MID-ATLANTIC COUNCIL, ASMFC ADOPT MODIFIED "HARVEST CONTROL RULE"

 

Over the past year or so, I have been writing about something that the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission have deemed a “Harvest Control Rule” that would change the way that the recreational bluefish, summer flounder, scup, and black sea bass fisheries will be managed.

The Harvest Control Rule sounds good on paper.  The idea is to expand the criteria currently used to manage recreational fisheries from merely catch and landings estimates derived from the Marine Recreational Information Program, which are compared to the next season’s recreational catch or harvest limits, to things like stock status, biomass trends, and recruitment.  As I’ve noted before, it might even prove beneficial in practice.  The problem is that it is being rushed through the management process, before scientists can determine how its use will impact fish stocks.

The Council’s Scientific and Statistical Committee reviewed the Harvest Control Rule at the request of the Council and ASMFC, and found that it lacked the information needed to determine the impacts of such control rule (which, the SSC determined, wasn’t really a control rule at all, but that’s a separate discussion) on managers’ ability to prevent overfishing or rebuild stocks to, or maintain them at, the biomass target.  

Council staff prepared a memorandum advising against adopting any version of the Harvest Control Rule, noting that doing so would limit the Council’s flexibility to craft management measures, would substantially increase the amount of work needed to craft annual recreational management measures, and probably wouldn’t substantially reduce the need to change regulations from year to year.  As an alternative, staff recommended a set of actions that would reduce interannual variability, address the uncertainty in recreational catch and landings estimates, and generally address the question of uncertainty in the recreational management process.

Despite such concerns, the National Marine Fisheries Service’s Greater Atlantic Region Fisheries Office was intent on seeing the Harvest Control Rule adopted.  On June 3, Michael Pentony, the Regional Administrator, wrote a letter to the Chair of the Mid-Atlantic Council, which attacked the Council staff memo and threatened that, if the Council did not adopt some version of the Harvest Control Rule, that NMFS might do so on its own initiative.  The letter stated, in part:

“…This meeting is the culmination of four years of development, including two Scientific and Statistical Committee (SSC) reviews and the collaborate effort of the Plan Development Team (PDT) and Fishery Management Action Team (FMAT), the recreational reform working group, the Council and Commission, and state and Regional Office staff.  Given the tremendous collective efforts on this action, I was disappointed when I read the Council staff recommendation for, essentially, a status quo approach…

“A consistent theme in the discussion about recreational management over the last few years, from both Council and Board members as well as public comments, is that we should explicitly consider stock status when making determinations about recreational management measures.  This would allow us to better understand the impact that recreational catch is having on the stock, rather than simply comparing uncertain catch estimates to projection-based catch limits.  The current regulations, which the staff recommends remain the same, require us to propose measures that achieve the recreational annual catch limit (ACL), irrespective of stock status…

“The staff recommendation also makes a number of comments about the requirements of the Magnuson-Stevens Fishery Conservation and Management Act, some of which may be misleading to the reader or potentially imply that the alternatives are not legal.  To be clear, neither a recreational harvest limit nor a recreational sector-specific ACL are requirements of the Magnuson-Stevens Act.  While an overall ACL as well as accountability measures are required, these are designated to prevent overfishing at the stock level…Explicitly agreed upon, by the PDT/FMAT and presented at previous Council/Board meetings, was that the target level of recreational removals would be designed to ensure that overfishing does not occur…given the frequent stock assessments, reactive accountability measures, and proactive approach prescribed by the alternatives for setting measures, it is unclear how the new approaches would be in violation of the Act as implied by the Council staff memo…

“While recreational harvest may be projected to exceed an RHL, this does not always, and often has not, resulted in overfishing…

“It is my strong opinion that the Council/Board process and outcomes for 2022 clearly demonstrate that status quo recreational management for these fisheries is not an acceptable way to move forward…The Council staff recommendation is no better than the status quo…The current system is not working, and this is the Council and Board’s opportunity to weigh in on how to improve the process and management of recreational fisheries.  In the absence of meaningful action, NOAA’s National Marine Fisheries Service may be required to make regulatory changes under our own authority…As always, we will continue to improve management while taking into consideration its performance and the needs of our stakeholders.  [emphasis added]”

It was one of the more remarkable letters from a regional administrator that I have seen, in the way that it tried to direct both the Council and ASMFC toward a particular management action, and used the threat of independent NMFS action to do so.  

Having said that, it’s not clear where the authority to take such independent action would come from.

Magnuson-Stevens gives the regional fishery management councils broad discretion to craft fishery management plans, and any amendment to such plans, while placing narrow bounds on the Secretary of Commerce’s (and thus NMFS’) authority to adopt additional or contradictory management measures.  The limits of secretarial authority are spelled out in Section 304 of the statute.

Thus, if a regional fishery management council approves a management plan or amendment to such plan, NMFS must review such plan or amendment, and seek public comment thereon.  Within 30 days after the public comment period ends, NMFS may approve, disapprove, or partially approve the management action; if it fails to do so, such action will be deemed approved and go into effect.  If NMFS disapproves a plan in whole or in part, it must cite the applicable law on which such disapproval is based, explain why the plan is inconsistent with the law, and provide the relevant council with suggestions for conforming the plan to the law.

