At its June 2022 meeting, the Mid-Atlantic Fishery Management Council (MAFMC) adopted the so-called “Percent Change Approach” (PCA) for managing the recreational summer flounder, scup, and black sea bass fisheries; the PCA will also be used to manage the recreational bluefish fishery, once the bluefish stock is no longer subject to its current rebuilding plan.

Unlike previous management approaches, the PCA does not constrain recreational landings to a recreational harvest limit (RHL) or even to an annual catch limit (ACL); instead, it employs a table that dictates whether recreational landings should be increased, decreased, or left unchanged, depending on the most recent estimate of spawning stock biomass (SSB) and whether future landings are calculated to be above, below, or approximately equal to a theoretical RHL.

When the PCA was proposed, some individuals and organizations argued that it didn’t comply with the Magnuson-Stevens Fishery Conservation and Management Act‘s (Magnuson-Stevens) statutory requirements and so made overfishing more likely; MAFMC staff also argued against its approval. The National Marine Fisheries Service (NMFS) nonetheless approved final regulations adopting the PCA on March 9, 2023.

The Natural Resources Defense Council (NRDC) is seeking judicial review of such regulations, but until that lawsuit is decided, the PCA will determine how recreational fisheries are managed in the mid-Atlantic.

In December 2022, the PCA was employed for the first time. Now, managers and stakeholders have their first opportunity to evaluate whether the PCA is living up to its supposed promise of providing “greater stability and predictability in recreational measures from year-to-year while accounting for uncertainty in recreational catch estimates.”

It may be too soon to draw any conclusions. For the 2024 fishing year, the PCA is calling for recreational summer flounder landings to be reduced by 28% and scup landings to be reduced by 10%. It is also calling for black sea bass landings to be reduced by 10%, but the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee) advised the MAFMC to leave those landings unchanged, although though nothing in the PCA permits such an outcome.

Summer Flounder

The 28% reduction in recreational summer flounder landings was a response to an unexpected finding that the summer flounder stock experienced overfishing in 2022, after the 2023 management track stock assessment determined that fishing mortality had slightly exceeded the threshold.

While such overfishing was unrelated to the PCA, the MAFMC did fail to follow the PCA’s direction with respect to 2023 summer flounder management measures. Because it was faced with two different calculations of 2023 RHL, one based on a single year’s data, which called for a 10% increase in landings and another, more accurate estimate based on multiple years’ data, which called for a 10% decrease, the MAFMC decided to leave landings unchanged, although such status quo outcome was not authorized by the PCA.

Had the MAFMC imposed a 10% reduction in 2023 landings, effectively phasing in the 28% over two years, it might have blunted the impact of the unanticipated landings cut. Now, the entire reduction must be taken in a single year, angering stakeholders. The summary of the December 4, 2023 Summer Flounder, Scup, and Black Sea Bass Advisory Panel meeting (Advisory Panel Summary) reported that

Their only solace is that, since the PCA sets management measures for two-year periods, the landings target should remain unchanged in 2025; to that extent, at least, the PCA is providing some level of stability and predictability.

Scup

Although scup landings need only be reduced by 10% in 2024, the Advisory Panel Summary reported that “Multiple advisors expressed frustration with the 10% reduction in harvest required for scup under the Percent Change Approach. Several advisors said reductions are not necessary given biomass is so high. Instead, measures should be liberalized.”

Because recreational scup landings for 2019-2022 exceeded the recreational sector’s ACL by an average of 126%, the fishery management plan required the MAFMC to consider imposing additional restrictions on the fishery, to comply with Magnuson-Stevens’s requirement that management measures “ensure accountability” for excessive harvest. However, NMFS’ Greater Atlantic Region Fisheries Office (GARFO) informed the MAFMC that no such measures were needed, as the combination of the 10 percent reduction in 2023 landings and improvements made to the Recreational Demand Model (RDM) used to predict future landings adequately addressed the “conditions that precipitated the overage.”

Black Sea Bass

Black sea bass landings will not be reduced in 2024, despite the PCA’s direction to do so, because of the Monitoring Committee’s creative interpretation of the PCA. The Monitoring Committee advised the MAFMC that the PCA assumes stocks will be assessed every two years, and that the theoretical RHL, as well as the recreational landings limit for each stock, will only change in response to an assessment. Since the black sea bass stock assessment was delayed until 2024, and since the PCA is meant to promote management stability, the Monitoring Committee suggested that leaving the landings target unchanged was consistent with the intent of the PCA.

Such argument was not illogical, yet it remains flawed, for nothing in the explicit language of the PCA supports such status quo outcome. Under the conditions prevailing for black sea bass—an SSB more than twice the target level, and anglers predicted to exceed the RHL in 2024—a 10% reduction was the only action permitted by the PCA. The Monitoring Committee’s advice, and the MAFMC’s ultimate decision, to leave landings unchanged relied on an interpretation of fishery regulations that elevated the expressed purpose of the PCA—providing stable and predictable management measures—above the clear language of such regulations.

