the direct and indirect

harm to other marine species (including marine mammals, sea turtles, and sea birds),

the failure of current methods to report bycatch14 accurately, the protection of marine

biodiversity, and the continuing loss of habitat. They frequently maintain that there

has been a nationwide failure to protect habitat from fishing and non-fishing harm.

Native Americans. Because of their cultural, traditional, and subsistence15

needs, many tribes and indigenous groups are deeply concerned about the

management of marine fisheries. Some tribes and indigenous groups are guaranteed

access to certain fishery resources by treaty, with the federal government obliged to

protect and maintain these rights.16 Some tribes and groups are represented by

Fishery Commissions that coordinate fishery management with federal agencies. The

long-term goals of tribes and indigenous groups generally include safeguarding

cultural traditions, promoting economic stability, encouraging resource sustainability,

and attaining regulatory certainty. Of particular concern during MSFCMA

reauthorization will be cooperative management of marine fisheries (i.e., partnership

with the federal government in establishing policy and determining management

goals), which they believe fosters economic vitality, environmental health, and

rational management of natural resources.

Fishery Scientists. Scientists from academia, the private sector, and state

and federal agencies are principally involved in analyzing the ecological/biological,

social, cultural, and economic effects of MSFCMA provisions and fishery

management policy. Like the other groups, they are concerned with the health and

integrity of marine ecosystems, the rational use of marine resources, and community

sustainability. Specifically, they are interested in the availability of adequate funding

and accurate data to perform the necessary analyses. Many fishery scientists, at some

point in their careers, may be employed as fishery managers, since sound

management is promoted by scientific understanding of the resource.

Fishery Managers. Federal and state fishery managers are charged with

implementing the MSFCMA and complementary state programs. Because of this

responsibility, their interests and concerns are more keenly focused on the pragmatic

aspects of the MSFCMA. Specifically, they are interested in clarity in the intent of

management requirements and in authorizations and requirements for data collection

and research.

Bycatch is the incidental catch of non-targeted fish species, which are typically discarded

(often dead) because they are either illegal to retain or of an undesirable species, size, or sex.

Critics contend that subsistence is a non-issue, because no groups or communities in the

United States are starving or are likely to starve as a result of fishery harvest restrictions.

Others, however, point out that a subsistence lifestyle refers to traditional and customary use

and encompasses more than nutritional concerns.

For an example of how Native American treaty fishing rights have been interpreted by the

courts, see the summary provided by the Center for Columbia River History at [http://

www.ccrh.org/comm/river/legal/boldt.htm], visited on July 16, 2004.

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Fish and Seafood Consumers. Individuals and families seek to maintain

access to a wide range of fish and seafood products in the marketplace in response

to perceptions that these products are tasty, nutritious, and healthy sources of protein.

The stability, sustainability, safety, and diversity of supply, including international

trade relationships, are important issues for these consumers.

The Magnuson-Stevens Act

Background

On September 28, 1945, President Truman issued a proclamation aimed at

implementing conservation measures outside and adjacent to American territorial

waters.17 The 1945 Truman Proclamation, claiming U.S. jurisdiction over U.S.

continental shelf resources adjacent to the U.S. coast, has been viewed as the advent

of coastal nations extending territorial seas and declaring fishery and economic

zones.18 President Truman did not declare an “exclusive economic zone” nor claim

rights to exclusive fishing, but his unilateral proclamations (on the seabed, its subsoil,

and certain “conservation zones”) served as the conceptual underpinnings of

subsequent extensions.19

In the late 1940s and early 1950s, several Latin American nations proclaimed

marine jurisdictions extending 200 miles off their Pacific coasts. This action was

denounced by those within the United States20 and other distant-water fishing nations

who sought to preserve and expand access for far-ranging fishing vessels.

Beginning in the 1950s (Atlantic) and 1960s (Pacific), increasing numbers of

foreign fishing vessels steamed into waters offshore of the United States to catch the

substantially unexploited living marine resources.21 Since the United States then

claimed only a 3-mile jurisdiction (a 12-mile U.S. contiguous fishery zone was

proclaimed in 1966), foreign vessels could fish many of the same stocks caught by

U.S. fishermen. U.S. fishermen deplored this “foreign encroachment” and alleged

that overfishing was causing stress on, or outright depletion of, fish stocks. Complex

and inconclusive Law of the Sea Treaty negotiations in the 1970s provided impetus

for unilateral U.S. action on ocean management jurisdiction.

Proclamation No. 2667, Policy of the United States with Respect to the Natural Resources

of the Subsoil and Sea Bed of the Continental Shelf, 3 C.F.R. §67 (1943-1948).

CRS Issue Brief IB95010, The Law of the Sea Convention and U.S. Policy: Issue Brief,

by Marjorie A. Browne.

Jamison E. Colburn. “Turbot Wars: Straddling Stocks, Regime Theory, and a New U.N.

Agreement,” Florida State University Journal of Transnational Law & Policy, vol. 6, no.

2 (1997), note 73.

Particularly commercial fishing interests seeking tuna.

For example, the increase of foreign fishing off Alaska is discussed in Eugene H. Buck,

National Patterns and Trends of Fishery Development in the North Pacific (Anchorage, AK:

Arctic Environmental Information and Data Center, Univ. of Alaska, 1973), 65 pp.

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The enactment of the Fishery Conservation and Management Act (FCMA) in

1976 (renamed in 198022 to honor the late Senator Warren G. Magnuson, and in

199623 to include Senator Ted Stevens) ushered in a new era of federal marine fishery

management. After several years of debate, the FCMA was signed into law on April

13, 1976, as P.L. 94-265. Under the FCMA, on March 1, 1977, marine fishery

resources beyond state jurisdiction but within 200 miles of all U.S. coasts came under

federal jurisdiction. A new regional management system began allocating fishing

privileges, with priority given to domestic enterprise. Primary federal management

authority was vested in the National Marine Fisheries Service (NMFS, sometimes

popularly referred to as “NOAA Fisheries”) within the National Oceanic and

Atmospheric Administration (NOAA) of the Department of Commerce. The

FCMA’s 200-mile fishery conservation zone was superseded by an Exclusive

Economic Zone (EEZ) proclaimed by President Reagan on March 10, 1983.24

The FCMA created eight regional fishery management councils and their

associated advisory committees. Based on provisions in the FCMA and guidelines

provided by NMFS, the regional councils prepare fishery management plans (FMPs)

for those fisheries that they determine require active federal management.25 After

public hearings, revised FMPs and draft implementing regulations are submitted to

the Secretary of Commerce for approval. Approved plans are implemented through

regulations published in the Federal Register. Together these regional councils have

implemented 40 FMPs for various fish and shellfish resources, with 9 additional

plans in various stages of development.26 Some plans are created for single species

or for several closely related species (e.g., FMPs for red drum by the South Atlantic

Regional Council and for shrimp by the Gulf of Mexico Regional Council). Others

are developed for multi-species assemblages inhabiting a similar habitat (e.g., FMPs

for Gulf of Alaska groundfish by the North Pacific Regional Council and for reef fish

by the Gulf of Mexico Regional Council). Many of the implemented plans have

undergone subsequent amendment (one more than 30 times), and three plans have

been developed and implemented jointly by two regional councils.

Initially, a substantial portion of fishery resources in federal offshore waters was

allocated for foreign fishing. However, foreign allocations diminished as domestic

fishing and processing industries expanded. Under the FCMA, foreign catch from

the U.S. EEZ declined from about 3.8 billion pounds in 1977 to zero since 1992.

Triggering this decline of foreign catch, domestic offshore catch increased

dramatically, from about 1.6 billion pounds (1977) to more than 5.9 billion pounds

P.L. 96-561 §238.

P.L. 104-208 §208.

Proclamation No. 5030, Exclusive Economic Zone of the United States of America, 3

C.F.R. Comp. (1983), p. 22. Although this proclamation implemented one of the Law of the

Sea (LOS) provisions, the United States has not yet ratified the LOS Convention.

Pursuant to the 1996 revisions of the MSFCMA, FMPs for Atlantic highly migratory

species are prepared by the Secretary of Commerce (NMFS) with consultation by the

relevant regional councils, advisors to international agreements, and advisory panels. See

MSFCMA, §304(g).

See [http://www.nmfs.noaa.gov/sfa/domes_fish/FMPS.htm], visited July 16, 2004.

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(2002). Thus, the share of fish caught by foreign nations from the U.S. EEZ declined

from 71% in 1977 to zero in 1992; foreign fishing has not been permitted in the U.S.

EEZ since 1992. For combined inshore and offshore domestic harvest in 2002, the

marine recreational finfish catch was 0.2 billion pounds, while the commercial sector

landed 9.4 billion pounds of finfish and shellfish.

The Sustainable Fisheries Act

In 1996, Congress approved and President Clinton signed the Sustainable

Fisheries Act (SFA; P.L. 104-297),27 amending the MSFCMA with new requirements

to (1) conserve fish stocks and restore overfished populations, (2) assure that

membership on regional councils is fair and balanced, (3) impose a moratorium on

creating new individual fishing quota programs, (4) increase emphasis on social

benefits that might better preserve traditional small-scale fishermen, and (5)

strengthen provisions to minimize bycatch and restore and protect habitat.

The SFA established requirements that each FMP include a definition of

overfishing, a plan for rebuilding overfished stocks (including stopping overfishing

within two years and developing a plan to rebuild overfished fisheries within 10

years), conservation and management measures to minimize bycatch, and a

description of essential fish habitat (EFH) for the species involved (including

conservation and management measures to protect habitat).

Bycatch is the incidental catch of non-targeted fish species. These species are

typically discarded (often dead) either because they are illegal to retain or because

they are of an undesirable species, size, or sex. Such discards trigger concerns about

environmental harm and economic waste. The SFA mandated that FMPs include

standardized reporting to assess the amount and type of bycatch in managed fisheries.

The SFA also mandates conservation measures to minimize bycatch and the mortality

of unavoidable bycatch to the extent practicable.

Based on concerns that certain fish stocks had declined due to habitat loss,28 the

SFA established a national program to facilitate long-term protection of EFH.29 The

SFA requires regional councils to identify and describe EFH for each managed

fishery; identify and assess the harm and potential harm caused by fishing and

non-fishing activities; minimize as much as possible the harm caused by fishing,

which may include gear restrictions or time/area closures; identify harm to habitat of

proposed fishing and non-fishing activities requiring federal or state approval or

permits; and assist NMFS in recommending measures to conserve, enhance, and

restore EFH.

For a summary of the evolution and passage of this law, see archived CRS Issue Brief

IB95036, Magnuson Fishery Conservation and Management Act Reauthorization, by

Eugene H. Buck.

See MSFCMA §2(a)(2)(C); 16 U.S.C. §1801(2)(a)(2)(C).

See MSFCMA §305(b); 16 U.S.C. §1855(b).

CRS-8

NMFS and the eight regional councils were responsible for implementing the

provisions and requirements mandated in the SFA. Regional councils were given

two years (until October 11, 1998) to revise or write FMPs to meet all the new

requirements. To comply with SFA requirements, NMFS drafted a strategy detailing

the necessary implementation tasks.30 Through this process, NMFS and the regional

councils have addressed most of the SFA requirements. The NMFS Implementation

Activity List indicates what has been accomplished.31

Implementation. The provisions and requirements of the SFA reflect

significant changes to the goals and objectives of the MSFCMA, and full

implementation of these provisions has been of great concern to many groups.

Accordingly, there has been considerable interest in the actions of regional councils

and NMFS in implementing the SFA.

Of particular concern to environmental groups and some Members of Congress

is the progress of NMFS and regional councils in implementing SFA requirements.

In their review of proposed FMP amendments, some of the more critical interests

suggest that regional councils have instituted only incremental changes to current

management practices. These critics contend that regional councils have satisfied

only the minimum requirements and, in some cases, failed to comply with the law,

rather than fully embracing the new goals and objectives. Moreover, they suggest

that NMFS precipitated the poor performance of regional councils by delaying

implementation guidance and by allowing substantial latitude in how regional

councils implement the SFA provisions.

Some commercial fishermen contend that the standards established by NMFS

guidelines are unrealistic, given the dearth of scientific information. They contend

that this has resulted in assumption-based and model-based goals that are at odds

with implementing meaningful protection. Moreover, some commercial fishing

interests contend that, given the magnitude of tasks set before regional councils and

NMFS, the timetables established by the SFA were unrealistic and hence delays were

inevitable.

NMFS has not formally commented on the criticisms. They indicate that their

efforts have focused on accomplishing the myriad tasks set forth in the SFA and

implementing the law, rather than on addressing the concerns of citizens who

disagreed with their strategy or progress.

Subsequent Enactments

The MSFCMA has been amended and modified a number of times to address

specific concerns since the last comprehensive reauthorization in 1996. On October

23, 1998, President Clinton signed into law modified language from S. 1221 (the

American Fisheries Act, or AFA) as part of the Omnibus Consolidated and

U.S. Dept. of Commerce, National Marine Fisheries Service, Sustainable Fisheries Act

Implementation Plan (1996). Many NMFS SFA implementation documents are available

at [http://www.nmfs.noaa.gov/sfa/], visited Aug. 11, 2004.

Available at [http://www.nmfs.noaa.gov/sfa/activity/index.html], visited Aug. 11, 2004.

CRS-9

Emergency Supplemental Appropriations for Fiscal Year 1999 (Title II of P.L. 105277, 112 Stat. 2681-616). These provisions (1) require owners of all U.S.-flag

fishing vessels to retain at least a 75% U.S.-controlling interest; (2) identify eligible

participants for the Bering Sea and Aleutian Islands walleye pollock fishery;

(3) include a vessel buy-back program for nine catcher/processor vessels financed by

federal and private sector funds; (4) establish pollock allocations for three separate

industry sectors; and (5) establish protocols for fishermen’s and fish processor’s

cooperatives in the Bering Sea and Aleutian Islands walleye pollock fishery. The

AFA prohibits any new fishing vessel exceeding 165 feet in length, or 750 tons, or

with engines that produce greater than 3,000 horsepower from entering any

MSFCMA managed fishery, unless the Secretary of Commerce and the relevant

regional council approve the use of the vessel.32

In the 106th Congress, P.L. 106-31 included language in §3025 making

permanent a one-year moratorium (included in P.L. 105-277) on operating large

fishing vessels in the North Atlantic herring and mackerel fisheries until regional

action is taken. In addition, Title VI of P.L. 106-450 authorized the Secretary of

Commerce to acquire and equip fishery survey vessels, and P.L. 106-557 prohibited

shark finning in U.S. waters.

