The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens) has governed federal fishery management since 1976, but for its first 20 years, it was largely ineffective, encouraging the growth of a large, overcapitalized domestic fishing fleet while doing little or nothing to prevent the decline of once-abundant fish stocks.
Recognizing Magnuson-Stevens’ shortcomings, Congress eventually passed the Sustainable Fisheries Act of 1996, which amended federal fisheries law by requiring fishery managers to end overfishing, promptly rebuild overfished stocks, and base management measures on the best scientific information available. With such reforms in place, the National Marine Fisheries Service (NMFS) was compelled to adopt meaningful regulations that produced immediate results. The nation’s fish stocks began to rebuild.
Such rebuilding did not come without short-term costs. The regulations needed to restore fish stocks necessarily limited landings, often resulting in recreational and commercial harvests that were only a fraction of what they had been before. But temporarily reduced harvests let fish populations grow, and led to more generous annual quotas.
The Mid-Atlantic Fishery Management Council (Council) was one of the first regional fishery management councils to fully embrace Magnuson-Stevens’ new strictures. Under its stewardship, populations of black sea bass and scup increased to more than twice their target levels. That’s when Magnuson-Stevens began to become a victim of its own success, as members of the recreational fishing industry began to complain that, given such abundance, federal regulators were unduly restricting anglers’ catch.
Beginning in 2017, after the release of a benchmark stock assessment that found black sea bass spawning stock biomass to be more than twice the biomass target, members of the recreational fishing industry began complaining that sea bass regulations were too restrictive and changed too often in response to annual landings data. By March 2019, such complaints gave rise to something called the “Recreational Reform Initiative,” (Initiative) at the Council and Atlantic States Marine Fisheries Commission (ASMFC), which eventually addressed not just black sea bass, but recreational fisheries for summer flounder, scup and bluefish as well. It was intended to promote more stability in recreational management measures, add more flexibility to the management process, and increase anglers’ ability to exploit abundant fish stocks.
While those are not unreasonable goals, they are goals that the fishery managers must strive to achieve without increasing the risk to fish stocks, or violating the provisions of Magnuson-Stevens.
Right now, the Initiative is focused on a recreational harvest control rule (control rule), which would place less emphasis on whether recreational landings were kept at or below the recreational harvest limit (RHL) for any given year, while giving greater consideration to other factors such as stock health, trends in abundance, and the recruitment of young fish into the population. As stated in the ASMFC’s Draft Omnibus Addendum to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan and Bluefish Fishery Management Plan (Draft Addendum), “The management options aim to rely less on expected fishery performance and instead uses a more holistic approach with greater emphasis on traditional and non-traditional stock status indicators and trends.”
The Draft Addendum presents four different control rule options for consideration, along with the status quo. Each would employ a somewhat different set of criteria. The simplest, denoted the “Percent Change” option, is an enhanced version of the current management approach. It still hinges on whether recent recreational landings exceed or fall short of the RHL, but also considers the health of the fish stock, and the uncertainty, or “confidence interval” (CI), inherent in the landings estimate.
Today, if recreational landings exceed the RHL, as happened with both scup and black sea bass in 2021, managers must simply adopt more restrictive regulations that are calculated to constrain such landings to or below such limit.
Pursuant to the Percent Change option, should such excessive landings occur, managers would first look at the CI of the landings estimate. If, for example, an estimated 1 million scup were landed, and the CI for such landings was 10%, there would be no need to take any action if landings exceeded the limit by 100,000 fish or less, because such amount would be statistically insignificant, as it fell within the estimate’s margin of error.
However, if an over- or under-harvest fell outside of the CI, the next consideration would be the health of the stock. Thus, under one version of the Percent Change approach, if landings exceeded the average RHLs for the two upcoming years, and the stock’s spawning stock biomass was more than 150% of the biomass target, landings would not be reduced at all. If biomass was lower, between the target level and 150% of target, landings would be reduced by 20%; if biomass was below target, landings would be reduced by 40%.
In all three cases, the level of reduction would be predetermined, and not directly related to the amount by which landings exceeded the RHL; in the first instance, landings would not be reduced even if the overage was expected to be very large, while in the latter case, landings would be reduced by 40% even if they were predicted to exceed the average RHL by a far lesser amount.
