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The Truth About the Modern Fish Act and the President’s Bizarre Statement

What various news outlets are reporting isn’t entirely accurate

By Capt. John McMurray

Frankly, we’ve been ignoring all of this up to now, because, the version of the Modern Fish Act that passed, and the way it was passed, is well, kinda inconsequential – to us anyway.

But the reporting on the subject? It’s been, ahem, less than accurate. And, part of our niche here is to explain things like this to a community of conservation-minded anglers in a truthful, yet easy to understand way.

So, let’s start with the Modern Fish Act. Yes, after removing just about all of the “objectionable” provisions to just about all of various stakeholders, the bill passed by “unanimous consent” in the eleventh hour of the 115th Congress.

Let’s take a quick look at what we started with, and what we ended up with here.

Allocation Reviews

The original version of the Modern Fish Act mandated a full-on look at allocation (between commercial and recreational sectors) within two years, and every three years thereafter – for the Gulf and Mexico and South Atlantic only.

Why only in those two regions? Red snapper politics. Without a doubt, red snapper has driven the current management discussion. And the truth is that the heavy hitters, the organizations pushing for that bill, are mostly located in that region. One could argue that those pushing the Modern Fish Act don’t care as much about the other regions, but in all likelihood, the proponents of this bill understood right away that an allocation review mandate in other regions was politically impossible.

Eventually, they realized that even doing it in the Gulf and South Atlantic was impossible, too, because, in the end, such requirement was removed from the bill. It was replaced with a simple requirement for the U.S. Comptroller General to conduct a study on allocation review by the South Atlantic and Gulf of Mexico Councils, the findings of which will be reported to Congress.

Clearly, that is far from the allocation review mandate that proponents of the bill sought.

Where do we stand on the allocation stuff? Well, with some fisheries, particularly those where allocation schemes were based on information that is decades old, it’s hard to argue that the Councils shouldn’t be forced to take a look. Will this legislation do that? No, it won’t. Even if such a study shows a compelling need for an allocation review by the Councils, there is NOTHING that I’m aware of in the legislation that would compel the Councils to take on an allocation review.

The point is that this does little, but, still, it is being spun as a big win in the press.

“Alternative Management”

The original Modern Fish Act authorized “the use of alternative fishery management measures in a recreational fishery.” What that means really is, instead of managing on hard quotas and having accountability measures should such quotes be exceeded, the Councils could manage on say a fishing mortality rate over a period of years and, if overfishing occurred, not hold fishermen accountable at all.

The Councils have always had the flexibility to use alternative management strategies. But, as a requirement of current law, any alternative management measures have to prevent overfishing (keep landings below a specified annual catch limit). This was not specified in the original version of the bill. So, it certainly seemed that the intent was to allow such alternative management measures without having to prevent overfishing.

The final bill, however, needlessly authorizes the Councils to use such management measures – “needlessly” because they already had such authority – but specifically provides that such measures still need to prevent overfishing (i.e., comply with set annual catch limits and accountability measures.)

There’s been a lotta hoopla over this one. The “Yea, we can now use management measures fit more for the recreational community”- when it’s clear to anyone who has followed this that Councils have always had such authority.

Yes, the various news outlets have been raving about this, but the reality is that it didn’t change anything.

“Modifications to the Annual Catch Limit Requirement”

Perhaps most important is the early removal of the “Modifications to the Annual Catch Limit Requirement” from a prior version of the bill. That section would have created such broad exceptions to the annual catch limit requirements that many commercial fisheries, as well as most if not all recreational fisheries, would be exempt.

One of those exemptions would have permitted a Council to consider “economic impact” in setting annual catch limits, which would certainly seem to allow Councils to place short-term economic gain above the biological needs of the resource, while completely disregarding the part of the angling community that depends on abundance.

Another section would have exempted commercial and recreational fisheries for many “data-poor” species, which are those fish probably most in need of precautionary management, while another would exempt all recreational fisheries which are “not monitored by a data collection system determined by the Secretary [of Commerce] to be adequate for the development, implementation, and enforcement of annual catch limits,” a catch-all that would have exempted pretty much all recreational fisheries.

