Sunday, January 29, 2023



When I look back over the past 68 years, fishing was probably never better than it was in the mid-1970s.

I was in college back then, spending most of the year in Worcester, Massachusetts.  The factories had mostly shut down; old, boarded-up, sometimes burnt-out brick buildings lined the roads outside the school.  Eventually, the tech industry would give new life to the town, but that wasn’t even a dream when I was there; the computers of my college years were big and slow, and still read their data from punchcards.  High-tech was a pocket calculator.

But when school let out in May, I came home to a very different world.  In contrast to the dying city, that saw a few struggling businesses trying to keep their heads above water, Long Island Sound was abuzz with life.  

Winter flounder still thrived in the bays, along with a big population of eels that teemed along the shoreline.  Striped bass were migrating in, both the dark, fin-rotted fish from the Hudson and the bright fish from the south, still speckled with sea lice from their recent migration; size ranged from shorts to a very, very few that weighed over 60 pounds.  Tautog—we called them “blackfish” back then—crowded into the shallows to spawn.  There were weakfish in the coves.  Atlantic mackerel swarmed in the middle of the Sound, and when they disappeared, big weakfish took their place.  Bluefish showed up around Memorial Day, with summer flounder and scup not far behind.

For pure variety, May might have been the best month of the year, but there was no time between April and November when an angler couldn’t go out and have a very good chance of catching something.  Because there were so many options, no one species received too much pressure.  Flounder were hit pretty hard in the spring and  the fall, and the bluefish got a lot of attention  when they blitzed bunker schools in the harbors and creeks, but over the course of a year, effort was well spread out.  

If the bass disappeared for a while, or the blackfish dispersed  as the water warmed, there was always another fish to take up the slack.  I worked in a tackle shop at the time, and could always put the customers on fish, if they were willing to try something new.

It's not that way anymore.  I was thinking of that the other day, while attending a meeting of New York’s Marine Resources Advisory Council, when some folks from the party boat fleet started complaining about more restrictive black sea bass rules.

It’s impossible to deny that black sea bass are very abundant; the last stock assessment update estimates that spawning stock biomass was more than twice the target level at the end of 2019.    

Abundance always drives angling effort; recreational fishermen are drawn to the fish that are easiest to catch.  While sea bass biomass has been high in recent years, there has been a decline in summer flounder abundance, which fell from an estimated 62,137 metric tons in 2010 to 39,516 metric tons at the end of 2017, and has increased to 47,397 metric tons two years later.  While summer flounder are a long way from being overfished, below-average recruitment in all but one of the years between 2011 and 2019 led to a significant decline in biomass, which now sits at 89% of its target level.

In response to such factors, fishermen on both private and for-hire vessels have shifted a significant amount of effort from summer flounder to black sea bass; while current effort estimates record such shift, they may be underestimating the actual numbers, as many boats that are supposedly targeting summer flounder are no longer doing so in the bays and inlets, or on deep-water lumps and other soft-bottom structure, but rather are fishing the edges of wrecks and similar hard-bottom features, where sea bass constitute a substantial incidental catch.

Today, some local party boats might not survive if they lost the summer black sea bass fishery; fifteen years ago, they spent most of the summer fishing closer inshore for summer flounder and, for the most part, only turned to the sea bass later in the fall, after their summer flounder fishing was done.

The relatively recent increase in black sea bass trips has led to higher landings, which frequently exceed the recreational harvest limit and even the recreational sector's annual catch limit; while such higher landings probably won’t create an immediate problem for the stock, given its high abundance, they will allow anglers to chip away at that abundance more quickly, and eventually drop it down to levels where even more restrictive restrictions must be imposed.

We see something similar happening with scup, which also enjoy a spawning stock biomass at about twice the target level, but which, because of low recruitment, has been declining quickly in recent years.  However scup, unlike black sea bass, have a built-in buffer against overfishing, as commercial landings have typically fallen well below the commercial quota in recent years.

Other traditional nearshore bottom fish have also fallen on hard times in recent years, with cod abundance near all-time lows, red hake—better known as “ling” in the New York Bight—undergoing rebuilding, and tautog limited to a very restrictive season that doesn’t permit harvest during the summer, when most recreational fishermen are on the water.

That shifts even more effort onto black sea bass and scup.

It’s even worse inside the bay, where the collapse of the winter flounder stock removed a dependably available species.  Couple the lack of winter flounder with the ban on summer tautog harvest and high size limits for summer flounder, scup, and black sea bass that make finding a legal fish inside the bay problematic, and it becomes all too clear why protected-waters anglers find themselves with little to target during the height of the summer, when most of them are on the water.  

The situation has gotten bad enough that New York’s Marine Resources Advisory Council is looking at placing restrictions on blowfish—a/k/a “northern puffer”—one of the few species, along with northern kingfish, that have been readily available to anglers fishing within the bay.

We see the same pattern in fisheries for the larger inshore predators.  When striped bass, bluefish, and weakfish are all available in reasonable numbers, they split the fishing pressure among them.  Some anglers prefer the challenge of fishing for bass, while others enjoy the fast action provided by bluefish.  Weakfish, rarely as abundant as the other two species, still absorb substantial fishing effort, particularly in the spring.  But in today’s environment, which sees bass and weakfish overfished and bluefish in the midst of rebuilding (a research track stock assessment recently found that bluefish are now at 60% of the biomass target, but no longer overfished), that sort of flexibility no longer exists.

Instead, anglers concentrate on whatever species is locally abundant at any given time; recreational landings of striped bass in 2022 were roughly twice what they were the year before, just because bass belonging to the large 2015 year class—fish that are badly needed to rebuild the stock—have now entered the 28- to 35-inch recreational slot size limit, and so are vulnerable to harvest.  Bluefish numbers have been low enough in most places that they can’t provide the bass with any sort of escape valve to mitigate the angling effort.

Back in the mid-1970s, the region’s recreational fishing industry wasn't dependent upon a couple species of fish.  Party boats could find plenty of winter flounder, summer flounder, bluefish, and scup.  Weekend warriors trying to catch a few hours of relaxation—and maybe some dinner—aboard their own boats had easy access to the same species, with the odd tautog or blowfish spicing up the catch.  More serious anglers haunted the hours between dusk and dawn in search of striped bass, fished the harbor blitzes for blues, or trolled Rebels and Redfins in the thin light before sunrise, hunting for tiderunner weakfish.

Today, with winter flounder gone, striped bass and weakfish overfished, bluefish and blackfish still being rebuilt, and summer flounder below its target levels, that sort of variety no longer exists.  Black sea bass, scup, and even the overfished striped bass bear the brunt of recreational fishing effort.  People complain about restrictive management measures, but the truth is that just those three species can’t long endure the effects of the many hundreds of thousands of angler trips taken each year.

