Mid-Atlantic “Harvest Control Rule” Makes an Awkward Debut, Part II: Confusion at the Council

Black Sea Bass caught off Fire Island

Read Part I of this two-part series. Top Photo: Black Sea Bass caught off Fire Island

Each year, before the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board) meet in December to set the recreational specification for the next fishing season, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee), made up of scientists from the National Marine Fisheries Service (NMFS), the ASMFC, and the affected states, reviews the relevant data and provides management recommendations.

In 2022, for the first time, the Monitoring Committee based such recommendations on the Control Rule’s outputs. That required the Monitoring Committee to first determine what the 2023 recreational landings were likely to be if 2022 management measures remained in effect. To help in that determination, the Monitoring Committee had access to two new management models.

One, the Recreational Demand Model (RDM), was developed at NMFS’ Northeast Fisheries Science Center (Science Center), and considered factors that included regulations, the relative size and availability of summer flounder, scup, and black sea bass, and angler preferences with respect to harvest and discards. The other, the Recreational Fleet Dynamics Model (RFDM), was developed by the Rhode Island Department of Environmental Management (DEM), and focused on management measures, although other factors also played a role.

In making its recommendations to the Council and Management Board, the Monitoring Committee assumed that it could use whichever of the models seemed more appropriate; it ended up using the RFDM to guide management actions for scup and black sea bass, and the RDM to inform summer flounder management.

Control Rule Complicates Scup Debate

When the RDFM was used to project 2023 scup landings, it predicted that such landings would be 14.42 million pounds. Because of the uncertainties inherent in the projection process, the “confidence interval” (CI) around such estimate was very wide; the best the Monitoring Committee could say was that, while landings probably wouldn’t exactly equal the 14.42 million pound figure, there was an 80% probability that they would fall somewhere between 8.95 and 23.08 million pounds.

The 2023 recreational harvest limit (RHL) is 9.27 million pounds, which just barely fell within the lower bound of that CI. Because the scup stock is deemed to be “very large,” with spawning stock biomass more than 150% of the target, the Control Rule called for recreational landings to be increased by 10%. Yet recreational landings were already well above the 2022 RHL; if the commercial fishery caught its entire quota, the 10% increase could lead to overfishing.

National Standard 1, included in the Magnuson-Stevens Fishery Conservation and Management Act (MSA) states that “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. [emphasis added]”

In 2000, a federal appellate court interpreted that language in Natural Resources Defense Fund v. Daley. It found that, in order to pass legal muster, a fishery management measure must have at least a 50% probability of preventing overfishing, and observed that “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as succeed offers a ‘fairly high level of confidence'” that overfishing will not occur.

Yet, while the Monitoring Committee acknowledged that a 10% increase in recreational scup landings could lead to overfishing, it expressed little concern, merely commenting, “given recent trends in commercial harvest it is not expected that the commercial sector will harvest the full commercial quota and therefor it is less likely that the scup fishery will exceed the OFL in 2023. [emphasis added]”

“Less likely” is not synonymous with “unlikely;” absent a 50% probability that overfishing would not occur in 2023, an increase in scup landings would not have satisfied the requirements of Natural Resources Defense Fund v. Daley, and might well have taken the Council on its first trip to Bizarro world in more than 20 years.

That eventuality was avoided when, on December 8, Mr. Pentony sent another letter to the Council, which advised that the Greater Atlantic Regional Fisheries Office (GARFO) considered the RDM, and not the RFDM used to set the scup specifications, to be the best scientific information available, and that the RDM must be used to set specifications for all three species.

Mr. Pentony repeated that directive at the December 13 meeting. It led to some consternation, particularly from representatives of ASMFC and the DEM, for the scientific peer review which led GARFO to choose the RDM over the RFDM had taken place in September 2021; GARFO’s failure to provide earlier notice of its decision led to both ASMFC and DEM staff wasting time and resources, over the course of more than one year, working to improve a model that GARFO did not approve.

