Part 12: Other Influences on Fishery Management
As discussed in Parts 1 - 11, successful fishery management blends a combination of elements: biological, economic, and social. However, some aspects of fishery management are dictated by statute. For example, the 2007 amendments to the MSA directed Fishery Management Councils to ensure that Essential Fish Habitat not be adversely affected by fishing activities or other state and federal programs. Also, federal wildlife laws may restrict fishing if those activities harm protected species. Moreover, management decisions can be limited by geographical designations of marine protected areas, some of which prevent commercial fishing.
Congressional Influence on Fisheries Management
Generally speaking, the U.S. Congress does not manage fisheries on a day-to-day or issue-by-issue basis. The regional Councils and NMFS have been delegated that responsibility. However, Congress can pass legislation at any time to regulate fisheries directly. More commonly, Congress directs fishery management policy by amending the Magnuson-Stevens Act. Congress’s periodical review of the statute allows for an in-depth review of how well the MSA is working and how it can be improved. Hearings are held, and Congress debates the merits of many competing interests. The periodic review provides a good opportunity for fishing interests to influence federal fisheries management by contacting their elected representatives.
Gulf Reef Fish
Following years of frustration among recreational fishers that the federal red snapper season was too short – one season was initially set at three days before being modified – Congress passed a law extending the jurisdiction of state waters of Alabama, Mississippi, and Louisiana for the purpose of reef fish management to nine nautical miles in the Gulf of Mexico. This law gave states management of recreational reef fish over a greater area. Pub. L. No. 114-113, § 110, 129 Stat. 2296.
Other Laws and Treaties Affecting Fish Management
While the Magnuson-Stevens Act is the dominant regulatory authority for fish management in the United States, other laws and treaties address fish, fish conservation, and protecting animals from incidental harm from fishing. The Endangered Species Act and the Marine Mammal Protection Act are the laws with the biggest application in this area. Those are covered later in this Part. Here is a list of other laws and treaties that affect fish management, including bycatch reduction.
- Atlantic Striped Bass Conservation Act of 1984, 16 U.S.C. §§ 5151-5158
- Atlantic Tunas Convention, 16 U.S.C. §§ 971- 971k
- Coral Reef Conservation Act, 16 U.S.C. §§ 6401-6409
- Interjurisdictional Fisheries Act, 16 U.S.C. §§ 4104-4107
- Lacey Act, 16 U.S.C. §§ 3371-3378
- Northern Pacific Halibut Act, 16 U.S.C. § 773(a) (International Pacific Halibut Convention US-Canada)
- Pacific Hake/Whiting Treaty, 16 U.S.C. §§ 7001-7010
- Pacific Salmon Treaty of 1985, 16 U.S.C. §§ 3631-3645
- Regulation of Landing, Curing, and Sale of Sponges Taken from Gulf of Mexico and Straits of Florida, 16 U.S.C. §§ 781-785
- South Pacific Tuna Treaty, 16 U.S.C. §§ 973 – 973r
Other statutes addressing bycatch:
- Fur Seal Act of 1966, 16 U.S.C. §§ 1151-1175
- International Dolphin Conservation Program Act, 16 U.S.C. §§ 1411-1417
- International Whaling Convention of 1946 (International Whaling Commission)
- Migratory Bird Treaty Act, 16 U.S.C. §§ 703-712
Fish Management During a Disaster
At times, fisheries are impacted by events that render management moot. For example, following a catastrophic event such as a hurricane or oil spill there may not be fish to catch or vessels to catch the fish. The Magnuson-Stevens Act provides for the declaration of a fishery resource disaster (16 U.S.C. § 1861a) and for a catastrophic regional fishery disaster (16 U.S.C. § 1864) to compensate local areas for the loss of revenue.
These two congressional authorities overlap in descriptions of harm and covered losses, and frequently are not distinguished in the Secretarial Determinations offering assistance. There are, however, differences between them. Both are initiated at the request of the governor of a state affected by a fishery disaster. Both are approved by the Secretary of Commerce. Once approved, the Secretary of Commerce provides funding to the requesting states. In neither case may the money be used to increase the capacity of a fishery. (How the money can be used is described below.) Typically, funding must be appropriated by Congress for this purpose, although the Department of Commerce may have some funds in its budget to use. As a result, some disaster assistance comes within weeks of a governor’s request, others after more than a year.
For a fishery resource disaster to be found under Section 1861a, there must be a commercial fishery failure due to:
- Natural causes;
- Man-made causes beyond the control of fishery managers; or
- Undetermined causes.
The federal funding is provided to the state and the fishing community based on the economic and social impacts of the disaster. It is not clear from the language of the statute whether this aid is available only to commercial fishing participants.
A catastrophic regional fishery disaster, which is defined in Section 1864, piggy-backs on the fishery resource disaster determination. It refers to a natural disaster or a regulatory closure that:
- Results in economic losses;
- Affects more than one state; and
- Is a fishery resource disaster.
Money allocated under a catastrophic regional fishery disaster may go to a broader group of affected parties than is stated in Section 1861a, including:
- Charter fishing operators;
- United States fish processors; and
- Owners of related fishery infrastructure.
