Mid-Atlantic “Harvest Control Rule” Makes an Awkward Debut, Part I: A Hasty Beginning

Read Part II of this two-part series. Top Photo: Summer Flounder

When the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Interstate Fishery Management Program Policy Board (Policy Board) met in joint session on June 7, 2022, they approved the so-called “Percent Change Approach” to a “Harvest Control Rule” (Control Rule) which will be used to manage summer flounder, scup, and black sea bass, as well as to manage bluefish, once that overfished stock is rebuilt.

As described in a Council press release,

Under the selected approach, managers will consider two factors when determining whether recreational measures should be restricted, liberalized, or remain unchanged for the next two years. First, they will look at how recreational harvest limits (RHLs) for the next two years compare to recent estimates of recreational harvest. This gives an indication of whether recreational harvest is likely to exceed the RHL if recreational measures remain unchanged. Next, managers will consider the most recent estimate of stock size relative to the target stock size. These two factors, in combination, will be used to determine the percentage change in harvest that management measures should aim to achieve.

That might sound like a simple approach, but when the Control Rule was first put to use at the December 13, 2022 joint meeting of the Council and the ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board), things didn’t go smoothly at all.

Given the haste and unanswered questions that plagued the Control Rule’s adoption, such problems were probably inevitable.

Scientific Reservations

In the spring of 2022, the Council’s Scientific and Statistical Committee (SSC) created a subcommittee of experienced fisheries scientists, who were asked to examine the several proposed versions of the Control Rule, and provide their opinions on the potential benefits and risks. That proved to be an impossible task, as the subcommittee lacked information that it needed to make a meaningful evaluation. So, instead of endorsing the Control Rule, the subcommittee produced a report which concluded, 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 could result in an 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…

Comments were even more pointed during subcommittee discussions held on April 29, 2022.

Dr. Lee Anderson, a subcommittee member, bluntly stated that if he was peer reviewing the Control Rule as a submission to an academic publication, his response would have simply been “reject and resubmit.” He advised the subcommittee that “I think that we should send it back…I don’t think we should say anything but ‘Come back and do your homework.'”

Another subcommittee member, Dr. Alexei Sharov, noted that “The proposed document is not considering at all the efficiency of the tools that we have,” which were already being used to manage the mid-Atlantic’s recreational fisheries.

Later in the meeting, Dr. Anderson made what might have been the most damning comment of all, observing “I’m very concerned that if this [Harvest Control Rule] goes forward, it’s going to give the impression that there’s science involved.”

The comments of Council staff present at the subcommittee meeting probably did little to increase the subcommittee’s confidence in the Control Rule. When asked how the Control Rule would constrain landings to the acceptable biological catch (ABC), as the Council and NMFS are legally bound to do, Julia Beatty, who headed the Council’s Fishery Management Action Team, responded that she couldn’t definitively state “Yes, this will not exceed ABC.”

Ms. Beatty went on to note that the Control Rule’s emphasis was not on the ABC, but on not exceeding the overfishing limit (OFL). Later in the meeting, she informed the subcommittee that, pursuant to the Control Rule, management measures might not be “directly connected” to the recreational harvest limit (RHL), and that by adopting the Control Rule, the Council and NMFS were “not really proposing to tie [management measures] directly back to a change in the ABC or something like that.” She also stated that, under the management approach used to set measures through the 2022 season, the RHL and annual catch limit (ACL) “scale up and down,” but under the Control Rule, management “measures won’t change with changes in the ACL.”

Yet, regardless of any concerns or reservations that the members of the subcommittee might have expressed, the Council moved forward with the Control Rule, even though Council staff advised against its adoption, saying,

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…

…measures recommended by the Council must prevent recreational ACL 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.

However, the National Marine Fisheries Service’s (NMFS’) Greater Atlantic Regional Fisheries Office (GARFO) insisted that the Council move forward with the Control Rule. Michael Pentony, the regional administrator, wrote a letter that urged the Council to “lead on a course of action that will meaningfully improve the methods used to set management measures,” and followed up with the threat that “In the absence of meaningful action, NOAA’s National Marine Fisheries Service may be required to make regulatory changes under our own authority.”

Unseemly Haste

Over the previous months, some Council and Policy Board members suggested that no action could be taken on the Control Rule until two supporting models, which the ASMFC’s Plan Development Team and the Council’s Fisheries Management Action Team deemed “critical for thorough analysis of the options,” and said “would greatly improve the process for setting management measures,” were completed and ready for use.

But Mr. Pentony repeatedly expressed his concern that, if the Control Rule wasn’t approved at the June Council meeting, there wouldn’t be time to move it through the federal rulemaking process quickly enough for a final regulation, authorizing the Council’s use of the Control Rule to set 2023 management measures, to be issued prior to the December 13 meeting.

Such haste characterized much of the Control Rule’s development. Although it represented the biggest change in mid-Atlantic recreational fisheries management since the passage of the Sustainable Fisheries Act of 1996, the Council elected to fast-track the measure as a “framework” to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and the Bluefish FMP, rather than as a plan amendment.

By using the framework process, the Council was able to avoid the need to hold public hearings, and so severely limited the opportunity for public comment prior to the Council’s vote on the Control Rule. The ASMFC’s decision to address the Control Rule in an addendum also provided less opportunity for public input, although the ASMFC did, at least, hold one round of hearings, and shared the resulting comments with the Council.

As it turned out, such haste was entirely unnecessary.

No Regulation? No Problem

When the Council and Management Board met on December 13 to discuss summer flounder, scup, and black sea bass management measures for the upcoming season, NMFS had not yet issued a final regulation that approved use of the Control Rule to manage those species. In fact, even proposed regulations relating to the Control Rule were not released until two days after that meeting.

The long delay between the Council’s decision to adopt the Control Rule in June, and the issuance of proposed regulations more than six months later, strongly suggests that someone in the NMFS legal or administrative hierarchy had real reservations about such management approach.

Nevertheless, even in the absence of proposed regulations, the Council decided to use the Control Rule to manage summer flounder, scup, and black sea bass in 2023. GARFO did not object, and so made it appear that its previous insistence that the Council adopt the Control Rule in June, in order to have a final regulation in place by December, was unnecessary, and that it could have allowed the Council more time to consider the issue.

Given events at and before the December 13 meeting, taking a little more time to consider the Control Rule would have undoubtedly proved beneficial.

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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