Last Friday, a subcommittee created by the Mid-Atlantic Fishery Management Council’s Scientific and Statistical Committee met to consider the so-called "Harvest Control Rule" that is currently being considered by both the Council and by the Atlantic States Marine Fisheries Commission’s Interstate Fishery Management Program Policy Board.
I’ve written about the Harvest Control Rule before. I’ve noted that, depending
on how it is implemented, the Harvest Control Rule might not comply with the
standards for fishery management measures established by the Magnuson-Stevens
Fishery Conservation and Management Act.
I’ve also noted that important
information needed to properly evaluate and implement the Harvest Control Rule
is not yet available, making the Council’s and Policy Board’s apparent haste to
implement it in time for the 2023 season appear to be extremely imprudent.
After listening to the scientists on the subcommittee
discuss the various issues surrounding the Harvest Control Rule, I came away even
more concerned than I was before Friday’s meeting began.
The problem is that the Harvest Control Rule is still very much
a work in progress, not a fully-developed fishery management tool. Dr. Lee Anderson, one of the scientists on
the subcommittee, may have best described its current status when he noted that
if he was peer-reviewing it for publication in a scientific journal, his
response would be to
“reject and resubmit”
after more work had been done. In his opinion,
“This is not a harvest control rule. At best, it is a search procedure for a specification.”
In retrospect, that comment makes a lot of sense, because
setting recreational specifications—size limits, bag limits, and seasons—is precisely
the Harvest Control Rule’s purpose. But
even then, it’s not clear that the Harvest Control Rule is up to the job. Dr. Anderson opined,
“I think that we should send it back”
and try to get a better explanation of how it works and how
it will be used.
“I don’t think we should say anything but ‘Come back and do your
homework.’”
When I began listening to the subcommittee meeting, I was
hoping that the panel of scientists would say something to assuage my fears about
the Harvest Control Rule’s inadequacies.
Instead, the panel discussion confirmed my many fears.
As I wrote in my comments to the Atlantic States Marine Fisheries
Commission,
“My support for the no-action option does not necessarily
reflect on the intrinsic merits of the various Harvest Control Rule approaches,
but is instead based on the lack of information critical to the Harvest Control
Rule debate, and to the implementation of any control rule that may be adopted, provided to members of the Interstate Fishery Management Program Policy Board (the
“Policy Board”), the Summer Flounder, Scup, and Black Sea Bass Management Board
(the “Management Board”), the Mid-Atlantic Fishery Management Council (the
“Council”), and to stakeholders and members of the general public.
“While the Draft Addenda go into great detail outlining how
the various control rule options would calculate management measures, and
provide some detail on how such options might impact anglers, they leave out
the most important information of all:
How each control rule option might affect the long-term management and
long-term health of the relevant fish stocks.
“Without such information, it is impossible to provide
intelligent comment.”
I wrote that as someone with undergraduate degrees in English
and History, along with a degree in Law; I’m not a biologist, and have no
formal training in the field, so it’s very possible that when I read the
Harvest Control Rule proposal, and listened to various discussions on the topic, I missed or
misunderstood important details. So when
someone--when more than one someone--with a doctorate in the relevant discipline voices concerns similar to
mine, it only makes me more worried that the Council and Policy Board are
pushing the project forward when it is still not at all ready for use.
Dr. Alexei Sharov, another subcommittee member, commented on
the complexity of some versions of the Harvest Control Rule. He acknowledged that
“It was difficult for me to read through them,”
and admitted that he had to read through some of the options several times before fully understanding how they were supposed to work.
Such admission inevitably leads to the
question of why and how such
options could, in their present form, be released to the public with any
expectation that the public could provide meaningful comment on the Harvest
Control Rule. I’ve been working on fisheries issues since the late 1970s, and have a
pretty decent lay understanding of how things work, yet I was unable to fully evaluate the various proposals.