Issues of timing aside, when the RDM was used to calculate 2023 management measures, it projected that 2022 recreational measures would produce landings of 14.31 million pounds, within 1% of the RDFM’s projection, but the CI was much narrower, 11.55 to 16.26 million pounds. That resulted in the 2023 RHL falling below the lower bound of the CI. Under such circumstances, the Control Rule called for a 10% decrease in landings instead of an increase, and substantially reduced the likelihood that overfishing would occur.

Had the Council and Management Board employed the methodology used in previous years, anglers would have been facing a decrease of between 35% and 47% in 2023. Thanks to the Control Rule, they were only facing a 10% reduction, and a harvest target of 12.88 million pounds, 3.61 million pounds above the RHL that would otherwise serve as a cap on recreational landings.

Even such smaller reduction was unacceptable to some Council and Management Board members, while a party boat captain in the audience complained that the 15-fish bag limit recommended by the Monitoring Committee would put his industry out of business. Adam Nowalsky, who represents New Jersey on the Council and is also New Jersey’s Governor’s Appointee to the Management Board, made a motion to maintain recreational landings at the status quo, which would have effectively negated the Control Rule’s advice.

Such motion drew an immediate response from Mr. Pentony, who stated, “This motion is inconsistent with the Magnuson Act. Point blank.” He made it clear that the motion, if passed, would not be approved by NMFS, and further noted that the agency was still “working through” the Control Rule concept; should the Council adopt a management measure that was contrary to the MSA’s dictates, it could affect NMFS’ final decision on the Control Rule.

After long discussion, Nicola Meserve, a Massachusetts fishery manager who sits on the Management Board, made a substitute motion to achieve the 10% reduction through federal regulations that maintained a 10-inch minimum size, but reduced the bag limit from 50 to 40 fish, and adopted a closed season that runs from January 1 through April 30. States would have to adopt whatever measures would be needed to achieve a 10% reduction in their local waters, where over 90% of the scup were caught. New York’s Paul Farnham made a similar motion for the Council.

The motion made by Ms. Meserve and Mr. Farnham was ultimately adopted by both the Council and the Management Board, yet such adoption demonstrated many of the problems associated with the Control Rule.

Scup Bare the Control Rule’s Faults

The methodology used in the past was simple to apply and intended to keep recreational harvest at or below the RHL. It began with the Council’s Scientific and Statistical Committee (SSC) setting the allowable biological catch (ABC), as required by the MSA. The ABC was then divided between the commercial and recreational sectors according to a pre-established allocation which established the sector annual catch limits (ACLs). An estimate of the scup which would die after being released was subtracted from the recreational ACL to determine the RHL. Recreational management measures, intended to keep catch at or below the RHL, were then developed.

When management measures are set pursuant to the Control Rule, there is no effort to keep landings below the RHL. As demonstrated by the scup debate, the landings target can swing from a 10% increase to a 10% decrease not because of any difference in stock status or fishing effort, but merely because of managers’ decision to use the RDM or RDFM. Even such 10% increase or decrease in landings appears to be completely arbitrary. It is a pre-determined value, and not the result of a calculation based on the status of the stock and/or the performance of the fishery; there is no convincing explanation of why a 5% or a 20% change would not serve as well, although the ASMFC tried to justify the choice by explaining “The rationale behind this alternative is that a reduction is needed to ensure that continued overages do not contribute to overfishing as required by the MSA; however, the assumption is that the reduction need not be greater than 10% per cycle given that biomass is very high compared to the target. An analysis of potential impacts on stock status under this…has not been performed. [emphasis added]”

The landings targets generated by the Control Rule seem to be not only arbitrary, but unrelated to the dictates of the MSA. While the law requires that each regional fishery management council “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee,” which recommendations generally take the form of an ABC, the Control Rule’s mandated increases or reductions take no account of either the ACL or ABC and, as the Monitoring Committee’s initial scup recommendation suggests, may lead to increases that, when combined with commercial landings, could even exceed the overfishing limit (OFL).