To support the recreational fishery, the full panoply of recreational species must be restored.

That won’t be easy.  It won’t come without cost.  But, nonetheless, it needs to be done.








Thursday, January 26, 2023



I’ve been involved with fisheries management long enough to know that, whatever issue arises, fishermen tend to focus on what new management measures will mean for their next trip or for the next season.  Long-term impacts, for good or ill, are just about always ignored.

In my grumpier moments, which occur with some frequency, I’ve been known to comment that, where fisheries are concerned, anyone looking as much as one year ahead ought to be viewed as a visionary.

In my more reflective moments, I know that’s a little unfair, because such short-term focus isn’t limited to fisheries issues.  I spent just about all of my professional life on Wall Street, as in-house counsel at several large banks and brokers.  The short-term mindset was just as prevalent there.    

A thousand or more people might lose their jobs after a bad year, just so management could show investors that it was cutting expenses and so—at least in theory—increasing profits; the fact that the same managers might have to pay 25% more to replace those people once the business cycle turned around was never a part of the conversation.  And given that managers’ bonuses are usually based on the current year’s bottom line, and not on positioning their company for future success, perhaps that’s understandable.

But in fisheries, things are different—or at least they should be.  The key metric is maximum sustainable yield, not a maximum current yield that impoverishes the future.

Yet, while maintaining healthy, sustainable fisheries is the theoretical long-term goal, in practice, things aren’t that simple.  Short-term thinking often impinges on long-term goals.

We see that in current management actions.

The so-called “Harvest Control Rule” adopted by the Mid-Atlantic Fishery Management Council and Atlantic States Marine Fisheries Commission is supposedly intended to

“ensure that [management] measures prevent overfishing, are reflective of stock status, appropriately account for uncertainty in the recreational data, take into consideration angler preferences, and provide an appropriate level of stability and predictability in changes from year to year.”

Yet the control rule wasn’t needed to achieve most of those goals.  The method previously used to set recreational management measures, which largely compared past fishery performance with the recreational harvest limit for the upcoming year, was already very successful at preventing overfishing (the notable exception was bluefish, which did become overfished, largely because recreational fishing effort and the resultant fishing mortality had been grossly underestimated prior to 2018, as had the spawning stock biomass needed to produce maximum sustainable yield).  

As Julia Beatty, the Mid-Atlantic Council staff member who led the Fishery Management Action Team responsible for overseeing the development of such control rule noted in a memo to the Mid-Atlantic Council, the models used to consider angler preferences in the specification-setting process could readily be employed outside of the control rule context

And questions of uncertainty in recreational data, as well as those of regulatory stability and predictability, could easily be addressed by considering management uncertainty when setting annual recreational specifications, as is recommended in the National Marine Fisheries Service’s published guidelines.

Of course, adopting a management uncertainty buffer would reduce landings somewhat, and that could conflict with the final purported goal of management measures that are “reflective of stock status.”  And therein lies the problem, because we all should be perfectly clear about one thing—the motivation behind the Harvest Control Rule was far less a desire to improve the management process than it was to find a way to let anglers harvest greater amounts of currently abundant scup and black sea bass. 

That becomes very apparent when one reads the letter that Michael Pentony, regional director of the National Marine Fisheries Service’s Greater Atlantic Regional Fisheries Office, wrote to the Mid-Atlantic Council’s chair in support of the control rule.

“A consistent theme in the discussions 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 recommendations about recreational management measures…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 references recent improvements in the management process, including the use of multi-year averages and outlier identification.  As you know, these measures are not new, and even when used while considering recreational measures for 2022, they resulted in the need for a 20.7-percent reduction for black sea bass harvest and a 56-percent reduction for scup; reductions that many around the Council/Board table argued were unnecessary given the stock status and trend of these stocks…

“It is my strong opinion that the Council/Board outcomes for 2022 clearly demonstrate that status quo recreational management for these fisheries is not an acceptable way to move forward.  This should be particularly clear given that the Council and Board have explicitly asked us, as recently as this year, to disregard the current regulations by implementing measures that do not meet the requirements of the status quo regulations…”

Which all boils down to, “We need to change the rules, in order to let recreational kill more fish,” which, in all honestly, might not be an unreasonable position when stocks are at the levels of abundance currently enjoyed by scup and black sea bass.  

The problem is that the control rule will be in place when the stocks begin their next decline, when it may make it difficult to halt the decline before it gets out of hand.

After all, the Mid-Atlantic Council’s Scientific and Statistical Committee hardly gave the control rule a strong vote of confidence, while the Council itself admits that thecontrol rule

“cannot be demonstrated to proactively prevent overfishing every year in all circumstances,”

and that

“even at high biomass levels, exceeding the [recreational harvest limit] overages can result in overfishing,”

so it is pretty clear that exceeding the annual recreational catch limit can only up the odds that overfishing will occur.

It is also pretty clear that the Harvest Control Rule is closely focused on an immediate goal, increasing the harvest of abundant scup and black sea bass, while paying far less attention to the long-term health of fish stocks.

The southern New England/mid-Atlantic stock of winter flounder has long been the victim of the same sort of thinking.

That stock began declining in the 1980s, and has been on the skids ever since, but fishery managers never really took actions needed to stop the decline.  

For many years, the New England Fishery Management Council, which is responsible for managing winter flounder in federal waters, refused to set an annual harvest quota for the commercial fishery, instead choosing to manage the stock with “input controls” such as restricting a vessel’s days at sea. 

Such tentative actions never got overfishing under control, although they did keep short-term landings higher than they ought to have been.

At the end of 2006, Congress passed the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act, which required regional fishery management councils to specify hard-poundage annual catch limits for every managed species.  In response, the New England Council eventually set a quota for the southern stock of flounder; they waited until 2010 to do so, and by then, the flounder’s plight was dire enough that the quota was set at zero; a moratorium on landings had been imposed.

Unfortunately, that moratorium only applied to vessels fishing in, or at least licensed to fish in, federal waters.  State-waters fishing, both recreational and commercial, was governed by actions of the Atlantic States Marine Fisheries Commission, which did not adopt the federal moratorium, but instead adopted management measures intended to reduce inshore landings of southern New England/mid-Atlantic flounder by 46%, while permitting a limited fishery to continue. 

Even that imperfect management scenario didn’t last very long.  The federal moratorium was lifted in 2013, giving it far too little time to make a meaningful difference in the health of the southern winter flounder stock.  And in 2014, despite their acknowledgement that the southern New England/mid-Atlantic winter stock was “in such a desperate situation,” the ASMFC’s Winter Flounder Management Board increased the recreational fishing season from 60 days to 10 full months, and doubled the commercial trip limit from 50 to 100 pounds, largely accepting an argument that boiled down to “if federal-waters fishermen are allowed a large winter flounder bycatch, it’s only fair to let state-waters anglers kill more fish, too.”

