Application of the precautionary approach in the national standard guidelines for conservation and management of fisheries in the United States

Transcription

1 ICES Journal of Marine Science, 56: Article No. jmsc , available online at on Application of the precautionary approach in the national standard guidelines for conservation and management of fisheries in the United States G. H. Darcy, and G. C. Matlock Darcy, G. H., and Matlock, G. C Application of the precautionary approach in the national standard guidelines for conservation and management of fisheries in the United States. ICES Journal of Marine Science, 56: The passage of the Sustainable Fisheries Act (SFA) by the US Congress in 1996 fundamentally changed the approach to fisheries management in the United States. While an objective of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson Stevens Act), the US Federal law controlling fisheries management in the Exclusive Economic Zone (EEZ), had always been to prevent overfishing, the attendant mechanisms for accomplishing the objective were not included in law. Some of the most significant amendments of the SFA were the addition of three new national standards, against which all proposed fishery conservation and management measures are measured, and the amendment of several other existing standards. Among the most important changes from the standpoint of conservation were changes that relate to national standard 1, regarding the prevention of overfishing and the rebuilding of overfished resources. Although the SFA did not use the term precautionary approach explicitly, the concept is implicitly expressed in several provisions of that Act. In developing the guidelines for implementation of the national standards, the National Marine Fisheries Service (NMFS) incorporated precautionary concepts to ensure that compliance with the SFA s measures to prevent and end overfishing are satisfied. In addition, the NMFS developed further technical guidance to assist fishery scientists and managers in providing advice that appropriately considers risk, relative to the scientific information available, such that meaningful protection is afforded marine stocks and stock complexes. Such protection extends not only to consideration of stock recruitment, but also to maintenance of sustainable levels of stock biomass and biodiversity International Council for the Exploration of the Sea Key words: control rules, Magnuson Stevens Act, national standard guidelines, overfishing, precautionary approach, rebuilding, Sustainable Fisheries Act. Received 23 October 1998; accepted 3 May G. H. Darcy and G. C. Matlock: Office of Sustainable Fisheries, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, Maryland 20910, U.S.A. Correspondence to G. H. Darcy: Tel ; george.darcy@noaa.gov Introduction The passage of the Fishery Conservation and Management Act, later renamed the Magnuson Stevens Act (NMFS, 1996) by the US Congress in 1976 initiated Federal management in the newly created Fishery Conservation Zone (now the EEZ) and established a unique management system consisting of eight Regional Fishery Management Councils (Councils). The Councils consist of state, Federal and regional fishery commission representatives, as well as private citizens, nominated by the state Governors and appointed by the Secretary of Commerce (Secretary). These persons are required to be knowledgeable regarding the conservation and management, or the commercial or recreational harvest, of the fishery resources of the geographical area concerned. The Councils are responsible for developing Fishery Management Plans (FMPs) for fisheries within their areas of authority and for submitting them to the Secretary for approval and implementation through regulations. Congress gave the authority for management of Atlantic Highly Migratory Species directly to the Secretary, effective 1 January The Secretary has delegated authority to the NMFS for taking /99/ $30.00/ International Council for the Exploration of the Sea

2 854 G. H. Darcy and G. C. Matlock Table 1. National standard guidelines of the Magnuson Stevens Act (section 301(a)). 1. Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. 2. Conservation and management measures shall be based on the best scientific information available. 3. To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. 4. Conservation and management measures shall not discriminate between residents of different states. If it becomes necessary to allocate or assign fishing privileges among various United States fishermen, such allocation shall be (a) fair and equitable to all such fishermen; (b) reasonably calculated to promote conservation; and (c) carried out in such manner that no particular individual, corporation or other entity acquires an excessive share of such privileges. 5. Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose. 6. Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. 7. Conservation and management measures shall, where practicable, minimize costs and avoid unnecessary duplication. 8. Conservation measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (a) provide for the sustained participation of such communities, and (b) to the extent practicable, minimize adverse economic impacts on such communities. 