In the 107th Congress, §10107 of P.L. 107-171 (the Farm Security and Rural

Investment Act of 2002) appropriated “such sums as are necessary” to support a

voluntary fishing capacity reduction program for the New England multispecies

commercial fishery, within one year of enactment. P.L. 107-206 included

(1) language to make Fisheries Finance Program Account funds available to

subsidize gross obligations for the principal amount of direct loans not to exceed $5

million for individual fishing quota loans, and not to exceed $19 million for

traditional loans; (2) $11 million in economic assistance to New England fishermen

and fishing communities (§210); (3) $5 million of direct economic assistance to New

England fishermen and communities to support port security (§211); and (4) a $0.5

million loan guarantee for a $50 million capacity reduction program for the West

Coast groundfish fishery (§212). Section 624(a) of P.L. 107-77 extended state

authority to manage the West Coast Dungeness crab fishery through FY2006. In

addition, several enactments amended the AFA to address specific concerns:

Section 2202 of P.L. 107-20 altered provisions relating to the

applicability of U.S. ownership standards to banks holding

commercial fishing vessel mortgages;

! Section 211 of P.L. 107-77 deleted a sunset provision, effectively

making permanent a prohibition on direct pollock fishing by nonAFA catcher/processors; and

! Section 205 of P.L. 107-117 made the entire $100 million for the

AFA’s fishing capacity reduction program available as a loan under

Title XI of the Merchant Marine Act, 1936.

Except for vessels fishing in the U.S. EEZ under the authority of the Western Pacific

Regional Council or purse seine vessels engaged in tuna fishing in the Pacific Ocean outside

of the U.S. EEZ; see §202(a)(5) of P.L. 105-277.

CRS-10

In the 108th Congress, P.L. 108-7 included provisions creating a West Coast

Groundfish Fishing Capacity Reduction Program, directing NOAA Fisheries to

establish a Regional Office for the Pacific Area, and providing $100 million in

fishery disaster funding. Section 801 (Division B) of P.L. 108-199 directed the

Secretary of Commerce to approve the Bering Sea and Aleutian Islands crab

rationalization program, including individual processor quota; §802 established a

Gulf of Alaska rockfish demonstration program; and §803 reopened an Aleutian

Islands pollock fishery. Also included in P.L. 108-199, §105 (Division H) prohibited

the spending of FY2004 funds to implement new regulations to reduce overfishing

and rebuild fish stocks off New England. Section §304 of P.L. 108-219 repealed the

P.L. 108-199 prohibition on FY2004 New England fisheries expenditures; in

addition, §401 of P.L. 108-219 amended the MSFCMA to recognize the Pacific

Albacore Treaty with Canada. Section 224 of P.L. 108-293 required the Coast Guard

and NOAA to (1) improve consultations with each other and with state and local

authorities in coordinating fishery law enforcement and (2) submit annual summary

reports on fisheries law enforcement. P.L. 108-447 authorized capacity reduction

funding for the Southeast Alaska purse seine salmon fishery ($50 million; §209,

Division B), the Gulf of Mexico reef fish longline fishery ($35 million; §218,

Division B), the Bering Sea Aleutian Island non-pollock groundfish fishery ($75

million; §219(b), Division B), the U.S. distant water tuna fleet ($40 million; Fisheries

Finance Program Account, Division B), and the menhaden fishery ($19 million;

Fisheries Finance Program Account, Division B).

Action taken by the 109th Congress is discussed and summarized in CRS Issue

Brief IB10139, Fishery, Aquaculture, and Marine Mammal Legislation in the 109th

Congress, by Eugene H. Buck.

Oceans Commissions

Two ocean commissions recently released reports relating to marine fisheries.

The Pew Oceans Commission report33 was released June 4, 2003, and the U.S.

Commission on Ocean Policy’s final report34 was issued on September 20, 2004.

Fishery issues are only one aspect of the comprehensive ocean policy issues

discussed in these reports; the larger context includes governance, education, coastal

development, human health, environmental quality, energy resources, and ocean

science, among others. For background on the reports and the larger context of these

issues, see CRS Issue Brief IB10132, Ocean Commissions: Ocean Policy Review and

Outlook. A table in the Appendix to this report compares the reports’

recommendations relating to marine fisheries. As is normally the case, CRS takes

no position with respect to either report’s recommendations.

The Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea

Change, available at [http://www.pewoceans.org/oceans/index.asp] on Apr. 27, 2004.

U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21st Century, available at

[http://www.oceancommission.gov/documents/prepub_report/pre_pub_fin_report.pdf] on

Feb. 24, 2005.

CRS-11

Issues for Congress

The remainder of this report discusses issues that may be considered during any

reauthorization debate on the MSFCMA. However, few fishery issues are national

in scope, and regional concerns vary greatly; what may be a major concern in one

region may be inconsequential or entirely different in character in another.35 Thus,

many of these issues are likely to be debated in a regional, rather than national,

context. Some of the more controversial issues that may be addressed during

reauthorization include (1) whether to further specify the approaches to address

bycatch and bycatch mortality; (2) how to define, manage, and protect unique

habitats; (3) whether to legislate the designation of marine protected areas; (4) how

to assure that necessary data are collected; (5) how to manage marine ecosystems; (6)

how to assure that regional council decisions are fair and balanced; (7) how to

implement and finance fishing capacity reduction programs; (8) whether to establish

national standards for individual fishing quota management programs; and (9)

whether to authorize user fees and other charges that could be used for conservation,

management, and enforcement. Many of these issues were addressed in 1996.

Additional issues have been prompted by the recommendations from the Pew Oceans

Commission and the U.S. Commission on Ocean Policy (see “Oceans Commissions,”

above.)

Another matter of likely debate is the current management structure of regional

councils and agency regulation and how they affect fisheries management. The issue

before Congress is whether fisheries management could be improved through

increased legislative control over regional council decision-making or by providing

regional councils greater autonomy over their management activities. Those in favor

of increased legislative control argue that it could quiet criticisms that fishery

managers misinterpret the intent of Congress and decrease perceived conflict of

interest in regional council decision-making. Conversely, local communities would

likely be concerned that national management would lose sight of local issues.

Others contend that increased congressional involvement in managing fisheries could

lead to increased politicization and further increase the time it takes to respond to

problems and concerns.

Other prominent issues may include whether and how to increase fishery

management data collection efforts, how to define fishing community, whether to

revise the FMP review process, how best to manage highly migratory species, and

whether to increase emphasis on preserving ecosystem health and long-term resource

productivity. These issues have arisen repeatedly, and the MSFCMA often has been

amended in attempts to address them.

To increase the usefulness and readability of this report, the issues and concerns

that follow are grouped according to similarity in subject matter, although aspects of

An example can be seen with the bycatch issue, where concerns for sea turtle survival

(although turtles are not bycatch, as defined in the MSFCMA) and, more recently, finfish

bycatch reduction in shrimp trawls make this issue much more controversial in the Gulf of

Mexico and South Atlantic regions.

CRS-12

many issues transcend this artificial grouping. The order in which this information

is presented does not represent a ranking or hierarchy of importance.

Biological Issues

Various constituencies have voiced concern regarding the need to clarify and/or

modify how the fishery resource is viewed under the MSFCMA. These concerns

range from narrow suggestions for improving aspects to reflect increasing

understanding in fishery science to broad commentary on what actions are necessary

to achieve the overall MSFCMA goal of sustainable resource productivity.

Bycatch. Bycatch is fish harvested in a fishery, but not sold or kept for

personal use, and includes economic discards and regulatory discards.36 Economic

discards are fish that are targeted by the fishery, but are not retained because they are

of an undesirable size, sex, or quality, or for other economic reasons.37 Regulatory

discards are fish harvested in a fishery that fishermen are required by regulation to

discard whenever caught, or to retain but not sell.38 The MSFCMA’s definition of

bycatch explicitly excludes fish released alive under a recreational catch-and-release

fishery management program. Section 2(c)(3) of the MSFCMA encourages

development of measures to minimize bycatch to the extent practicable and avoid the

unnecessary waste of fish. Section 301(9) establishes a national standard that

requires conservation and management measures to minimize bycatch and bycatch

mortality.

Environmental groups assert that many regional councils’ draft FMPs generally

do not meet the SFA requirements related to bycatch.39 They charge that, at best,

regional councils have concentrated their efforts on developing strategies and

procedural measures, rather than taking direct action to minimize bycatch and

bycatch mortality. Environmental interests also contend that many regional councils

(e.g., New England, Mid-Atlantic, Gulf of Mexico, and Caribbean Regional

Councils) neglected to submit FMP amendments that addressed SFA bycatch

requirements.

Some environmental groups contend that most regional councils have failed to

assess the adequacy of current bycatch reporting methods and identify what is

necessary to establish standardized bycatch reporting methods.

Specific

recommendations include accurately quantifying bycatch of target species (fish

discarded because they are not marketable) and non-target species (fish caught

incidentally), accounting for catch and bycatch before catch is sorted, and expanding

the use of NMFS observers to measure total catch.

16 U.S.C. §1802(2).

16 U.S.C. §1802(9).

16 U.S.C. §1802(33).

The Marine Fish Conservation Network and The Center for Marine Conservation, Missing

the Boat (Washington, DC: 1999), p. 2.

CRS-13

Some fishery managers suggest that the MSFCMA’s definition of bycatch may

need to be reviewed, as it is important to the practical implementation of bycatch

controls in the MSFCMA. These managers assert that, while these definitions may

seem clear, in practice they are quite problematic. Bycatch, in essence, pertains to

fish that are discarded.40 Thus, one direct way for regional councils to reduce

discards would be to require retention and utilization of all catch. However, these

managers and environmental groups suggest that this does not address the incidental

catch of non-targeted species. Moreover, these individuals suggest that the definition

of economic discards is of little practical use, contending that it might better be

described as “any discard that is not a regulatory discard.” They also note that in

many fisheries it is difficult to accurately determine the amount of regulatory

discards. For example, NMFS fishery observers in North Pacific groundfish fisheries

collect data on total catch weights and estimate the percent of catch retained (the

difference being an estimate of the amount discarded). The accuracy and reliability

of these estimates are often questioned. As a means to better estimate total fishing

mortality, the SFA mandated standardized reporting to assess bycatch. Many fishery

managers assert, however, that collecting accurate data may pose a substantial

financial burden and may be infeasible.

As an alternative, these managers suggest that the MSFCMA definition of

bycatch should be amended to include retained and discarded incidental catch of fish

and non-fish species (e.g., sea birds), and that the terms economic and regulatory

discards should be eliminated. Additionally, congressional consideration of how best

to discourage bycatch might also include initiating and monitoring full retention of

catch, with requirements for donating prohibited species to charitable organizations.

Similarly, some commercial fishing interests contend that the concept of

regulatory discards needs to be addressed, to better encourage the commercial sector

to support fishery management strategies. They assert that the principle that “fish are

better discarded dead than brought to market” undermines any possibility of industry

support for management actions. They point to the summer flounder fishery, where

as much as half of the total allowable catch quota has been discarded because of

minimum fish size limits and quota/trip limits.

Despite the legislative and regulatory efforts of Congress, NMFS, and the

regional councils to address bycatch and waste, these issues are still of great concern

to the public, environmental organizations, recreational anglers, and commercial

fishermen. During reauthorization, these groups may suggest that Congress consider:

creating additional incentives for commercial and recreational

fishermen to avoid bycatch or reduce bycatch mortality of

incidentally caught species (e.g., individual or vessel bycatch

allowances);41

Bycatch, by its MSFCMA definition, does not include incidentally caught sea turtles, sea

birds, and other non-fish organisms.

Concerns about vessel bycatch allowances (VBAs) include the following: (1) some

fishermen contend that VBAs are both efficient (they provide the proper incentives for

(continued...)

CRS-14

directing NMFS to implement increasingly stringent regulations that

close fisheries or penalize individuals for high levels of bycatch and

bycatch mortality, and to increase funding for enforcement;

! funding research for innovative fishing gear that reduces bycatch

and/or bycatch mortality;

! creating tax incentives for using bycatch reduction devices;

! allowing nonprofit utilization of fish that would otherwise be

discarded; and

! increasing funding for NMFS to research and develop bycatch

reduction measures.

Some additional options to create incentives for avoiding bycatch might be to:

increase funding to place more NMFS observers on board vessels to

obtain reliable bycatch data;

! strengthen the definition of bycatch to directly address the problems

of non-selective fishing practices, and correct the misinterpretation

that equates dead discards of non-target fish with voluntary release

of target fish; and

! require that all sources of mortality, including dead discards, be

counted against total allowable catch quotas.

Some fishery scientists suggest that the use of new fishing gear could greatly

reduce bycatch and bycatch mortality. Currently, the use of new gear is regulated by

the List of Fisheries and Gear (50 C.F.R. §600.725(v)) and Notification Guidelines

(50 C.F.R. §600.747(H)).42 The Notification Guidelines establish a process for

notifying regional councils (or NMFS, in the case of Atlantic HMS) of the intent to

use new gear43 and guidelines for approving new gear.44 Some fishery scientists are

concerned that this process is burdensome and discourages the development and use

of new fishing gear. They may suggest that Congress review the process by which

regional councils authorize the use of new fishing gear, and consider ways to

(...continued)

reducing bycatch) and equitable (they reward individuals who avoid bycatch or reduce

bycatch mortality); (2) conversely, some environmental groups and other fishermen assert

that VBAs provide no guarantee that bycatch will be reduced below what is currently

allowed because the allocated bycatch effectively becomes a right to continue taking

bycatch; and (3) some scientists point out that individual observer data can be highly

variable, with a potentially disparate effect on fishermen with VBAs who may be saddled

with incompetent, lazy, or dishonest observers.

