National Marine Fisheries Service Approves Mid-Atlantic ‘Control Rule’

Bluefish, photo via NOAA

Top photo: Bluefish, via NOAA

On March 9, 2023, the National Marine Fisheries Service (NMFS) issued a final rule approving the so-called “harvest control rule” (Control Rule) adopted by the Mid-Atlantic Fishery Management Council (Council) at its June 2022 meeting. The Control Rule amends the Council’s Summer Flounder, Scup, and Black Sea Bass and Bluefish fishery management plans, bringing significant change to the process used to set annual management measures for the recreational sector.

In the past, recreational management measures were established by first calculating what landings were in the previous year (or, in the alternative, by averaging the landings for the preceding three years). Such past landings were then compared to the recreational harvest limit for the upcoming season to determine whether the previous year’s management measures could be kept in place, whether such measures might be liberalized, or whether management measures would have to be made more restrictive in order to constrain future landings to the recreational harvest limit.

Such process was fraught with management uncertainty, as weather, fuel prices, and the comparative availability of various fish species cause angler effort to swing, sometimes wildly, from year to year. The estimates produced by the Marine Recreational Information Program, used to gauge anglers’ landings, introduced another source of uncertainty into the management process.

The Control Rule was intended to address such uncertainties, and hopefully reduce the frequency of changes to recreational regulations, while allowing anglers to harvest greater numbers of fish when stocks are at high levels of abundance. Unfortunately, as critics of the Control Rule noted in comments submitted to NMFS, it does so using a management approach that received, at best, lukewarm scientific support, was disfavored by Council staff, and may not comply with language contained in the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens), which is intended to prevent overfishing and constrain overall landings at or below the annual catch limit set for each managed fish stock.

NMFS did not have to adopt the Control Rule to address the management uncertainty issue. It could have employed an annual catch target instead. Its own National Standard 1 Guidelines (Guidelines) state that “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 management uncertainty in controlling the catch at or below the [annual catch limit],” and advise, “If an Annual Catch Target, or functional equivalent, is not used, management uncertainty should be accounted for in the [annual catch limit].”

Unfortunately, while Magnuson-Stevens requires the agency to publish the Guidelines “to assist in the development of fishery management plans,” it also explicitly states that such Guidelines “shall not have the force and effect of law.” Despite the high levels of management uncertainty that chronically plagued the Council’s recreational management measures, the Council never adopted annual catch targets to address the problem. As a result, recreational landings, particularly those of black sea bass, frequently exceeded recreational harvest limits, and regulations often changed from year to year, frustrating anglers and angling-related businesses.

Instead, the Council developed the Control Rule, which provides a means for fisheries managers to address uncertainty in recreational fisheries data, while avoiding the Guidelines’ call for annual catch targets and the resultant reductions in harvest. It allows anglers to increase their landings of abundant species, but in doing so sidesteps the spirit, and very possibly the letter, of federal fisheries law.

The Control Rule represents a historic change in the way the Council will manage recreational fisheries, yet NMFS received surprisingly few comments on its proposed rule. In total, NMFS received only one letter, signed by five organizations affiliated with the recreational fishing industry, in support of the Control Rule, one letter from an individual and two from conservation organizations (one of which was signed by three different entities) opposing its adoption, and six letters from individuals that touched on tangential matters, but did not directly address the Control Rule itself.

In its response to public comments arguing that the adoption of an annual catch target would have rendered the Control Rule moot, NMFS responded,

Including management uncertainty into the process for setting recreational management measures would result in setting a recreational harvest target below the [recreational harvest limit], and even more restrictive recreational harvest measures. This would exacerbate the disconnect between what anglers are observing (e.g., high levels of abundance of black sea bass and scup) and the increasingly restrictive management measures. Implementing a large buffer, and further reducing the quota, does not recognize that uncertainty applies in both directions—catch and biomass may be higher or lower than estimated. Simply restricting recreational fisheries more is not solving the fundamental problem, particularly when considering the lack of success in continually attempting to constrain harvest to a specific limit that, in retrospect, was lower than needed.

It was a strange response for a number of reasons, and appears to fall short in both logic and technical comprehension of the issues addressed; because such response was characteristic of the agency’s overall approach to the Control Rule, it deserves closer attention.

The response, which dismisses the use of annual catch targets, makes it clear that NMFS was sharply focused on setting recreational landings limits, at least for abundant stocks, at the highest possible level. The Control Rule certainly accomplishes that goal. But does that justify NMFS ignoring its own Guidelines?

When NMFS published the Guidelines, it certainly understood that setting an annual catch target would reduce recreational landings to a level somewhat below the recreational harvest limit. Even so, the agency chose to recommend the adoption of such targets, without adding any qualifiers that limited the use of catch targets to situations where a stock was at low levels of abundance. There is no suggestion, anywhere in the Guidelines, that an annual catch target should not be used when stock abundance is high.

Similarly, NMFS’ comment that implementing a buffer, presumably in the form of an annual catch target, “does not recognize that uncertainty applies in both directions—catch and biomass may be higher or lower than estimated,” strikes a discordant note. Once again, when NMFS prepared and published the Guidelines, it must have been aware that catch could, at times, be overestimated, yet the Guidelines nonetheless recommend that an annual catch target be used, presumably because the agency recognized that underestimating catch carried ar greater risks to the stock than underestimating it (estimating biomass involves scientific, rather than management, uncertainty, and so does not belong in this discussion).

Other agency comments were similarly unpersuasive.

Magnuson-Stevens plainly states that “Conservation and management measures shall prevent overfishing,” a mandate that has been enforced by the courts for more than two decades; the statute defines “overfishing” as “a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.” Several comments opposing the Control Rule advised that the Control Rule did not, in practice, reliably prevent overfishing, and the Environmental Assessment of the Control Rule supported their position.

