Council Staff, Scientists Caution Against Mid-Atlantic “Harvest Control Rule”

Recreational anglers in the Mid-Atlantic region

Top photo by John McMurray

For more than two years, the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Program Policy Board (Policy Board) have been working on something they call a “Harvest Control Rule” (Control Rule), which could make very significant changes to the way that the recreational fisheries for bluefish, summer flounder, scup, and black sea bass are managed.

Currently, all four species are managed by the Council and the appropriate Atlantic States Marine Fisheries Commission (ASMFC) species management boards (Management Boards), which have historically compared recent recreational landings with the recreational harvest limit (RHL) for the upcoming year, and set recreational management measures based on whether such recent landings were above, below, or about equal to the next season’s RHL.

Because of unavoidable uncertainty in the recreational landings data, and because angler behavior varies from year to year, the Council and Management Boards have had, at best, indifferent success in keeping recreational landings at or below each year’s RHL. As a result, recreational management measures often change from year to year, even when the biomass of the managed stock shows little change.

The Council and Policy Board began work on the Control Rule in the hope that it would better account for management uncertainty and so avoid annual changes to management measures. The various versions of the Control Rule being considered all consider factors other than the estimated recreational landings and the next year’s RHL, which might include such things as the biomass of the managed stock, whether such biomass is increasing or decreasing, the number of young fish recruiting into the population, and trends in recruitment, which might provide a more nuanced picture of what management measures should be.

The management measures adopted pursuant to the Control Rule would be predetermined, with each set addressing a particular combination of factors. Such predetermined sets of management measures represent a big change from current practice, which sees management measures calculated in direct response to recent landings. While one version of the Control Rule would only require a handful of management measures, others establish complex processes, which might require biologists to devise 52 sets of varying measures to manage a single stock.

The scientists raise many concerns

Yet, while the Council and Policy Board invested a substantial amount of time and effort into determining how management measures would be established, they spent little time determining how such measures might impact the health and stability of managed fish stocks. At a joint meeting of the Council and Policy Board, held on February 6, 2022, both management bodies adopted a motion that read:

Request that the [Council’s 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 uncertainty in determining the [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., for [a situation where the biomass is below the biomass target, but the stock is not overfished], the relative risk among alternatives is (highest to lowest) E>C>B>A>D).

The Council’s Scientific and Statistical Committee (SSC) created a Harvest Control Rule Subcommittee (Subcommittee), which was instructed to address the motion. In response to the issue raised in the motion’s first sentence, the Subcommittee advised that “The proposed Addendum/Framework is triggered by determination of the [Acceptable Biological Catch], and as such, the actual [Annual Catch Targets] and RHLs are determined only after the ABC has been specified. Consequently, the proposed Addendum/Framework does not affect the structured process the SSC uses to specify the ABC.”

However, the SSC could not provide a clear response to the other issues addressed in the motion. In attempting to do so, it raised a number of serious concerns.

One of the Subcommittee’s comments, which undoubtedly caught some Council and Policy Board members by surprise, was that the so-called “Harvest Control Rule” wasn’t really a “control rule” at all. The SSC noted that

Harvest control rules are quantitative relationships that specify how management endpoints, such as catch, should vary with stock biomass to achieve management objectives…Neither the no action option, nor any of the alternatives described in the Addendum/Framework represent harvest control rules…The proposed alternatives described in the Addendum/Framework are triggers for action only. Specification of how regulations on season length, size limits, and bag limits or other management endpoints would change is missing. Until such details are provided, the performance of the proposed alternatives cannot be determined. [emphasis added]

The Council and Policy Board are thus being asked to adopt a Control Rule, without having any concrete idea of how such Control Rule might affect the health of fish stocks.