9. Conservation and management measures shall, to the extent practicable (a) minimize by-catch and (2) to the extent by-catch cannot be avoided, minimize the mortality of such by-catch. 10. Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea. virtually all actions required under the Magnuson Stevens Act. As of September 1998, there were 39 approved FMPs, with at least seven others under development. To guide the Councils and the Secretary in the development and review of fishery-management actions, the Magnuson Stevens Act, as enacted in 1976, provided seven national standards for fishery conservation and management, with which all FMPs and amendments prepared by the Councils and the Secretary must comply. In addition, the Act requires, at section 301(b), that the Secretary establish advisory guidelines, based on the national standards, to assist in the development of FMPs; these are the national standard guidelines (guidelines). The Magnuson Stevens Act has been amended several times since Most recently, on 11 October 1996 the SFA (Public Law ) was signed into law (Sustainable Fisheries Act, 1996). The SFA made numerous amendments to the Magnuson Stevens Act and established three new national standards, which require consideration of the impacts of fisherymanagement decisions on fishing communities (national standard 8), by-catch (national standard 9), and safety of life at sea (national standard 10). Other provisions of the SFA necessitated significant revisions to the guidelines for national standard 1 (optimum yield) and minor revisions to national standards 2 (scientific information), 4 (allocations), and 5 (efficiency); a complete list of the 10 national standards is given in Table 1. The Magnuson Stevens Act, since its inception, has required the prevention of overfishing. Perhaps naively, there was general optimism in the mid-1970s that, if foreign fishing were reduced or eliminated in the US EEZ, the fisheries would soon rebuild and provide much greater benefits to the US than they had previously. In fact, the expected Americanization of the fisheries did take place, but as foreign effort was phased out it was replaced by an even greater level of domestic effort. Despite the best intentions to the contrary, a significant number of fisheries in the US EEZ continued to be or became overfished. To address this situation, Congress has, through its amendments to the Magnuson Stevens Act, placed an increasing emphasis on identifying and ending overfishing. A significant step was taken in response to the 1988 Magnuson Act amendments. The NMFS published new guidelines for national standard 1 in July 1989 that required that each FMP include objective and measurable definitions of overfishing for each managed stock or stock complex, based on the best scientific information available (as required by national standard 2). The 1989 guidelines required that the overfishing definitions must relate to resource reproductive potential, and the emphasis was clearly on the prevention of recruitment overfishing in each fishery. Once overfishing was defined, the Councils (or the Secretary) were required to take action to end overfishing for those stocks that were determined to be overfished. By the early 1990s, the great majority of FMPs had approved definitions of overfishing in place. Because of the diversity of the US fisheries, including significant differences in the quantity and quality of information available with which to assess the condition of the stocks, the 1989 national standard 1 guidelines provided considerable flexibility in defining overfishing. Whereas the overarching principles were consistent and clear (i.e. the need to prevent or end recruitment overfishing in all

3 Guidelines for conservation and management of fisheries in the United States 855 fisheries), the NMFS and the Councils wrestled with the development of meaningful measures of overfishing, with fisheries such as those for corals, highly migratory pelagic species and anadromous salmonids proving especially challenging. After the initial period of overfishing definition development and implementation, the NMFS determined the need for assessment of the adequacy of the approved overfishing definitions and for obtaining recommendations for future definitions. In response, the NMFS assembled an international panel of experts in The panel considered many aspects of the 117 definitions it reviewed, such as whether the definitions were intended to be targets or thresholds and their appropriateness in terms of being risk-averse, particularly in the face of scientific uncertainty. The panel concluded that a maximum rate of fishing mortality (or appropriate proxy, such as some percentage of maximum spawning biomass per recruit), should generally be part of a definition of overfishing; in fact, about 70% of the definitions examined were found to conform to that advice (Rosenberg et al., 1994). The panel also recommended that overfishing definitions contain one or more triggering mechanism (e.g. thresholds) for meaningful management action; about half of the definitions examined contained such thresholds. Although the 1989 guidelines were a