Tom Fote, the Governor’s Appointee from New Jersey, also made the argument that

“when winter flounder starts doing it, it gets traffic into the tackle stores, the bait shops, the rowboats and things like that.”

Both arguments focused on short-term concerns, not the long-term health of the flounder, which is now in a more perilous state than ever.

In October 2021, the academic journal Marine and Coastal Fisheries published a paper titled “The Relative Influence of Age Structure, Predation, and Temperature on Stock-Recruitment Dynamics:  A Case Study of Southern New England/Mid-Atlantic Winter Flounder,” which suggested that, after suffering years of overfishing, the southern stock of winter flounder lacked the older, larger females needed to provide strong year classes when favorable conditions occur, and further suggested that given the current condition of the stock, a 10 to 15 year moratorium might be required to rebuild it.

Instead, relying upon a recent stock assessment update which included the assumption that current low recruitment will continue into the foreseeable future, and that given such recruitment, the stock is currently about as large as it is ever going to be, the New England Council recently decided to up the southern New England/mid-Atlantic stock quota by 53%, forestalling any possibility of a recovery.

The chance of rebuilding the stock in the long term, however good or slim such chance might be, was subordinated to a short-term increase in landings that, because of the poor condition of the stock, might not even occur.

Shortsighted management actions don’t always have to involve major regulatory changes, nor doom a stock to a permanently depleted state.  Others—undoubtedly most—are far more limited in scope and effect.

In 2019, New York’s commercial fishermen were having a very difficult time finding striped bass that fell within the state’s 28- to 38-inch commercial size limit, and ended up landing only 45% of the state’s quota.  In itself, that wasn’t surprising, as the striped bass stock was overfished, and neither commercial nor recreational fishermen were encountering as many bass as they had a few years before.  However, Maryland produced a strong year class of bass in 2015, which would hopefully help fishery managers rebuild the stock.

The 28-inch minimum size was originally adopted because it marked a point when most female striped bass matured (although some females do not mature until 34 inches in length).  On average, a 28-inch striped bass is seven years old.  But commercial fishermen were complaining that there were a lot of small striped bass around, and asked New York to lower the minimum slot size to 26 inches, so that such smaller, and more probably immature fish, could be landed.  The state complied, changing its slot to 26- to 38 inches in 2020; in doing so, they made at least some of the 2015s vulnerable to the fishery.

As a result, New York’s commercial fishermen landed 83% of their quota in 2020 and 98% in 2021, which increased their landings in the short term, but also removed immature fish from the spawning stock before they had an opportunity to reproduce.  New York’s commercial quota was supposedly reduced to offset such loss of production, but still—the 2015s would have eventually grown into the 28- to 38-inch slot; was the need to increase commercial landings so imperative that it justified prematurely removing females from the spawning stock?

Personally, I tend to doubt it,.

It is said that when the Haudenosaunee Nation—the people better known in New York and southern Canada as the Iroquois—formed the five- (and eventually six-) nation confederacy that became the Haudenosaunee, a leader known to history as the “Peacemaker” instructed

“when you sit in council for the welfare of the people, you must think not of yourself or of your family, not even of your generation…make your decision on behalf of the seven generations coming, so that they might enjoy what you have today.”

While there is no hard evidence as to when such injunction was handed down—speculation dates it to somewhere between 1142 and 1500—and the precise language may have been unintentionally altered a little over the years, the concept remains valid today.  When setting policy, focus should be on long-term outcomes, and not on the benefits or harms that might immediately accrue.

If managers could stop concerning themselves with who might lose some business, or forfeit some landings, in the short term, and work to guarantee the long-term sustainability of fisheries resources, both the public and the resources themselves would benefit.  While I’m not suggesting a multi-generational outlook, and recognize that the inherent uncertainties in the data would make such an outlook impossible, I do suggest that the focus should be at least five years out, as concentrating on nearer-term consequences only serves to stall management efforts and make it more likely that any such efforts will fail.

Looking out five years is not too much to ask.

As someone who has nearly completed seven decades on Earth, I can say with some certainty that five years passes quickly.  You hardly notice it passing at all.





Sunday, January 22, 2023



On Wednesday, February 1, the Atlantic States Marine Fisheries Commission’s Atlantic Striped Bass Management Board will decide whether the interstate transfer of unused commercial striped bass quota will be permitted, when it contemplates the Draft Addendum I to Amendment 7 to the Atlantic Striped Bass Interstate Fishery Management Plan.

Every time the question has been addressed before, the Management Board has decided that such transfers would be a bad idea.

At the August 2021 Management Board meeting, Robert Beal, the ASMFC’s executive director, remarked

“my recollection is that [such transfers] were not allowed while we were, even before my time the Board was trying to rebuild the striped bass stock.  Then once it was rebuilt, the Board sort of felt comfortable with not allowing transfers.  Part of it had to do with where those fish came from.

“If you move fish from North Carolina to Maine, well North Carolina to Massachusetts, that’s probably the farthest commercial quotas.  You know with that impact differentially, where those fish came from and the spawning populations and that sort of thing.  But again, most of it is a holdover from the rebuilding days of the early ‘90s.”

Unfortunately, his comment didn’t convince the Management Board to cease work on Addendum I, even though the striped bass stock is currently overfished, is hopefully in the midst of rebuilding, and the same logic would seem to apply.

We could also go back to the Management Board’s October 2014 meeting, when the same issue arose with respect to Addendum IV to Amendment 6 to the Atlantic Striped Bass Interstate Fishery Management Plan, and Charlton Godwin, then the Chair of the ASMFC’s Atlantic Striped Bass Technical Committee, advised the Board that

“The technical committee recommends taking the harvest reductions from the 2013 total commercial harvest and let the board reallocate as they see fit.  Relative to the relative to the [sic] commercial quota transfer, the technical committee is concerned that at a time when we’re needing to take reductions, if the present reductions are taken from Amendment 6 quota instead of the 2013 level of harvest, allowing commercial transfers in conjunction with that could have to potential to increase harvest.  The technical committee also wants to point out that if transfers are used, conservation equivalency would need to be maintained between states if they have different size limits.  [emphasis added]”

Although the same concerns are valid today, the current Management Board has, so far, refused to accept the wisdom of the past, and may well decide to allow interstate quota transfers despite the near certainty that fishing mortality will increase, and without any meaningful consideration for the effects of transferring fish from one state to another regardless of where such fish were spawned or the commercial regulations that each state has in place.

It’s not clear why the Management Board would want to do so; the states that host coastal commercial striped bass fisheries, other than the State of Delaware, have expressed no discontent with their current quotas and have often failed to land their existing quotas in recent years, although the aging 2011 and 2015 year classes are now leading to higher harvests.  

