International Fisheries, International Trade, and Commercial
Fishing Regulations
On May 7, 2020, President Donald Trump issued an “Executive Order on Promoting
American Seafood Competitiveness and Economic Growth” (Executive
Order). Unlike many executive orders, which are relatively brief and limited in
scope, the most recent Executive Order is expansive, and covers four very
different seafood issues: reducing the regulatory burden on United States
fishermen; combatting illegal, unreported, and unregulated (IUU) fishing;
facilitating offshore aquaculture; and creating a global seafood trade
strategy.
During his Senate confirmation hearing, Commerce Secretary Wilbur Ross
said that “Given the enormity of our coastlines, given the
enormity of our freshwater, I would like to try to figure out how we can become
much more self-sufficient in fishing and perhaps even a net exporter.” He also stated, in
his first port-confirmation address to department employees, that he was intent
on “obtaining maximum sustainable yield for our fisheries.”
The Executive Order,
which among other things seeks to “identify and remove unnecessary regulatory
barriers restricting American fishermen and aquaculture producers,” and
“facilitate aquaculture projects through regulatory transparency and long-term
strategic planning,” is very much in accord with both of those comments. But a
bigger question is whether the Executive Order is in accord with the need to
maintain healthy fish stocks and a fully functional coastal ecosystem.
That is not an easy
question to answer.
International fisheries
IUU fishing takes many
forms which, collectively, many pose the largest single threat to international
fisheries management programs. Thus, it is heartening that the President
directed the Secretary of Commerce to promulgate regulations that will support
the United Nations Food and Agriculture Organization’s (FAO) efforts to rein in
fishing vessels that operate outside the rules. It is also good to see him
instruct agency heads to prioritize training and technical assistance in “key
geographic locations” in order to promote sustainable fisheries management, to
“strengthen and enhance” law enforcement capabilities to combat IUU fishing,
and to promote implementation of the FAO’s anti-IUU fishing measures.
The President’s decision
to create an Interagency Seafood Trade Task Force, intended to further “fair
and reciprocal trade in seafood products,” is more difficult to evaluate.
There’s certainly nothing wrong with helping out U.S. fishermen by developing
an international seafood trade strategy “that identifies opportunities to
improve access to foreign markets…, resolves technical barriers to United
States seafood exports, and otherwise supports fair market access for United
States seafood products.”
But the worth of any
international trade strategy cannot be separated from its implementation. If
the planned seafood trade strategy is coupled with an effective diplomatic
campaign that opens more foreign markets to United States seafood and helps
United States fishermen compete on a level playing field, both domestic
fishermen and their foreign customers should benefit. On the other hand, if
diplomatic efforts fall short, the trade strategy could conceivably disrupt
patterns of international trade, resulting in United States markets being
closed to some seafood imports, some foreign markets being closed to United
States exports, and the possible imposition of retaliatory tariffs that, in the
end, hurt fishermen and consumers alike.
Only time will reveal
what course the seafood trade strategy will take.
Increasing domestic fisheries landings; Magnuson-Stevens still
applies
Section 4 of the
Executive Order instructs each regional fishery management council (Council) to
produce “a prioritized list of recommended actions to reduce burdens on
domestic fishing and increase production within sustainable fisheries.” That
instruction might have a significant impact on federal fisheries management.
Or, it could have almost no impact at all.
The Executive Order explicitly acknowledges that any actions
taken thereunder are subject to the provisions of the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens). Magnuson-Stevens
requires 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.” It also states that
The term
‘optimum’, with respect to the yield from a fishery, means the amount of fish
which will provide the greatest overall benefit to the Nation, particularly
with respect to food production and recreational opportunities, and taking into
account the protection of marine ecosystems; is prescribed as such on the basis
of the maximum sustainable yield from the fishery, as reduced by any relevant
economic, social, or ecological factor; and in the case of an overfished
fishery, provides for rebuilding to a level consistent with producing the
maximum sustainable yield from such fishery. [internal numbering and formatting
omitted]
It could thus be
argued that, if the Councils are currently executing their responsibilities,
and are already managing fisheries for their optimum yield, it will be
difficult for them to increase landings much beyond their existing levels.
Additional provisions of Magnuson-Stevens may make it difficult for such
Councils to make other changes to federal fishery management programs.