Although I did submit comments, I did so feeling that such
submission was an exercise in futility; it seemed that putting
the Harvest Control Rule out for public comment was little more than a
bureaucratic exercise that let managers check off a needed box before they
inevitably adopted the measure ahead of the 2023 season.
Dr. Sharov also noted that
“The proposed document is not considering at all the efficiency
of the tools that we have,”
which are currently used to determine management
measures. Such remark was again similar
to a question I raised in my comments on the Harvest
Control Rule: Why is it deemed to be
superior to current management measures?”
“Most of [the] goals [of the Harvest Control Rule] can and
are being achieved under the current management program.
“The uncertainty inherent in the annual estimates of
recreational catch, landings, and effort falls within the general category of
“management uncertainty…” Such management uncertainty certainly exists in each
of the summer flounder, scup, black sea bass, and bluefish fisheries, yet the
monitoring committees responsible for recommending annual management measures
have consistently refused to acknowledge it, and instead set the management
uncertainty value at zero, the one value that everyone knows is wrong.
“By recognizing the existence of management uncertainty, and
setting a recreational harvest target at an appropriate level below the
recreational harvest limit, the Management Board and Council could create a
buffer that would allow for management uncertainty, lead to more stable and
predictable management measures, and significantly reduce incidents of “chasing
the RHL,” while remaining within the current management structure.”
Hearing a similar concern voiced by a very experienced and knowledgeable fisheries scientist only increases my fear that the Harvest Control Rule has not been well thought out, and that a lot more thinking is needed before it replaces the current management regime.
It also leads to continued worry that the Harvest
Control Rule is being rushed into production not because it is a better way to
manage recreational fisheries—although further analysis might well show that
such is the case—but because it will solve certain “people problems” besetting
fishery managers when they impose politically unpopular restrictions on
elements of the recreational community.
While the political problems have generally been associated
with the recreational black sea bass fishery, where a large biomass has
attracted large numbers of anglers, who have regularly exceeded the fishing
mortality rate that biologists have deemed appropriate, whatever Harvest
Control Rule is picked will apply not only to that species, but also to summer
flounder, bluefish, and scup. That, too,
may be a problem; Dr. Cynthia Jones observed that
“You would not pick the same rule for all of the species…all
of these fisheries have different characteristics.”
Yet, the Harvest Control Rule proposed by the Council and
Policy Board would do just that—take a one-size-fits-all approach to the
management of all four species, without scientific analysis of whether such uniform
approach was justified.
At one point in the discussion, Dr. Anderson made the seemingly
scathing comment that
“I’m very concerned that if this [Harvest Control Rule] goes
out, it is going to give the impression that there is science involved,”
a statement that should be enough to stop the process in its
tracks, at least until sufficient science really is involved in the creation of both the
Harvest Control Rule and the management measures that it produces.
The Council’s Scientific and Statistical Committee was originally
charged by both the Council and the Policy Board to
“provide a qualitative evaluation, in time for final action
at the June 2022 Council/Policy Board meeting, regarding the potential effect
of each of the five primary alternatives in the Harvest Control Rule
Addendum/Framework on the SSC’s assessment and application of risk and
uncertainties in determining [acceptable biological catch]. The intent is to provide the Council and
Policy Board with information to consider the tradeoffs among the different
alternatives with respect to the relative risk of overfishing, increasing
uncertainty, fishery stability, and the likelihood of reaching/remaining at
[the biomass target] for each approach at different biomass levels (e.g., [when
biomass is below target, but the stock is not overfished], the relative risk
among alternatives is (highest to lowest) E>C>B>A>D.”
But at the conclusion of Friday’s meeting, when Dr. Tom
Miller, who chairs the subcommittee, summed up what was had transpired over the
preceding two hours, he noted that the subcommittee would not be able to
comment on the tradeoffs between and relative merits of the various Harvest Control
Rule options, without understanding the specifications that each option might
produce. He also expressed misgivings
that some of the options could introduce even more uncertainty into the management
process.
