FORAGE FISH CONSERVATION BILL AGAIN BEFORE CONGRESS

 

On September 26, Representatives Debbie Dingle (D-MI) and Brian Mast (R-FL) announced the reintroduction of the Forage Fish Conservation Act, a bill that was initially introduced over three years ago, in the 117^th Congress.

In explaining their rationale for introducing the bill, Reps. Dingle and Mast noted that its purpose was

“to strengthen key protections for fisheries and promote responsible management of forage fish.  The Forage Fish Conservation Act improves protections for forage fish—including herring and shad—that support marine ecosystems as well as other recreationally and commercially important species such as tuna, salmon, and cod.  These populations have experienced substantial decline because of human activity, which threatens the stability of marine ecosystems as well as opportunities for recreational fisherman [sic].  Currently, there are few management measures in place to address this decline.”

One of the most comprehensive forage fish protections now in place is the Mid-Atlantic Fishery Management Council’s Unmanaged Forage Omnibus Amendment, which was embodied in a final rule adopted by the National Marine Fisheries Service on August 28, 2017.

Because the Omnibus Amendment was just that—an amendment to all of the other fishery management plans overseen by the Mid-Atlantic Council--one of the criteria for a species being listed in, and protected by, such Amendment was that a fish, mollusk, or crustacean not only served as forage, but that it either served as forage for one or more of the species managed by the Mid-Atlantic Council or was caught as bycatch in one of the fisheries overseen by that council.  Thus, the National Marine Fisheries Service disapproved the proposed inclusion of bullet and frigate mackerels in the Omnibus Amendment, for

“While the amendment includes some information suggesting that these species are consumed by large pelagic species such as tuna, billfish, and sharks, it is not clear what portion of the diet of these species that bullet mackerel and/or frigate mackerel represent…[E]ven applying the lower forage thresholds used by the Council…there is no scientific evidence presented in this amendment that indicates bullet and frigate mackerel are forage for [Council] managed species…

“While there is evidence that a small amount of bullet mackerel was caught with bottom trawl gear that resulted in the landings of species managed by the Council, the information and analysis indicate co-occurrence that is not necessarily indicative of systematic bycatch in those fisheries…With no dealer reported landings of bullet mackerel and an average of less than 7,500 lb.…of frigate mackerel reported landed each year between 1996-2015…there is limited information to support that these species are caught as bycatch in managed fisheries…”

In the end, the Omnibus Amendment extended its protections to ten families and one species (the Atlantic saury) of fish, to pelagic mollusks (other than sharptail shortfin squid), and an array of zooplankton and other animals that attain a maximum length of less than one inch.  Landings of all such forage species must be recorded, only NMFS-permitted vessels may legally land them, and vessels are limited to a 1,700 pound possession limit of all designated forage species, combined.

However, to some extent, such protections are illusory, as the Omnibus Amendment also allows

“use of an experimental fishing permit…to support any new fishery or the expansion of existing fisheries for Mid-Atlantic forage species.  The Council would consider the results of any experimental fishing activity and other relevant information before deciding how to address future changes to the management of fisheries for Mid-Atlantic forage species.  Pursuant to existing regulations…the Regional Administrator already consults with the Council’s Executive Director before approving any exemption under an EFP request.”

Thus, although the Council’s stated intent in adopting the Omnibus Amendment was

“to prohibit the development of new and expansion of existing directed commercial fisheries on certain unmanaged forage species in Mid-Atlantic Federal waters,”

And even though

“The Council intends to prohibit such fisheries until they have had an adequate opportunity to assess the scientific information relating to any new or expanded directed fisheries and consider potential impacts to existing fisheries, fishing communities, and the marine ecosystem,”

the exempted fishing permit process provides fishermen with a potential opportunity to do an end run around the protections that the Omnibus Amendment would seem to provide.

Data on unmanaged forage species is necessarily limited, as funding for stock assessments is directed toward managed species, as are the human resources needed to produce such assessments.  Thus, there may often be little or no scientific information available on the status of forage fish stocks, or on the impacts of increased harvest of forage species on the species itself, on existing fisheries, or on marine ecosystems.  Yet under such circumstances, the exempted fishing permit process could frustrate any efforts to apply precautionary principles to forage fish management, and allow the directed harvest of such species without any knowledge of what then consequences of such harvest might be.