major step forward in addressing overfishing, Congress, through the SFA amendments to the Magnuson Stevens Act in 1996, sent a clear message that not enough progress had been made in ending overfishing and, in particular, in rebuilding stocks that were overfished. National standard 1 is broad in its requirements that conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry. In fact, the SFA did not change the wording of the standard itself. Nevertheless, among the most significant aspects of the SFA in terms of fishery conservation and management for sustainable yields were those that relate to national standard 1 and the prevention or ending of overfishing. In developing the most recent guidelines, which were proposed for public comment on 4 August 1997, at 62 FR 41907, and published as final on 1 May 1998, at 63 FR 24212, the NMFS attempted to take into account all of the provisions of the SFA, as a whole, as they relate to the prevention of overfishing and rebuilding of overfished stocks. In many cases, those changes were explicitly required by language in the statute; in other cases, the intent of Congress was less obvious. In those instances, the drafters of the guidelines carefully examined definitional language in the SFA, inferential evidence in the statute, Congress s records of development of the bills that ultimately became the SFA (e.g. floor debates and Congressional statements), discussions with those involved in drafting the statutory language, and the extensive public comments received on the proposed guidelines. Those changes, and their connections to the precautionary approach, are the subject of this paper. Precautionary approach The precautionary approach has been derived from Principle 15 of the Rio Declaration, developed at the 1992 United Nations Conference on Environment and Development, which states: Where there are threats of serious or irreparable damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. The principle has since been more broadly applied to fishery-management applications through several international agreements, such as the Agreement for the Implementation of the Provisions of the United Nations Convention of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks (Straddling Stocks Agreement) and the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement). Perhaps most notably the concept was embodied in the International Code of Conduct for Responsible Fisheries of the Food and Agriculture Organization (FAO, 1995), which addresses multiple aspects of fishery management, development, trade, and research. The precautionary approach has thus rapidly become a widely accepted fundamental of responsible fishery management throughout the world. A more thorough discussion of the development of the precautionary approach in fisheries can be found in Garcia (1994, 1996), ICES (1997), Serchuck et al. (1997), and Thompson and Mace (1997). While Congress did not use the term precautionary approach anywhere in the SFA or in the Magnuson Stevens Act, the drafters of the national standard guidelines were convinced, after careful consideration of the evidence, that such an approach was clearly the intent of Congress. Congressional floor debates, as well as numerous substantive changes to the Magnuson Stevens Act made through the SFA, indicate that Congress very deliberately increased the emphasis on preventing and ending overfishing. Nevertheless, the new requirements of the SFA go beyond merely stating that overfishing is to be prevented; the requirements clearly imply that fishery management measures are to be developed in a manner consistent with the precautionary approach. One of the most fundamental changes made to the Magnuson Stevens Act through the SFA was the increased prominence of the concept of maximum sustainable yield (MSY). While MSY was a component of the former Magnuson Act, it was raised in importance

4 856 G. H. Darcy and G. C. Matlock through the SFA because it is now an upper limit on optimum yield (OY). OY is defined in the Magnuson Stevens Act as the quantity of fish that will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems. Because national standard 1 requires the prevention of overfishing while achieving, on a continuing basis, the optimum yield from each fishery, the setting of OY, the definition of overfishing, and the selection of measures to prevent overfishing are tightly linked. Previously, OY was to be derived from MSY as modified by any relevant economic, social or ecological factors. In actuality, OY was typically set based on MSY as increased by consideration of economic and social factors. Though such upward adjustments were expected to be justified, the argument was generally made that the economic and social needs of the near term were of such importance that the longer term benefits of rebuilding a given fishery to a level capable of producing MSY were trumped. In contrast, the 1996 amendments to the Magnuson Stevens Act, as reflected in the national standard 1 guidelines, now preclude such a short-term focus by requiring that OY be derived from MSY as reduced by any relevant economic, social or ecological factor. Thus, OY cannot exceed MSY for any time period that would be