64 Federal Register 4030, Jan. 27, 1999.

No person or vessel may use fishing gear or participate in a fishery (commercial and

recreational) not included in the list without giving 90 days advance notice to the

appropriate regional council or the Secretary (64 Federal Register 4031, Jan. 27, 1999).

If a regional council finds that the new gear or fishery would not compromise the

effectiveness of conservation and management efforts under the Magnuson-Stevens Act, the

regional council will recommend to the regional administrator that the authorized list of

fisheries be amended (64 Federal Register 4031, Jan. 27, 1999).

CRS-15

encourage the development and use of innovative fishing technologies.45 Specific to

the development of innovative fishing gear, these scientists may suggest that

Congress require regional councils to discuss several additional concerns in FMPs,

including:

requirements for developing and implementing bycatch reduction

plans;

! specific funding to study gear that reduces bycatch;

! harvest access incentives for fishermen participating in the

development of bycatch reduction devices; and

! technical assistance programs to help design and conduct statistically

valid studies for assessing the effectiveness of bycatch reduction

devices.

Essential Fish Habitat. Section 305(b) of the MSFCMA establishes

requirements for identifying, describing, conserving, and enhancing EFH. Section

303(a)(7) requires FMPs to minimize the harm to EFH caused by fishing. Section

303(a)(8) establishes requirements for scientific data needed to implement FMPs.

Section 3(10) defines EFH. Regulations provide some guidelines as to how EFH is

to be identified in FMPs,46 including provisions for designating habitat areas of

particular concern (HAPC) that may be especially important to the long-term

productivity of populations of one or more managed species.47

Fishery scientists, environmental groups, and commercial and recreational

fishing interests are concerned about how NMFS, the regional councils, and others

have interpreted these EFH provisions. Additionally, the paucity of tangible

scientific data has been widely viewed as a hindrance to identifying, describing, and

conserving EFH. Environmental groups commend the regional councils for their

success in identifying and describing EFH. However, these groups suggest that,

while there have been some strides in addressing the harm caused by fishing and

non-fishing activities, most regional councils have yet to establish measures to reduce

the harmful effects of fishing activities on habitat. Some environmental groups view

this lack of action as a major shortcoming of EFH implementation, and suggest that

congressional action might be required to force regional councils to act.

The MSFCMA defines EFH as “those waters and substrate necessary to fish for

spawning, breeding, feeding or growth to maturity.” There is considerable debate

about how to distinguish between essential and non-essential habitat.48 The aquatic

Experimental fisheries are regulated under 50 C.F.R. §679.6, which allows regional

administrators to authorize experimental fisheries for groundfish in a manner that would be

otherwise prohibited. Some note that NMFS’s/NOAA Fisheries’ centralized control of

scientific, experimental, and exempted permits has resulted in long delays in processing

applications. They recommend making permits available on a regional basis.

50 C.F.R. §600.815.

50 C.F.R. §600.815(a)(8).

However, critics of this approach suggest that any distinction between “essential” and

(continued...)

CRS-16

environment has few clearly defined boundaries. Thus, habitat necessary to support

fisheries is not easily recognizable or quantifiable. For example, salmonids use a

wide range of aquatic environments, from open ocean to estuaries to inland rivers and

lakes. It has been argued that each of these areas is essential to salmon during some

point in their life. Therefore, any activity that occurs in this range of habitats could

harm “those waters and substrate necessary to fish,” including fishing, shipping,

farming, timber harvesting, and hydropower production. Others contend that only

portions of these environments may be essential to salmon.

The distinction between essential and non-essential habitat, however, is

problematic. Managing an unbounded natural environment often necessitates

drawing imaginary lines to regulate human activities within that environment. To

protect fish and other marine life from harmful human activities, the MSFCMA

required regional councils to describe and identify EFH. However, the unlimited

ocean environment combined with limited scientific information about fish life

histories and habitat needs can result in somewhat arbitrary definitions of essential.

This ambiguity raises concerns among constituents about how regional councils are

distinguishing EFH.

Some fishery scientists express concern that regional councils have defined EFH

for some species in overly broad terms. For example, the Pacific Regional Council

defines EFH for salmonids to include all waters of the EEZ and all freshwater areas

that contain or have contained salmonids. These scientists are concerned that

regional councils have not distinguished between essential and non-essential parts

of a range of habitat, choosing instead to define all habitat as essential. These

scientists suggest that by perhaps modifying the definition of EFH, Congress could

better direct how regional councils are to make EFH determinations. Some scientists

suggest modifying §305(b) to include a simple statement that fish habitat is divided

into areas that are essential and those that are non-essential; that an explanation be

included in the FMP of the criteria by which these determinations are made; and that

actions that damage EFH be described. Other scientists believe that attempts to

divide habitat into essential and non-essential components would be unworkable

(most notably because of the lack of scientific data) and create further delays in

implementing EFH provisions. They support EFH designations based on available

data and believe that NMFS and regional councils have appropriately used a

precautionary approach in identifying EFH. In their opinion, regional councils did

not define EFH arbitrarily; rather, regional councils used fish distribution as a proxy

for EFH in defining the EFH boundaries. They assert that the controversy lies in

where, within the bounds of EFH, fish distribution should be defined as essential.

Because data are not available to ascertain the exact relationship between fish and

habitat, they believe that most regional councils have correctly used stock distribution

and density data to identify EFH. Moreover, they note that, as more and better data

become available, EFH can be narrowed by revising the EFH provisions in FMPs.

Other suggestions for identifying and describing EFH include the following:

(1) because of its critical importance to fish survival, include all substrate areas that

(...continued)

“non-essential” is substantially based on a highly anthropogenic view of animal behavior.

CRS-17

a demersal49 or non-demersal species uses during any part of its life history as EFH,

and, where possible, divide into primary, secondary, and tertiary habitats;

(2) distinguish between EFH and critical habitat, with critical habitats defined as

those areas where significant ecological harm could imperil the species or stock in

question;50 and (3) increase the strength of EFH provisions relating to state waters,

non-fishing activities, and land-use practices that influence EFH.

In addition to addressing the definition of EFH, some commercial fishing

interests recommend that Congress define the context for judging harm. They note

that, in North Pacific Regional Council discussions about EFH, each species may be

viewed as part of the habitat for other species (because of predator-prey relations and

other life history needs). Thus, they contend that plankton is part of the habitat for

herring, herring is part of the habitat for salmon, salmon is part of the habitat for sea

lions, etc., and the harvest of any species might constitute harm to another species.

Moreover, they note that successful predators inevitably modify their environment

to some degree, and fishermen function as predators in the marine environment.

Fishing is not a benign activity — it causes change within the marine environment.

In their opinion, these changes inevitably harm some species and benefit others.

These commercial fishing interests believe that sustainability of the overall system

should be the goal, and that Congress might consider clarifying the definition of

harm, especially in terms of harm to EFH caused by fishing, as referred to at

§307(a)(7).

While not specifically addressed in the MSFCMA, data are critical for

identifying and describing EFH. Whether constituencies perceive the EFH

provisions as beneficial to fishery management or as restricting fishing opportunities,

virtually all believe more research is required to better define the linkages between

habitat and fishery productivity, determine the extent of harm caused by fishing and

non-fishing activities, and assess the need for “protected areas” to protect habitat and

conserve fish stocks.

Various interests commend ongoing efforts to describe and identify EFH, but

note that additional research is needed to understand the habitat requirements of fish

at various life history stages; the role of submerged aquatic vegetation, reefs, and

“cover” in salmon streams, mangrove forests, and wetlands; and the linkages between

habitat, fishery production, and ecosystem health; as well as to map different habitats.

Thus, it is likely that fishery scientists, environmental groups, and commercial and

recreational fishing interests will ask Congress to consider authorizing research

focused on habitat and its role in ensuring sustainable fisheries.

Living near, deposited on, or sinking to the bottom of the sea.

As noted above, the EFH regulations encourage regional councils to identify Habitat

Areas of Particular Concern (i.e., rare or ecologically important areas of EFH) to focus EFH

protection efforts.

CRS-18

Marine Protected Areas.51 A marine protected area (MPA)52 can be

considered to be any part of the marine environment that is selectively managed to

offer enhanced protection of the plants, animals, and/or cultural features in that

area.53 An MPA could include underwater areas close to the coast or offshore; reefs

and seagrass beds; and shipwrecks and archaeological sites. MPAs could also

include estuarine and intertidal areas, including tidal lagoons, mudflats, saltmarshes,

mangroves, and rock platforms. Different types of U.S. MPAs include national

marine sanctuaries, fishery management zones, national seashores, national parks,

national monuments, critical habitats, national wildlife refuges, national estuarine

research reserves, state conservation areas, state reserves, and many others. The

MSFCMA neither specifically addresses MPAs nor prevents regional councils from

designating MPAs. Under the MSFCMA, MPAs could be used in combination with

traditional fishery management tools as one approach to rebuilding fisheries and

protecting EFH. (See §§304(e) and 305(b), respectively, of the MSFCMA.)

MPAs may enhance fisheries by protecting fish spawning aggregation and

nursery areas, such as seagrass beds, mangrove communities, and reefs. MPAs may

play a role in rebuilding fish stocks by providing a haven for fish to grow and

reproduce. Adult fish may then move from MPAs into adjoining areas, enhancing

fishery production. Proponents of MPAs claim that protected areas may be beneficial

in curbing overfishing, rebuilding depleted stocks, preserving ecosystem integrity,

and protecting EFH. Specifically, they suggest that MPAs can prevent overfishing

by providing a hedge against uncertain stock assessments, rebuilding depleted stocks

by allowing older and more reproductive individuals to survive, alleviating the

impacts of fishing on habitat, providing reference sites to assess fishing and nonfishing impacts, and providing a refuge for bycatch species.54

Some environmental groups believe that MPAs are a promising management

tool, but one highly subject to political manipulation. These interests assert that, for

For more detailed information on this topic, see CRS Report RL32154, Marine Protected

Areas: An Overview, by Jeffrey Zinn and Eugene H. Buck; and National Research Council,

Marine Protected Areas: Tools for Sustaining Ocean Ecosystems, Committee on the

Evaluation, Design, and Monitoring of Marine Reserves and Protected Areas in the United

States, Ocean Studies Board, Commission on Geosciences, Environment, and Resources

(Washington, DC: National Academy Press, 2001), 272 pp.

The creation of MPAs was promoted by President Clinton’s signing of Executive Order

13158 (May 26, 2000) on Marine Protected Areas. For the text of this order, see

[http://www.mpa.gov/executive_order/execordermpa.pdf], visited Aug. 11, 2004. This order

also established a National MPA Center to provide federal, state, territorial, tribal, and local

governments with the information, technologies, and strategies to support an MPA system.

For general background on federal MPA activities, see also [http://www.mpa.gov], visited

Aug. 11, 2004.

See [http://www.mpa.gov/information_tools/archives/what_is_mpa.html#varying], visited

July 2, 2004.

Some fishery scientists note that the scallop closed-area on Georges Bank highlighted the

potential benefits of one approach to MPAs. After fishing was prohibited in this area for

several years, bottom trawl survey data indicated a buildup of yellowtail flounder and large

numbers of scallops.

CRS-19

MPAs to be effective, a significant portion of EFH should be included in a protected

area. They contend, however, that commercial and recreational fishing interests will

use political pressure to restrict MPA classification to suboptimal habitat. To ensure

that MPAs provide real benefits for fish production and habitat protection, some of

the more vocal MPA proponents recommend that exploitation of fish stocks in

protected areas be eliminated or limited to catch-and-release sportfishing.

Other respondents suggest that all seagrass beds, mangrove areas, and reefs

should be considered for listing as MPAs. They believe that “core” areas can be

identified and should be closed to all activities, except carefully monitored scientific

investigation.55 For coral reefs, some respondents contend that one of the most

detrimental activities to fish populations is spear fishing with the aid of scuba gear.

They recommend that this activity be eliminated if heavily fished coral reefs are to

recover.

Some commercial and recreational fishing interests are likely to counter

proponents’ claims by noting the weakness of scientific proof that MPAs accomplish

what their supporters contend. They and other opponents are likely to ask Congress

to consider the economic losses that may result from designating MPAs and closing

areas to fishing and other uses. These groups will likely ask for more scientific

research before closing areas, reducing fishing opportunity, and imposing economic

costs on users. These groups also are concerned about the permanence of MPA

designations and desire the flexibility through adaptive management to change MPA

boundaries and regulations in response to an evolving understanding of MPAs. They

also note that while MPAs may be a useful tool within a traditional management

system, regional councils should not be mandated to use MPAs.

Moreover, some critics of MPAs contend that, while establishing a reserve to

protect and maintain sessile or largely non-mobile stocks or species may be prudent

in certain circumstances, highly mobile animals do not recognize protected area

boundaries. Thus, they argue that extreme protective measures, such as no-take

zones, may be ineffective for migratory fish.

Finally, some scientists note that although MPAs may initially benefit depleted

stocks by allowing rebuilding, additional research is needed on the management

problems created by overcrowding and increased density of concentrating fishing

vessels in the remaining smaller open areas when fishing grounds are closed for an

extended period of time. They note that scientific studies already suggest that

overcrowded and high-density fishing can lead to health problems and poor

reproduction in marine species. They conclude that periodic and monitored fishing

in closed areas may be appropriate after rebuilding has occurred.

Certain areas of the marine environment have been closed to all or specific activities for

a variety of reasons (e.g., marine sanctuaries designated under the Marine Protection,

Research, and Sanctuaries Act (16 U.S.C. §§1431, et seq.); regulatory closures in the Bering

Sea and Aleutian Islands to protect crab, salmon, herring, and marine mammals; the Oculina

Banks Experimental Reserve established by the South Atlantic Regional Council; and the

Tortugas Shrimp Sanctuary).

CRS-20

Other comments include the following: (1) managers should also consider the

broad array of economic benefits and costs, including the potential growth of

non-extractive ecotourism in association with MPAs (e.g., displaced fishermen might

become involved in non-extractive dive trips); (2) closures should affect all sectors

equally (some commercial fishermen assert that current closed areas have resulted

in highly unequal treatment among gear sectors); (3) MPAs and their regulations

should be carefully evaluated for their potential to displace subsistence/traditional

and customary use fishermen; and (4) designations of MPAs should be made by

regional councils, not Congress (i.e., local decisions, not national control).