Fortunately, that hasn’t happened so far. 

The only request for an exempted fishing permit that might open up a fishery for an unmanaged Mid-Atlantic forage species was made in 2021, when three New Jersey companies sought permission to purse seine 6.6 million pounds of Atlantic thread herring (a/k/a “threadfin herring”).  The herring are a data-poor species, with so little scientific information available that the exempted fishery itself would be used to collect biological data.

NMFS Greater Atlantic Regional Fisheries Office was willing to take a long, hard look at the application before issuing an exempted fishing permit.  It noted that the proposed purse seine fishery could pose a threat to sea turtles and possibly Atlantic sturgeon, which are included on the list of threatened and endangered species.  It also noted that there are currently no purse seine fisheries operating in the Mid-Atlantic region, so the proposed thread herring fishery could not be covered by existing endangered species consultations, but instead would require a new consultation, along with the concomitant biological opinion and incidental take statement, along with possible measures to minimize the number of such incidental takes.

Mid-Atlantic Council staff have noted that

“GARFO staff are focused on other fishery management priorities, therefore, they are currently unable to assist with additional analyses to ensure compliance with [the National Environmental Policy Act] and [the Endangered Species Act].  The same is true for Council staff.  The applicants are currently considering the possibility to develop the necessary documents with assistance from contractors.”

Thus, it is unclear whether an exempted fishing permit for threadfin herring will ever be issued.  It is also unclear whether, if the fact pattern had been a little different and staff at the Council or regional office had a little more time to consider the application, an exempted fishing permit might have been issued, despite the lack of information regarding its possible impacts.

And given that only the Mid-Atlantic and Pacific fishery management councils have adopted relatively broad protections for forage species, directed fisheries for forage fish could be developed along much of the United States’ coastline with virtually no consideration for such species role in the ecosystem.

Thus, the Forage Fish Conservation Act addresses an important issue.

No copy of the bill’s text has yet been made readily available to the public.  However, assuming that it resembles the bill introduced in 2021, it will create basic protections for forage species by requiring each regional fishery management council’s scientific and statistical committee to provide advice on

“maintaining a sufficient abundance, diversity, and localized distribution of forage fish populations to support their role in marine ecosystems,”

while also requiring each such council to

“develop a list of unmanaged forage fish occurring in the area under its authority and prohibit the development of any new directed forage fish fishery until the Council has considered the best scientific information available and evaluated the potential impacts of forage fish harvest on existing fisheries , fishing communities, and the marine ecosystem; determined whether conservation and management of the forage fish fishery is needed; if a determination is made that the conservation and management is needed, prepared and submitted to the Secretary a fishery management plan or amendment…; and received final, approved regulations from the Secretary…”

Such explicit requirements would better protect forage fish everywhere in United States waters, and also make it less likely that the exempted fishing permit process could be used to work around existing forage fish protections.

The bill’s further requirement that

“when setting annual catch limits for forage fish fisheries, assess, specify, and reduce such limits by the diet needs of fish species and other marine wildlife, such as marine mammals and birds, for which forage fish is a significant part of their diet,”

would help to assure that, in managing forage species, maintaining their ability to fulfil their role in marine ecosystems would take priority over economic concerns. 

Unfortunately, while the Forage Fish Conservation Act is a good bill that deserves passage, the odds of it actually being signed into law sometime this year are vanishingly small.  There is no Senate companion, and no strong indication that any Senator is willing to champion such legislation.  To add to the headwinds militating against the bill’s passage, 2024 is an election year, and members of Congress will spend all of their time this October trying to maintain their seats for another term, and will not be paying particular attention to their legislative duties.  

In the likely event that Congress reconvenes for a lame duck session, legislators will be addressing higher-priority items, including appropriations bills for all branches of government, rather than legislation with a narrower focus, such as the forage fish bill.

However, the fact that some legislators are still willing to champion the forage fish issue should provide some reason to hope that forage fish legislation will eventually get the attention that it deserves, perhaps sometime after the new Congress convenes next January.