Delaware may have a legitimate argument that, pursuant to Amendment 6 to the Interstate Fishery Management Plan for Atlantic Striped Bass, it was the only coastal state not allowed to resume the commercial harvest of striped bass at historical levels, but if that is the case, the Management Board should, as Mr. Godwin suggested back in 2014, merely readjust the commercial allocations to provide Delaware with the fish that it was denied under Amendment 6.

Until the striped bass stock is fully restored, the Management Board should not be considering any management action likely to increase fishing mortality.  (At this point, some may point out that 2022's substantially increased recreational landings far overshadow any increase in commercial landings attributable to Addendum I; while such point is valid, such increase in recreational landings does not justify further compounding the damage by adopting Addendum I.  Instead, once the full magnitude of the recreational landings have been determined later this spring, the Management Board must initiate another action to reduce recreational fishing mortality to a level that will allow the stock to rebuild by the 2029 deadline, and do so as quickly as possible.)

The Management Board held hearings and invited public comment on Addendum I, and it is clear that the vast majority of stakeholders agree with that proposition.

Although the comment period only closed on January 13, Emilie Franke, the ASMFC’s Fishery Management Plan Coordinator for Atlantic Striped Bass, had all of the comments tabulated and summarized by the 17th.  That was a remarkably quick turnaround, for Ms. Franke had received 2,147 individual comments addressing Addendum I, along with 18 other comments that addressed striped bass, but were irrelevant to the addendum’s core issues.

Of the relevant comments, 186 were made at one of the hearings held, either live or online, in states between North Carolina and Maine, while 1,961 were provided in writing.  Of all of those comments, 2,105—a little over 98 percentopposed any form of commercial quota transfer.

Breaking the numbers down a little more, of the 741 written comments sent in by individuals who addressed the core issues of Addendum I (another 18 individual comments did not address such issues), 731—98.65 percent—opposed commercial quota transfers, as did 29 out of the 30 letters submitted by organizations and 100% of the 1,190 comments sent in via any of the six form letters that were circulated by various organizations.  155 out of the 186 people commenting at the various hearings—83.33 percent—also opposed quota transfers, although that percentage was skewed downward by the 12 Delaware commercial fishermen who, quite naturally, favored virtually unrestricted transfers of quota.

Those who favored some sort of quota transfer had four options to choose from.  Option B allowed unrestricted transfer of unused quota, although it did impose a 5 percent “conservation tax” when the stock was overfished, while Option C would not allow any transfers under such circumstances, but placed no restrictions on them otherwise.  Options D and E called for the Management Board to determine whether transfers would be allowed in any given year, and gave the Board full discretion to impose any restrictions on transfers that it deemed appropriate; like the previous pair of options, when the stock was overfished, Option D would impose a 5% conservation tax while Option E would permit no transfers at all.

Of the 42 comments favoring commercial transfers, a clear majority of 25 persons—59.5 percent—favored Option B, the most permissive choice; once again, the 12 Delaware commercial fishermen skewed that result.  Option E, the least permissive, scored a distant second place, being the choice of just 8, or 19 percent, of transfer supporters.

So what will the Management Board do?

Right now, it’s difficult to say.  Given that most Management Board members don’t stand to benefit from quota transfers of any kind—Maine, New Hampshire, Connecticut, New Jersey, Pennsylvania and the District of Columbia don’t permit commercial striped bass fishing, the Potomac River Fisheries Commission has no coastal commercial fishery, North Carolina has a coastal commercial fishery but has had no commercial landings in recent years, and the United States Fish and Wildlife Service and National Marine Fisheries Service do not directly oversee commercial striped bass fishing—it would seem logical that the overwhelming stakeholder response would seal the fate of commercial quota transfers before the Management Board meeting was called to order.

Unfortunately, the Management Board doesn’t always operate on logic.  There are interpersonal dynamics going on, that make it difficult to handicap many issues.  Some state fishery managers might feel sympathy for their Delaware counterpart, knowing how much they’d hate being in his position, with an inequitably small share of the quota and fishermen calling for more.  That sort of sympathy can easily lead to such managers approving one of the transfer options, justifying it to themselves by thinking “We allow transfer quotas for other species,” and “It’s a quota we’ve already approved,” while doing their best not to think about the effects of any fishing mortality increase on the striped bass recovery effort.

Cooperative considerations play a role, too.  What happens in the Delaware River and Delaware Bay directly impacts three states:  New Jersey, Pennsylvania, and Delaware, which often work together to resolve issues impacting the estuary.  If increasing its commercial striped bass harvest is sufficiently important to Delaware—and Delaware has made it very clear that it is—will neighboring states support quota transfers as a way of strengthening interstate partnerships?

It's possible that they will.

Stakeholders often view the public hearing process as a sort of referendum, in which the option that gets the most votes ought to win, but that’s not exactly how it works.  Public comment can be, and often is, very important—it played a critical role in winning a favorable outcome on Amendment 7 to the striped bass management plan—but it is not always the decisive factor.

And that’s not always a bad thing.  We wouldn’t, for example, want the Management Board to ignore scientific advice, just because a majority of the comments called for them to do so.

However, that’s not the issue here.  The science, if anything, calls for keeping striped bass mortality as low as practicable, in order to facilitate a timely recovery.  What we’re dealing with in Addendum I is, for the most part, not science, but policy.  And when it comes to setting policy, public opinion should be at the forefront of managers’ minds.

For striped bass, like other marine resources, are public resources; although the ASMFC isn’t bound by the Magnuson-Stevens Fishery Conservation and Management Act, one key tenet of Magnuson-Stevens should arguably guide every fishery management decision, no matter who makes it or where it is made:  Such decisions should promote the greatest overall benefit to the nation as a whole, rather than to any particular user group.

Right now, the public, and the nation, are more likely to suffer harm, rather than enjoy any benefit, if striped bass fishing mortality increases.  

Thus, the Management Board’s duty is clear.




Thursday, January 19, 2023



Over the past few weeks, and also over the past few years, I’ve written about the so-called “Harvest Control Rule” that was adopted by the Mid-Atlantic Fishery Management Council and Atlantic States Maine Fisheries Commission. 

Recently, I’ve written about the notable lack of scientific support that such Control Rule received, and also about the confusion that ensued when managers first used the Control Rule to set 2023 recreational specifications for summer flounder, scup, and black sea bass.  

Previously, I’ve written about how the Control Rule instructs the Council and ASMFC to adopt recreational landings limits that exceed the recreational harvest limit and even the annual catch limits for managed species, and how such excesses, although condoned by fisheries managers, might conflict with the clear requirements of the Magnuson-Stevens Fishery Conservation and Management Act.