Discussions about EFH include continuing debate over situations where MPAs

might be an appropriate means to conserve stocks and protect habitat. The level of

protection can vary among different types of MPAs. Some MPAs allow a wide range

of activities (including fishing) while others are more stringently regulated, possibly

prohibiting all human activities. The size of an MPA depends on its intended

purpose. MPAs created to protect shipwrecks can be quite small, while those that

aim to protect whole ecosystems may be much larger.

Issues that Congress may face include whether the MPA concept should be

codified in law, the rationale for creating MPAs and methods for selecting which

areas to protect, the types of activities that would be permitted or prohibited and why,

a review of existing closed areas (including assessing their effectiveness), and

research to determine the sociocultural and economic benefits and costs of creating

MPAs.

The difference between no-take marine reserves (areas closed to all resource

extraction) and multiple-use areas (areas with gear-type or time/area restrictions, but

where limited fishing is permitted) is one of the more controversial issues in the

debate over the merits of designating MPAs. Fishing groups would be likely to ask

for consideration of the differences between recreational and commercial fishing, and

the relative effects of various types of commercial gear and operational

characteristics.

Overfishing. Environmental groups have expressed concern over regulatory

exemptions to the national standard that requires conservation and management

measures to prevent overfishing.56 They suggest that, by allowing overfishing to

continue, NMFS’s/NOAA Fisheries’ interpretation weakens the law and endangers

50 C.F.R. §600.310(d)(6). NMFS explains that, because harvesting one species in a

mixed-stock complex at its optimum yield may result in overfishing of another stock in the

complex, regional councils may permit overfishing only if all of the following conditions

are satisfied: (i) it will result in long-term net benefits to the nation; (ii) mitigating measures

have been considered and a similar level of long-term net benefits cannot be achieved by

modifying fleet behavior, gear selection/configuration, or other technical characteristic in

a manner such that no overfishing would occur; and (iii) the resulting rate or level of fishing

mortality will not cause any species or evolutionarily significant unit thereof to require

protection under the ESA. NMFS, however, reports that this exception has never been

applied and, for that reason, has not been successfully challenged in court by environmental

interests (Natural Resources Defense Council v. Evans, 243 F.Supp.2d 1046 (N.D.Cal.,

2003); Natural Resources Defense Council v. Evans, 168 F.Supp.2d 1149 (N.D.Cal., 2001)).

CRS-21

depleted stocks, and that economic returns are being valued over ecological concerns.

Congressional concern has also been expressed over what is perceived as NMFS

permitting regional councils to miss deadlines and delay actions to end overfishing

and rebuild stocks.57 Environmental groups contend that, rather than using 10 years

as an upper limit on stock recovery, regional councils have uniformly adopted 10

years as a standard recovery period. Environmental groups also suggest that fishery

rebuilding plans, in some instances, do not account for overfishing caused by

recreational harvest.58 The Mid-Atlantic Regional Council’s FMP for summer

flounder, for example, contains no additional management measures to address

overfishing in the recreational fishery. NMFS has taken public comments on

proposed regulatory revisions to guidelines on overfishing,59 but no final rule has

been published. In light of the continued struggles with this issue, Congress may

ultimately decide to review the MSFCMA’s requirements for rebuilding and recovery

of overfished stocks.60

Other concerns include (1) continued fishing above the rate that produces

maximum sustainable yield; (2) lack of status assessments for many managed

species; (3) failure of some regional councils to establish criteria to identify when a

stock is overfished; (4) failure of some regional councils to ensure overfished stocks

will be rebuilt within the time frames established by the MSFCMA; (5) delay of

rebuilding plans for stocks needing immediate protection; and (6) lack of overfishing

definitions that are based on the biology of each stock. Additional comments include

(1) the only way to rebuild a stock is to declare a moratorium and wait for the natural

rebuilding cycle to occur, and then resume fishing; and (2) regional councils should

be penalized for failure to meet targets to curb overfishing.

Harmful Non-Native Species. Because of the potential for harm to fishery

resources, some believe that prevention and control of harmful aquatic non-native

species, such as the European green crab (Carcinus maenas), should be given some

consideration during reauthorization of the MSFCMA. For example, potential

invasive species concerns might be identified as a discretionary issue for discussion

in FMPs. For more information on non-native species, see CRS Report RL30123,

For example, the Pacific Regional Council proposed a groundfish fishery FMP that would

arguably have perpetuated overfishing the mixed-stock groundfish fishery. Proponents of

this management approach state that criticism oversimplifies a complex management plan,

contending that substantial harvest reductions have been made for two of the three species

designated as overfished. The third (Pacific ocean perch) is a long-lived species, whose

biomass estimate is uncertain, and may take more than 10 years to rebuild. Thus, these

proponents argue that the Pacific Regional Council’s harvest policy complies with the

national standards (16 U.S.C. §1851) under the MSFCMA.

Some contend that, in certain South Atlantic and Gulf of Mexico fisheries, sport anglers

far outfish commercial harvesters for those species targeted by sportfishermen. See F. C.

Coleman et. al., “The impact of United States recreational fisheries on marine fish

populations,” Science, Aug. 26, 2004.

See [http://www.nmfs.noaa.gov/sfa/domes_fish/NS1/recommendations.version3.pdf],

visited Sept. 1, 2004.

16 U.S.C. 1854(e).

CRS-22

Harmful Non-Native Species: Issues for Congress, by M. Lynne Corn, Eugene H.

Buck, Jean Rawson, and Eric Fischer.

Management Issues

Commercial and recreational fishing interests, environmental groups, and

fishery scientists voiced concern regarding the need to clarify and/or modify the

scope and goals of fishery management under the MSFCMA. These concerns range

from narrow suggestions for improving aspects of fishery management to broad

commentary on the overall goals of MSFCMA management.

Data Collection and Management. Section 402 of the MSFCMA provides

authority for regional councils to develop and implement information collection

programs that would be beneficial in developing FMPs or determining if a fishery

needs to be managed.

Recreational and commercial fishing interests express an interest in more data,

including sociocultural data, to improve fishery management. In their view, more

information would promote a better understanding of the economic and sociocultural

contributions of commercial and recreational fishing enterprises as well as the

businesses and industries that support both sectors.61 The absence of adequate data

makes it difficult for fishery managers to arrive at fair and equitable decisions about

matters that affect commercial and recreational fishing.

Some environmental groups believe that the present state of knowledge

regarding catch in recreational fisheries and bycatch in all fisheries is poor and needs

to be greatly improved to prevent overfishing and to minimize bycatch. These groups

assert that many regional councils use the lack of data to justify postponing action in

a number of areas such as identifying maximum sustainable yield (MSY) or optimum

yield (OY); determining the status of many stocks; and proposing measures to

minimize bycatch and the harm caused by fishing gear on EFH. These groups

suggest that additional funding is necessary to support these research efforts so that

the MSFCMA can be properly implemented and fisheries can be sustainably

managed. These groups are specifically concerned with identifying and quantifying

the amount and type of bycatch occurring in all fisheries.

Fishery managers suggest that if more information is going to be collected,

particularly on sociocultural and economic aspects, creative ways will need to be

developed to collect useful information with minimal additional burden. They

believe that programs that collect unverified data from the industry are likely to

impose a high burden but result in low-value information (i.e., data of questionable

validity).62 They assert that the Paperwork Reduction Act (44 U.S.C. §§3501-3520)

However, socioeconomic data collection may have a disparate impact upon small entities,

while larger companies can spread such costs over diversified operations. In this respect,

data collection efforts may conflict with the MSFCMA’s National Standard #8 relative to

protecting communities.

However, sociocultural and economic scientists are well aware of potential problems with

(continued...)

CRS-23

often hinders efficient collection of information. Moreover, in their opinion, because

the MSFCMA ties data collection to a specific FMP, fragmented and inconsistent

data result. They posit that future versions of the MSFCMA should encourage

interagency and inter-regional cooperation on data collection, satisfying specific FMP

needs within an overarching plan that results in useful information.

Another source of information, suggested by some commercial fishermen, is

fishermen themselves. They believe that fishermen offer a largely untapped source

of data, especially about how many of what species are found when and where. They

contend that these anecdotal data are just as useful as annual or triennial trawl

surveys, and that fishermen should be integrated into data collection and management

efforts.

The types of information collection and analysis that all of these groups may

request include (1) a needs assessment of the types of data required to manage

recreational and commercial fisheries; (2) a needs assessment of the types of

economic and social data (including data on industries that support recreational and

commercial fisheries) needed to make management decisions;63 (3) increased

collection of commercial and recreational fish harvest data (including bycatch); and

(4) increased collection of information to support development, implementation, and

management of individual fishing and bycatch quota programs. Moreover, a variety

of fishing interests are likely to ask Congress for increased attention to collecting

information on the indirect but significant impacts of fishery management policy on

such related businesses as gear manufacturers, local restaurants, ice houses, and other

businesses that support recreational fishing. Contrary to these suggestions, some

commercial and recreational fishermen may object to expanded data collection, citing

their belief that fishing is already heavily regulated and that increased reporting

requirements would add unnecessary costs and other burdens.

The Scientific Basis for Policy. Commercial fishing interests suggest that

weak fishery data hinder decision-making and result in flawed regulations. While

protecting habitat and ecosystems are reasonable objectives, they assert that there is

no way to implement management objectively with inconclusive scientific

information about ecosystems and the impacts of fishing on habitat. They suggest

that Congress modify the MSFCMA to focus on gathering more tangible information

upon which to base regulations. The environmental community would likely use this

same argument to promote even more stringent fishery regulations, noting that the

“precautionary approach” prescribes more conservative management in the face of

uncertainty.64 The crux of the issue is, what is meant by this phrase, and how

“precautionary” management ought to be when dealing with imprecise data and

variable fish stocks.

(...continued)

data bias and have developed methods for dealing with these concerns.

Others argue that a multitude of these needs assessments have been completed in the last

decade, and the types of information needed are well known; any additional needs

assessments would simply delay needed data collection.

Others argue that the time has come to shift the burden of proof to the resource users and

away from fishery managers and scientists.

CRS-24

Some in the environmental community agree that there is a serious lack of

fishery data and that steps should be taken to obtain more and better data. However,

they generally are concerned that this lack of data not be used as an excuse to delay

conservation measures. In their opinion, delays to obtain more data have caused

declines of some managed fish and other marine species to population levels

requiring Endangered Species Act protections. They believe that inaction premised

on lack of information is unsound, contending that the data are sufficient for NMFS

and regional councils to take steps to protect EFH and ecosystems, and concluding

that a precautionary approach makes the use of the best available scientific

information. Others contend that NMFS currently advocates risk-averse decisionmaking; nonetheless, they recommend that Congress specifically endorse risk-averse

decision-making, especially where limited data and information are available.

Finally, other scientists note that best available scientific information should

also include sociocultural information. However, in their opinion, there are no

rigorous social and culture impact assessments in current FMPs. They assert a

critical need for sociocultural and socioeconomic data, that must be collected before

social impact analyses can be conducted. Therefore, these scientists might ask

Congress to consider authorizing research programs to collect and analyze

sociocultural information.

Reliability of Management Models. Section 404(c)(1) of the MSFCMA

establishes requirements for the Secretary to initiate and maintain fishery research to

carry out the purposes, policy, and provisions of the Act.

Some fishery managers note a concern regarding the need for additional data to

verify the assumptions used in stock assessment models. Particularly, they assert that

the management analyses garnered from Virtual Population Analysis (VPA) models

could be improved by expanding the use of age-growth65 information. To address

these concerns, some fishery managers suggest that Congress might consider

authorizing funds for expanded age and growth research. For example, regional age

and growth research centers could coordinate information among state and federal

agencies. Fishery managers suggest that a central data clearinghouse would provide

consistent fishery data, avoid duplication of effort, and reduce costs.

Some environmental groups are concerned that fishery managers do not have

the necessary information to determine valid MSY values and the status of many

stocks. They are concerned that assumptions made by regional councils may not be

scientifically justifiable and may, therefore, result in risk-prone management that

increases the likelihood of overfishing. In addition, some fishery scientists note that

it is not just biological or population dynamic models that are problematic, but that

social and economic impact assessment models also have serious deficiencies.

Age-growth analysis uses fish scales and otoliths (“ear” bones used for balance and

orientation) to assess age relative to length. These hard structures have annual growth rings,

much like rings in a tree trunk, that can be used to estimate the age of a fish. However, some

fishery scientists note that traditional age-growth research, using hard parts to discern fish

age, is not applicable in tropical regions because fish growth is not subject to discrete

seasonal changes. In tropical regions, “length-based” methods are used.

CRS-25

The National Academy of Sciences’ Committee on Fish Stock Assessment

Methods reviewed existing stock assessment methods and considered alternative

approaches.66 The Committee found that, while simple models are useful, more

complex models are needed to better quantify unknown aspects of the system and to

address the long-term consequences of specific decision rules. Their retrospective

analyses showed that persistent over- or under-estimation can occur over a number

of assessment years, regardless of the assessment model. In their simulations, model

performance became more erratic as more variability or errors were introduced into

the data. They recommended that different assessment models be used to analyze the

same data as a means to identify poor quality data. In addition, the Committee

suggested that greater attention be devoted to including independent estimates of

natural mortality and its variability in assessment models. Specifically, they

recommended (1) using Bayesian methods and other statistical techniques to

incorporate realistic uncertainty into stock assessment models; (2) developing better

assessment models for recreational fisheries and methods to evaluate the impacts of

the quality of recreational data on stock assessments; (3) accounting for effects of

directional changes in environmental variables (e.g., climate change) in new models;

and (4) developing new means to estimate changes in average “catchability,”

selectivity, and mortality over time, rather than assuming that these parameters

remain constant.

Ecosystem vs. Single-Species Management. Fishery scientists suggest

adopting ecosystem-based management, notably for defining EFH. They argue that

habitat use by various species is a composite and involves more than the life cycle

of a single species. These scientists see the need to develop fundamentally new

concepts for dealing with trans-boundary fishery management and EFH issues. In

moving toward ecosystem management, scientists suggest that Congress transform

EFH regulations into national guidelines for instituting ecosystem-based

management.