Probably Unfair and Possibly Causing Overfishing

When the Council and Management Board turned to black sea bass, additional issues arose.

Both the RDM and the RFDM indicated that a 10% landings reduction was needed although, even with such reduction, the 2023 recreational harvest target exceeded the RHL. Similar to the situation with scup, the 10% reduction was far less than the 45% reduction that would have been required under the former system of setting recreational measures.

That difference led to one Council member from North Carolina, Dewey Hemilright, to point out a seeming inequity created by the Control Rule. If the commercial fishery exceeds its harvest limit in any year, it is subject to a pound-for-pound payback in a following season, but the Control Rule seems to condone recreational overharvest by establishing targets that clearly exceed the RHL. Viewing that as unfair, Mr. Hemilright asked how commercial fishermen could also “get something” out of the new approach to fishery management, and followed that with the question, “When does the commercial side get an extra bump?”

No one provided a satisfactory answer to Mr. Hemilright’s question.

Mr. Hemilright then asked whether black sea bass were experiencing overfishing as a result of recreational overages. Michael Luisi, the Council’s Chair, could only respond that, “in time,” managers will learn whether the Control Rule will lead to overfishing, but that it’s impossible to say for certain whether overfishing is occurring now; he commented that the 2023 recreational landings target generated by the Control Rule does fall within the bounds of the CI, and so creates no issue.

While that may be true in a strictly Control Rule context, in the context of National Standard 1, which unequivocally states that “management measures shall prevent overfishing,” adopting a recreational harvest target, without first determining whether such measure will lead to overfishing, would appear to be inconsistent with the law.

The black sea bass management measures recommended by the Control Rule were, nonetheless, adopted.

Better Accuracy Does Not Necessarily Equal the Best Available Science

The final conundrum arose when the Council and Management Board turned to summer flounder.

Unlike scup and black sea bass, summer flounder are deemed to be at “low” abundance, which for purposes of the Control Rule means that spawning stock biomass is below the target level, but the stock is not yet overfished. The RDM originally suggested that 2023 landings be increased by 10%, because the 10.62 million pound RHL fell above both the 8.38 million pound projection of 2023 landings and the upper bound of the CI surrounding such projection.

But just before the December 13 meeting, such advice changed. Staff at the Science Center had re-run the RDM, this time including five years of data, rather than merely the 2021 data that was initially used. The new data resulted in a 2.5 million pound increase in projected 2023 landings. That shifted the advice from a 10% landings increase to a 10% landings decrease.

It also led to a new debate, which began when Mr. Nowalsky asked whether the Council could base 2023 management measures on either run of the model, and still feel confident that it was using the best available science. Mr. Pentony replied only that the Council’s decision must be based on the RDM. He admitted that he didn’t know why two different results were presented to the Council and Management Board, and appeared indifferent as to which results were used.

A Science Center biologist, Dr. Andrew Lou Carr-Harris, explained that the model was initially run, using only 2021 data, immediately after all needed coding and development was completed. There was no time to analyze the results before the Monitoring Committee needed to put them to use. He later re-ran the RDM using five years of data, which yielded results which Dr. Carr-Harris initially described as “greatly improved.” Later in his explanation, he reiterated that the “accuracy greatly improved” when he input the additional data, going on to say that such accuracy “increased drastically.”

But when Emerson Hasbrouck, the Governor’s Appointee from New York, asked which of the runs represented “the best scientific information available,” no one offered a clear answer, despite Dr. Carr-Harris’ assurances that the output resulting from five years of data was, by far, the most accurate.

Mr. Luisi said that maybe the Council and Management Board ought to take the two different results and “meet in the middle.” John Manascalco, a New York fisheries manager, admitted that he was “uncomfortable with direction this conversation is going,” when it seemed that many around the table were giving equal weight to the one-year and five-year outputs. Such comment seemed to have little impact, as Mr. Nowalsky moved for status quo management measures, a motion that, he claimed, split the difference between the two model runs.

