Policy Formulation Versus Policy Implementation Under the Magnuson-Stevens Fishery Conservation and Management Act: Insight from the North Pacific Crab Rationalization

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) governs management of fisheries located three to 200 miles off the coast of the United States. The MSA is unique in administrative law in that it devolves policy formulation to eight Regional Fishery Management Councils rather than to a federal agency. That agency, the National Marine Fisheries Service (NMFS), is relegated primarily to developing regulations that implement the councils’ policies. NMFS can review the councils’ policies only to ensure that they are consistent with existing laws. NMFS has no authority to revise policy to suit its own preferences, or to write regulations that undercut council policy intent, except when conflicts with other applicable laws arise. The MSA’s legislative history reveals NMFS routinely undercuts this special administrative process through the regulations it writes. We review a recent example in which NMFS attempted to undermine the North Pacific Fishery Management Council’s crab rationalization policy through the regulation-writing process. We offer a simple solution to help avoid future abuse of administrative authority. This solution may have utility in other areas of administrative law in which authority to formulate policy is separated from the power to implement it