The money can be used for activities such as improving shoreside fishery infrastructure, or financial assistance and job training for fishers, or money to fishers who are surrendering their permits.
Hard Clam/Northern Quahog
Endangered Species Act and Fisheries Management
The federal Endangered Species Act and the Magnuson-Stevens Act have little in common with regard to how they treat fish, yet some people associate the two. The Endangered Species Act (ESA) requires all government agencies and private entities to consider whether their actions will affect species that are officially listed as being “in danger of extinction.” The goal is recovery of those listed species. The ESA prohibits actions that hurt or kill the listed species, as well as actions that will impair its chance at recovery – such as interfering with breeding or feeding. Basically, if a fish is protected under the ESA, you are not allowed to catch it.
In contrast, the Magnuson-Stevens Act’s goals are to allow commercial and recreational fishing at levels that will provide optimum yields on a continuing basis. While the Magnuson-Stevens Act identifies fish to manage, identification under the MSA is very different than listing under the Endangered Species Act.
While the word “endangered” is sometimes used when discussing MSA-managed fish, it does not mean it is an ESA-protected fish. In fact, it is illegal to catch fish that the ESA lists as endangered. However, in discussing catch quotas or closed seasons, sometimes a statement is made such as, “fishing for greater amberjack was banned today to protect the endangered fish.” In that case, the word just has the common conversational meaning of a stock being in peril if fishers catch too many. More accurately, the MSA describes fisheries where fish are at risk as being overfished, undergoing overfishing, or depleted.
Fishery management and endangered species regulations have different goals in mind. Fishery management rules are meant to allow the continuing harvest of renewable species. Commercial interests are taken into account. In contrast, the rules for endangered species are intended to prevent extinction of identified species and to ensure their recovery for long-term survival. The economic cost is not a factor.
While fisheries management is conducted pursuant to the MSA, the act of fishing, both recreational and commercial, can be affected by the Endangered Species Act. Even the unintended catch of a single endangered species is a federal offense. This includes bycatch. The ESA calls the unintended harm (including killing) of a listed species, such as by fishing, an “incidental take.” NMFS issues permits under the ESA for incidental takes in federal waters, which are known as Incidental Take Statements. The permits must be issued before the take occurs.
The Sea Turtle Disentanglement Network
NMFS manages a program called the Sea Turtle Disentanglement Network (STDN), in which volunteers monitor and report sea turtles caught in active or discarded fishing gear. Sea turtles are protected under the ESA. NMFS has found the volunteer reporting to be invaluable, especially from fixed gear fisheries, where vertical lines are used, as there are no observer programs for those fisheries. The data reported – 78 cases a year on average – is used by NMFS to develop mitigation programs to avoided future entanglements. Each region has its own hotline for reporting.
Marine Mammal Protection Act and Fishery Management
The Marine Mammal Protection Act was enacted just a few months before the Endangered Species Act, and they are similar. However, unlike the ESA, which requires a species to undergo a formal listing process before the act’s protections to apply, the Marine Mammal Protection Act (MMPA) automatically applies to all marine mammals. It is enforced by the National Marine Fisheries Service.
The MMPA uses terms similar to the Magnuson-Stevens Act, referring to “stock” and “optimum sustainable populations.” The MMPA’s goal is to attain optimum sustainable populations of marine mammals. If a stock is found to be below that sustainable level, referred to as being depleted, the MMPA requires actions to restore the stock.
Definition of Optimum Sustainable Population
The Marine Mammal Protection Act defines Optimum Sustainable Population as “…the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of [their] ecosystem…” 16 U.S.C. § 1362(9)
While it generally prohibits killing or injuring any marine mammal, the MMPA allows killing or injuring marine mammals incidental to commercial fishing by issuing a general authorization under Section 181 (16 U.S.C. § 1387(c)(2)). As with the ESA, these takes are known as “incidental takes.” If a stock is found not to be at optimum sustainable levels, NMFS might reduce or eliminate the authorization for permissible incidental takes. The MMPA goal is to reduce incidental takes under commercial fishing permits “to insignificant levels approaching a zero mortality and serious injury rate.” There are conditions to operating under the commercial fishing authorization excusing incidental takes. The vessel must register, display the authorization decal, and allow observers onboard.
Another section of the MMPA, directs commercial fisheries managed under the MSA to be classified based on how many incidental takes of marine mammals occur, including causing death or serious injury. There are three categories: frequent interactions; occasional interactions; and remote likelihood of/ no known interactions. Fisheries divided by geographical region and listed annually in the List of Fisheries.
Additionally, in 16 U.S.C. § 1371(a)(4)(A), the MMPA authorizes specified people aboard commercial vessels to “deter marine mammals” from damaging fishing gear or taking catch. Methods are categorized as either acoustic or non-acoustic, meaning whether they chase bycatch away by making noise. The deterrence cannot lead to death or serious injury of a marine mammal, which is less strict than the MMPA’s prohibition on harassing these animals. The authorized deterrence methods are published in Guidelines for Safely Deterring Marine Mammals. When the Guidelines are followed, the vessel is shielded from liability under the MMPA.