Currently, the MSFCMA divides the U.S. EEZ into eight regional management

areas. These areas generally extend from 3 miles off the coast out to 200 miles

offshore and are managed by the eight regional councils. Fisheries within 3 miles of

the coast are managed under state authority. Fishery scientists suggest that, because

of the difficulty in subdividing ecosystems for management purposes, Congress

should redefine these management zones. These scientists suggest that unifying

fishery management across state and federal waters is the most important step in

moving toward ecosystem-based management.67 Additionally, they suggest that

artificial boundaries, such as those dividing the Atlantic portion of the nation’s EEZ

into three regional fishery management areas, impair management of trans-boundary

stocks. Redefining regional fishery management areas to reflect an ecosystem-based

National Research Council, Committee on Fish Stock Assessment Methods, Improving

Fish Stock Assessments (Washington, DC: National Academy Press, 1998; hereafter “Stock

Assessments”).

On the other hand, unifying management may mask a simultaneous need to recognize the

many small ecotones that would benefit from being considered as semi-separate units rather

than simply parts of a great whole.

CRS-26

approach would require major amendment of the MSFCMA. Sections applicable to

such amendment would likely include §303(a) on FMPs and §305(b) on EFH.

A more formal approach for introducing ecosystem considerations into fishery

management is described in the final report of NOAA Fisheries’ Ecosystem

Principles Advisory Panel.68 In 1996, Congress requested an assessment of the extent

to which ecosystem principles are currently applied in fishery research and

management, and recommendations for how best to integrate ecosystem principles

into future fishery management and research.69 The panel noted that:

a comprehensive ecosystem-based fishery management approach would require

managers to consider all interactions that a target fish stock has with predators,

competitors, and prey species; the effects of weather and climate on fishery

biology and ecology; the complex interactions between fishes and their habitat;

and the effects of fishing on fish stocks and their habitat.70

The panel considered full implementation of the overfishing, bycatch, and EFH

provisions of the Sustainable Fisheries Act to be prerequisites to ecosystem-based

fishery management.

In their report, the panel described the enormous task of managing at the

ecosystem level and recognized that, in most cases, then-current data were

insufficient. However, it stressed that there are practical ways to use the information

that is available and recommended the use of fishery ecosystem plans (FEPs) to

further incorporate ecosystem principles into FMPs. The FEP would document the

structure and function of the ecosystem in which fishing activities occur as well as

provide information to managers about the effects of their decisions on other

components of the ecosystem and the effects of other ecosystem components on

fisheries.71 The primary purpose of the FEP would be to allow regional councils to

prescribe how fisheries will be managed from an ecosystem perspective.72

The panel recommended that Congress require NMFS to develop FEP

guidelines and each regional council to develop an FEP for the ecosystem(s) under

its jurisdiction. It stated that each FEP should require, at least, eight actions by

regional councils:

Delineate the geographic extent of the ecosystem, including the biological,

chemical, and physical dynamics, and use a zone-based management

approach to designate geographic areas for prescribed uses;

Develop a conceptual model of the food web;

Ecosystem Principles Advisory Panel, Ecosystem-Based Fishery Management: A Report

to Congress, Nov. 1998 (hereafter “Ecosystem Management”). The text of this document

can be viewed at [http://www.nmfs.noaa.gov/sfa/EPAPrpt.pdf], visited Aug. 11, 2004.

Mandated by the 1996 SFA amendments to the MSFCMA, §406, fishery systems research.

Ecosystem Management, p. 1.

Ecosystem Management, p. 3.

Ecosystem Management, p. 28.

CRS-27

Describe the habitat needs of different life history stages for all plants and

animals that represent the “significant food web” and how these habitat

needs are considered in conservation and management measures;

Calculate total removals (including incidental mortality) and show how

this relates to standing biomass, production, optimum yields, natural

mortality, and trophic structure;

Assess how uncertainty is characterized and what kind of buffers against

uncertainty are included in conservation and management actions;

Develop indices of ecosystem health as targets for management;

Describe available long-term monitoring data and how they are used; and

Assess the ecological, human, and institutional elements of the ecosystem

which most significantly affect fisheries, both within and outside Regional

Council/Department of Commerce authority. Included should be a strategy

to address those influences to achieve both FMP and FEP objectives.

Panelists suggest that FEPs could also facilitate learning about the ecosystem

and provide for iterative and adaptive management to promote long-term sustainable

harvests. The FEP concept might not be marine ecosystem management; rather, it

could be a way to formally include ecosystem knowledge and document how this

information is used to manage living marine resources. According to panelists, FEPs

could also help achieve the requirements of the Sustainable Fisheries Act to develop

a comprehensive understanding of the limits of a renewable resource, and use that

knowledge to design a socially and economically stable fishery, balancing short-term

minuses with long-term pluses. Recognizing that a great deal of knowledge about

how fisheries function within an ecosystem may be currently underused, FEPs may

offer ways to better use what is known and to incorporate new knowledge.

The panel believed that, while much of what it recommended could be

accomplished under current mandates, directives from Congress would hasten

application of these principles and ensure universal application by the regional

councils. The panel concluded that:

if fishery management is to further incorporate ecosystem principles, Congress

must provide a specific mandate to NMFS and the regional councils to do so and

must fund the scientific infrastructure required to support the decision-making

process. Requiring regional councils to prepare FEPs provides a mechanism to

focus and inform fishery management, to measure progress toward

implementation of ecosystem-based fishery management, to identify research

needs and ultimately to insure healthy and productive ecosystems.73

Some environmental groups believe that ecosystem-based management of fish

stocks, rather than single-species management, is necessary to promote sustainable

fisheries and to protect non-commercial species that may be affected by fishing. As

a means to protect marine ecosystems, these groups might request that Congress

require regional councils to prepare ecosystem management plans and to ensure that

FMPs are consistent with ecosystem plans.

Ecosystem Management, p. 37.

CRS-28

Critics of current management contend that single-species management,

especially with different daily allowable catch rates, increases regulatory discards.

They also suggest that the definition of fishery74 could be amended to “one or more

stocks, or inter-related species, of fish which can be treated as a unit.” Some believe

that this modification would facilitate the shift from single-species to ecosystembased management.

It should be noted that the National Academy of Sciences concluded that singlespecies assessments currently provide the best approach for assessing population

parameters and providing short-term forecasting and management advice.75 The

NAS committee stated that recent interest in bringing ecological and environmental

considerations and multi-species management interactions into stock assessments

should be encouraged, but not at the expense of reducing the quality of stock

assessments.76

Decision-Making by Regional Councils. Section 302 of the MSFCMA

establishes eight regional fishery management councils, and defines requirements for

membership, regional council functions, transaction of business, and disclosure of

financial interest and recusal.

Subsection 302(j) describes the requirements for council members to disclose

financial interest and recuse themselves from decisions in which they have a financial

stake. As in previous reauthorizations of the MSFCMA, perceived conflicts of

interest by regional council members is cause for concern among recreational and

commercial fishermen. Some groups believe that because of the close relationship

with the fishing industry, regional councils are unable to take the necessary steps to

prevent overfishing, rebuild stocks in a timely manner, and properly regulate gear

that catches large amounts of bycatch and damages EFH. At issue is whether

decision-making by individuals with a vested financial interest in a fishery can be

impartial.

In addition to current disclosure and recusal requirements, Congress may be

asked to consider other measures to minimize conflict-of-interest concerns.

Suggestions for preventing financial conflicts-of-interest range from prohibiting

individuals with related financial interests from making fishery management

decisions to requiring regional council members to swear compliance with federal tax

and banking laws. Commercial fishermen suggest that regional council membership

be limited to individuals with practical knowledge of fishing operations, specifically

excluding industry representatives such as executive directors, lawyers, and lobbyists.

MSFCMA §3(13)(A) defines the term fishery as one or more stocks of fish which can be

treated as a unit for purposes of conservation and management and which are identified on

the basis of geographical, scientific, technical, recreational, and economic characteristics.

However, several other uses of fishery (e.g., MSFCMA §§303(2), 303(5), and 303(b)(6),

and more indirectly MSFCMA §§3(9) and 305(a)(3)) broaden this definition to include

elements of the fleet such as gear and vessels. These inconsistencies could merit attention

during reauthorization.

Stock Assessments.

Stock Assessments, p. 4.

CRS-29

However, increasing financial disclosure requirements or limiting the type of

individual allowed to serve on regional councils could make it difficult to obtain

knowledgeable and willing nominees for regional council membership.

Some fishery scientists contend that conflict of interest is not the problem; rather

it is that private and public interests are in conflict. Instead of mandating an

unattainable impartiality, they suggest empowering decision-makers who share the

public interest. That is, decision-makers should bear the consequences of their

decisions in ways consistent with the public interest. This can be achieved, they

suggest, by reconfiguring the incentive structure for decision-makers. In their

opinion, the misalignment of public and private interests is, in large part, due to (1)

shortsightedness on the part of resource users, elected representatives, and agency

heads; and (2) the decoupled costs and benefits of fishery policies and programs.

They contend that shortsightedness on the part of resource users can only be

overcome by giving them more secure claims to future outcomes in fisheries (i.e.,

some form of property rights). The effects of shortsightedness by politicians and

agency heads, they contend, can be overcome by insulating fishery decision-making

from political influence. Finally, they suggest that the benefits and costs of fishery

policy can be more closely coupled by the use of cost-recovery mechanisms, such as

fees and taxes.

Some also support a review of MSFCMA provisions relating to regional council

membership to ensure that all parties interested in U.S. fisheries are adequately

represented. Specifically, environmental groups expressed concern that their

interests are inadequately represented on most regional councils, and suggest that

Congress should consider legislative changes to the MSFCMA to ensure that regional

councils are more broadly representative of the public interest in making fishery

management decisions that benefit the nation. Others suggest that there is a need for

greater representation of non-fishing interests, such as seafood consumers and

environmentalists, as well as increased oversight by independent scientists. The

Bureau of Land Management’s Resource Advisory Councils may provide an

alternative model for balancing various constituencies and their influence.77

Closely related to the issue of financial conflict of interest is the issue raised by

some commercial fishermen who questioned whether regional council members, who

work only part-time on regional council matters, are able to make impartial and

knowledgeable decisions affecting management of the nation’s marine fisheries.

They contend that regional council members who work in the fishing industry are

likely to make decisions that favor the interests of their employers. To prevent this

bias, they suggest making regional council membership a full-time position, with

members solely dedicated to managing fisheries.

Conversely, other fishermen argue that regional councils already have full-time

administrative and professional staff to assist and support council members, and that

council membership should not be a full-time position. They assert that individuals

actively employed in the fishing industry tend to be the most knowledgeable.

For background on Resource Advisory Councils, see [http://www.blm.gov/rac/], visited

on Aug. 26, 2004.

CRS-30

Concern was also expressed regarding who the pool of potential regional council

members might include if membership became a full-time profession. It was

suggested that successful fishermen and businessmen would not be as interested in

becoming regional council members were it a full-time job. Another concern is that

the judgment of full-time regional council members could become clouded if they

were constantly worried about keeping their position on the regional council.

Furthermore, some social scientists suggest that there is greater likelihood of

compliance if user groups participate in the regulatory process. They suggest that

making regional council membership a full-time position would preclude user groups

from participating on the regional council. Moreover, regional council membership

is currently limited to a term of three years. This term-limit, some suggest, provides

sufficient means for different perspectives and experience to be involved in the

fishery management process.

The MSFCMA provides for NMFS to have a voting seat on each regional

council, with the NOAA General Counsel participating in regional council business.

However, the MSFCMA lacks provisions for independent legal advice or counsel for

regional councils. Some commercial and recreational fishermen express concern that

the NOAA General Counsel, who represents the interests of NMFS, often dictates

fishery policy in its legal advice to regional councils on measures under

consideration. They contend that the public interest would be better served by

independent legal advice, and suggest that Congress amend the MSFCMA to

authorize independent legal counsel for regional councils.

Others doubt that authorizing independent legal counsel would lead to better

decision-making. They assert that this could unnecessarily delay decision-making

and increase the involvement of the courts in fishery management. They also

contend that it could be costly to change the process, and that the NOAA General

Counsel provides objective legal interpretations. Some also noted that regional

councils are not currently prohibited from hiring lawyers to work on the regional

council staff, providing legal advice as necessary.

Additional comments concerning regional council decision-making include the

following: (1) the role of state governors in the regional council appointment process

should be reduced, and at-large nominations should be solicited through an

application process directly to the Secretary of Commerce; (2) many user groups feel

that they are under-represented on regional councils and that their expertise is underused; (3) fishermen should act as paid consultants to the regional councils, providing

advice, but not voting; and (4) regional councils are not adequately funded for their

workload, and need more staff.

Highly Migratory Species. Section 304(g)(1) of the MSFCMA authorizes

the Secretary of Commerce to prepare or amend FMPs for Atlantic highly migratory

species.78

Currently, NMFS is responsible for implementing MSFCMA provisions that

apply to highly migratory species (HMS). Management actions seek to “ensure

Highly migratory species include tuna, marlin, oceanic sharks, sailfishes, and swordfish.

CRS-31

conservation and promote the achievement of optimum yield of such species

throughout their range, both within and beyond the exclusive economic zone.”79

FMPs for Atlantic HMS are developed by NMFS in consultation with advisory

panels created by NMFS and composed of constituents from the recreational,

commercial, environmental, and scientific communities.

Some recreational fishermen and environmental groups are concerned about the

effectiveness of the current management system. They observe that Secretarial

management has allowed continued declines in Atlantic HMS. This concern stems

from the perception that NMFS lacks the funding and staff to properly manage

Atlantic HMS, and that current management favors commercial fishing. These

groups may suggest that Congress review the effectiveness of NMFS management

of HMS. Others in the recreational fishing community may suggest returning

management of all HMS fisheries, especially billfish, tuna, and swordfish, to regional

council jurisdiction. Some fishery managers note that, if Congress decides to return

HMS management to the regional councils, more efficient and effective guidelines

for developing joint regional council FMPs might be needed.