But NMFS disagreed. The agency argued that the Control Rule would not lead to overfishing because scup and black sea bass stocks are currently at very high levels of abundance. “In theory, for such stocks, fishing at Fmsy [the fishing mortality rate that would produce maximum sustainable yield] should gradually fish the stock back down to the biomass target. Fishing above Fmsy for a year may increase the rate at which this is achieved, but would not jeopardize the long-term sustainability of the stock.”

According to NMFS, even if fishing mortality exceeded what biologists deem the “threshold fishing mortality rate” (Fmsy) in any given year, overfishing would not occur because an abundant stock could still produce maximum sustainable yield on a continuing basis, at least until it was fished down to the biomass target.

Such interpretation of the term “overfishing” is novel, and unsupported by any interpretation made by a federal court ruling on the question. It ignores the critical fact that “overfishing” is defined in terms of a rate of fishing mortality that would jeopardize the long-term health of a stock. If fishing mortality exceeds Fmsy in any year, overfishing is occurring, even if such overfishing will not necessarily continue long enough to do material harm.

That fact is recognized in the Control Rule’s Environmental Assessment, which advised that

All combinations of sub-alternatives under [the Control Rule] would allow for some level of [recreational harvest limit] overages in some circumstances. [Recreational harvest limit] overages carry a risk of [annual catch limit] overages, which in turn risk [acceptable biological catch] and [overfishing limit] overages and therefore risk resulting in overfishing. Therefore, [the Control Rule] cannot be demonstrated to proactively prevent overfishing every year in all circumstances. The [recreational harvest limit] accounts for the best available scientific information on stock status. Therefore, even at high biomass levels, [recreational harvest limit] overages can result in overfishing. [emphasis added]

The Environmental Assessment clearly acknowledges that calculations of overfishing are based on an annual fishing mortality rate (the Control Rule “cannot be demonstrated to proactively prevent overfishing every year…”), and explicitly states that “even at high biomass levels, RHL overages can result in overfishing.” In view of such statements, NMFS’ arguments to the contrary, and in support of the Control Rule, are nothing short of baffling.

Equally baffling is NMFS statement that “Scup and black sea bass are stocks in the “very high” bin [of the Control Rule], meaning biomass is over 150 percent of their respective biomass targets—the level of biomass associated with maximum sustainable yield. In plain language, stocks in this bin are at least 1.5 times larger than is ideal for maximizing long-term benefits. [emphasis added]”

Such comment suggests that stocks which see biomass increase above target levels somehow provide lesser benefits than those maintained at the supposedly “ideal” target.

Nothing is farther from the truth.

The target biomass level (Bmsy) is a purely biological measure; it represents the biomass level that will produce maximum sustainable yield, provided that the fishing mortality rate does not rise above Fmsy. It has nothing to do with “maximizing long-term benefits” from the resource, although benefits decline one biomass falls below Bmsy.

Once again, NMFS appears to have overlooked the significance of the fishing mortality rate, which essentially measures the proportion of fish removed from the stock each year. If a stock at Bmsy and another stock at 150% of Bmsy are fished at the same fishing mortality rate, the landings from the stock at 150% of Bmsy will be 50% higher than the stock that is merely maintained at Bmsy; the larger stock will yield substantially greater benefits, whether such benefits are measured by the amount of food produced, the recreational opportunities offered, or the level of social and economic benefits garnered from that particular resource.

Long-term benefits are not maximized at Bmsy, as NMFS seems to contend; instead, Bmsy represents the lowest biomass level that can produce maximum sustainable yield, although greater benefits can accrue, if only for a limited time, if biomass rises higher. NMFS’ apparent willingness, perhaps even eagerness, to use the Control Rule as a vehicle to reduce very abundant stocks to Bmsy does not have a rational basis.

NMFS made other arguments in support of the Control Rule, relating to its compliance with Magnuson-Stevens, its use of the best available science, and whether it constituted a de facto reallocation of commercial and recreational quota. But, like the arguments detailed above, the agency’s responses seemed to be less a logical refutation of public comment than an effort to justify a management action that was not, in the end, justifiable.

Beginning with NMFS’ and the Council’s decision to address the Control Rule in a “framework” action, which offered very limited opportunity for formal public comment, and extending through the June 2022 Council meeting, which saw NMFS’ Greater Atlantic Regional Fisheries Office threaten to adopt the Control Rule through agency action if the Council did not approve it, the Control Rule seemed a management measure that was being relentlessly advanced by a regulator who was either inherently sympathetic to, or had been bludgeoned into submission by, elements of the recreational fishing industry who have long been aggressively critical of the federal fishery management process.

The fact that NMFS justifies its adoption of the Control Rule by citing “what anglers are observing (e.g., high levels of abundance of black sea bass and scup),” rather than the results of state and federal fisheries surveys and other objective data, further contributes to that impression.

Rather than take the time to craft a scientifically vetted management approach that clearly accords with Magnuson-Stevens, NMFS hastily adopted what it admits, in its response to public comments, was “intended to be an interim approach” to setting recreational management measures, and then attempted to justify its actions with dubious arguments that, in some cases, are in direct conflict with statements included in the Control Rule’s Environmental Assessment.

Nonetheless, unless and until someone seeks judicial review of the agency’s action, and a court finds the Control Rule invalid, it will now govern the recreational summer flounder, scup, and black sea bass fisheries, and will govern the recreational bluefish fishery as well, once the current rebuilding plan has run its course.

Stakeholders can only hope that such important fish stocks are not harmed as a result.

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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