The Subcommittee expressed concern that the Control Rule would make it more difficult to manage fish stocks, stating that

The sub-committee felt that the proposed alternatives failed to address explicitly the complexity of the problem of specifying a vector of how regulations around season, size, and bag limits would change…The current [Acceptable Biological Catch] process that uses the Council’s risk policy involves control of a single variable, the ABC. However, there are at least three specifications that have to be set simultaneously for the proposed alternatives to be implemented. The sub-committee notes that this increases substantially the complexity and the difficulty of the challenge which the sub-committee believes should be explicitly stated so Council and Commission members have a solid grip on the decision they are being asked to make.

The Subcommittee also noted that, because both the Control Rule and the Council’s risk policy incorporate some of the same information, there was the risk of creating “feedback” that would lead to increased variability in fishery performance. While the Control Rule was intended to reduce such year-to-year variability, and provide for more stable regulations, such feedback would stack “precaution on top of precaution” when a stock’s biomass is below target, resulting in more restrictive management measures than are currently imposed, while increasing risk to the stock by permitting more liberal regulations when fish abundance exceeds the target biomass.

The Subcommittee also noted that, when the SSC currently sets the Acceptable Biological Catch (ABC) for multiple years, it typically assumes that each year’s ABC will be fully caught, but not exceeded. When, as in the case of black sea bass, the ABC is frequently exceeded, the SSC will instead assume that future overages will occur, and so will reduce the ABC in later years. With respect to the Control Rule, “There are structural issues in several of the alternatives…that may lead to increased uncertainty in whether the ABCs may be exceeded, which could lead to the SSC setting lower ABCs than it otherwise would in multi-year specifications.”

Since the ABC governs both the recreational and commercial sectors, setting a lower ABC in response to a Control Rule that solely benefits recreational fishermen could result in commercial fishermen having to accept lower quotas while receiving no countervailing benefits of their own.

In addition, the Subcommittee expressed concern with some of the Control Rule alternatives, which placed management measures in “bins” defined by different levels of, and varying trends in, biomass, recruitment, and other factors. It noted work done by Dr. Paul Rago with respect to such binned management measures, and advised that “Preliminary conclusions from this simulation are that the effects of binning and random recruitment lead to a marked increase in the likelihood that [Overfishing Limits] would be exceeded. Moreover, populations were not rebuilt as frequently as occurred with population-specific optimal fishing mortality rates. Perhaps more importantly, a greater fraction of populations that were previously above [their biomass targets became overfished] when controlled with a binned [Harvest Control Rule].”

The totality of the Subcommittee’s concerns are summed up in the conclusion to its report, which states, in part, that

the actual efficacy of the proposed alternatives in the Addendum/Framework is unknown. This uncertainty comes from two sources. First, the actual measures that will be taken in response to any of the triggers identified in the Addendum/Framework are not specified…Until such specificity is provided, quantitative evaluation of the performance of the options is not possible. Second, performance of the discontinuous nature of the options proposed in the Addendum/Framework has not been proven effective in other fisheries nor formally evaluated, to the knowledge of the sub-committee. Preliminary modeling conducted by the sub-committee to evaluate the binning of population states, reliance on various metrics of stock condition and recent catch history, and implications of recruitment variability could result in and increased risk of overfishing and becoming overfished. This suggests that the appearance of precision in the process that leads to regulatory specifications does not necessarily translate into precision in catch performance and compliance. The sub-committee expresses the concern that some of the overly complex, contingent decision-making processes included in the proposed alternatives do not reflect the actual level of control likely achieved in marine recreational fishery management. [emphasis added]

Those seem damning comments. Replacing the current approach to recreational fishery management which, although admittedly imperfect, contributed to the successful rebuilding of once badly overfished summer flounder, scup, and black sea bass stocks, with an untested Control Rule of undetermined efficacy, which might lead to increased uncertainty and catch variability, and also increase the chances that even healthy stocks might become overfished, would seem to be an unwise thing to do.

Council staff offers a better alternative

It would seem far better to fix the worst flaws in the existing management process, and that is precisely the course recommended by Council staff.