For example, fishermen often complain that federal fisheries
management measures are “overly precautionary” and
lead to the “underfishing” of some fish stocks. Ever since the U.S. Supreme
Court decided Natural Resources Defense Council v. Daley twenty
years ago, federal fishery managers have been required to adopt management
measures that have at least a 50 percent probability of preventing overfishing
and timely rebuilding overfished stocks. Immediately after that decision was
issued, in order to maintain harvests at the highest levels permitted by law,
the Councils began to adopt management measures that were calculated to have a
50 percent—but no more than a 50 percent—probability of succeeding.
Those management measures often didn’t work out very well. Even
the best fisheries data includes some level of scientific uncertainty, and
there is also uncertainty about recreational and commercial catch levels, illegal
landings, and how effective regulations might turn out to be. Because of such unknowns, which
can’t be fully incorporated into managers’ calculations, regulations
thought to have a bare 50 percent probability of success often end up falling
short.
To address such uncertainty, the National Marine Fisheries
Service (NMFS) issued fishery management guidelines which
instruct the Councils that “When specifying limits and accountability measures,
Councils must take an approach that considers uncertainty in scientific
information and management controls of a fishery.” The guidelines also direct
that “As [maximum sustainable yield] values are estimates or are based on
proxies, they will have some level of uncertainty associated with them. The degree of uncertainty in the estimates
should be identified, when practicable, through the stock assessment process
and peer review, and should be taken into account when specifying the
[Acceptable Biological Catch] Control rule.” The guidelines then go on to
define acceptable biological catch (ABC) as “a level of a stock or stock
complex’s annual catch, which is based on an ABC control rule that accounts for
the scientific uncertainty in the estimate of [Overfishing Limit], any other
scientific uncertainty, and the Council’s risk policy.”
If those guidelines
are followed, the acceptable biological catch will always be set at some point
below maximum sustainable yield (MSY), in order to lessen the likelihood that
uncertainty will lead to overfishing. It is that gap between the ABC and MSY,
created to buffer the possible effects of uncertainty, that has led fishermen
to assert that NMFS is setting “overly precautionary” regulations that burden
domestic fishing and hamper Secretary Ross’ goal of “obtaining maximum
sustainable yield for our fisheries.”
Yet the Councils would probably find it difficult to
significantly reduce such buffers pursuant to the Executive Order, because
Magnuson-Stevens directs that each Council shall “develop annual catch limits
for each of its managed fisheries that may not exceed the fishing level
recommendations of its scientific and statistical committee or the peer review process. [emphasis
added]” Any Council’s effort to replace such recommended ABC, which includes a
buffer to account for uncertainty, with an ABC that simply equals MSY, would
stand in clear violation of that provision, and would probably be challenged in
court.
Recreational vs. commercial fishing
Yet there are other ways that the Councils could try to
eliminate burdens on domestic fishermen. One of those is to shift allocation
from the recreational to the commercial sector. While Section 4 of the
Executive Order itself makes no distinction between commercial and recreational
“production,” and could arguably apply to both sectors, a May 7 news release issued
by the National Oceanic and Atmospheric Administration explicitly states that
one purpose of the Executive Order was “Regulatory reform to maximize commercial fishing. [emphasis added]”
Thus, some members of the recreational fishing community are
expressing concern about the Executive Order. Mike Leonard, government
affairs vice president for the American Sportfishing Association, said,
“While federal law provides protections against overfishing, we’re still
concerned that requiring fisheries managers to ‘increase production’ may come
at the expense of conservation and recreational fishing. We would strongly
object to any actions that would increase unsustainable commercial fishing
practices or reduce recreational fishing access.”
Anglers might also worry that the Executive Order’s emphasis on
“production” could have an adverse impact on efforts to manage some primarily
recreational species for abundance, rather than for maximum landings, in order
to support robust catch-and-release fisheries. That is currently an issue at
the Mid-Atlantic Fishery Management Council, which is contemplating a new amendment
to its Bluefish Fishery Management Plan. Such Council could easily
decide, in light of the Executive Order, to abandon that effort, and instead
reallocate unharvested recreational quota to the commercial sector.
But, once again, provisions of Magnuson-Stevens might dictate a
different outcome. As noted above, optimum yield shall be calculated
“particularly with respect to food production and recreational opportunities, [emphasis
added]” giving neither food production nor recreation priority over the other.
Another provision states that one purpose of Magnuson-Stevens is to “to promote
domestic commercial and recreational
fishing under sound conservation and management principles, including the promotion of
catch and release programs in recreational fishing. [emphasis added]” Thus, the ability of the
Councils to favor commercial over recreational fishing, in order to comply with
the Executive Order, is far from clear.