The Control Rule concept supposedly arose out of casual conversations between a handful of people speaking after Mid-Atlantic Council meetings, but the concept was first formally proposed in a letter sent to the Council by six recreational fishing industry organizations, including the Center for Sportfishing Policy, Coastal Conservation Association, Recreational Fishing Alliance, American Sportfishing Association, Congressional Sportsmen’s Foundation, and National Marine Manufacturer’s Association.  

With the exception of the Recreational Fishing Alliance, all such organizations are affiliated with the Center for Sportfishing Policy, issue joint press releases, and for all practical purposes can be considered a single entity.  The Center’s letter read, in part,

“Our organizations represent the recreational fishing and boating industry and our nation’s anglers, and we strongly support NOAA Fisheries using management approaches for our sector other than pound-based quotas, which are best suited for commercial fisheries.  Alternative methods are used by coastal states to manage marine fisheries and those methods are better suited to recreational fishing in state—or federal waters.  Many of the challenges facing federal fisheries managers and the resulting frustration from anglers is rooted in management approaches designed for commercial fishing being shoe-horned and contorted to manage recreational fishing…

“Recreational and commercial fishing are fundamentally different activities and should be managed differently.  Yet, antiquated, one-size-fits-all federal policies have been unnecessarily limiting the public’s access to our nation’s abundant natural resources.”

Such language was new to the Mid-Atlantic Fishery Management Council, but anyone who follows marine fisheries management on a coastwide basis, along with folks who regularly read One Angler’s Voyage, will immediately recognize it as the same sort of rhetoric that the same cabal of organizations have long been spewing in the Gulf of Mexico and, more recently, in the South Atlantic.

In its concerted drive to give the public more “access” to the nation’s marine resources—that is, in its constant effort to find ways to let anglers kill more fish than science-based management allows—the Center continues to promote the myth that “alternative measures used by coastal states” will adequately conserve fish stocks heavily targeted by anglers. 

In doing so, it conveniently forgets to talk about the condition of many such state-managed fisheries, with Atlantic striped bass overfished, red drum and speckled trout running into difficulties in the Gulf of Mexico, and southern flounder troubled throughout its range.  Other state-managed fisheries are also in decline.

Yet, perhaps because higher recreational harvest levels might, in the short term, allow its members to sell more boats, engines, and fishing gear, it is that sort of ineffective management that the Center is trying to foist on federally-managed fisheries.

One of the Center’s affiliates, the Coastal Conservation Association, has even gone so far as to claim,

“Changes in recreational regulations have rarely, if ever, resulted in a direct fishery recovery.”

Perhaps those folks on the Gulf just never heard of striped bass…

But whether they’ve heard of striped bass or not, it’s clear that maintaining the long-term health of fish stocks is not the Center's primary concern.  Its letter to the Council notes that

“Over many decades, states have proven the ability to balance conservation and access by managing America’s millions of saltwater anglers through these [alternative] approaches in state waters.  An Annual Catch Limit is simply a trigger to limit fishing mortality in some form.  It does not necessarily mean hard-pound quotas only…

“We applaud the Mid-Atlantic Council for their Recreational Management Reform initiative and have developed the enclosed harvest control rule as a demonstration that our industry is ready to work collaboratively with the Councils and NOAA Fisheries to pursue management alternatives better suited to recreational fisheries.  We ask the Council to continue to develop this harvest control rule as part of the management alternatives considered in the allocation amendment for summer flounder, scup, and black sea bass.”

As that language suggests, the Mid-Atlantic Harvest Control Rule was originally conceived as a way to steal some additional quota from the commercial fishery.  By allowing anglers to regularly exceed their recreational harvest limit and annual catch limit, it will create a de facto reallocation of fishery resources in favor of the recreational sector.  Officially, the Council admits that using the Control Rule to reallocate fishery resources violates the provisions of Magnuson-Stevens.  Unofficially, however, the Fishery Management Action Team looking at the Control Rule, along with the Recreational Reform Steering Committee established by the Council and the ASMFC,

“expressed an interest in further considering the aspects of the proposal which address the setting of recreational management measures, considered independently from the commercial/recreational allocation aspects of the proposal.”

So, when all of the euphemistic and seemingly idealistic language is stripped away, the Control Rule is and always was primarily about greater recreational “access”—that is, about anglers killing more fish—than science- and data-based management allowed, even if some of those fish had to be quietly stolen away from the commercial sector.

Thus, it is interesting to see where things stand now that the comment period for the proposed rule to adopt the Control Rule has closed.  

If the Control Rule was, as the Center argued, a great boon for the recreational fishing sector, one might think that many recreational fishermen and recreational fishing organizations would have stood up to support it.  Yet, when we look at the comments received since the proposed rule was published on December 15, we find only a single letter of support.  And that letter was written by the same coterie of usual suspects:  The Center for Sportfishing Policy, and its affiliated Coastal Conservation Association, American Sportfishing Association, National Marine Manufacturers Association, and Congressional Sportsmen’s Foundation.       

None of the many organizations that usually support proposals likely to lead to higher recreational landings—not the various party and charter boat groups, not the Jersey Coast Anglers Association, not even the Recreational Fishing Alliance, which signed on to the original Control Rule letter and can almost always be counted on to get behind anything that might yield a few more dead fish—asked the National Marine Fisheries Service to approve the proposed rule.

It would seem difficult to argue that the Control Rule has broad recreational support when even those groups aren't seeking its approval, and its only public supporters are the same group of malcontents that are attacking federal fisheries management elsewhere on the coast.

On the other hand, there were four conservation groups which called for the Control Rule to be disapproved.  The Marine Fish Conservation Network argued that the Control Rule was inconsistent with various provisions of Magnuson-Stevens, including national standard 1, which states that all fishery management measures must prevent overfishing, and national standard 2, which requires such measures to be based on the best scientific information available.  The Network also noted that the Control Rule, which can call for recreational landings targets that exceed the sector’s annual catch limit, is not in accord with other sections of Magnuson-Stevens which require regional fishery management councils to establish annual catch limits, and hold fishermen accountable when such limits are exceeded.

Three other organizations, the Natural Resources Defense Council, The Ocean Conservancy, and the Conservation Law Foundation, jointly submitted a tightly written and well-reasoned letter in opposition to the Control Rule.  Such groups addressed many of the same points made in the Marine Fish Conservation Network comments, while also noting that by allowing recreational landings targets in excess of the recreational harvest limit and annual catch limit, the Control Rule results in an illegal reallocation of fishery resources.

The organizational letters in opposition to the proposed rule went into far greater detail than did the sole letter in support, which provided little in the way of reasoned argument as to why the Control Rule should be approved.