Given that some of the top fisheries professionals in the
mid-Atlantic region were unable to determine the relative merits of the Harvest
Control Rule options, asking the public to comment on the same options, and
express opinions on which would be preferable, seems to have been both
unreasonable and unwise.
It would seem equally unreasonable and unwise to implement
the Harvest Control Rule, for even a single species, until enough information is
available for the subcommittee to form a reasoned opinion as to the options’
merits.
And that’s merely the problems on the scientific side. Some serious legal issues also exist.
As I’ve noted before, the
Magnuson-Stevens Fishery Conservation and Management Act set a number of minimum
standards for fishery conservation and management measures. One is 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 law requires that regional fishery management councils
“develop annual catch limits for each of its managed
fisheries that may not exceed the fishing level recommendations of its
scientific and statistical committee…”
Finally, Magnuson-Stevens requires that
“Conservation and management measures shall be based on the best
scientific information available.”
Yet comments made by various parties to last Fridays meeting
provide reason to doubt that the Harvest Control Rule, at least in some of its
possible configurations, would satisfy any of those legal requirements.
For example, when asked by Dr. Miller how that Harvest Control Rule would constrain recreational landings to the Acceptable Biological Catch, Julia Beatty, who is spearheading the Fishery Management Action Team working on the project, said that she couldn’t necessarily definitively say, “Yes, will not exceed ABC.”
She noted that the
Harvest Control Rule’s emphasis was not on the Acceptable Biological Catch, but
on not exceeding the Overfishing Limit.
In her explanation, Ms. Beatty said that in justifying recreational
management measures under the Harvest Control Rule, the Council and NMFS were
going to have to make the argument that the measures flowing from such rule
were appropriate for any given level of Acceptable Biological Catch.
Ms. Beatty later said that, pursuant to the Harvest Control
Rule, management measures might not be “directly connected” to the recreational
harvest limit, and admitted that, by adopting the Harvest Control Rule, the Council
and NMFS were
“not really proposing to tie [management measures] directly
back to a change in the [Acceptable Biological Catch] or something like that.”
She also stated that under the current management approach,
the Recreational Harvest Limit and Annual Catch limit “scale up and down,” but
that under the Harvest Control Rule, management
“measures won’t change with changes in [the Annual Catch
Limit].”
Such comments raise more than one legal issue. If fishery managers might not be able to “definitively
say” that management measures derived from the Harvest Control Rule won’t
exceed the Acceptable Biological Catch, will they be able to state in good
faith that such management measures have at least a 50% probability of preventing
overfishing? The answer to that question,
and so to the Harvest Control Rule’s legal adequacy, is not at all clear.
Also, since Ms. Beatty stated that the Harvest Control Rule
is focused on the Overfishing Limit, and not on the Acceptable Biological
Catch, and that management measures developed pursuant to the Harvest Control
Rule “won’t change with changes in [the Annual Catch Limit],” would such
measures comply with Magnuson-Stevens’ requirement that regional fishery
management councils, including the Mid-Atlantic Fishery Management Council, “develop
annual catch limits for each of its managed fisheries that may not exceed the
fishing level recommendations of its scientific and statistical committee?”
While the Council will still establish an Annual Catch
Limit, should the Harvest Control Rule be adopted, any such catch limit, as
well as the Acceptable Biological Catch on which such limit is based, would
seem to be little more than a sham if the Council’s management measures aren’t designed to constrain recreational landings at or below such level.
I may not be a biologist, but I am an attorney, and have
been one for more than forty years. I
can say with absolute conviction that I’m glad that it will be someone else,
and not me, who might have to defend such management measures-- which seem contrary
to the clear intent of Congress--should they be challenged in court.
Finally, there is the question of whether the Harvest
Control Rule, as currently proposed and given the information currently available,
can be considered “the best scientific information available,” and thus a suitable
tool for generating fishery management measures.