Toni Kearns, Director of the ASMFC’s Interstate Fishery Management Program, pointed out that the Control Rule did not allow for a status quo option when stock abundance was deemed to be “low.” She observed that the Control Rule, as adopted by the Council and Policy Board, was “pretty specific” as to what management actions were authorized.

Mr. Nowalsky focused on Mr. Pentony’s seeming indifference to the issue, observing that, “Unlike this morning, no one has stood up and said, ‘I don’t want to do this,’ or ‘We can’t do this.'” He admitted that Ms. Kearns was correct in stating that the Control Rule didn’t authorize status quo management measures when the stock was at low abundance, but also pointed out that it did authorize status quo under other situations (i.e., when stock abundance is deemed to be “high”).

In the end, Mr. Nowalsky’s motion was approved by the Council without opposition, and was also adopted by the Management Board, with only New York voting against.

Is There a Better Way?

In her May 27, 2022 memo to the Council’s executive director, Ms. Beatty wrote that Council staff recommended, instead of adopting the Control Rule, that the Council “1) set recreational measures for two years at a time, 2) use improved statistical methods for predicting the impacts of measures on harvest and discards, and 3) incorporate considerations related to variability and uncertainty in the recreational data.” She further noted that

Under the staff recommendation, the only required modifications to the [fishery management plans] would be to allow recreational measures to be set for two years at a time. Council staff do not support modifying the [fishery management plan] to require use of specific statistical methods when setting measures as this can limit the flexibility to adapt to changing circumstances and improved methods…improvements to these methods can and are being made without changes to the [fishery management plan].

But as previously noted, GARFO rejected such advice.

Ms. Beatty’s memo offered a simple approach to improving recreational fishery management without any need to adopt the Control Rule. A simpler approach, which could have achieved most of the Control Rule’s goals while leaving the existing management process intact, would have been to merely account for management uncertainty when setting recreational management measures.

The National Standard 1 Guidelines published by NMFS state, “Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting, misreporting, underreporting of catches, lack of sufficient inseason management, including inseason closing authority, or other factors.”

Such guidelines also state that “[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that ACL is not exceeded. An [annual catch target] is an amount of annual catch of a stock or stock complex that is the management target of the fishery, and accounts for the management uncertainty in controlling the catch at or below the ACL…” The guidelines advise that “If an Annual Catch Target, or functional equivalent, is not used, management uncertainty should be accounted for in the ACL.”

Unfortunately, while the MSA requires that national standard guidelines be developed and published, it also states that such guidelines “shall not have the force and effect of law.” While adopting an annual catch target (ACT) could have accounted for uncertainty in recreational data and provided far greater stability and predictability in recreational management measures, the Monitoring Committee never recommended such ACT for summer flounder, scup, black sea bass, or bluefish. Instead, it regularly ignored the management uncertainty inherent in those fisheries, and recommended RHLs equal to the recreational ACLs, less estimated dead discards, for each stock.

By ignoring management uncertainty and setting RHLs that equal to the recreational ACL (as adjusted for dead discards), the Council and Management Board were able to maintain landings at the highest possible level; while an ACT might have addressed uncertainty and provided regulatory stability, it would also have led to a lower RHL, and resultant criticism from the angling industry and its allies in the angling press.

The Control Rule, despite its inherent complexity and its seeming inability to constrain landings to or below the ACL, was seen as a preferable option.

Public Comment Sought

The Council decided to employ the Control Rule to set recreational management measures, although NMFS had not even published proposed regulations before the December 13 meeting took place. Such proposed rules have now been released, and NMFS will be accepting public comments on the Control Rule through January 17, 2023.

Anyone concerned with the long-term health of mid-Atlantic fish stocks is encouraged to provide their thoughts.

About Charles Witek

Charles Witek is an attorney, salt water angler and award-winning blogger. Read his work at One Angler’s Voyage.

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