There were also seven letters sent by individuals, including my own.  Six of the seven letters did not address the supposed merits of the proposed rule.  Five didn’t even mention the Control Rule at all, instead providing comments that included complaints such as

“How about leaving rod and reel fishermen alone?”

“Virginias [sic] hate and are tired of y’all,”

“I can see no reason why black sea bass season and harvest cannot continue past the month of December when they are readily abundant and according to your data, a stock that is rebuilt,”

“Stop closing the sea bass during the summer,”


 “Over the past 30 plus years, fishing on a head-boat has become no longer viable.  To spend money on gas, tolls, tackle food [sic]—and to continually throw back sea bass and go home with an empty cooler, is not worth it.”

The sixth letter, which sort-of acknowledged the proposed rule’s existence, offered no opinion, but merely asked

“Please provide more detail on how data was collected from fishing user groups ie fishermen, to help shape this proposal and show specifically where the data was used in shaping this proposal,”

which, in some ways wasn’t unreasonable, because the Council never did explain how—or if—the Control Rule’s management recommendations were supported by data, or by any sort of science at all.

But the greater point is that the proposed rule, which would authorize use of the Control Rule to manage recreational fisheries in the mid-Atlantic, didn’t get a lot of—let’s be honest, didn’t get any—enthusiastic support from anyone other than the same small group of industry organizations that oppose firm, science-driven annual catch limits for any recreational fishery.

However, the Control Rule did attract some well-reasoned opposition from legitimate conservation groups, for both legal and practical reasons.

And that’s something that leadership at the National Oceanographic and Atmospheric Administration ought to take into account.  NOAA counsel ought to take a long look at the arguments that the proposed rule is in conflict with Magnuson-Stevens, while NOAA administrators, including those at every level of NMFS, ought to look themselves in the eye and ask why they ought to abandon a time-tested management approach, which has rebuilt a number of mid-Atlantic stocks and helped grow some to previously unrecorded abundance, in favor of a new and scientifically questionable Control Rule that could cause stocks to decline.

Sure, there might be some short-term benefits to the industry that supports the Control Rule.  But the notable lack of support strongly suggests that there might be some real long-term pain for everyone else.

Sunday, January 15, 2023



Gulf of Maine cod have been in trouble for a long time.

The most recent management-track stock assessment, completed in 2021, found the stock to be badly overfished, with biomass at a mere 5% of the target level, which is the biomass needed to achieve maximum sustainable yield.  Depending upon the assumed level of natural mortality, it may or may not be experiencing overfishing.

Compared to a management-track assessment completed two years earlier, the 2021 assessment modestly reduced the target biomass which, again depending on the assumed level of natural mortality, was either lowered from 42,692 metric tons to 39,912 mt, or from 63,867 mt to 60,010 mt; the latest assessment also reduced the corresponding estimates of maximum sustainable yield from either 7,580 mt to 7,171 mt, or from 11,420 mt to 10,873 mt.  In what seems like somewhat better news, the mean number of fish recruited into the population each year increased from either 4,377,000 to 4,677,000 recruits or from 8,464,000 to 9,249,000 recruits, with natural mortality again determining which one is closer to the truth.  

Yet, while the estimates of biomass, MSY, and recruitment vary depending on whether biologists assume a constant M=0.20 or a rate that ramps from M=0.20 to M=0.40, the fishing mortality threshold remains relatively constant, at F=0.173 for the former natural mortality rate, and F=0.175 for the latter.  

Still, despite slightly improved recruitment, any fish stock that can increase tenfold and still be perched right on the biomass threshold that defines an overfished stock is in a very bad place.

Thus, the New England Fishery Management Council’s announcement that it had approved new fishery management measures that had a 70% probability of rebuilding the stock within ten years came as a very big surprise.

Rebuilding the stock to its target level by 2033 will require the stock to increase to twenty times its current size within just ten years.  The New England Council proposes to do that by reducing the fishing mortality rate to 0.104, about 60% of the fishing mortality threshold rate, and keep it there for a decade, at which point the stock will hopefully be rebuilt.

The rebuilding plan was included in Framework Adjustment 65 to the Northeast Multispecies Fishery Management Plan, which was adopted by the New England Council at its December 2022 meeting, and is now awaiting final approval by the National Marine Fisheries Service.  Materials from the December meeting explain,

“The rebuilding plan for Gulf of Maine (GOM) cod developed under Amendment 13 was revised in Framework Adjustment 61 due to inadequate progress.  In an August 13, 2021, [sic] letter from [NMFS’ Greater Atlantic Region Fisheries Office] to [the New England Fishery Management Council], GOM cod was identified as making inadequate progress toward rebuilding following the 2019 stock assessment.  The letter explains that the Council must implement a new rebuilding plan withing two years of the date of notice (i.e., by August 13, 2023), as required by Section 304(e)(3) of [the Magnuson-Stevens Fishery Conservation and Management Act].  Furthermore, the cod rebuilding plan may need to be modified after the 2023 research track [stock assessment] for Atlantic cod is completed…”

The meeting materials state that, if fishing mortality could somehow be reduced to zero, there was a 67% probability that the stock could be rebuilt within seven years; unfortunately, eliminating all fishing mortality is a practical impossibility, as some level of bycatch will always occur, even setting aside the likelihood of some illegal landings by both commercial and recreational fishermen.  But even if fishing mortality was cut by a lesser amount, the stock might still be rebuilt; if the fishing mortality rate could be reduced to just half of the fishing mortality threshold, there is a 52% chance of rebuilding the stock within eight years, while a fishing mortality rate equal to 75% of such threshold has a 58% chance of rebuilding the stock within a decade.

However, such rosy projections require us to ignore that troublesome devil that is inevitably found carousing among the details.  

Earlier, I noted that both the 2019 and the more recent 2021 management-track stock assessments produced two different estimates of target biomass, maximum sustainable yield, and recruitment, which differed substantially depending on whether the assessors assumed a consistent, and relatively low, natural mortality rate of 0.20, or whether they assumed that natural mortality ramped between 0.20 and 0.40.

Framework 65 only has a 70% chance of rebuilding the stock within 10 years if the lower, M=0.20 assumption holds true.  Otherwise, the meeting materials advise,

“Projections examined under the M-ramp, M=0.4 model, which assumes natural mortality remains high, indicates the stock cannot rebuild even when F=0.”

Right now, managers aren’t sure which natural mortality model best reflects reality, so the best that it can do is hope that it is M=0.20, and that rebuilding can be achieved.

At the same time, the meeting materials reveal that uncertainty regarding the natural mortality rate isn’t the only concern.  It also notes that

“this stock has exhibited below average recruitment in recent years, and recruitment may not increase as is assumed in the rebuilding projections,”


“Based on experience with many groundfish projections, concerns remain that long term projections tend to be overly optimistic such that future levels of biomass are overestimated, and fishing mortality is underestimated.”