The current management approach has its flaws, but it has
generally managed to prevent overfishing of the four relevant stocks over the
past twenty years (bluefish arguably present an exception to that statement but, given that that overfishing in the bluefish fishery is attributable to inaccurate
recreational catch and landings data which severely understated the level of
recreational removals and the impact of anglers on the bluefish stock, and not
on the management approach itself, I believe that such recreational overfishing
does not significantly impeach the existing management process).
On the other hand, it was clear from last Friday’s discussion
that the scientists weren’t able to determine precisely how the Harvest Control
Rule might impact fish stocks. Perhaps
it would work, but Dr. Paul Rago, the
Chair of the full Scientific and Statistical Committee, also noted that the Harvest Control
Rule
“could be destabilizing”
and lead to anglers overshooting the target fishing
mortality rate. As noted above, other
biologists expressed concern that the many variables considered in some
versions of the Harvest Control Rule could introduce additional uncertainty
into the management process.
Thus, one could easily argue that the current approach to
setting recreational management measures is based on better science than the Harvest
Control Rule.
Whether viewed through the lens of science or law, the Harvest Control Rule looks like an unfinished project. It must be further refined and developed before being used to manage some of the Mid-Atlantic's most important fisheries.
Unfortunately, the Council, NMFS, and the
Policy Board seem
intent on rushing the Harvest Control Rule's adoption, whether or not it is
ripe for implementation. Despite the issues that were aired at last Friday’s meeting, there is
no indication that such intent has changed.
Adam Nowalsky, a Council member from New Jersey and that state’s
Legislative Proxy to the Policy Board attempted to defend implementation. He
noted that public comment on the Harvest Control Rule has already been solicited,
and seemed to suggest that it was too late to refine the Harvest Control Rule
and seek public comment again. But when a panel of very experienced, PhD-level fishery scientists can’t figure out exactly how it works, or how its various
incarnations might affect the health of fish stocks, it’s unreasonable to
expect the public to provide informed and meaningful comment on the same issues,
or to rely on any public comment that may have been made.
Seeking more public input, after such public has been fully and properly informed on how the Harvest Control Rule will affect managed fishery resources, would seem to be the only logical way to proceed.
But that is a decision for the Council and Policy Board, not the subcommittee, which will now prepare a report on the Harvest Control Rule for the full Scientific and Statistical Committee to consider, when it next meets at 12:30 p.m. on Tuesday, May 10. The Harvest Control Rule will be the first topic on the Committee agenda. On Friday, Dr. Miller, the subcommittee chair, said that such report would be based on three core points:
·
The Harvest Control Rule will have no impact on
establishing the Acceptable Biological Catch or Annual Catch Limit, which are
backward-looking actions based on the most recent stock assessment, while
whatever management measures are set will impact future fishery performance.
·
It is “very, very difficult” for the Scientific
and Statistical Committee to comment on the relative merits of the various
proposed Harvest Control Rule structures, given the lack of specificity of what
the resulting management measures might look like.
·
There is significant uncertainty surrounding how
the “binning process” used in the Harvest Control Rule would feed back into the
ability to control recreational catch; there are concerns that use of the Harvest
Control Rule could cause more variability in management measures if recreational
catch and landings aren’t sampled at appropriate intervals.
As mentioned earlier, the report will not attempt to respond
to the Council’s request for a risk analysis of the various Harvest Control Rule
proposals, because there is insufficient information available to make such analysis possible.
The Council, NMFS, and the Policy Board may want to implement the Harvest Control Rule for the 2023 fishing season, but the comments made at last Friday’s meeting cast severe doubt on the wisdom of such an action.
A fully thought out and properly designed incarnation of the Harvest Control Rule may, in fact, prove to be an important fishery management tool, but based on the comments at last Friday’s meeting, “fully thought out” and “properly designed” do not describe the Harvest Control Rule's current state.
I suspect that when the Scientific and Statistical Committee meet on May 10th, they may use different words, but their meaning will be much the same.
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