The other three control rule options are more complex. One, deemed the “Fishery Score Approach,” is “a formulaic method that combines multiple metrics into one value which is used to determine the appropriate management measures.” It would combine biomass, recruitment, fishing mortality, and fishery performance (landings versus the RHL) data to calculate a value that would, in turn, deem stock status to be “Good,” “Moderate,” “Poor,” or “Very Poor,” and use that ranking to apply a set of “Most Liberal,” “Liberal,” “Restrictive,” or “Most Restrictive” management measures, all of which had been established in advance of the scoring process.
Another, deemed the “Biological Reference Point Approach,” would create seven separate stock status “bins,” for different combinations of spawning stock biomass and fishing mortality, along with 26 regulatory options that vary according to trends in recruitment and biomass, and how landings relate to both the RHL and annual catch limit. Once again, all possible management measures would be pre-calculated, and not necessarily designed to constrain recreational landings to or below the RHL.
Whichever control rule approach is ultimately adopted, it will represent a radical change in the fishery management paradigm, so it’s reasonable to expect the Council and ASMFC to carefully consider all of the issues before effecting such change.
Unfortunately, neither the Council nor the ASMFC seem focused on careful review. Instead, based on events at the February 8, 2022 joint meeting of the Council and ASMFC’s Interstate Fishery Management Program Policy Board (Policy Board), fishery managers are fully committed to getting the control rule in place in time for the 2023 fishing season, whether or not the outstanding issues have been resolved.
That message came through very clearly in a discussion of the scientific models needed to support the control rule. There are two such models currently in development, the Recreational Economic Demand Model and the Recreational Fleet Dynamics Model, which would be employed in the development of management measures for each of the four species included in the Initiative. Briefing materials prepared for an October 21, 2021 joint meeting of the Council and Policy Board emphasize such models’ importance, saying
The Policy Board and Council previously intended to approve a Draft Addendum for public comment and a final range of options for the framework/addendum in October 2021. The [Plan Development Team]/[Fishery Management Action Team] requests additional time to fully develop the options and to further develop two statistical models which can be used to inform the recreational measure-setting process under the framework/addendum process. These two statistical models will be critical for thorough analysis of the options and will greatly improve the process for setting management measures under any of the options. [emphasis added]
The Draft Amendment states that neither model will “be complete and available for use for most species until the fall of 2022 or later. The exception is the Recreational Economic Demand Model for summer flounder, which is expected to be completed by June 2022…” Yet, when New Jersey’s Legislative Proxy, Adam Nowalsky, noted that such “critical” models were not yet available, and suggested that both the Council and ASMFC reconsider their timeline, which calls for finalizing the control rule in June, and using it to calculate final management measures for the 2023 season, his suggestion was rebuffed.
In what may have been one of the more remarkable statements ever uttered at a Council meeting, Savannah Lewis, who headed the ASMFC’s Plan Development Team, responded that, in the briefing materials quoted above, “the word is ‘critical,’ not ‘required.'”
Why statistical models “critical for thorough analysis” of the control rule options might not be “required” for its implementation became clear in her follow-up comments, when she freely admitted that the models were, in fact, “critical,” then justified moving forward without them because of “what happened over the last three months,” a clear reference to required recreational landings reductions in the still-healthy scup and black sea bass fisheries, and the controversy engendered when such reductions were made.
It seemed that much of the motivation for moving forward, particularly for state fishery managers sitting on the Council and Policy Board, was a desire to reduce the animus being leveled at such managers by the recreational fishing industry. Such sentiments were clearly expressed by Connecticut’s Dr. Justin Davis, who observed, “Nobody wants to go through the process [of setting recreational measures, and potentially cutting landings] again this year.”
While such sentiments are understandable, before deciding upon a single control rule option and, more to the point, before sending all of the possible options out for public comment, both the Council and Policy Board should, at a minimum, understand how each option might impact fish stocks, and provide the public with such information before soliciting their views. However, the rush to put a control rule in place seems to have overridden such elementary consideration.