inconsistent with an MSY control rule, which is defined in the guidelines as a harvest strategy which, if implemented, would be expected to result in a long-term average catch approximating MSY for a stock or stock complex. Further, under the Magnuson Stevens Act, MSY is now the initial target for rebuilding an overfished stock or stock complex (section 3(28)(C)) and forms the foundation for the definition of overfishing (section 3(29)). While several commentators on the proposed guidelines objected to the use of MSY as a concept based on concerns such as its apparent inflexibility and difficulty in estimation, the statutory language leaves no doubt that MSY must be considered in managing and rebuilding fisheries under the Magnuson Stevens Act. The NMFS examination of the amended Magnuson Stevens Act as a whole and the legislative history of the SFA confirmed that Congress intended this relative inflexibility as a response to the failure of previous measures to prevent or end overfishing of many resources. In fact, the requirement that OY not be set higher than MSY was explicitly debated on the floor of the House and adopted by a vote of ; the Senate version of the House s bill, which ultimately became the SFA, retained that language. Additional evidence of Congress s bolstering of the Magnuson Stevens Act s requirements to deal with overfishing comes from a change in statutory language that deleted the words long-term from the statute s definition of overfishing. The NMFS believes that this was an intentional change meant to emphasize the need to address and end overfishing immediately, rather than over some longer, undefined period of time. Although some readers of the proposed guidelines believed that the deletion of the words long-term had no significance, examination of several other provisions of the SFA support the authors conclusion. First, the rebuilding requirements of the SFA, especially the 10-year maximum rebuilding period, with very limited exceptions, and the Secretary s obligation to develop rebuilding plans if the Councils fail to do so within the statutory time frame, are indications that Congress intended immediate action to end overfishing and that such action was not to be unduly protracted without very good justification. Second, language in sections 2(a)(2) and 2(b)(1) of the Magnuson Stevens Act states that Congress found that the survival of certain stocks may be threatened and that immediate action needs to be taken to protect those stocks. In addition, floor debates in both the House and Senate regarding bills that later became the SFA explicitly reflected Congressional displeasure with the length of time the Councils have taken in the past to address overfishing problems. The Magnuson Stevens Act established MSY as the goal of stock rebuilding programmes through the requirement in national standard 1 that stocks must be maintained at levels capable of producing MSY on a continuing basis. If MSY were not viewed as a strict goal, then the benefits that Congress anticipated from passage of the SFA, and that the President of the United States referred to in his signing statement for the SFA, could not likely be achieved. Section 3(28)(C) of the Magnuson Stevens Act indicates that, for overfished resources, rebuilding must continue until the stocks have reached a level that can produce MSY on a continuing basis. Therefore, stocks are to be maintained at levels capable of producing MSY and OY on an uninterrupted basis. Fishing practice that reduces a stock below the level capable of producing MSY, even in the short term, is now unacceptable. Another very significant change brought about by the SFA is the requirement that definitions of overfishing include both measures of the rate of fishing mortality and stock size. Whereas the 1989 revisions to the guidelines established the requirement for overfishing definitions for each managed fishery, there was considerable flexibility allowed in choosing the definitions. As previously mentioned, the Councils in most cases adopted definitions that were based on a rate of fishing mortality, or on some proxy for its level. These were generally acceptable under the guidelines for national standard 1 and were approved by the Secretary. However, in the SFA amendments to the Magnuson Stevens Act, Congress recognized the limitations of such definitions. Although they were good indicators of the appropriate fishing rates, they were often of little use in determining

