The Con In ASMFC’s “Conservation Equivalency”

Black sea bass

Black sea bass photo courtesy of Charles Witek

Over the past couple of seasons, no fish has frustrated Mid-Atlantic fishery managers—and Mid-Atlantic recreational fishermen—as much as the black sea bass.

There are a lot of them out there. A benchmark stock assessment completed late in 2016 estimated that the spawning stock biomass (SSB) at the close of 2015 was 22,176 metric tons (mt), more than twice the SSB target of 9,667 mt. In response to the new stock assessment, NOAA Fisheries (NOAA) increased the 2017 recreational harvest limit by 52%.

At first, such proposed harvest increase excited anglers, who were certain that it would lead to relaxed regulations. However, as more information became available, such excitement turned to dismay, as NOAA revealed that anglers killed an estimated 4.67 million pounds of black sea bass in 2016, exceeding the proposed 4.29 million pound recreational harvest limit for 2017 by about 8%. Although that overage could have triggered more restrictive 2017 regulations, NOAA decided to keep 2016 regulations in place for another year.

Unfortunately, that wasn’t the end of the story. In February, estimated landings for Wave 6 (November/December) of 2016 finally became available. Wave 6 usually sees relatively few black sea bass caught north of Delaware Bay, but 2016 was an exception. In a number of states, particularly New York, landings were so high that they raised the annual harvest estimate to 5.18 million pounds. Status quo regulations were no longer an option; a 17.3% harvest reduction was proposed.

At that point, some anglers’ dismay turned to anger, and they unleashed their vitriol on the Marine Recreational Information Program (MRIP).

It was the wrong target. The problem wasn’t the MRIP data, but how that data was used.

The National Academy of Sciences recently found that NOAA has made “impressive progress” in implementing MRIP, which included “major improvements in the statistical soundness of its survey designs.”

Thus, MRIP offers fishery managers a valuable tool that will enable them to estimate recreational landings with a reasonable degree of precision. However, like any tool, MRIP will only prove useful when it is used in the proper manner.

In the case of black sea bass, it has not been used properly at all.

The problem lies in the fact that, for the states lying between Massachusetts and New Jersey, regulations are not set by NOAA, but by the Atlantic States Marine Fisheries Commission (ASMFC), which incorporates the concept of “conservation equivalency.”

ASMFC’s Interstate Fishery Management Program Charter (ASMFC Charter) defines “conservation equivalency” as “Actions taken by a state which differ from the requirements of the [fishery management plan], but which achieve the same quantified level of conservation for the resource under management. For example, various combinations of size limits, gear restrictions, and season length can be demonstrated to achieve the same targeted level of fishing mortality…”

The “quantified level of conservation” is, in recreational fisheries, derived solely from MRIP data. That creates a serious flaw in the “conservation equivalency” concept.

According to NOAA’s Marine Recreational Information Program Data User Handbook (Handbook), “Sampling error is inherent in all sample statistics and is a result of random variation among samples. The size of sampling error depends upon the sample size, the sample design and the natural variability within the population. As a general rule, increasing the sample size reduces the sampling error. [emphasis added]”

ASMFC, through the concept of conservation equivalency, allows each state between Massachusetts and New Jersey to set its own unique regulations for black sea bass. In practice, no two states have the same regulations, and even within a state, different regulations are in force at different times of the year, or for different sectors of the recreational fishery.

Such fragmentation by place, time and/or sector assures that the sample size depended upon to both set and to evaluate each state’s regulations will be too small to assure a reasonable level of accuracy.

Thus, the Mid-Atlantic Fishery Management Council’s Summer Flounder, Scup and Black Sea Bass Monitoring Committee has repeatedly advised against such extreme variation in regulations. Its most recent warning, issued on January 27, 2017, notes that “Complex sets of measures, including splits by mode, season, and sector, continue to be implemented, contrary to previous recommendations of the Monitoring and Technical Committees. A new approach that prioritizes consistency, from both an analytical and regulatory perspective, is recommended.”

To date, such advice has not been heeded. As a result, substantial error plagues the MRIP estimates, which in turn affects the regulation-setting process and makes it nearly impossible for fishery managers to effectively limit recreational black sea bass landings.

The Handbook explains that “In MRIP, sampling error is reported as percent standard error or PSE which expresses the standard error as a percentage of an estimate. The lower the PSE the greater the confidence that the estimate is close to the true population value.”

NOAA estimates that, throughout all of 2016, anglers in New England and the Mid-Atlantic regions harvested slightly more than 2.5 million black sea bass; the PSE for that estimate was 8.2, which is good and certainly makes the estimate adequate for management purposes.

When estimates are broken out for each of the five northern states, which account for most of the recreational black sea bass landings, the PSE doubles, ranging from 15.7 for New York to 19.4 for Massachusetts. Such data remains useful, but each estimate includes a substantial margin of error.

When state landings are broken down further into industry sectors or two-month waves, the PSE increases again, and the estimates become far less useful. The 2016 regulations that did such a poor job of controlling recreational landings were based on MRIP estimates of 2015 landings. PSEs as high as 79.9, 83.3 and 95.2 made such single-wave estimates effectively worthless, yet ASMFC allowed those very imprecise estimates to be used to calculate the conservation equivalency of even very complex management measures.

For example, New Jersey’s 2016 black sea bass rules allowed anglers to retain 10 fish at least 12 ½ inches long from May 23-June 19, then closed the season for ten days, reopened it from July 1-August 31 with the same 12 1/2-inch minimum size but just a 2-fish bag limit, closed it for another 51 days and finally reopened it for the rest of the year with a 15-fish bag limit and larger, 13-inch minimum size. Such an intricate set of regulations were based on 2015 estimates with PSEs of 15.9 in Wave 3, 26.9 in Wave 4, 55.5 in Wave 5 and 79.9 in Wave 6, levels of imprecision that virtually assured that real-world landings would have little resemblance to the “quantified level of conservation” calculated on paper.

High single-wave PSEs in Massachusetts, Rhode Island and New York helped to assure that real-world landings in those states were also far from the predictions made with pen and paper. Connecticut chose to split its black sea bass regulations by sector rather than by two-month wave, which resulted in PSEs that ranged between 21.2 and 31.9 in 2015, but soared as high as 70.2 and 101.9 in 2016, suggesting that sector-specific regulations may not result in any more precise estimates than regulations that change from wave to wave.

Such imprecision underlies the problem with conservation equivalency. While the ASMFC publication, Conservation Equivalency: Policy and Technical Guidance Document, advises that “The [Plan Development Team] should consider stock status, stock structure, data availability, range of the species, socio-economic information, and the potential for more conservative management when stocks are overfished or overfishing is occurring when making a decision on conservation equivalency [emphasis added],” in practice states’ requests for conservation equivalency are rarely denied if a state can demonstrate, by using even very imprecise MRIP data, that its proposed regulations will achieve ASMFC’s conservation goals.

As a result, states commonly game the system, using data that they know, or at least should know, is highly suspect in order to justify regulations that, on paper, seem to meet ASMFC’s objectives, even if such regulations are unlikely to adequately restrict harvest in the real world.

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) mandates that “To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range.”

Although ASMFC is not bound by Magnuson-Stevens, it would do well to take that provision to heart, applying a single set of regulations to a stock of fish wherever they may be caught and employing conservation equivalency only under extraordinary and compelling circumstances. Such a broad-based approach would best assure the accuracy of harvest estimates and the effectiveness of whatever rules are adopted.

While conservation equivalency sounds like a good idea, experience has shown that it works far better in theory than in practice.

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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