On National Standards And Flexibility

Capt. John McMurray

Did NOAA take us a few steps back with recent National Standard guidance?

How we manage fisheries in federal waters is of course dictated by the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The Act (or law) contains 10 National Standards, which are intended to guide the eight regional management councils when they create fishery management plans, amendments or take any regulatory action.

They are all pretty straight forwarded. You can check them out here: National Standards.

National Standard 1 is probably the most important one. It discusses “Optimum Yield” — “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.”

NOAA Fisheries has periodically issued guidelines on National Standard 1 (in 2009 and just a few weeks ago) intended to help the councils interpret and comply with the requirement.

The latest revision has created quite a bit of angst. And perhaps rightfully so.

Contrary to the 2009 guidance, which spelled out pretty clearly the precautionary principal in managing fisheries, the 2016 revisions seem to be recommending considerably more flexibility (AKA less precaution). Certainly such flexibility can be interpreted as weakening in this context.

But before going on, I would just point out that what we’re talking about here are simply “guidelines.” The statutory requirements to prevent overfishing and rebuild overfished stocks “in as short of time as possible” are still there in the MSA, and they are of course mandates. They are far more important than any guidance coming from NOAA. More on this later.

Getting back on point, the real areas of contention here are in regard to phasing-in of changes to catch levels, the carrying over unused quota from one year into the next year, multi-year overfishing status determinations, determining rebuilding timelines and determining which fisheries should be managed.

Phase In Reductions

Yes, sudden/unexpected new information about declining or depleted stock status, and the often drastic reductions in catch limits that follow, can create chaos within fishing communities, both commercial and recreational.

The new guidelines say that the councils may gradually phase in such reductions over a period of three years, as long as overfishing doesn’t occur. In other words, instead of imposing a draconian reduction all at once, councils can smooth them out over the course three years.

Well… This is not something new. Just last year, because of several years of poor recruitment, the Mid-Atlantic Council had to take a 42% reduction with summer flounder and, with its Science and Statistical Committee, decided to phase it in over 3 years (30% in the first year and a few percent for the next two years after that).

Yes, we assumed more risk of overfishing, but we could still do this while avoiding overfishing as the phase in was still achieving the goal, just over a longer period of time. In the end, however, it didn’t matter as another two more years of poor recruitment meant we’ll have to take another 30% reduction in 2017 on top of the one we took this year, but that’s an entirely separate blog, and not the point here.

The point is, councils already had the flexibility to do this. The guidelines just spell out the particulars.

For instance, to ensure such phase-ins don’t lead to overfishing, the new guidelines require councils to “articulate within a fishery management plan or an amendment when such a phase in can and cannot be used and how the control rule prevents overfishing.”

Furthermore, the new guidelines recommend that councils “consider” the suitability of using phase-in provisions for stocks that are overfished and/or rebuilding.

While that may sound okay, I certainly would have preferred the guidance use stronger language here. Rebuilt stocks are one thing… But if the stocks are overfished and/or rebuilding, well there’s a statutory requirement to rebuild in “as short a time as possible.” So I’m not really sure what “consider” means here. Seems pretty cut and dry here that this sort of flexibility wouldn’t apply to such overfished/rebuilding stocks. I’d certainly like to see some clarification on that.

Carrying Over Unused Quota

Sometimes fisheries do not catch the full quota each year. During such years, the new guidance says that councils may “carry-over” some portion of such an “underage” into the next fishing year to account for “increased stock abundance that results from an underage.”

NOAA says this is designed to relieve the pressure to catch the entire catch limit each year, by minimizing incentives to catch every last pound. For sure I understand the rationale, but I don’t know if I buy it.

For one, monitoring in most fisheries is woefully inadequate. In other words, we really don’t know whether or not there are real underages. We’re relying on limited sampling, extrapolation, often unreliable estimates, etc., to make those determinations.

Additionally, there are usually other factors beyond harvest levels that are limiting abundance and preventing fishermen from utilizing the full quota. Like, I dunno, the fish are depleted. That’s certainly not a reason to carry over and let fishermen hammer them more next year.

I can absolutely see how allowing the unutilized quota to be carried over could lead to overfishing in the long-term. At the very least, NOAA should limit the percentage that may be carried over to 10% and require that the fishery have a meaningful level of at-sea monitoring in order to ensure that we at least have an accurate accounting.

And again… the new guidelines recommend that councils “consider” the suitability of using carry-over provisions for stocks that are overfished and/or rebuilding. I hate the word “consider” here as really such carryovers just shouldn’t be used in fisheries that are overfished/rebuilding.

Again I would point out that there’s a mandate that overfished stocks be rebuilt in “as short as time possible.” That would seem to preclude such consideration, right?

Multi-Year Overfishing Determinations

Yes, data used to determine whether overfishing is occurring in the most recent year is often fraught with uncertainty.

But as time goes on, sources of that uncertainty (e.g., catch misreporting, model misspecification, etc.) are corrected, resulting in more certainty in data points from prior years. Such uncertainly can often result in changing status determination (i.e., “subject to overfishing” and “not subject to overfishing”), and drastically changing catch limits.

To get better accuracy and consistency in overfishing status determinations and to add more stability to fisheries (e.g. to avoid reductions that may not be necessary), the new guidelines allow overfishing status determinations to be based on up to 3 consecutive years of data.

Yet… As I understand it, by averaging several years of fishery data to determine whether overfishing is occurring, managers could theoretically ignore individual years in which unsustainable fishing occurs.

What is less clear is if this would allow managers to fail to take immediate action if there were one very clear year of overfishing.

Rebuilding Timelines

As I’ve mentioned the MSA requires that federally managed, overfished species be rebuilt in as short a time possible (not to exceed ten years), subject to certain exemptions.