One thing the Councils could not do on their own is reopen commercial
fisheries for striped bass, red drum, sailfish and marlin in federal waters,
where such commercial harvest is not currently allowed. In the case of striped
bass and red drum, such fishing was prohibited by an executive order signed by
President George W. Bush on October 20, 2007, and it would take
a new executive order to undo such prohibition. The commercial harvest of
sailfish and marlin was outlawed by the Billfish Conservation Act of
2012, which would have to be repealed by Congress before such
fishing might resume.
Reducing ecosystem-related protections
In their efforts to
comply with the Executive Order, Councils might also seek to eliminate
restrictions on fishing gear types, restrictions on bycatch, closed areas and
other habitat protections, and similar measures that seek to protect one or
more fish stocks, but at the same time place regulatory burdens on the
commercial fishing industry and result in decreased production.
Ted Venker, conservation
director for the Coastal Conservation Association, observed, “There
is the potential for NOAA Fisheries to interpret this order as encouraging
increased use of commercial fishing gears such as longlines, gill nets and
trawls, which would be a tremendous step backwards for marine conservation.”
Such an interpretation could result in NMFS rejecting Amendment 8 to the Atlantic
Herring Fishery Management Plan, adopted late last year by the New
England Fishery Management Council, which would prohibit large mid-water
trawlers from targeting herring in nearshore waters, in order to prevent
localized depletion and provide sufficient forage for a host of predator
species.
Council efforts to reduce regulatory burdens could also lead to
the elimination of current bycatch restrictions, which shut down directed
fisheries when the incidental catch of other species becomes too great. Such
efforts could have a substantial adverse impact on already depleted stocks of shad and
river herring, if rules which shut down the directed Atlantic mackerel fishery, and segments of the Atlantic
herring fishery, when such caps are exceeded were abolished. They
could also lead to the elimination of
gear-restricted areas, such as those established in the Mid-Atlantic to
prevent the incidental catch of juvenile scup in the small-mesh nets used by
squid trawlers.
Councils could seek to reopen areas currently closed to some or
all fishing activity. Such areas have been widely employed in New England to
facilitate research, preserve fragile habitat, and protect spawning areas. They
have also been used in other regions, including the South Atlantic and Gulf of Mexico, to
provide protection for deep-water species of snapper and grouper, to prevent
fishermen from targeting spawning aggregations of fish, and to conserve
important fish habitat.
Yet those
restrictions, too, are arguably protected by Magnuson-Stevens, which allows the
Councils to “designate zones where, and periods when, fishing shall be limited,
or shall not be permitted, or shall be permitted only by specified types of
fishing vessels or with specified types and quantities of fishing gear,”
“prohibit, limit, condition, or require the use of specified types and
quantities of fishing gear, fishing vessels, or equipment for such vessels,”
and “include management measures in [a fishery management] plan to conserve
target and non-target species and habitats, considering the variety of
ecological factors affecting fishery populations.”
Given that Congress
specifically authorized the Councils to adopt such measures, it would be very
difficult to successfully argue that the Executive Order now required the
Councils to abandon them.
Magnuson-Stevens limits Council options
Magnuson-Stevens
compels federal fishery managers to end overfishing, rebuild overfished stocks,
and maintain fish stocks at levels that are sustainable in the long term, and
provides such managers with the legal authority to protect non-target species
of fish, marine food webs, and marine ecosystems from the adverse effects of
fishing activities. The Executive Order cannot revoke such legal authority, and
cannot compel the Councils to reverse any previous action that was authorized
by Magnuson-Stevens. In complying with the Executive Order’s edict to remove
regulatory barriers to increasing fish production, the Councils must stay
within the bounds established by Congress.
Given that most U.S.
fisheries are already being prosecuted at or near their maximum sustainable
fishing rates, there is a very real possibility that the Executive Order will
not materially impact domestic fisheries management. It is also likely that, if
any Council seeks to significantly increase the production of any species by
ignoring or reinterpreting one or more provisions of Magnuson-Stevens,
litigation will ensue.
However, Magnuson-Stevens probably does
not grant NMFS the authority to regulate offshore aquaculture, an
activity that was extensively discussed in the Executive Order. How the
Executive Order might affect offshore fish farms will be addressed in the
second half of this post.
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This essay first appeared in “From the Waterfront,” the blog of
the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/
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