5 Guidelines for conservation and management of fisheries in the United States 857 stock condition relative to the production of MSY. It was quite possible for a stock that was at a very low level of biomass to be considered not overfished when judged against a definition that was based solely on a rate of fishing mortality. The Magnuson Stevens Act, by contrast, requires overfishing definitions that include both stock size and rate of fishing mortality (inferred from the definition of overfishing and overfished in section (3)(29)). Specifically, section 303(a)(10) of the Magnuson Stevens Act was amended to require the specification of objective and measurable (status determination) criteria that are to be used for identifying when fisheries are overfished and contain conservation and management measures for fisheries to end overfishing and to rebuild affected stocks of fish. The only way that both needs can be met is if the status determination criteria include measures of fishing mortality and stock size. The Magnuson Stevens Act is not explicit in defining just what the status determination criteria should be, but its focus on the production of MSY on a continuing basis makes clear that the intent of Congress was to address both the rate of fishing mortality and the size of the stock, such that overfishing could be prevented or stopped, and such that rebuilding to stock levels capable of producing MSY could be achieved. In addition, both the fishing rate and the stock size need to be measurable, because the Councils and the Secretary are responsible for setting rebuilding schedules consistent with statutory time frames. The inclusion of the rebuilding requirements in the SFA would have little meaning if there were no standard against which to measure the progress of that rebuilding. The Secretary is now required, through section 304(e), to report to Congress annually the status of all fisheries within the Councils and the Secretary s areas of authority and to list those stocks that are overfished or that are approaching a condition of being overfished. Those determinations must be made on the basis of the existing definitions contained in the FMPs, when available. Until overfishing definitions are revised to include criteria based on both rate of fishing mortality and stock size, consistent with the attainment of MSY on a continuing basis, such determinations of overfishing will fall short of the goals and requirements of the Magnuson Stevens Act as amended by the SFA. The Councils and the Secretary must submit revised definitions, as necessary, by 11 October To address the requirements of the Magnuson Stevens Act relative to definitions of overfishing, the 1996 guidelines incorporated the concept of control rules, which are intended to establish algorithms for management responses to various levels of stock size. Although the Magnuson Stevens Act does not explicitly mention control rules, the requirement that thresholds of both stock size and rate of fishing mortality should be established for each fishery led the NMFS to conclude that the control rule concept was not only appropriate, but well within the intent of Congress. The guidelines were drafted to allow considerable flexibility in development of such control rules, so long as they meet the requirements of the Magnuson Stevens Act and provide management response mechanisms consistent with the prevention of overfishing and the rebuilding of overfished stocks. Such control rules can be constructed to vary the threshold maximum fishing mortality rate as a function of stock size. While the Magnuson Stevens Act requires that fishing mortality be prevented from exceeding rates or levels that would jeopardize the capacity of the stock or stock complex to produce MSY on a continuing basis, it also allows such rates or levels to vary with stock size, under certain conditions. In fact, if properly selected, such control rules can be very conservative in preventing overfishing and/or in rebuilding overfished stocks. Therefore, the concept of appropriately devised control rules is inherently precautionary. Restrepo et al. (1998) published specific technical guidance on development of control rules and other aspects of implementation of the national standard 1 guidelines, consistent with the precautionary approach, for use by stock assessment scientists and fishery managers. The selection of the form of the control rule and its defining parameters is obviously critical in determining how it deals with risk. One key factor is the establishment of the MSY estimate. For that reason, the guidelines stress the consideration of risk in setting MSY for each fishery, to take into account such factors as uncertainty in assessment data, estimation errors and changes in environmental conditions. In cases where data are insufficient to estimate MSY, the guidelines allow for the substitution of reasonable proxies. Like many aspects of the proposed guidelines, the concept of threshold criteria drew considerable public interest. The degree of flexibility that should be allowed under the guidelines was an issue. Some felt that the guidelines were too rigid, others that they were too flexible and allowed the setting of MSY thresholds at too low a level. The final guidelines attempted to provide the flexibility necessary to prevent overfishing from occurring too frequently based on random events and natural fluctuations beyond the control of fishery managers. At the same time, the guidelines require sensible and measurable bounds that have a biological foundation for protecting stocks. Some readers of the proposed guidelines believed that MSY and OY estimates should include confidence limits to build in risk aversion. However, the NMFS chose not to require (or preclude) such an approach because, depending on how the point estimates of MSY and OY were derived, risk-aversion could already have been built in. In such circumstances, to require confidence limits would essentially be double-weighting for risk aversion, which could be potentially misleading to those making