There are some stocks, however, that because of their slow-growing/long-lived biology will take considerably longer to rebuild.

For these stocks, a rebuilding timeline is calculated to establish a biologically-linked upper bound on the duration of the rebuilding plan. This has always been the case.

If I’m understanding it correctly, the new guidance merely suggests new methodologies that can be used to calculate rebuilding timelines.

Some are suggesting that these methodologies increase the latitude managers have in increasing timelines and thus could mean unnecessarily drawn out rebuilding.

Frankly, I’m not sure I get such opposition here. As long as such methodologies are biologically based, ensure rebuilding and don’t result in overfishing, what’s the problem?

Determining Whether Or Not A Stock Needs To Be Federally Managed

Councils are supposed to do a fishery management plan when a fishery “requires conservation and management.” The new guidelines attempt to clarify this, but from where I stand, it looks like they go a little outside the law while doing this.

Specifically, it says that stocks that are predominantly caught in federal waters and are overfished or subject to overfishing (or likely to become so) require conservation and management.

The guidance introduces such jurisdictional limitations on management (e.g., “predominately in federal waters” and an exemption to management if there is state or industry self-regulation) and a new ten factor list for considering which stocks require management.

This list includes considerations that do not really align with the statutory definition of “conservation and management.” Generally, it weighs more heavily towards economic or management considerations than the statutory definition.

We can see pretty clearly how this played out with the recent Mid-Atlantic Council’s decision not to add river herring and shad as stocks in the Squid Mackerel Butterfish FMP, even though by every objective standard, it seemed to really need conservation and management in federal waters. Such decision was largely based on the new guidelines even before the final rule was released.

There are legal experts who argue that the jurisdictional/economic considerations don’t belong in the National Standard 1 Guidelines. The National Standards should only come to play when the subject stock is already managed, not the decision whether or not to manage a stock in the first place. Thus, I expect there will be a legal challenge here.

Other Areas Of Concern

Under current law, the Secretary of Commerce must review rebuilding plans to determine if they are making “adequate progress.”

The new guidelines seem to restrict this analysis to whether: 1) the plan is being implemented as intended (i.e., fishing is being maintained at the levels set in the rebuilding plan) or 2) if new or unexpected information significantly changes our understanding of the stock.

The law, on the other hand, would seem to require an analysis of whether the health of the stock is actually improving.

Arguably, under the new guidelines, rebuilding plans could continue indefinitely, dragging out the process of restoring fish populations.

Furthermore, NOAA has inserted the term “practicable” throughout the revised guidelines, which seems to indicate that the associated regulation requires less strict adherence.

For example, with respect to catch accounting, the guidelines previously stated “all catch must be counted against optimum yield, including that resulting from bycatch, scientific research, and all fishing activities” while the revised guidelines now state “where practicable” before that sentence.

It is clear here that the term “where practicable” significantly, perhaps intentionally, reduces the requirement to account for all sources of mortality.

NMFS has given no indication as to how a council should interpret the term, or the degree to which the term mitigates the obligations of the council to meet the associated requirement.

NMFS and the councils have a statutory mandate to end and prevent overfishing. It’s hard to believe how the addition of term “practicable” throughout the NS-1 guidelines doesn’t seek to weaken that.

The Take Home

As you may have gathered by now, I don’t particularly like the new National Standard 1 guidelines.

Really, that’s because I want the sort of rebuilt abundant stocks that benefit recreational fisheries, and particularly businesses like the one I run, which come from following the letter/intent of the law and managing with precaution, not risk in mind.

But here’s the reality check.

Most of the flexibility the guidelines detail was/is already allowed under current federal fisheries law. I don’t have the time or the space here, but a lot of the above (e.g. phase in reductions, multi-year determinations, etc.) have or already are being done by the councils.

For the last decade the kill-more folks have been clamoring for more flexibility in the law. And I’ve been saying all along… we already have plenty of flexibility! Up to now, it’s just been a matter of whether or not the councils choose to use it.

Without a doubt the new National Standard 1 guidelines encourage pushing the limits of the law, and probably some councils will try and push it too far. And I would expect lawsuits when that happens.

Because in the end, the guidelines, are, well, guidance. Like I said before, the statutory requirements to avoid overfishing and to rebuild overfished stocks in as short a time possible are still mandates! They can’t be avoided.

So, I don’t think the new guidelines are catastrophic, and while they will likely have some impact on the way we currently manage fisheries, I don’t believe it will be huge.

What would be catastrophic is a large scale gutting of the conservation statues in the MSA, like what misdirected bills such as HR 1335 (AKA the “Empty Oceans Bill”) seek to do. That sort of thing would have negative results for the recreational fishing industry, by providing the sort of flexibility that would blatantly allow managers to create overfishing situations.

I do think the guidelines have answered a lot of the complaints from the extractive fishing industry (recreational and commercial) without changes to the critical conservation provisions in the Magnuson-Stevens Act.

So it’s time the fishing industry (particularly the recreational one) stop mindlessly supporting such misdirected legislation. We should be advocating for strengthening measures if anything. Focusing on things like ecosystem-based fishery management – a mandate in federal law to do what some councils are already doing (e.g. managing with forage, habitat etc. in mind). That sorta thing would get us a whole lot farther than flexibility to overfish.

Because for anglers, what’s more important than anything is abundance, and that comes with managing holistically, keeping enough bait and enough predators in the water for us to have the opportunity to catch them.

About John McMurray

Capt. John McMurray is a full-time charter boat captain and president of ONE MORE CAST CHARTERS in Oceanside, NY. McMurray spent nine years on the Mid-Atlantic Fishery Management Council and six years as a legislative proxy on the Atlantic States Marine Fisheries Commission, and is a founder and past president of the American Saltwater Guides Association.

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