Pennsylvania Council member Michelle Duval realized that was a problem, and put a motion on the table that read
Request that the [Scientific and Statistical Committee] provide a qualitative evaluation, in time for final action at the June 2022 Council/Policy Board meeting, regarding the potential effect of each of the five primary alternatives in the Harvest Control Rule Addendum/Framework on the SSC’s assessment and application of risk and uncertainties in determining [acceptable biological catch]. The intent is to provide the Council and Policy Board with information to consider the tradeoffs among the different alternatives with respect to the relative risk of overfishing, increasing uncertainty, fishery stability, and the likelihood of reaching/remaining at [the biomass target] for each approach at different biomass levels (e.g., [when biomass is below target, but the stock is not overfished], the relative risk among alternatives is (highest to lowest) E>C>B>A>D.
Emerson Hasbrouk made the same motion for the Policy Board.
Such motion should not have been needed. Putting management options out for public comment, without first taking the time to determine how such options could affect managers’ ability to prevent overfishing or maintain a healthy fish stock, borders on fishery management malpractice. Yet, the most intense discussion of Ms. Duval’s motion focused on whether, if such information wasn’t provided by June, the Council and Policy Board could still move forward without it.
Whether the Council and Policy Board should move forward without the information was of far less concern.
After a long and confused debate, both bodies adopted the motion, although the Policy Board quickly followed up by also approving the Draft Addendum, and sending it out for public comment even though, without the information requested in Ms. Duval’s motion, the public’s ability to provide intelligent comment will be extremely limited.
Even so, at least the ASMFC intends to hold public hearings on the Draft Addendum, something that the Council will not do.
Typically, when the Council proposes an important fishery management measure, it does so in an amendment to a fishery management plan. As part of the amendment process, the Council will first prepare a scoping document, which describes the broad outlines of the management proposal, and then holds public scoping hearings. After analyzing public comment, the Council releases a draft amendment, holds an additional round of hearings, and only then approves the final amendment and passes it on to NMFS.
That’s the path that the Council followed with its recently-completed Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment which, when finally approved, resulted in relatively minor changes to the allocations for all three species. Yet, in the case of the control rule which, if approved, will represent the biggest change in mid-Atlantic recreational fisheries management since Magnuson-Stevens was amended by the SFA, the Council chose not to initiate a new amendment, but instead to fast-track action through the framework process, which does not call for any public hearings at all, and provides for minimal written public comment.
The decision to framework the control rule strongly suggests that the Council is far more concerned with haste than with meaningful public input.
Despite such desire for haste, too much remains unclear.
Magnuson-Stevens contains 10 National Standards for Fishery Conservation and Management. National Standard 1 reads, “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 2000, the United States Court of Appeals for the District of Columbia Circuit, in deciding the case of Natural Resources Defense Council, Inc. v. Daley, interpreted such language to mean that, in order to pass legal muster, any fishery management measure must have at least a 50% probability of preventing overfishing.
Can all, or even any, of the control rule options guarantee that such legal standard is met?
So far, we lack the information needed to know.
National Standard 2 requires that “Conservation and management measures shall be based on the best scientific information available.”
Does moving forward with the control rule, before the “critical” statistical models are available, meet that legal standard?
So far, we lack the information to know.
The control rule approach to recreational fishery management represents a new and untried way to set recreational management measures. Given the many respected scientists and fishery managers collaborating on the project, it may well prove to be a significant improvement over current management approaches. It also could be a step backward, that makes overfishing more likely and/or leads to decreased fish abundance. Which will it prove to be?
So far, we lack the information to know.
Yet, despite the lack of information, both the Council and Policy Board are rushing, full speed ahead, to put the control rule in place in time for the 2023 season.
During the February 8 meeting, Policy Board member Eric Reid, Rhode Island’s Legislative Proxy, asked a key question, “What is more critical, timing or making an informed decision?”
New York Council member Paul Risi, recognizing the need for more information observed a few minutes later, “It would be nice to get this right.”
But doing things right, and doing things quickly, often lead to much different outcomes.
Right now, both the Council and Management Board seem to be focused solely on speed.