6 858 G. H. Darcy and G. C. Matlock management decisions based on that advice. The guidelines make clear, however, that risk aversion is highly desirable and state that criteria used to set target catch levels such as OY should be explicitly risk-averse, so that greater uncertainty regarding the status of the stock or stock complex corresponds to greater caution in setting target catch levels. The requirement of the guidelines that actions be based on best available scientific data is, in itself, consistent with the precautionary approach and is, in fact, explicitly required by national standard 2. In most cases, the Act and/or the guidelines require exceptions to requirements to be adequately analysed and justified. For example, section 304(e)(4) requires that, for a fishery that is overfished, the appropriate Council must specify a time period for ending overfishing and rebuilding the fishery. The rebuilding period must be as short as possible, taking into account the status of the biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish within the marine ecosystem. However, the rebuilding period cannot exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise. If an overfished stock could be rebuilt in less than 10 years in the absence of fishing and a Council chooses to extend the rebuilding period beyond that minimum period, the Council is expected to justify its action through analysis. For stocks that cannot be rebuilt within 10 years under a moratorium on fishing, the guidelines impose an upper limit of the no-fishing mortality period plus one mean generation time. Although such a limit was not specified in the SFA, the establishment of an upper bound that is objective, measurable, and linked to the biology of the species is consistent with the Magnuson Stevens Act. An indeterminate rebuilding period >10 years would not be precautionary, nor would it logically conform with the objectives of ending overfishing and rebuilding stocks. The absence of information and justification for extending any rebuilding plan past the no-fishing mortality period would require the rebuilding time frames to be as short as possible. The precautionary approach is sufficiently evident in the intent and language of Congress that NMFS included a specific section in the guidelines to detail explicitly the precautionary requirements relative to OY. That section specifies that the Councils should adopt a precautionary approach to specification of OY and suggests that target reference points, such as OY, should be set safely below limit reference points (thresholds), such as the catch level associated with the rate of fishing mortality or the level defined by the status determination criteria. The guidelines further indicate that OY is a desired result (target), rather than an absolute ceiling on catch. Exceeding OY does not necessarily constitute overfishing, so long as the catch level is consistent with the MSY control rule. However, even if no overfishing resulted from exceeding OY, continuous harvest above OY would violate national standard 1 because OY could then not be achieved on a continuing basis. Another feature of the precautionary approach built into the national standard 1 guidelines is the requirement that a stock or stock complex that is below the size that would produce MSY should be harvested at a lower rate or level of fishing mortality than if the stock or stock complex were above that size. Finally, the guidelines require that criteria used to set target catch levels should be explicitly risk-averse, such that greater uncertainty regarding the status or productive capacity of the stock or stock complex corresponds to greater caution in setting target catch levels. Part of the OY may be held as a reserve to allow for factors such as uncertainties in estimates of stock size and catches. Impact The Magnuson Stevens Act, as amended, contains two statutory deadlines that are particularly relevant to national standard 1 and the rebuilding of overfished stocks. The first is 11 October 1998 (two years after the signing of the SFA), the date by which the Councils and the Secretary must amend their FMPs to include all of the new provisions of section 303 of the Magnuson Stevens Act, such as the identification of essential fish habitat, by-catch reduction measures and revised definitions of overfishing. Because, as discussed above, the national standard 1 guidelines have been revised substantially to address the requirements of the Magnuson Stevens Act, it is likely that all of the 39 approved FMPs will need to be amended to include new overfishing definitions that are consistent with the guidelines and the statute. For example, few if any existing definitions include both fishing mortality and stock size components, as now required. The second relevant statutory deadline is the requirement that, within 1 year of notification that a stock or stock complex is overfished or approaching a condition of being overfished, a Council or the Secretary must prepare and submit an FMP, FMP amendment, or proposed regulations to (1) end overfishing and to rebuild the affected stocks of fish or (2) prevent overfishing. If a Council fails to take appropriate action within that time frame, the Secretary is obligated to take such action within the next 9 months. Such notification can take place at any time. In its annual report to Congress, the NMFS must identify those stocks that are overfished or approaching a condition of being overfished. Following that report, the NMFS sends official notification of