So while, in the largely distant past, I did a fair amount of cod fishing on boats departing various ports in New York and New England, and would love to see the stock rebuild in time for me to put a few more fish on ice before I end up dropping dead, I’m not getting my hopes up.  When I first heard that there was a 70% chance of rebuilding Gulf of Maine cod by 2033, it sounded too good to be true.  Now that I’ve researched the issue a bit, it’s clear that such 70% probability reflects the sort of best-case scenario that usually just paves the road to disappointment.

I also can’t help thinking about Newfoundland’s northern cod stock.

Like the Gulf of Maine cod, the fish off Newfoundland were once incredibly abundant, and supported a very large, thriving fishing industry.  Like the Gulf of Maine cod, the fish off Newfoundland attracted too much attention, from both local vessels, which became more and more sophisticated as time went on, and also from foreign fleets, until such fleets were pushed farther offshore.  And like the Gulf of Maine cod, the Newfoundland cod stock collapsed.

The biomass of Newfoundland cod fell so far that, in 1992, Canada shut down the fishery and put 30,000 fishermen out of work.  It has since allowed what it calls a “stewardship” fishery that has been permitted to land between 9,500 and 13,000 metric tons of cod each year, but such landings are tiny compared to the hundreds of thousands of tons landed in years before the collapse.  Yet, 30 years later, the Newfoundland cod stock has neither been rebuilt nor even achieved substantial growth, and some conservation advocates are saying that landings must be capped at 5,000 metric tons if the stock is to have a realistic chance at recovery.

Conditions affecting the Newfoundland fishery are not the same as those impacting the Gulf of Maine, although both stocks of cod are victims of severe overfishing, and both now face the prospect of significant ocean warming, and its impacts on the ecosystems in which the fish must survive.  Even so, it’s hard to ignore the voice in the back of my head that keeps saying that Gulf of Maine cod are more apt to follow the Newfoundland fish’s fate, rather than to enjoy a speedy recovery.

Yet, there is nothing lost by putting the proposed rebuilding plan in place, and seeing how the Gulf of Maine cod respond.

Maybe they’ll beat the odds, and conform to the best-case scenario.  Even if that doubtless unlikely outcome does not occur, reducing the fishing mortality rate could spur a modest recovery, if not a full rebuilding.  While a fully rebuilt stock is the ideal, and certainly a worthwhile goal, if the Gulf of Maine stock only manages to double or triple its numbers by 2033, and not achieve the 20-fold increase needed to fully rebuild, it will be in a better place than it is in today.

And while that’s not good enough in the long term, it’s far from the worst of all the possible outcomes.



Thursday, January 12, 2023



Each year, before the Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission’s (ASMFC’s) Summer Flounder, Scup, and Black Sea Bass Management Board (Management Board) meet in December to set the recreational specification for the next fishing season, the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee), made up of scientists from the National Marine Fisheries Service (NMFS), the ASMFC, and the affected states, reviews the relevant data and provides management recommendations.

In 2022, for the first time, the Monitoring Committee based such recommendations on the Control Rule’s outputs. That required the Monitoring Committee to first determine what the 2023 recreational landings were likely to be if 2022 management measures remained in effect. To help in that determination, the Monitoring Committee had access to two new management models.

One, the Recreational Demand Model (RDM), was developed at NMFS’ Northeast Fisheries Science Center (Science Center), and considered factors that included regulations, the relative size and availability of summer flounder, scup, and black sea bass, and angler preferences with respect to harvest and discards. The other, the Recreational Fleet Dynamics Model (RFDM), was developed by the Rhode Island Department of Environmental Management (DEM), and focused on management measures, although other factors also played a role.


In making its recommendations to the Council and Management Board, the Monitoring Committee assumed that it could use whichever of the models seemed more appropriate; it ended up using the RFDM to guide management actions for scup and black sea bass, and the RDM to inform summer flounder management.

Control Rule Complicates Scup Debate

When the RDFM was used to project 2023 scup landings, it predicted that such landings would be 14.42 million pounds. Because of the uncertainties inherent in the projection process, the “confidence interval” (CI) around such estimate was very wide; the best the Monitoring Committee could say was that, while landings probably wouldn’t exactly equal the 14.42 million pound figure, there was an 80% probability that they would fall somewhere between 8.95 and 23.08 million pounds.


The 2023 recreational harvest limit (RHL) is 9.27 million pounds, which just barely fell within the lower bound of that CI. Because the scup stock is deemed to be “very large,” with spawning stock biomass more than 150% of the target, the Control Rule called for recreational landings to be increased by 10%. Yet recreational landings were already well above the 2022 RHL; if the commercial fishery caught its entire quota, the 10% increase could lead to overfishing.


National Standard 1, included in the Magnuson-Stevens Fishery Conservation and Management Act (MSA) 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]”


In 2000, a federal appellate court interpreted that language in Natural Resources Defense Fund v. Daley. It found that, in order to pass legal muster, a fishery management measure must have at least a 50% probability of preventing overfishing, and observed that “Only in Superman Comics’ Bizarro world, where reality is turned upside down, could the [National Marine Fisheries] Service reasonably conclude that a measure that is at least four times as likely to fail as succeed offers a ‘fairly high level of confidence'” that overfishing will not occur.


Yet, while the Monitoring Committee acknowledged that a 10% increase in recreational scup landings could lead to overfishing, it expressed little concern, merely commenting, “given recent trends in commercial harvest it is not expected that the commercial sector will harvest the full commercial quota and therefor it is less likely that the scup fishery will exceed the OFL in 2023. [emphasis added]”


“Less likely” is not synonymous with “unlikely;” absent a 50% probability that overfishing would not occur in 2023, an increase in scup landings would not have satisfied the requirements of Natural Resources Defense Fund v. Daley, and might well have taken the Council on its first trip to Bizarro world in more than 20 years.


That eventuality was avoided when, on December 8, Mr. Pentony sent another letter to the Council, which advised that the Greater Atlantic Regional Fisheries Office (GARFO) considered the RDM, and not the RFDM used to set the scup specifications, to be the best scientific information available, and that the RDM must be used to set specifications for all three species.


Mr. Pentony repeated that directive at the December 13 meeting. It led to some consternation, particularly from representatives of ASMFC and the DEM, for the scientific peer review which led GARFO to choose the RDM over the RFDM had taken place in September 2021; GARFO’s failure to provide earlier notice of its decision led to both ASMFC and DEM staff wasting time and resources, over the course of more than one year, working to improve a model that GARFO did not approve.

