The Evolution of the MagnusonStevens Act
Eldon Greenberg
Presentation at the Eighth Marine Law Symposium
Roger Williams University School of Law
Bristol, Rhode Island
November 4, 2010
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I.
INTRODUCTION
•
Over the past thirty-five years, the Magnuson-Stevens Act has been
amended on numerous occasions.
•
Evolution of the Act comprises five distinct stages: 1974-1976; 1978-1980;
1983 and 1986; 1990; and 1996 and 2007.
•
Trajectory of the Act: from relative simplicity (34 pages in 1976) to
increasing complexity (170 pages in 2007); from fisheries promotion to
enhanced conservation.
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II. THE HEROIC ERA – 1974-1976 and the Passage of the
Law (Pub. L. No. 94-265).
•
Major issue in the “heroic era” is jurisdictional: whether a 200 mile “Fishery
Conservation Zone” (now the “Exclusive Economic Zone” or “EEZ”) is
justified under international law.
•
Primary goal of the legislation: “kick the foreigners out,” coming especially
from New England and Alaska.
•
Fierce opposition to the legislation from the Defense and State
Departments and many elements of the U.S. fishing industry, e.g., tuna
and shrimp.
•
Domestic management is something of an afterthought, to secure the
support of non-coastal Senators and Representatives. Still, Council
system is a major regulatory innovation.
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II. THE HEROIC ERA – 1974-1976 and the Passage of the
Law. (cont.)
•
System of National Standards, regionally applied, is adopted largely
without debate.
•
Environmental community plays almost no role, except for seeking an
extension to 200 miles of the Marine Mammal Protection Act.
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III. ACHIEVING “AMERICANIZATION” – 1978 and 1980
Amendments (Pub. L. Nos. 95-354 and 96-561).
•
Understanding that mere assertion of jurisdiction is not enough to
“Americanize” the fisheries.
•
Processor Preference Amendment (1978) responds to emerging
phenomenon of “joint ventures.”
•
–
Recognition that preference for U.S. fishermen is insufficient.
–
1978 amendments establish priority for U.S. fish processors over foreign floating fish
processors.
American Fisheries Promotion Act (1980) recognizes the need to stimulate
the export of U.S. fisheries products.
–
Institutionalization of the “fish and chips” policy.
–
Research and development grants aimed at expansion of U.S. fisheries.
–
Fishery trade officers and fishing vessel loan guarantee program.
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IV. TINKERING AT THE EDGES/CONSOLIDATION OF
AUTHORITIES – 1983 and 1986 Amendments (Pub. L.
Nos. 97-453 and 99-659).
•
Reforms of the 1980s grow out of 1982 Oversight Report of the House
Merchant Marine and Fisheries Committee (H.R. Rep. No. 97-438).
•
Thrust of 1983 and 1986 amendments is to overhaul management
institutions; modify the process for developing and implementing
management measures; and strengthen the enforcement powers of the
Federal Government.
•
1986 amendments also include the Interjurisdictional Fisheries Act:
coordination and funds needed to ensure that adequate measures are
applied to non-EEZ, coastal migratory species, e.g., striped bass.
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V. REDISCOVERING INTERNATIONALISM – 1990
Amendments (Pub. L. No. 101-627)
•
Return to the international focus that dominated the mid-1970s debate.
•
Growing recognition that, even with the Americanization of EEZ fisheries,
effective conservation and management inevitably has an international
component.
•
Focus on pollock in the “donut hole” of the Bering Sea, the dangers of high
seas drift gillnet fisheries, the assertion of U.S. jurisdiction over tuna and
Secretarial management of Atlantic highly migratory species.
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VI. THE RISE OF ENVIRONMENTALISM – 1996 and
2007 Amendments (Pub. L. Nos. 104-297 and 109-479).
•
Sea change of the 1990s – the environmental community discovers fishery
management.
•
Sustainable Fisheries Act of 1996 grows out of NMFS’ publication of “Our
Living Oceans” documenting “overutilization” of U.S. fisheries, crisis in
New England management and the formation of the “Marine Fish
Conservation Network.”
•
Conservation focus of the SFA: eliminating overfishing and rebuilding
depleted fish stocks; adopting a “precautionary approach” to management;
minimizing by-catch; and protecting marine habitats.
–
A tilt against “efficiency”, e.g., the amendment of National Standard No. 5.
–
Balkanization and micro-management.
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VI. THE RISE OF ENVIRONMENTALISM – 1996 and
2007 Amendments. (cont.)
•
Magnuson-Stevens Reauthorization Act of 2007 continues many of the
same themes.
–
Ending overfishing, establishing firm deadlines for rebuilding, reducing by-catch and
enhancing the role of science in management decisions.
–
Requirements for annual catch limits (“ACLs”), not to exceed the recommendations of the
Scientific and Statistical Committee, and accountability measures (“AMs”).
–
Major new development in 2007: institutionalization of a regime for adopting and
implementing “catch share” programs.
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VI. CONCLUSION – What’s next?
•
A major overhaul is not on the horizon; need for more time to take stock.
•
Will there be a reaction to the regime’s tilt against efficiency?
•
Is the system becoming too rigid? Is greater flexibility needed, viz.,
Amendment 16 to the Multispecies FMP in New England and
Congressional calls for modification?
•
Will New England once again be the driver of legislative change?
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