Others suggest that Congress authorize a regional council-like process for

managing HMS. They assert that NMFS routinely ignores the advice of its advisory

panels and non-NMFS scientists. They also contend that giving authority back to the

regional councils would be problematic as well, given how poorly the regional

councils have worked together in the past.

Some recreational fishermen and environmental groups express the need for

special management zones along the entire Atlantic and Gulf of Mexico coast, where

longline gear would be prohibited for a specific distance from shore. This is

necessary, in their opinion, because longline fisheries have depleted Atlantic HMS.

Moreover, they stress that the dimensions of the management zone should be set by

fishery scientists, not fishery managers. Commercial fishermen would likely oppose

such management zones, stressing that gear/area prohibitions could cause them

economic harm; they believe that HMS fishery declines are the result of foreign

fishing and environmental factors.

Recreational and commercial fishing interests note that an issue at NMFS HMS

Advisory Panel meetings, and one that continuously seems to frustrate U.S. efforts

to rebuild HMS stocks, was the lack of a clear relationship between the MSFCMA

and existing international treaties (e.g., International Convention for the Conservation

of Atlantic Tuna, the United Nations Convention of the Law of the Sea).

Specifically, these groups question the practicality of domestic efforts to rebuild

North Atlantic swordfish stocks in 10 years or less when the U.S. fisheries account

for only 22% of fishing mortality.

They suggest that it would be beneficial to study international fishing treaties

and their relationship, precedence, and impact on and with the MSFCMA, the

National Standards, and the precautionary approach. Moreover, they contend that a

definitive domestic fishery policy is needed to decide on actions to be taken in the

MSFCMA §102.

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period between recognizing that an international fishery is overfished and

implementing international management to rebuild those stocks.

Review of Fishery Management Plans. Section 304(a) of the MSFCMA

establishes the process whereby the Secretary of Commerce and NMFS review and

approve FMPs.

Some fishery managers and commercial fishermen express concern about the

accuracy and efficiency of the FMP approval process. They contend that frequent

and lengthy delays in approving and implementing FMPs have damaged both the

industry and fish stocks, and reflect poorly on the performance of NMFS. These

groups may ask Congress to give regional councils final authority on FMP approval

to streamline the process. Others counter that improving the review process is an

administrative concern, and thus legislative action is not needed. Additionally, others

suggest that it may be unconstitutional for regional councils, which are

nongovernmental agencies, to have final decision-making authority about how best

to use and manage the public’s marine fishery resources.

Some federal fishery managers note that some of the delays in the approval

process are the result of the regional council’s failure to produce FMPs that satisfy

all of the legal requirements. Specifically, they note that the time between regional

council action and final rule publication can be attributed to (1) assuring compliance

with other applicable laws; (2) inadequately prepared supporting documentation from

regional council staff, primarily related to compliance with other applicable laws; and

(3) insufficient legal review staff in NOAA General Counsel. Another problem, in

their view, is NOAA Fisheries’ review of FMPs and amendments separate from their

review of the regulations that will implement these FMPs and amendments.

As possible solutions, these managers suggest (1) requiring regional councils

to take final action votes only on fully completed analyses (including the preferred

alternative) and draft proposed rule notices; (2) closer linking of NOAA Fisheries’

review of FMP and plan amendments with the review of implementing regulations;

and (3) providing more funding for NOAA’s Office of the General Counsel.

Some environmentalists contend that a strong NMFS review of FMPs is crucial

to statutory compliance and to balancing regional interests with national priorities.

They suggest that NMFS be authorized to modify an FMP to bring it into compliance

with the MSFCMA if a regional council has not acted within a reasonable period of

time to revise their FMP. They assert that providing regional councils multiple

opportunities to comply with the MSFCMA delays implementation, and note that

currently the Act imposes no deadline for regional council revisions of FMPs that

were partially approved or rejected, furthering delays.

Some suggest that FMPs should be exempt from many of the requirements of

the National Environmental Policy Act (42 U.S.C. §§4321-4347), the Regulatory

Flexibility Act (P.L. 96-354), and the Paperwork Reduction Act (44 U.S.C. §§35013520), which they believe delay the review process unnecessarily. Others, however,

question such exemptions, expressing concern that the rights of fishermen might not

be assured in such situations.

CRS-33

Management Based on Maximum Sustainable Yield. Currently, the

MSFCMA requires FMPs to achieve the optimum yield (OY) from each fishery.

Optimum yield is defined as MSY as “reduced” by economic, social, and ecological

factors.80 Some fishery scientists suggest that Congress modify this definition. They

argue that the concept of MSY is ineffectual for management and decision-making,

because MSY is a long-term average yield, while the politics of fishery management

tend to focus on much shorter-term results.

As an alternative to MSY, some fishery scientists suggest that the MSFCMA

incorporate the concept of an “ecosystem sustainable yield” (ESY). These scientists

suggest that an ecosystem-based yield is preferable to attempting to simultaneously

manage several species at their MSYs. At a minimum, Congress might acknowledge

or recognize the multi-species tradeoffs in interacting food webs within marine and

aquatic ecosystems.

Some in the commercial fishing industry suggest that Congress should return

the term optimum yield to its pre-1996 definition.81 This group believes that the

current definition that “reduces” rather than “modifies” MSY hinders management,

especially when contending with variations in stock size caused by environmental

conditions. They state that, while MSY is difficult if not impossible to estimate,

industry groups likely would support the use of long-term averages.

Conversely, some environmental groups and fishery scientists support the 1996

definition of OY, believing that linking OY to MSY ideally prevents overfishing.

They assert that the prior definition allowed regional councils to set OY above MSY

for short-term economic reasons, at the risk of overfishing. In their opinion, this

approach led to “boom-and-bust” cycles and pulse fishing in many fisheries.

Additionally, many environmental groups believe that linking OY to MSY would

facilitate ecosystem-based management. However, they contend that many regional

councils have not implemented the statutory requirements to reduce OY based on

economic, social, and environmental factors (e.g., predator-prey relationships or the

role of fish in the ecosystem). In their opinion, regional councils have set OY with

little justification except for maximizing catch. This group may request that

Congress require regional councils to consider ecosystem relationships in

establishing optimum yield.

Other fishery scientists and managers suggest that neither MSY nor ESY are

practical concepts for optimum yield. They suggest that OY be defined in terms of

the optimum level of fish removal that takes into account the long-term reproductive

capacity of the stock, species composition of the catch, ecosystem concerns, catch

capacity of the fleet, operational characteristics of the fishery, economic concerns,

and how the fishery is managed.

MSFCMA §3(28).

The term optimum, with respect to yield from a fishery, means the amount of fish (A)

which will provide the greatest overall benefit to the nation, with particular reference to food

production and recreational opportunities; and (B) which is prescribed as such on the basis

of the maximum sustainable yield from such fishery, as modified by any relevant economic,

social, or ecological factor. MSFCMA §3(21) (Aug. 1994).

CRS-34

Coordination and Oversight of State-Managed Fisheries. Section 306

of the MSFCMA states that the Act neither extends nor diminishes the authority or

jurisdiction of any state within its boundaries. Prior to 1976, states had management

authority over all fisheries in waters adjacent to their states, and there was little or no

federal jurisdiction over living marine resources in these waters. With enactment of

the MSFCMA, marine fishery resources within the U.S. EEZ came under federal

jurisdiction, while states retained jurisdiction of marine fishery resources from their

coastline out to the U.S. EEZ, generally three nautical miles offshore. The

MSFCMA attempts to balance state authority with federal conservation and

management goals, principally through coordination activities and the advice of the

Secretary and NMFS rather than direct oversight of state fishery management.

Fishery managers suggest strengthening the relationship between federal and

state fishery management. They assert that greater federal oversight is needed to

improve decision-making by interstate fishery commissions. Currently, the practice

of managing interstate fisheries is based on equivalency provisions, wherein states

choose management measures they prefer, as long as the measures comply with

federal conservation requirements. Fisheries in which management is coordinated

by interstate commissions are often very diverse, and management approaches vary

from state to state. Commissioners from one state often know little about another

state’s fisheries. Fishery managers suggest that this hinders a state’s ability to make

informed decisions about its conservation plans. The result, they allege, is continued

overfishing and delays in stock rebuilding. Some interests suggest that Congress

authorize an independent entity either to oversee or to directly manage interstate

fisheries. One suggestion for strengthening coordination with states is to delegate

FMP management authority to states, specifically, deleting the last sentence in

§306(a)(3)(B), which states:

For a fishery for which there was a fishery management plan in place on August

1, 1996, that did not delegate management of the fishery to a State as of that date,

the authority provided by this subparagraph applies only if the Council approves

the delegation of management of the fishery to the State by a three-quarters

majority vote of the voting members of the Council.

Decentralized Fishery Management. Some commercial fishing interests

would oppose more centralized management at the federal level. They perceive the

need for increasingly decentralized management at the local level (consistent with

federal objectives), because they believe local individuals are more knowledgeable

about specific environmental and economic conditions. In this view, fishing

communities are readily able to adapt management to prevailing conditions and often

are best suited to manage local fisheries. These interests may suggest that Congress

amend the MSFCMA’s management authority to emphasize local management and

decision-making.82 Such a dramatic change from the current management structure

Additionally, some note that the jurisdiction over the 200-mile EEZ of some of the Pacific

Island insular areas is disputed between federal and local governments. In some instances,

federal jurisdiction spans the entire 200 miles, in contrast to other U.S. regions, where the

first 3 miles of coastal water is generally under state jurisdiction. They contend that

decentralization is the favored option in these disputed areas.

CRS-35

likely would require major amendment to the MSFCMA, and additional funding at

the state and local levels.

Some environmental organizations and other commercial and recreational

fishing interests, while recognizing the need for local expertise, would oppose further

decentralization of “the nation’s fisheries.” Generally, these groups oppose an

increased emphasis on decentralized management, especially if it decreases the

ability of those interested in fishery management, but unable to attend regional

council meetings, to participate in the decision-making process. They are also

concerned that management of fisheries could become a local issue, controlled and

managed to maximize benefits to local interests, rather than benefits to the nation.

Decentralized management, in their opinion, might put short-term local economic

needs above long-term sustainability and productivity.

Co-Management and the Role of Native Americans. Previous

reauthorizations of the MSFCMA added significant language to encourage

exploration of the role of indigenous peoples in fishery management.

Fishery scientists suggest that a greater emphasis be placed on incorporating

traditional ecological knowledge into fishery management. These scientists suggest

that Congress consider ways to incorporate the wisdom of indigenous cultures into

contemporary management protocols. Examples of this approach include the

Community Development Programs, which benefit Native Alaskans and Hawaiians

and create a role for them in their respective regional councils. These interests

suggest that Congress add language to the MSFCMA to ensure the longevity and

success of these ventures.

In considering co-management of marine fisheries, Congress could look to comanagement provisions in the Marine Mammal Protection Act (16 U.S.C. §1361) as

a model. These provisions authorize the Secretaries of Commerce and the Interior

to enter into cooperative agreements with Alaska Native organizations to conserve

marine mammals and co-manage Native subsistence use. Through these cooperative

agreements, Native organizations may receive grants to facilitate data collection and

analysis, monitor subsistence harvests, participate in research projects, and develop

co-management arrangements with federal and state agencies.

Aquaculture. Some in the commercial fishing industry assert that public

demand for fishery products is driving the exploitation of marine resources,

contending that sustainability is not just a local or coastal problem, but rather that

national, long-term solutions are needed. They suggest encouraging the development

of a variety of methods to provide the required quantities of fishery products to meet

U.S. demands, especially aquaculture and hatcheries. For example, they point to the

production of salmon in Maine and oysters in Long Island Sound, contending that

their production is almost equal in value to that of the offshore groundfish, scallop,

and lobster fisheries. Moreover, they assert that aquaculture operations require a very

small fraction of the area devoted to “wild” fisheries.

Another aspect is the development of offshore aquaculture, with concerns that

the MSFCMA may need to be amended to provide an appropriate framework for

regional council consideration of these emerging fishery businesses in the EEZ. For

CRS-36

more background on this issue, see CRS Report RS21914, Open Ocean Aquaculture,

by Rachel Borgatti and Eugene H. Buck.

Review of American Fisheries Act Provisions. Some commercial

fishermen may seek a review of the provisions of the American Fisheries Act aimed

at protecting fishermen who do not belong to a cooperative from having their access

to harvestable fish preempted by those who do. They suggest that Congress might

consider instructing regional councils to modify, expand, or limit the role of

cooperatives depending upon the results of this review.

National Research Agenda. Some suggest that a “national research

agenda” is needed to effectively coordinate and fund fishery research. They suggest

that Congress consider authorizing a “Research Council” specifically focused on

marine resource issues. Others suggest that the recent work of the Pew Oceans

Commission and the U.S. Commission on Ocean Policy (see “Oceans Commissions”

previously) may be adequate to stimulate more attention to these concerns.

Observer Status. Although not an MSFCMA issue, this concern is relevant

to MSFCMA activities. The uncertain status of fishery observers under the Jones

Act83 is reportedly causing insurance concerns for both observer contractors and

fishing vessels, making it necessary for both parties to carry exorbitant insurance

coverage. One approach may be to recognize observers such that they are covered

by Workmen’s Compensation.

Experimental Fishing Permits. The MSFCMA currently does not allow

research to develop or improve fishing gear, even when conducted by state or federal

scientists, to be considered as scientific research, thus requiring that scientists

complete a lengthy process to receive an experimental fishing permit. If the

MSFCMA were amended to remove this exclusion, a simple Letter of

Acknowledgment might be adequate to authorize gear research.

Socioeconomic Issues

Commercial and recreational fishing interests, environmental groups, and

fishery scientists voiced concern regarding the need to clarify and/or modify how

socioeconomic decisions affecting the fishing industry are made. These concerns

range from narrow suggestions for improving how the fishing industry operates to

broad commentary on the degree that socioeconomic factors should affect and direct

MSFCMA policy.

Fishing Capacity Reduction.84 Section 312(b)-(e) of the MSFCMA

describes the use of fishing capacity reduction programs as a means to prevent

This is the popular name for §27 of the Merchant Marine Act of 1920 (46 U.S.C. 883; 19

C.F.R. 4.80 and 4.80b).

