The Magnuson-Stevens
Fishery Conservation and Management Act, which governs all fishing in
federal waters, is an extremely long and complex statute. However, no part of the law is more important
than the ten
so-called “National Standards” which set forth the principles that shall
govern its implementation.
Those national standards are brief, and go into no detail as
to how they shall be maintained.
For that, fishery managers must rely on court decisions, such as the
landmark Natural Resources Defense Council v. Daley,
or on regulatory guidelines adopted by the National Marine Fisheries Service
which are intended to assist regional fishery management councils when drafting
management plans.
Although such regulatory guidelines do not have the force of
law, they do have substantial influence in how management plans may be
written. Thus, any changes made to such
guidelines attract, and deserve, substantial attention from fishermen and
conservation proponents.
Right now, NMFS is in the final week of amending the
guidelines for National Standards One, Three and Seven.
Of the three, National Standard One is by far the most
important. It 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.”
The current advisory guidelines for National Standard One
have helped the regional fishery management councils produce management plans
that have resulted in the lowest levels of overfishing, and overfished stocks,
ever recorded. They may not be
perfect—things seldom are—but to date, they’ve worked pretty well. However, there is real concern that some of
the proposed changes to those guidelines could reduce the effectiveness of
management programs.
The proposed changes are extensive, and readers are urged to
go
to the NMFS website and read all of them—or, at the least, NMFS’ summary of
all of the proposed changes--for themselves.
However, everyone should be aware of the changes most likely to harm
fisheries conservation efforts.
On the
whole, there is nothing novel about them; instead, they are the same issues
that have emerged elsewhere in the fisheries debate, particularly with respect
to Magnuson-Stevens reauthorization.
Thus, no one should be surprised to see that the proposed
guidelines include measures that would prolong overfishing.
Currently, overfishing is based on
single-year estimates, and action must be taken if overfishing occurs during
the course of any one season. The
proposed guidelines would allow councils to define overfishing with reference
to a three-year period instead.
Justifications of the three-year period seem logical at
first.
NMFS notes that requiring action
after just one year of overfishing, no matter how minimal such overfishing
might have been, could easily lead to unneeded regulatory changes that have no
real impact on the long-term health of the stock. It also notes that the last year of any stock
assessment is always the least reliable, and that harvest data gets better over
time; thus, basing regulatory changes on just the most recent year’s data could
lead to unneeded and potentially disruptive change.
Both those things are true, but yet…
Adopting a three-year timeframe for determining overfishing
would permit councils to delay action no matter how severe such overfishing had
been. While NMFS highlights the case
where no regulatory changes are needed, it fails to recognize the opposite
situation, where a fishery management council would be allowed to forego action
even if a stock on the verge of collapse was severely overharvested.
To put the issue in real-world terms, does anyone believe
that the New England Fishery Management Council would have cut Gulf of Maine
cod landings this year, if it had a legal excuse not to do so?
Even in the case of stocks in better health, there is often
little reason to believe that overfishing would end on its own.
Despite regulations that grew more
restrictive each year, anglers
still managed to overfish Gulf of Mexico red snapper for seven out of the ten
years between 2004 and 2013 (at which point a
lawsuit forced a change in the way the recreational fishery is managed),
sometimes landing more than 150% of the recreational annual catch limit; we can
only guess how much worse such overfishing would have been if regulations were only
tightened once every three years.
Here in the northeast, we have a similar situation. Black sea bass abundance seems to have
increased sharply, and as a result, recreational
overharvest has been pretty severe since 2012, and regulations have
tightened each year in response. Had
such overfishing been allowed to continue, unabated, over the course of three
years, it would have been far worse than it was.
On balance, the risk of allowing overfishing to continue for
years is far greater than the inconvenience caused by changing, and arguably
unneeded, regulation.
In its comments accompanying the proposed rulemaking, NMFS
notes that
“NMFS first adopted an annual approach to overfishing in its
1998 revisions to the [National Standards] guidelines…Prior to these revisions,
NMFS had deliberately chosen not to ‘mandate a particular form for all specific
overfishing definitions,’ leaving it to the discretion of the Councils to
decide how to determine if overfishing was occurring…”
It’s impossible not to note that the 1998 revisions to the
guidelines were a direct result of the passage of the Sustainable Fisheries Act
of 1996, which was the law that first gave real teeth to Magnuson-Stevens and
is responsible for the marked turnaround in the health of America’s
fisheries. Prior to then, things didn’t
work very well, so it can easily be argued that permitting overfishing to
continue for three years is a return to the discredited—and markedly
unsuccessful—approaches used in the past.
Proposed changes to the guidelines for allowable biological
catch also raise real red flags.
Ever since NRDC v.
Daley, it has never been questioned that the measures adopted to manage a
fishery must have at least a 50% chance of success. That is reflected in the current
guidelines. Now,
“NMFS is proposing revisions to current guidance on
[Allowable Biological Catch] control rules to state that the Council’s risk
policy could be based on an acceptable probability (at least 50 percent) that
catch equal to the stock’s ABC will not result in overfishing, but other
appropriate measures could be used.”
Since
“When determining the risk policy, Councils could consider
the economic, social, and ecological trade-offs between being more or less
risk-averse,”
it’s not hard to imagine what such “other appropriate
measures” could look like.
And things wouldn’t stop there. Whatever regulations were adopted, the new
proposed guidelines would not require them to be adopted immediately and in
full, but would rather allow them to be phased in over three years, in order to
avoid short-term hardships in the fishery.
Add that three years to the proposed three-year periods to
determine overfishing, and it’s not hard to see problems being perpetuated for
quite a long time…
There are plenty of other things wrong with the proposed
guidelines, including increased “flexibility” (yes, that word again) in rebuilding
stocks, excluding certain regularly-harvested fish from management plans, halting
the rebuilding of stocks partway through the process, trying to distinguish
“depleted” from “overfished” stocks and a number of others.
The bottom line is that, taken as a whole, the new
guidelines are in many ways a reflection of the same attitudes that gave birth to H.R.
1335, the House of Representatives meritless effort to reauthorize Magnuson-Stevens. Short-term economic impacts are elevated
above the health of fish stocks.
Thus, anglers and others concerned with maintaining the
current, demonstrably successful approach to managing America’s salt water
fisheries are urged to go to http://www.regulations.gov/#!submitComment;D=NOAA-NMFS-2012-0059-0085
and speak out against unneeded and potentially harmful changes to the National
Standard One guidelines.
The comment period closes on June 30, so there is little
time for delay.
Setting standards is important in almost everything, since it dictates whatever is acceptable in a particular business or entity. And it’s sad to think that national standards are brief, and go into no detail as to how they shall be maintained. I hope this issue has been raised, and has been acted upon. Thanks for sharing your insight on the matter. Cheers!
ReplyDeleteKent Gregory @ ARMATURE Corporation