Maintaining Our Standards

Charles Witek

The Magnuson-Stevens Fishery Conservation and Management Act, which governs all fishing in federal waters, is an extremely long and complex statute.  However, no part of the law is more important than the ten so-called “National Standards” which set forth the principles that shall govern its implementation.

Those national standards are brief, and go into no detail as to how they shall be maintained.  For that, fishery managers must rely on court decisions, such as the landmark Natural Resources Defense Council v. Daley, or on regulatory guidelines adopted by the National Marine Fisheries Service which are intended to assist regional fishery management councils when drafting management plans.

Although such regulatory guidelines do not have the force of law, they do have substantial influence in how management plans may be written.  Thus, any changes made to such guidelines attract, and deserve, substantial attention from fishermen and conservation proponents.

Right now, NMFS is in the final week of amending the guidelines for National Standards One, Three and Seven.  Of the three, National Standard One is by far the most important.  It states 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.”

The current advisory guidelines for National Standard One have helped the regional fishery management councils produce management plans that have resulted in the lowest levels of overfishing, and overfished stocks, ever recorded.  They may not be perfect—things seldom are—but to date, they’ve worked pretty well.  However, there is real concern that some of the proposed changes to those guidelines could reduce the effectiveness of management programs.

The proposed changes are extensive, and readers are urged to go to the NMFS website and read all of them — or, at the least, NMFS’ summary of all of the proposed changes — for themselves.  However, everyone should be aware of the changes most likely to harm fisheries conservation efforts.  

On the whole, there is nothing novel about them; instead, they are the same issues that have emerged elsewhere in the fisheries debate, particularly with respect to Magnuson-Stevens reauthorization.

Thus, no one should be surprised to see that the proposed guidelines include measures that would prolong overfishing.  

Currently, overfishing is based on single-year estimates, and action must be taken if overfishing occurs during the course of any one season.  The proposed guidelines would allow councils to define overfishing with reference to a three-year period instead. 

Justifications of the three-year period seem logical at first.  

NMFS notes that requiring action after just one year of overfishing, no matter how minimal such overfishing might have been, could easily lead to unneeded regulatory changes that have no real impact on the long-term health of the stock.  It also notes that the last year of any stock assessment is always the least reliable, and that harvest data gets better over time; thus, basing regulatory changes on just the most recent year’s data could lead to unneeded and potentially disruptive change.

Both those things are true, but yet…

Adopting a three-year timeframe for determining overfishing would permit councils to delay action no matter how severe such overfishing had been.  While NMFS highlights the case where no regulatory changes are needed, it fails to recognize the opposite situation, where a fishery management council would be allowed to forego action even if a stock on the verge of collapse was severely overharvested.

To put the issue in real-world terms, does anyone believe that the New England Fishery Management Council would have cut Gulf of Maine cod landings this year, if it had a legal excuse not to do so?

Even in the case of stocks in better health, there is often little reason to believe that overfishing would end on its own.  

Despite regulations that grew more restrictive each year, anglers still managed to overfish Gulf of Mexico red snapper for seven out of the ten years between 2004 and 2013 (at which point a lawsuit forced a change in the way the recreational fishery is managed), sometimes landing more than 150% of the recreational annual catch limit; we can only guess how much worse such overfishing would have been if regulations were only tightened once every three years.

Here in the northeast, we have a similar situation.  Black sea bass abundance seems to have increased sharply, and as a result, recreational overharvest has been pretty severe since 2012, and regulations have tightened each year in response.  Had such overfishing been allowed to continue, unabated, over the course of three years, it would have been far worse than it was.

On balance, the risk of allowing overfishing to continue for years is far greater than the inconvenience caused by changing, and arguably unneeded, regulation.

In its comments accompanying the proposed rulemaking, NMFS notes that

“NMFS first adopted an annual approach to overfishing in its 1998 revisions to the [National Standards] guidelines…Prior to these revisions, NMFS had deliberately chosen not to ‘mandate a particular form for all specific overfishing definitions,’ leaving it to the discretion of the Councils to decide how to determine if overfishing was occurring…”

It’s impossible not to note that the 1998 revisions to the guidelines were a direct result of the passage of the Sustainable Fisheries Act of 1996, which was the law that first gave real teeth to Magnuson-Stevens and is responsible for the marked turnaround in the health of America’s fisheries.  Prior to then, things didn’t work very well, so it can easily be argued that permitting overfishing to continue for three years is a return to the discredited—and markedly unsuccessful—approaches used in the past.

Proposed changes to the guidelines for allowable biological catch also raise real red flags. 

Ever since NRDC v. Daley, it has never been questioned that the measures adopted to manage a fishery must have at least a 50% chance of success.  That is reflected in the current guidelines.  Now,

“NMFS is proposing revisions to current guidance on [Allowable Biological Catch] control rules to state that the Council’s risk policy could be based on an acceptable probability (at least 50 percent) that catch equal to the stock’s ABC will not result in overfishing, but other appropriate measures could be used.”

Since, “when determining the risk policy, Councils could consider the economic, social, and ecological trade-offs between being more or less risk-averse,” it’s not hard to imagine what such “other appropriate measures” could look like.

And things wouldn’t stop there.  Whatever regulations were adopted, the new proposed guidelines would not require them to be adopted immediately and in full, but would rather allow them to be phased in over three years, in order to avoid short-term hardships in the fishery.

Add that three years to the proposed three-year periods to determine overfishing, and it’s not hard to see problems being perpetuated for quite a long time…

There are plenty of other things wrong with the proposed guidelines, including increased “flexibility” (yes, that word again) in rebuilding stocks, excluding certain regularly-harvested fish from management plans, halting the rebuilding of stocks partway through the process, trying to distinguish “depleted” from “overfished” stocks and a number of others.

The bottom line is that, taken as a whole, the new guidelines are in many ways a reflection of the same attitudes that gave birth to H.R. 1335, the House of Representatives meritless effort to reauthorize Magnuson-Stevens.  Short-term economic impacts are elevated above the health of fish stocks.

Thus, anglers and others concerned with maintaining the current, demonstrably successful approach to managing America’s salt water fisheries are urged to speak out against unneeded and potentially harmful changes to the National Standard One guidelines.

The comment period closes on June 30, so there is little time for delay.

About Charles Witek

Charles Witek is an attorney, salt water angler and blogger. Read his work at One Angler’s Voyage.

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