Excess fishing capacity decreases economic efficiency and often leads to overfishing

and/or fishing derbies. Reductions in fleet capacity would help to reduce overfishing and

greatly improve the ability to deal with uncertainty and unexpected events in fisheries.

National Academy of Sciences, Sustaining Marine Fisheries (Washington, 1999), p. 119.

CRS-37

overfishing, rebuild stocks, or improve conservation and management. The objective

of capacity reduction programs, as stated in §312(b)(2), is “to obtain the maximum

sustained reduction in fishing capacity at the least cost and in a minimum period of

time.”

How best to reduce fishing capacity, especially using a vessel buy-back

program,85 is likely to be an issue during reauthorization. Some recreational and

commercial fishermen as well as environmental groups want only buy-back programs

that effectively and completely remove a vessel from all U.S. fisheries.86 Without

this, these groups fear that individuals or groups of individuals could be compensated

for exiting one overcapitalized fishery and then entering another fishery in which

entry is not limited. This movement from one fishery to another displaces current

participants and could result in other overcapitalized fisheries. Other fishermen favor

the buy-back of only fishing permits, allowing vessel owners to continue using

vessels they own for other (non-buy-back) fisheries.

NMFS has been criticized for delays in developing guidelines for fishing

capacity reduction programs. The proposed rule for fishing capacity reduction

programs was published February 11, 1999 (64 Federal Register 6854), but has not

been finalized; a U.S. National Plan of Action for the Management of Fishing

Capacity was released in August 2004.87 Critics suggest that these delays have

resulted in the implementation of inconsistent fishing vessel and license buy-back

programs, and that NMFS has a duty to provide an overall framework to guide

capacity reduction programs. In contrast, other respondents note that (1) there is no

statutory mandate requiring NMFS to produce capacity reduction guidelines, and that

priority is given to producing statutorily mandated guidelines; (2) no buy-back

programs have been implemented under MSFCMA §312, and therefore, delays could

not have resulted in inconsistent implementation; and (3) the MSFCMA does not

require national consistency and provides for a variety of mechanisms to fund

capacity reduction programs.

Additionally, some fishery scientists and

environmental groups state that efforts should be made to reduce effort in fisheries

before they reach overfished status. They suggest proactive reductions in capacity,

aimed at preventing further declines, rather than waiting to react to stock collapse.

Additional considerations for vessel buy-back programs include:

Vessel buy-back is one means to reduce capacity in fisheries. Harvesters are paid to

surrender their fishing permits and/or withdraw their vessels from fishing. See archived

CRS Report 97-441 ENR, Commercial Fishing: Economic Aid and Capacity Reduction, by

Andrew G. Read and Eugene H. Buck, available from the author.

Environmental groups argue that, to effectively reduce fishing capacity, “bought-out”

vessels should also be prevented from entering fisheries outside the United States. In their

opinion, exporting domestic capacity leads to global fisheries depletion, which ultimately

affects U.S. interests beyond the U.S. border.

See [http://www.nmfs.noaa.gov/sfa/reg_svcs/npoa.capacity.8.4.04.pdf], visited Aug. 25,

2004.

CRS-38

benefits may be minimal if only marginal operations (i.e., leastefficient operators or fishermen who fish only occasionally) are

bought out, but the buyout cost would likely be lower;

! individuals who hold fishing permits but do not currently use them

(latent effort) may enter a fishery as others exit, offsetting reductions

in capacity;

! social and economic costs to the community as well as other

requirements under the Regulatory Flexibility Act (P.L. 96-354) may

outweigh the benefits to the resource;

! compensation for boat owners may financially harm the captain or

crew, who lose a source of income;

! appropriate educational and vocational programs for the newly

unemployed or bought-out maritime personnel may not be readily

available;88

! broader unemployment and other economic implications for the

community (e.g., marine businesses that may suffer substantial

income loss as the number of fishing vessels and processing plants

declines) may become evident; and

! buy-back programs may be criticized as ineffective if they are

inefficient at reducing fishing capacity.

NMFS notes that capacity reduction costs could be paid by harvesters who

remain in a post-reduction fishery, or by taxpayers or others. In essence, three

funding options could come before Congress for capacity reduction programs: (1)

government funding (taxpayers), (2) industry funding, or (3) joint governmentindustry funding.

Some in the fishing industry strongly believe that, because government subsidy

programs in the late 1970s and 1980s encouraged vessel construction (which lead to

the overcapitalized fishery), the government should subsidize the buy-back.89 That

is, fishermen should not have to pay to remove capacity (effort) that the government

was partly responsible for creating. Fishermen are divided as to whether buy-back

programs should be industry- or government-funded. Fishermen who support an

industry-funded program argue that more control would then have to be given to the

industry regarding the procedures for a vessel-reduction program. Fishermen who

support a government-funded program argue that it “adds insult to injury” to make

fishermen pay for programs designed to “put them out of business.”

Other respondents posit that, because harvesters reap benefits from improving

the fishery and contributed to the depletion of some stocks, harvesters should bear

the brunt of the cost for reducing fishing capacity. These observers contend that

many of the vessels used to exploit U.S. marine resources were subsidized through

the Capital Construction Fund. As such, the government should not be expected to

Fishermen’s reasons for choosing fishing, including being on the water, independence,

income potential, and other factors should be considered in proposing possible alternatives.

Some believe that this argument is counterintuitive, contending that the commercial

fishing industry lobbied in favor of the subsidy programs, and that these subsidies were not

foisted on an unwitting industry.

CRS-39

pay for vessels a second time by paying owners not to fish.90 They assert that,

because buy-back programs chiefly benefit those who remain in the fishery after

capacity is reduced,91 post-reduction harvesters should fund the buy-back.

Recreational fishing interests suggest that, in considering the capacity reduction

issue, the law should distinguish between commercial and recreational fishing. They

contend that recreational fishing is distinctly different from commercial fishing in

that recreational fishing is tied to the experience of fishing rather than catching fish.92

Reducing fishing mortality and bycatch in recreational fisheries might be better

achieved through public education and outreach initiatives, such as catch-and-release

programs, use of hooks that ease release of fish and increase survivability (e.g.,

barbless, wide-gap, circle), and other ways of reducing harm and stress to fish (e.g.,

hook extractors and handling techniques that minimize harm by avoiding removal of

the protective mucous layer and scales and by eliminating pressure on internal

organs). Other respondents believe that owners of recreational fishing vessels (e.g.,

charter boats) are under enormous pressure to provide their customers with successful

experiences and that recreational fishing does have a significant impact on

sustainability in some fisheries. They contend that reductions in recreational

capacity, funded by the recreational industry, also should be considered, at least in

fisheries where recreational harvest is significant.

Individual Fishing Quotas. Individual fishing quotas are management tools

that grant fishermen the privilege of catching a certain percentage of the total

allowable catch. Section 303(d) of the MSFCMA established a moratorium, until

October 1, 2000, on creating new individual fishing quota programs. Section 108(f)

of the SFA, directed the National Academy of Sciences (NAS) to report on a national

policy for individual fishing quota programs. The moratorium was extended an

additional two years, to October 1, 2002, by P.L. 106-554 (114 Stat. 2763A - 238)

after which it was allowed to expire with no further legislation enacted to establish

national standards to guide new IFQ programs.93

Some argue that fishermen are largely responsible for overcapitalization, contending that,

while NMFS did administer the Capital Construction program, the decisions to build or

modify vessels were business decisions of the owners. These critics argue that blaming the

government for overcapitalization is nonsense, particularly for overcapitalization in the New

England fleet. New England’s groundfish fishery was declared a “conditional fishery” in

the early 1980s, and vessels participating in this fishery were no longer eligible for the

Fisheries Obligation Guarantee program authorized by Title XI of the Merchant Marine Act

of 1936 (archived CRS Report 95-460 ENR, Summaries of Major Laws Implemented by the

National Marine Fisheries Service, by Eugene H. Buck; available from the author). They

also contend that fewer than 3% of New England’s groundfish vessels benefitted from this

loan program.

For example, harvesters in a post-reduction fishery will benefit from (1) increased catch,

both as a percent of the total allowable catch and a larger total catch for their vessel, and (2)

the likely increased value of their permit or license.

However, subsistence/traditional and customary use fishermen are also currently reported

under the “recreational” category, for whom catch may be as or more important than the

“experience of fishing.”

National standards were proposed in, for example, S. 1106 and H.R. 2621 in the 108th

(continued...)

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The NAS report94 recommended that the moratorium on individual fishing quota

(IFQ) programs be lifted and suggested that Congress consider:

allowing fees for initial quota allocations, first sale of IFQs, and

leasing of initial shares, as well as an annual tax on quota shares;

! recognizing differences among regions and allowing regional

councils flexibility in designing new (and adjusting existing) IFQ

programs;

! requiring regional councils to define excessive share and to limit

accumulating quota shares; and

! ensuring that funding is available to NMFS and the states for

collecting relevant socioeconomic data.95

In detailing its recommendations to Congress, the NAS committee asserted that

most decisions about IFQs are appropriately made at the regional level. The

committee recommended to Congress that the design of any limited entry program

in relation to concentration limits, transferability, and distribution of shares will

depend on the objectives of each specific FMP, which underscores their

recommendation to provide flexibility to regional councils in designing IFQ and

other limited entry programs.

Some commercial fishermen and fishery scientists are concerned that problems

such as overcapitalization, waste, and bycatch can only be remedied through

individual quota management. Meanwhile, recreational fishermen are likely to seek

assurances that the recreational sector is considered in the development of IFQ

programs, especially in initial quota allocation.

Other commercial fishermen suggest that Congress authorize regional councils

to use alternative approaches to IFQs, such as cooperative arrangements.96 Some

commercial fishermen have formed fish harvesting cooperatives under the American

Fisheries Act (P.L. 105-277, beginning at 112 Stat. 2681-616) for pollock in the

Bering Sea and Aleutian Islands area) in an effort to address overcapitalization and

to avoid the wasteful race-for-fish.97 A fish harvesting cooperative represents a

(...continued)

Congress.

National Research Council, Sharing the Fish: Toward a National Policy on Individual

Fishing Quotas (Washington, DC: National Academy Press, 1999), p. 189.

In implementing IFQ programs, NAS notes that other factors include carefully developing

management structure and initial allocation formula, involving stakeholders in program

development, and including fishing communities in initial allocations.

On the other hand, some fishery scientists suggests that Congress replace the list of

vessels eligible to form cooperative arrangements under the American Fisheries Act

(contained within P.L. 105-277) with a regular transferable license limitation or individual

quota program.

A 2002 report to Congress on the impacts of the American Fisheries Act is available from

NOAA at [http://www.fakr.noaa.gov/npfmc/summary_reports/AFACongress202.pdf],

(continued...)

CRS-41

contractual agreement among eligible participants in a fishery to divide up the

available harvest quota and to catch the fish in a tempered manner. While

cooperative fishing is evidence of the benefits of individual quota management, there

are significant differences between federally-mandated IFQ programs and private

cooperative arrangements. As an alternative to IFQ programs, some commercial

fishermen suggest that NMFS and regional councils be authorized to allocate quota

to cooperatives.

Some environmental organizations assert that enhanced conservation measures

must be incorporated into IFQ programs as they are developed. These groups do not

wholly accept the belief that IFQs will result in enhanced conservation, and seek

stricter measures. They posit that IFQ programs should be held to higher standards

for monitoring and accountability to ensure that conservation is enhanced.

Additionally, some environmental and fishing groups have several concerns with IFQ

programs and argue that (1) the federal government should not award the right to

exploit a national resource without appropriate compensation to the public; (2)

allocation of an IFQ may engender a property right, which may be difficult to reduce

or rescind in the future without compensating the quota holder (i.e., subject to the

constitutional “takings” clause); (3) quota consolidation may drive smaller operators

out of business; (4) IFQs may reward “dirty” fishermen (those with high levels of

bycatch and discards) because initial allocations are often based on catch history; and

(5) IFQs may encourage fishermen to high-grade their catch, keeping only the most

valuable fish.

Several respondents note that the nature of the rights available through IFQ

programs should be carefully specified. For instance, if IFQs were issued for an area,

would that mean that IFQ holders would become eligible for compensation for the

loss of their rights to harvest if the area was reduced by the establishment of an MPA

or through major port developments and reclamations? Would Native American

fishery claims need to be settled before issuing IFQs? Should IFQs be permanent

rights or temporary privileges? Similar questions have arisen about permits and

leases for federal grazing lands. The federal government has explicitly stated that

private livestock grazing on federal lands is a privilege and not a right nor interest in

property. Nonetheless, ranches with access to federal forage often sell for a higher

price than they would without access to federal rangeland. The resulting value of the

grazing preference is capitalized into the net worth of the ranch base property and is

considered an asset by the rancher.98

Other comments include the following: (1) IFQs could be a useful tool for

managing certain recreational fisheries, such as Atlantic bluefin tuna, where a long

history is available and the fishing constituency well known; (2) coastal communities

should be given priority over corporate fishing and processing companies in initial

allocation of quota shares; and (3) reductions in processing capacity may also be

necessary to match reductions in fishing capacity; thus, fishing processors may seek

(...continued)

visited Aug. 9, 2004.

CRS Report IB96006 (archived), Grazing Fees and Rangeland Management, by Betsy

Cody and Pamela Baldwin, p. 8.

CRS-42

a “processor quota” program and other means to allow paced reductions in

processing capacity without a sudden or severe economic impact on local

communities.99 Individual processor quotas were specifically provided in §801

(Division B) of P.L. 108-199 as part of a Bering Sea and Aleutian Islands crab

rationalization program. Whether to mandate the consideration or prohibition of

processor quota in any IFQ program may be an issue during reauthorization, and the

unfolding experience with processor quota in the Alaska crab fishery provides

potentially useful background information.

In another development related to IFQs, the North Pacific Regional Council

amended its halibut and sablefish IFQ program to allow specific Gulf of Alaska

communities to purchase halibut and sablefish quota share and lease them to

community residents on an annual basis. The council designated 42 communities

within the Gulf of Alaska who are eligible to participate in this program.100 Whether

to specifically authorize the granting of IFQ shares to communities may be another

issue for discussion during reauthorization.