First Senate Markup

Fortunately, such exceptions were removed in February 2018 by the Senate during the markup of the bill. There was a new provision in that version that made it clear that Councils must still prohibit overfishing, that scientists must continue to set overfishing limits and that “Annual Catch Limits” and “Accountability Measures” must remain part of every fishery management plan. The “alternative management measures” language made it clear that such measures are not meant to replace annual catch limits.

The bill marked up that February still included language requiring a reconsideration of commercial/recreational allocation in the South Atlantic and Gulf every five years, and some stuff that could jam up catch-share programs, but the bill was a far cry from where it started.

All that said, we were still opposed, because there was a real possibility that such a bill would need to be reconciled with House bill, H.R. 200, which is truly an awful piece of legislation designed to sanction overfishing.

But, well, in the end, that’s not what happened.

The final product

In the final moments of the 115th Congress, the Senate passed by “unanimous consent” a fairly benign bill. The House passed the same bill a few days later.

All that the Modern Fish Act really does is push NOAA to look at new data sources, including data provided by nongovernmental sources, and electronic reporting (i.e., smartphone or tablet apps), which is, of course, good, as long as they can find a way to verify all of it. The new law makes it clear that any such data must still represent the best scientific information available before it is used. Frankly, NOAA has been moving in this direction for a long time.

Yeah, there’s that requirement to produce a study on mixed-use fishery allocation in the Gulf and South Atlantic. I’m not sure how useful that’s gonna be.

And lastly, there’s the requirement that the National Academies of Sciences complete a study and provide recommendations within two years on limited access privilege programs (aka catch shares.) This may be a good thing as far as tweaking existing catch-share programs, and implementing such management measures in other regions, but again, unless I’m misunderstanding something here, no matter what it says, there’s no mandate to actually act on it.

In the end, despite all the back-patting press releases and subsequent articles, the Modern Fish Act that passed doesn’t do much.

President Trump’s Statement on the Modern Fish Act

Which leads us to the president’s statement on the Modern Fish Act, which is truly confusing.

The following was released by the White House Dec. 31, 2018:

“Today, I have signed into law S. 1520, the “Modernizing Recreational Fisheries Management Act of 2018” (the “Act”). The Act, however, further strengthens the Regional Fishery Management Councils, which were first established by the Magnuson-Stevens Act of 1976 to promulgate fishery management plans. The power of these Councils has steadily increased over time, raising constitutional concerns related to the manner of the appointment and removal of their members and of members of certain scientific and statistical committees that assist them. Keeping with past practice of the executive branch, my Administration will treat the plans promulgated by the Council as advisory only; the adoption of the plans will be subject to the discretion of the Secretary of Commerce as part of the regulatory process described in section 304 of the Magnuson‑Stevens Act.”

Uhm… What? The Act “further strengthens the Regional Fishery Management Councils”?

It doesn’t. Not at all.

In fact, I don’t think anyone who actually understands the process would say that it does. If anyone can point something out that we might be missing, please reach out – would love to see that.

The president further states that “The power of these Councils has steadily increased over time.” It hasn’t. As Charlie Witek points out in a recent blog post if anything the Council’s decision-making power has decreased over time with provisions implemented during various reauthorizations of the Magnuson Act, which put real limits on the Councils’ decision-making capability so that they have to prevent overfishing and they have to rebuild stocks.

And, as far as the “plans promulgated by the Council as advisory only; the adoption of the plans will be subject to the discretion of the Secretary of Commerce,” well that’s always been the case.

So, I don’t know what the hell the president is talking about with all of this. Frankly, it sounds like he signed the bill into law reluctantly. I have no idea what that’s about. I suppose moving forward, we’ll see.

In the end

In the end though, we dodged a real bullet. The truly bad bill, H.R. 200 – which would have dismantled the current conservation provisions of the Magnuson Act – didn’t move at all after it passed the House. The final version of the Modern Fish Act proved to be nothing more than a few studies and maybe a prodding to look at more data sources.

I have no doubt that the “kill-more-fish” folks will keep pushing in this Congress. But I can’t imagine they’d have any more success with a House of Representatives that should be more prone to support conservation, rather than immediate gratification. We could be very wrong here, but it sure seems unlikely that something like H.R. 200 would make it through this Congress. In fact, word is Senator Sullivan from Alaska is already working on a moderate bill.

So, stay tuned. And don’t believe everything you read out there.

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