7 Guidelines for conservation and management of fisheries in the United States 859 overfished stocks to each affected Council and publishes a notice to the public in the Federal Register. However, as new stock assessments are performed or new overfishing definitions are approved, other species may be determined to be overfished or approaching a condition of being overfished. In such cases, the appropriate Council is notified, a Federal Register notice is published, and the 1-year time frame for action is initiated. In September 1997, the NMFS report to Congress (NMFS, 1997) identified 86 stocks as overfished, 183 stocks as not overfished and 10 species as approaching an overfished condition. An additional 448 stocks were listed as unknown with regard to their status relative to overfishing. The 1998 report to Congress (NMFS, 1998) lists 90 stocks as overfished, 200 as not overfished, 10 as approaching a condition of being overfished, and 544 as unknown. As of 1 October 1998, no new definitions of overfishing and no new rebuilding plans had been approved under the new requirements of the SFA. However, all of the Councils were well along in the development of FMPs, FMP amendments and/or regulations to revise definitions of overfishing and to implement rebuilding plans for overfished stocks. It is therefore premature to draw conclusions regarding the extent to which the revisions to the Magnuson Stevens Act will impact on the management of US fisheries. It is a virtual certainty, however, that when the new definitions of overfishing are in place the number of stocks that are declared overfished or approaching an overfished condition will increase considerably. This expectation results from the inclusion of MSY as a constraint in the Magnuson Stevens Act. The previous constraint, recruitment overfishing, allowed higher rates of fishing mortality and smaller stock sizes than will the new regime. This will not reflect deteriorated stock conditions, but application of the more stringent requirements of the SFA. In particular, the requirement that definitions contain reference to both rate of fishing mortality and stock size will result in changed status determinations and necessitate additional rebuilding plans. As the Act allows rebuilding to take place over a period of up to 10 years for most stocks, with adequate justification, it will be some time before the impacts of the SFA can be truly assessed. However, given the significant changes in the Magnuson Stevens Act and the precautionary approach implicit in the statute and explicit in the guidelines for national standard 1, there is reason for optimism that, within the next decade, most United States fisheries will be rebuilt to levels that can sustain harvests near their MSYs. References FAO Code of conduct for responsible fisheries. FAO, Rome. 14 pp. Garcia, S. M The precautionary principle: its implications in capture fisheries management. Ocean and Coastal Management, 22: Garcia, S Precautionary approach to capture fisheries and species introductions. Elaborated by the Technical Consultation on the Precautionary Approach to Capture Fisheries (including species introductions). Lysekil, Sweden, 6 13 June FAO Technical Guidelines for Responsible Fisheries, pp. ICES Draft report of the Study Group on the Precautionary Approach to Fisheries Management. ICES, CM 1997/Assess:7. 37 pp. NMFS Magnuson Stevens Fishery Conservation and Management Act as Amended through October 11, NOAA Technical Memorandum, NMFS-F/SPO pp. NMFS Report to Congress: status of fisheries of the United States. September pp. NMFS Report to Congress: status of fisheries of the United States. October pp. Restrepo, V. R. (Convenor), Thompson, G. G., Mace, P. M., Gabriel, W. L., Low, L. L., MacCall, A. D., Methot, R. D., Powers, J. E., Taylor, B. L., Wade, P. R., and Witzig, J. F Technical guidance on the use of precautionary approaches to implementing national standard 1 of the Magnuson Stevens Fishery Conservation and Management Act. NOAA Technical Memorandum, NMFS-F/SPO pp. Rosenberg, A. (Convenor), Mace, P., Thompson, G., Darcy, G., Clark, W., Collie, J., Gabriel, W., MacCall, A., Methot, R., Powers, J., Restrepo, V., Wainwright, T., Botsford, L., Hoenig, J., and Stokes, K Scientific review of definitions of overfishing in U.S. fishery management plans. NOAA Technical Memorandum, NMFS-F/SPO pp. Serchuck, F., Rivard, D., Casey, J., and Mayo, R Report of the ad hoc working group of the NAFO Scientific Council on the precautionary approach. NAFO SCS Document 97/ pp. Sustainable Fisheries Act Senate Bill th Congress of the United States, 2nd Session. September 19, Thompson, G. G., and Mace, P. M The evolution of precautionary approaches to fisheries management, with focus on the United States. NAFO SCR Document 97/ pp.