Fees, Cost Recovery, and Economic Rent. Section 303(b)(1) of the

MSFCMA establishes requirements for collecting fees for fishing permits. Section

304(d) authorizes the Secretary of Commerce to establish fees. The level of fees

charged may not exceed the administrative costs of issuing fishing permits, except

in individual quota and community development quota (CDQ) fisheries, where fees

recover management and enforcement costs.

The MSFCMA currently allows fees to be charged for (1) foreign fishing

permits and NMFS observer costs; (2) administrative costs of issuing fishing permits;

(3) enforcement and management costs in IFQ and CDQ fisheries; (4) administrative

costs for limited access system registry; (5) fishery reduction program assessments

(including vessel/permit buy-backs); and (6) the North Pacific observer program.101

Other than for fisheries managed under IFQs and CDQs, the MSFCMA does not

allow for management and enforcement cost recovery.

Cost recovery could be an important issue during reauthorization. The overall

performance of a fishery is often influenced by how fishery management is financed.

The typical practice — where 100% of management and enforcement costs are borne

Alternatively, in some cases, imports may be available to cover any reductions in locally

available fish.

100

101

For more information, see 69 Federal Register 23681-23694, Apr. 30, 2004.

Some commercial fishermen note that the North Pacific Regional Council has authority

for a fee-based observer program, but has not yet implemented the program. The authority

for a fee-based program includes a cap on observer fees of 2% of the unprocessed harvest

value. Under the current “pay as you go” system, many smaller vessels are paying in excess

of 2% of revenues, while other larger operations pay a fraction of that amount. This

disparity undermines support for the observer program. They suggest that NMFS develop

the best observer program they can within the budget constraints of a 2% fee, equitably

distributed over the whole fleet. This might be a model for how user fees could function,

but until this program is implemented and demonstrates success, authority for further

fee-based programs will meet significant resistance from commercial fishermen.

CRS-43

by the General Treasury102 — is alleged to inefficiently use resources for research,

decision-making, and enforcement. When resource users do not share some of the

cost for resource management, they are allegedly less attentive to the need for

efficiency. The cost of this inefficient use accrues to the management agency and

increases the overall cost of managing the resource. Fishery economists suggest that

such inefficiencies are reduced when users of natural resources, especially

commercial users, bear some of the costs for managing these resources. Thus, they

suggest that Congress consider user charges to recover a significant portion of fishery

management and enforcement costs.

Some fishery managers assert that the cost recovery authority currently in the

MSFCMA (§304(d); 16 U.S.C. §1854(d)) for IFQ and CDQ systems is too

restrictive. They contend that statutory specification of when, where, and how fees

are collected introduces administrative inefficiencies that reduce the benefit of the

fees, and actually prevent consolidation of fee collection with existing state fees.

Further, any specific limitation of the fees to a percent of ex-vessel value and the

specific deductions and exceptions, in their opinion, prevent NMFS from recovering

reasonable management and enforcement costs. These managers suggest that the

language at §304(d) could be amended to allow NMFS more flexibility in working

with the industry to develop a simple, low-cost, effective fee collection system.

Some fishery scientists suggest that, beyond recovering the costs of management

and enforcement, the public should receive a share of the economic rent garnered

from private use of a public resource. These advocates maintain that Congress

should consider imposing fees on quota or harvest to provide a source of revenue and

compensate the public. They believe that establishing a fee system for harvesting

fish would put fisheries on par with other public resources (e.g., timber and energy

resources).103 These funds could contribute to recovering management and

enforcement costs (as discussed above). These scientists note that rent extraction,

beyond cost recovery, could support fishery research or assist fishing communities

or fishermen displaced by IFQ programs.104 Those supporting this approach explain

that, in an IFQ fishery, compensation could occur through capturing a portion of the

102

Government expenditures on U.S. fisheries currently run about $1 billion a year. These

government expenditures are directed at an industry generating about $3.5 billion in

ex-vessel revenue. That is, government expenditures are roughly 30% of landed value. At

the federal level, the proportion of expenditures to landed value is 50%. The landings value

of fish caught in federal waters (i.e., from 3 to 200 miles) averages $1.8 billion in recent

years while the amount of federal government expenditures is approximately $0.9 billion.

See P. Andersen, K. J. G. Sutinen and K. Cochran, Paying for Fishery Management:

Economic Implications of Alternative Methods of Financing Management, presented to the

IXth Conference of the International Institute of Fisheries Economics and Trade (Tromso,

Norway: July 8-11, 1998; hereafter “Economic Implications”). By inference, these

estimates imply that ex-vessel revenues from state waters are about $1.7 billion per year,

while state government expenditures are roughly $100 million — approximately 7% of

landed value.

103

National Research Council, Sharing the Fish: Toward a National Policy on Individual

Fishing Quotas (Washington, DC: 1999), p. 208 (Hereafter “Sharing the Fish”).

104

Sharing the Fish, p. 209.

CRS-44

“windfall gains” generated from the initial transfer of the public resource into private

hands (i.e., the initial allocation of fishing quota shares).105

Some commercial fishermen claim that extracting economic rent from fisheries

managed under open access will impoverish fishermen. Because there are no

incentives to constrain effort, open-access fisheries tend toward overcapitalization,

which dissipates economic rent and, on average, reduces profit. They suggest that

economic rent should be extracted only from fisheries where access is limited and

harvesters have a secure right to a certain quantity of the total allowable catch (e.g.,

individual fishing quota programs).

Additional comments about fees, cost recovery and economic rent include:

NMFS has a history of using funds collected from a specific region

or a specific purpose for general expenditures. Instead, fees, cost

recovery, and economic rent should be used in the region that

generates the funds, specifically, for data collection, management,

and enforcement.106

! User fees should be tied to co-management of the resource. If a user

pays, the user should have a voice in how the money is used and

how the resource is managed.107

! By tying user fees to research, those paying may have a stronger

voice in how research is conducted, potentially reducing the

independence and quality of the science.

! Quota sales typically underestimate the long-term value of resource

rights and only a fraction of the discounted value of expected future

economic profit is realized by the first transaction.

! Congress might consider fees and rent capture in discussions about

IFQ program standards.

Fishery Subsidies. Section 312 of the Sustainable Fisheries Act of 1996

(P.L. 104-297, §312(b)(note)) directed the Secretary of Commerce to establish a task

force to study and report to Congress on the role of the federal government in

subsidizing the expansion and contraction of fishing capacity. The report of this

105

Sharing the Fish, p. 207.

106

Others perceive a danger in tying fees generated by a region to expenses in that region

as this approach could create incentives for managers to keep catch limits artificially or

inappropriately high to protect budgets. They feel it would be much better to assure that

science and management are objective by not connecting budgets with harvest levels. In

addition, a low-revenue fishery may require significant research, perhaps because it affects

other target fisheries. Such a situation could lead to irrevocable closures if funds for

monitoring required to open a fishery were lacking.

107

Collaborative management options for local research and management involving industry

cooperation (e.g., stock assessment surveys conducted aboard commercial fishing vessels)

might help shift some costs to industry, as well as engage those dependent upon

management decisions, without impinging upon the objectivity of the science.

CRS-45

Federal Investment Task Force was published in July 1999.108 The Task Force

concluded that any empirical analysis of capacity and capacity utilization needed to

consider the fishing activity of recreational anglers and recommended that specific

modifications be made to the Capital Construction Fund, Fisheries Obligation

Guarantee, and other assistance programs.

Environmental organizations active in the federal investment study note that

fishery subsidies have emerged as a significant fishery management issue. As

evidence, they note that policymakers are increasingly recognizing the direct

relationship between subsidies, fleet overcapacity, and overfishing, as well as their

effects on international trade in fish products. For example, in February 1999, the

United Nations Food and Agriculture Organization (FAO) adopted the International

Plan of Action (IPOA) for the Management of Fishing Capacity, which recognizes

fishery subsidies as an important driver of overcapacity.109 Moreover, the need to

address the problem of fishery subsidies has been recognized by the World Bank, the

Asian Development Bank, the U.N. Commission on Sustainable Development, the

World Trade Organization (WTO), the Organization for Economic Cooperation and

Development (OECD), and the Asia-Pacific Economic Cooperation forum (APEC).

In the months and years ahead, the management of fishery subsidies will likely

be the subject of continuing technical and diplomatic discussions within FAO,

OECD, WTO, and APEC. Environmental groups note that the United States has

played a leading role in bringing attention to the fishery subsidies issue, and add that

fishery subsidies in the United States are far smaller than in many other major fishing

nations. In their opinion, Congress will likely be called upon to act on this issue,

through U.S. domestic policy and international efforts to reduce fishery subsidies.

In addition, some fishery scientists suggest that a subtle relationship exists

between subsidies and the collection of fees (as discussed below). By not recovering

the costs of management and enforcement, the United States, in their opinion, is

effectively subsidizing fishing operations. In essence, they define subsidy as a sale

or transaction for a good or service by a government at less than the fair market price

(where fair market is defined as a willing buyer and willing seller). Thus, they

contend that, because the nation’s fishery resources (managed by the federal

government) are more easily available than if a private owner controlled access, the

fishery “market” is by definition not “fair.” Hence, a subsidy exists. Moreover,

others note that the Uruguay Round of WTO negotiations defined subsidies as having

three basic elements: (1) a financial contribution, (2) by a government or any public

body within the territory of a Member, (3) which confers a benefit.

Fishing Communities. Section 3(16) of the MSFCMA (16 U.S.C.

§1802(16)) defines fishing community as “a community which is substantially

dependent on or substantially engaged in the harvest or processing of fishery

108

109

See [http://www.nmfs.noaa.gov/sfa/ITF.html], visited Aug. 9, 2004.

U.N. Food and Agriculture Organization, Fisheries Department, The International Plan

of Action for the Management of Fishing Capacity (Rome, Italy, Feb. 1999). This document

is available at [http://www.fao.org/DOCREP/006/X3170E/x3170e04.htm], visited Aug. 10,

2004.

CRS-46

resources to meet social and economic needs, and includes fishing vessel owners,

operators, and crew and United States fish processors that are based in such

community.”

NOAA has further interpreted fishing community to mean “a social or economic

group whose members reside in a specific location and share a common dependency

on commercial, recreational, or subsistence fishing or on directly related fisheriesdependent services and industries (for example, boatyards, ice suppliers, tackle

shops).”110 NOAA’s expanded interpretation of fishing community recognizes that

more businesses depend on fishing activities than just fishing vessels, processors, and

wholesale plants. For instance, businesses that sell supplies and gear and those

devoted to marine services such as financial settlements and bookkeeping often

depend totally on fishing activities and could be considered part of the fishing

community. This interpretation recognizes that every change in mesh-size

regulations changes the inventory value in ship supply stores; every reduction in the

number of vessels reduces bookkeeping services. Such an interpretation recognizes

that the fishing community extends beyond actual fishing activities and the

processing of product, and that social and economic problems associated with the

decrease in support services can seriously degrade the quality of life and economic

health of communities.

Some commercial fishermen are concerned that the geographically-based

interpretation of fishing community could harm fishing communities that are based

on shared interest rather than a shared place.111 Congress may be asked to modify

this definition to clarify how this term should be used in social and economic

analyses of fishery management actions. Specifically, commercial fishermen and

fishery scientists may suggest that Congress include “virtual communities”112 in the

definition of fishing communities.113 Conversely, recognition of virtual communities

may be opposed by rural communities, which are likely to favor a geographic

definition. These groups, tied to a place and often with limited economic

opportunities, may feel threatened if virtual communities displace what they perceive

to be their traditional fisheries.114

110

50 C.F.R. §600.345(b)(3).

111

For example, fishing cooperatives in the Bering Sea walleye pollock fishery and in the

Pacific whiting fishery may be considered communities of individuals who share an interest

in these fisheries, but are drawn from a diverse geographic base. In addition, not all

services, or even fishermen, for a given port community reside in that port.

112

National Academy of Sciences, Sustaining Marine Fisheries (Washington, DC: 1999),

p. 97.

113

However, virtual communities may be difficult to marry to economic analysis,

particularly when indirect impacts are to be analyzed. For limited access systems, 16 U.S.C.

§1853(b)(6) does allow virtual communities to be assessed in conjunction with place-based

communities, creating a more complete view.

114

However, potential tools to protect place-based communities are being implemented (e.g.,

regionalization in the Bering Sea and Aleutian Islands crab rationalization program).

CRS-47

Small Boat Fleets and Family Fishermen. Although small boat fleets and

family fishermen are not given general consideration in the MSFCMA, these

individuals are mentioned specifically in §303(d)(4)(A)(i) that governs aid in

financing the acquisition of individual fishing quota.

The theme of “small” versus “large” fishing operations, whether vessels or

service providers, is a very important issue in fishing communities and the industry,

where many small operators perceive MSFCMA bias toward consolidation and large

operations. To address these concerns, some commercial fishing interests suggest

amending the MSFCMA to incorporate specific provisions to foster and support

small-boat and family fishing operations. These interests are alleged to have a strong

commitment to resource sustainability and possess culturally derived desires to pass

along “their” fishery to future generations. One proposal to provide additional

support for small boat and family fisherman is to restrict U.S. imports to fish

harvested by fishing fleets that use conservation measures comparable to those

required in the United States. However, some fishery scientists note that providing

additional support to small fishermen by restricting access to U.S. markets might

violate World Trade Organization obligations and international law, and violate U.S.

commitment to remove subsidies that support overcapitalization.

Transfer Pricing. Commercial fishing interests are concerned about transfer

pricing, especially in North Pacific fisheries. This is not currently addressed in the

MSFCMA. Transfer price is the price charged by one company to a related company

for allocating income and expenses among themselves. These “intra-firm transfers”

are covered under the Internal Revenue tax code at 26 U.S.C. §482. Some U.S.

fishing companies allegedly are not properly reflecting income attributable to their

operations within the United States, while some foreign parent companies may be

using pricing strategies to avoid higher U.S. taxes. In addressing “abusive” transfer

pricing, Congress could consi

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