Julia Beatty headed the Fishery Management Action Team responsible for the Control Rule. In a May 27, 2022 memo addressed to the Chris Moore, the Council’s Executive Director, she recommended against its adoption. In her memo, Ms. Beatty stated that

Council staff do not recommend implementation of the Percent Change, Fishery Score, Biological Reference Point, or Biomass Matrix Options…as they reduce the flexibility managers currently have to set measures to prevent overfishing. In addition, the process for setting measures under Options C-E (the binned approaches) would be much more complex than the Council staff recommendation…Also, many details are lacking regarding the process for setting measures under these options…

…measures recommended by the Council must prevent recreational [Annual Catch Limit] overages in order to prevent overfishing and comply with the law…Options B-E will not change the process for setting ACLs and they will not change the requirement to prevent ACL overages. Therefore, Options B-E could require frequent changes in measures unless managers are willing to set more restrictive measures to allow for stability while preventing ACL and RHL overages.

Thus, Ms. Beatty recognized that the Control Rule might neither provide regulatory stability nor allow anglers to maintain even their current level of landings, assuming that stock biomass remains unchanged. As an alternative, her memo proposed meaningful improvements to the current approach to setting management measures.

The staff recommendation is to: 1) set recreational measures for two years at a time, 2) use improved statistical methods for predicting the impact of measures on harvest and discards, and 3) incorporate considerations related to variability and uncertainty in the recreational data…

Council staff do strongly support the use of statistical models such as the Recreational Economic Demand Model and the Recreational Fleet Dynamics Model (both of which are currently in development) to inform the setting of recreational measures. These models will allow for more statistically robust predictions of future harvests and discards under different combinations of measures and different stock sizes. In addition, they will incorporate data other than Marine Recreational Information Program (MRIP) data, such as angler preferences and availability of the stocks to anglers. In addition, Council staff support prioritizing completion of the previously initiated Technical Guidance Document to describe best practices related to identifying and modifying outlier MRIP estimates, using confidence intervals, and guidelines for maintaining status quo measures.

The May 27 memo maps a reasonable way forward, which will allow fishery managers to make needed improvements to the current management process, but does not require them to completely abandon that process in favor of the untested and, given the SSC report and Ms. Beatty’s memo, seemingly dubious Control Rule approach.

Will managers follow the science?

The only remaining issue is whether the Council and Policy Board accept the counsel of Council staff and the SSC.

That is a difficult question to answer. About one-third of the members of both the Council and the Policy Board are state fishery managers. For most of the past decade, those managers have been unfairly criticized and harangued by some elements of the angling community, and in particular by members of the for-hire fleet, for adopting black sea bass management measures that seemed unduly restrictive, given that biomass has been at least double the target level since 2014. Such criticism, which sometimes grew vicious, was leveled by people who had no interest in hearing about increased fishing effort or the mandates of federal law. They only cared about harvesting more fish.

No one likes to be constantly targeted by critics. The Control Rule offers state managers an opportunity to demonstrate that they are trying to improve the management process, and ease the regulatory burden imposed on the for-hire fleet. It’s impossible to predict how many such managers will be seduced by the Control Rule’s promise of a safe harbor, although Council staff’s memo, which warns that the Control Rule may not eliminate the need for frequent regulatory changes, might make at least some of them wonder how safe the promised harbor will be.

In addition, the recreational representatives on both the Council and Policy Board are heavily skewed toward the for-hire sector, either as vessel owners and operators or as persons otherwise connected to the industry. They could find the Control Rule, and its promise of higher black sea bass and scup landings, too attractive to pass up, regardless of what the SSC and Council staff may say. It’s hard to predict whether the likelihood that the Control Rule will lead to more restrictive regulations for less abundant stocks will dampen such members’ enthusiasm.

The Control Rule issue will come up for a vote, at a joint Council/Policy Board meeting, on June 7, 2022. It is then when we’ll learn whether the decisionmakers will heed the advice that they were given, or adopt a Control Rule that could very well leave both fish and fishermen worse off than they were before.

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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