Magnuson-Stevens does not, however, empower NMFS to substitute its preferred management action for that recommended by the relevant council.

The current method of managing mid-Atlantic recreational fisheries was approved many years ago, so disapproval would not be an option (although NMFS could have disapproved Council staff’s recommendation, had it been adopted by the Council).  It is possible that NMFS could base independent action on Section 304(c)(1)(B) of Magnuson-Stevens, which allows the agency to act if

“the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management, [emphasis added]”

although if such independent action was challenged, the agency would have to convince the court that the Harvest Control Rule, or something like it, was a “necessary amendment,” that one or all of the four fisheries, already included in management plans, “requires” additional conservation and management, and that the Harvest Control Rule was a direct and appropriate response to such requirement.  It might be possible to make such a case, but arguing necessity, rather than a mere difference of opinion between NMFS and the Council, could have been a challenge.

Nevertheless, whether the threat was merely a bluff or whether NMFS would have carried it out, NMFS coertion seems to have worked.  

When the time came to vote, a motion to adopt the simplest Control Rule alternative, which would do little more than add consideration of stock status and uncertainty in the data to the current process, and impose a fixed reduction or liberalization in landings rather tailoring such reduction/liberalization to the expected landings (such motion made by New Jersey’s Adam Nowalsky and seconded, not surprisingly, by Michael Pentony) passed easily, with unanimous approval at the ASMFC and only three opposing votes at the Council.

While that wasn’t the ideal outcome, it probably wasn’t as bad as such outcome appeared a few months ago.

First, and most importantly, the motion included a sunset clause.  Unless the Control Rule approach is extended, or replaced by some other methodology, management of all four species will revert to the current process at the end of the 2025 fishing season.  Thus, if the Harvest Control Rule proves to be problematic, it can be abandoned in a couple of years without the need for any affirmative action on the part of managers.

Second, even the approach taken was a modification of one of the original proposals, which will make the Control Rule process somewhat more conservative than it would otherwise have been.

Finally, five of the six models needed to effectively implement the Harvest Control Rule probably will be ready to inform managers ahead of the 2023 season, which will make 2023 specification-setting less of a shot in the dark.  Only one scup model is expected to be unavailable, and given the big increase in recreational scup catch provided by the recently passed reallocation amendment, the delay of that model is unlikely to create any problems.  There will also be no models addressing the bluefish fishery, but given that bluefish are currently under a rebuilding plan, that is not an issue.

So now, we’ll see whether the Harvest Control Rule, at least in its current form, is going to work.

It will certainly achieve its primary objective—allowing anglers to harvest more black sea bass than they would under the current approach--and so reduce the number of complaints received by NMFS and state fishery managers.  But beyond that, nothing is certain.

Overfishing may well become a bigger issue.  Despite Mr. Pentony’s assertion that “it is unclear how the new approaches would be in violation of the Act as implied by the Council staff memo,” an example is easy to provide.  

Consider the black sea bass fishery.

Under the Harvest Control Rule approach adopted last Tuesday, should 2022 recreational harvest exceed the recreational harvest limit by a substantial amount—let’s say 40%, which would fall within historical overages—2023 recreational catch would only be reduced by 10%, because biomass is greater than 150% of the biomass target.  Since the stock-wide annual catch limit is equal to the acceptable biological catch, which in turn is set only about 6.5% below the overfishing limit, if the commercial sector lands its entire quota, and the commercial and recreational sectors both produce the predicted level of dead discards, the remaining, unaddressed recreational overage, if it recurs, would easily drive total catch above both the acceptable biological catch and the overfishing limit.

Such result seems to be in direct conflict with Magnuson-Stevens’ National Standard 1, which 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]”

Given that, the legal concerns in the Council staff memo seem entirely justified.

The other big question is how the Harvest Control Rule will deal with situations where fish stocks are below the biomass target, although not overfished.  

As noted in the SSC’s report to the Council and ASMFC, because both the Council risk policy and the Control Rule consider some of the same values, including stock size compared to target, they tend to reinforce one another, leading to management measures that are too liberal, and increase risk to the stock, when biomass levels are high, while also leading to measures that are unnecessarily restrictive when biomass is somewhere between target and threshold.

Right now, the only stock that falls into that latter category is summer flounder, but if black sea bass and scup stocks continue their steady decline, they can also be expected to also be at or below target in not too many years.  In adopting the Harvest Control Rule, both the Council and ASMFC may have traded higher scup and black sea bass catch in the short term for extended periods of lower catch levels for summer flounder, and perhaps all four species, in the future.

Managers who thought that they were eliminating a cause for stakeholder complaints may find themselves bitterly disappointed.

Still, what’s done is done.

For the sake of the fish, I hope that last Tuesday’s decision was the right one, and that the Harvest Control Rule will move the management process forward, and not cause harm to fish stocks.

Still, I need to be honest.  And honestly, I have my doubts.