As was the case with scup, the average of recreational black sea bass landings for the past three years exceeded the recreational ACL, requiring the MAFMC to consider accountability measures. And, as was the case with scup, GARFO cited a 10 percent reduction imposed on 2023 landings, combined with the improvements in the RDM, as reasons why no additional measures need be imposed.

Given the unambiguous language of the regulations, the decision to not reduce black sea bass landings was, at best, legally questionable. It also failed to mollify stakeholders. The Advisory Panel Summary noted that

Lessons Learned?

What, then, are the lessons of the PCA’s first year?

It’s probably too early to consider how the PCA impacts fish stocks, since final recreational landings data for 2023, the first year affected by the PCA, will not be available until April 2024. But we did get some insight into how the PCA influences people.

The PCA has relieved fisheries managers, including members of the MAFMC, of the discipline imposed by earlier management approaches. Prior to the PCA, past fishery performance was used to predict future landings. Management measures for the upcoming year were adjusted, becoming more or less restrictive, depending on whether past landings were above or below the next year’s RHL.

It was an imperfect system. Uncertainty in recreational landings estimates often led to management measures that were either more restrictive than they needed to be or not restrictive enough to keep landings at or below the RHL. The seeming impossibility of accurately predicting anglers’ response to new management measures, and to other factors affecting the fishery, also made it difficult to predict management outcomes. Yet because the former approach was focused on the RHL, it presented a disciplined, systematic methodology that almost always prevented overfishing and led to the recovery of overfished fish stocks.

In theory, the PCA brought even more discipline to the process by establishing a series of predetermined management actions that the MAFMC would be required to take, depending on the whether the SSB was above or below the biomass target and whether future landings were predicted to be above or below the RHL. The PCA made allowances for the uncertainty inherent in recreational fishing data, while the RDM provided a more accurate prediction of how anglers would respond to management measures.

Unfortunately, nothing in the PCA prevents anglers from exceeding not only the RHL, but also the ACL. Nothing in the PCA prevents combined recreational and commercial landings from leading to overfishing. Changes to recreational landings are made mechanically, with no consideration of the impact from commercial landings and no provision to cap recreational landings at a level that would prevent either the ACL or the overfishing limit (OFL) from being exceeded. NMFS has admitted that the PCA “would allow for some level of RHL overages in some circumstances. RHL overages carry a risk of ACL overages, which in turn risk [acceptable biological catch] and OFL overages and therefore risk resulting in overfishing.”

Although Magnuson-Stevens requires that fishermen be held accountable for exceeding the ACL, the accountability measures adopted by NMFS pursuant to the PCA can be toothless. It is difficult to successfully argue that a one-time 10% reduction in landings truly holds the recreational scup fishery accountable for overages that exceeded the ACL by an average of 126 percent for three consecutive years.

While the MAFMC has demonstrated a willingness to apply the PCA’s provisions mechanically to increase landings, even if such increase would cause landings to exceed the ACL, it has also demonstrated a willingness to ignore the PCA’s requirements to decrease landings in the case of both the 2023 summer flounder management measures and the 2024 black sea bass measures, although nothing in the PCA or related regulations justified such action.

The PCA is also notable for its impact or, more accurately, its lack of impact on stakeholder attitudes toward fisheries management. While the MAFMC states that its so-called “Recreational Reform Initiative,” including the PCA, “aims to address a range of challenges,” which include “widespread angler dissatisfaction with some recreational management measures, stakeholder perceptions that measures are not reflective of stock status, and concerns about how Marine Recreational Information Program (MRIP) data are used to manage these fisheries,” nothing in the Advisory Panel Summary suggests that stakeholders are any less dissatisfied with recreational management measures today than they were before the PCA was adopted.

If the comments expressed in the Advisory Panel Summary make anything clear, it is that most panel members are only interested in harvesting more fish, and not in the fisheries management process; any management measure that leads to reduced or, in the case of black sea bass, even status quo landings, is simply unacceptable to them.

Such attitude ought to cause both MAFMC members and GARFO to ask whether they gave too much weight to stakeholder comments when considering the PCA, and whether stakeholder support of the PCA was motivated by nothing more than a hope that it would provide a means to evade the strictures of Magnuson-Stevens and put more dead fish on the dock.

Unfortunately, both MAFMC and GARFO now have so much institutional prestige invested in the PCA that neither is likely to admit it is flawed. Instead, unless NRDC’s lawsuit succeeds, and a court invalidates the PCA, it is likely to survive in its present form until 2025 when, absent further action by the MAFMC, it may no longer be used.

When that time comes, we can only hope that it is replaced by something better designed to prevent overfishing and sustain the long-term health of fish stocks.