Issues of timing aside, when the RDM was used to calculate 2023 management measures, it projected that 2022 recreational measures would produce landings of 14.31 million pounds, within 1% of the RDFM’s projection, but the CI was much narrower, 11.55 to 16.26 million pounds. That resulted in the 2023 RHL falling below the lower bound of the CI. Under such circumstances, the Control Rule called for a 10% decrease in landings instead of an increase, and substantially reduced the likelihood that overfishing would occur.


Had the Council and Management Board employed the methodology used in previous years, anglers would have been facing a decrease of between 35% and 47% in 2023. Thanks to the Control Rule, they were only facing a 10% reduction, and a harvest target of 12.88 million pounds, 3.61 million pounds above the RHL that would otherwise serve as a cap on recreational landings.


Even such smaller reduction was unacceptable to some Council and Management Board members, while a party boat captain in the audience complained that the 15-fish bag limit recommended by the Monitoring Committee would put his industry out of business. Adam Nowalsky, who represents New Jersey on the Council and is also New Jersey’s Governor’s Appointee to the Management Board, made a motion to maintain recreational landings at the status quo, which would have effectively negated the Control Rule’s advice.

Such motion drew an immediate response from Mr. Pentony, who stated, “This motion is inconsistent with the Magnuson Act. Point blank.” He made it clear that the motion, if passed, would not be approved by NMFS, and further noted that the agency was still “working through” the Control Rule concept; should the Council adopt a management measure that was contrary to the MSA’s dictates, it could affect NMFS’ final decision on the Control Rule.

After long discussion, Nicola Meserve, a Massachusetts fishery manager who sits on the Management Board, made a substitute motion to achieve the 10% reduction through federal regulations that maintained a 10-inch minimum size, but reduced the bag limit from 50 to 40 fish, and adopted a closed season that runs from January 1 through April 30. States would have to adopt whatever measures would be needed to achieve a 10% reduction in their local waters, where over 90% of the scup were caught. New York’s Paul Farnham made a similar motion for the Council.

The motion made by Ms. Meserve and Mr. Farnham was ultimately adopted by both the Council and the Management Board, yet such adoption demonstrated many of the problems associated with the Control Rule.

Scup Bare the Control Rule’s Faults

The methodology used in the past was simple to apply and intended to keep recreational harvest at or below the RHL. It began with the Council’s Scientific and Statistical Committee (SSC) setting the allowable biological catch (ABC), as required by the MSA. The ABC was then divided between the commercial and recreational sectors according to a pre-established allocation which established the sector annual catch limits (ACLs). An estimate of the scup which would die after being released was subtracted from the recreational ACL to determine the RHL. Recreational management measures, intended to keep catch at or below the RHL, were then developed.


When management measures are set pursuant to the Control Rule, there is no effort to keep landings below the RHL. As demonstrated by the scup debate, the landings target can swing from a 10% increase to a 10% decrease not because of any difference in stock status or fishing effort, but merely because of managers’ decision to use the RDM or RDFM. Even such 10% increase or decrease in landings appears to be completely arbitrary. It is a pre-determined value, and not the result of a calculation based on the status of the stock and/or the performance of the fishery; there is no convincing explanation of why a 5% or a 20% change would not serve as well, although the ASMFC tried to justify the choice by explaining “The rationale behind this alternative is that a reduction is needed to ensure that continued overages do not contribute to overfishing as required by the MSA; however, the assumption is that the reduction need not be greater than 10% per cycle given that biomass is very high compared to the target. An analysis of potential impacts on stock status under this…has not been performed. [emphasis added]”


The landings targets generated by the Control Rule seem to be not only arbitrary, but unrelated to the dictates of the MSA. While the law requires that each regional 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,” which recommendations generally take the form of an ABC, the Control Rule’s mandated increases or reductions take no account of either the ACL or ABC and, as the Monitoring Committee’s initial scup recommendation suggests, may lead to increases that, when combined with commercial landings, could even exceed the overfishing limit (OFL).

Probably Unfair and Possibly Causing Overfishing

When the Council and Management Board turned to black sea bass, additional issues arose.

Both the RDM and the RFDM indicated that a 10% landings reduction was needed although, even with such reduction, the 2023 recreational harvest target exceeded the RHL. Similar to the situation with scup, the 10% reduction was far less than the 45% reduction that would have been required under the former system of setting recreational measures.

That difference led to one Council member from North Carolina, Dewey Hemilright, to point out a seeming inequity created by the Control Rule. If the commercial fishery exceeds its harvest limit in any year, it is subject to a pound-for-pound payback in a following season, but the Control Rule seems to condone recreational overharvest by establishing targets that clearly exceed the RHL. Viewing that as unfair, Mr. Hemilright asked how commercial fishermen could also “get something” out of the new approach to fishery management, and followed that with the question, “When does the commercial side get an extra bump?”

No one provided a satisfactory answer to Mr. Hemilright’s question.

Mr. Hemilright then asked whether black sea bass were experiencing overfishing as a result of recreational overages. Michael Luisi, the Council’s Chair, could only respond that, “in time,” managers will learn whether the Control Rule will lead to overfishing, but that it’s impossible to say for certain whether overfishing is occurring now; he commented that the 2023 recreational landings target generated by the Control Rule does fall within the bounds of the CI, and so creates no issue.

While that may be true in a strictly Control Rule context, in the context of National Standard 1, which unequivocally states that “management measures shall prevent overfishing,” adopting a recreational harvest target, without first determining whether such measure will lead to overfishing, would appear to be inconsistent with the law.

The black sea bass management measures recommended by the Control Rule were, nonetheless, adopted.

Better Accuracy Does Not Necessarily Equal the Best Available Science

The final conundrum arose when the Council and Management Board turned to summer flounder.

Unlike scup and black sea bass, summer flounder are deemed to be at “low” abundance, which for purposes of the Control Rule means that spawning stock biomass is below the target level, but the stock is not yet overfished. The RDM originally suggested that 2023 landings be increased by 10%, because the 10.62 million pound RHL fell above both the 8.38 million pound projection of 2023 landings and the upper bound of the CI surrounding such projection.


But just before the December 13 meeting, such advice changed. Staff at the Science Center had re-run the RDM, this time including five years of data, rather than merely the 2021 data that was initially used. The new data resulted in a 2.5 million pound increase in projected 2023 landings. That shifted the advice from a 10% landings increase to a 10% landings decrease.


It also led to a new debate, which began when Mr. Nowalsky asked whether the Council could base 2023 management measures on either run of the model, and still feel confident that it was using the best available science. Mr. Pentony replied only that the Council’s decision must be based on the RDM. He admitted that he didn’t know why two different results were presented to the Council and Management Board, and appeared indifferent as to which results were used.

A Science Center biologist, Dr. Andrew Lou Carr-Harris, explained that the model was initially run, using only 2021 data, immediately after all needed coding and development was completed. There was no time to analyze the results before the Monitoring Committee needed to put them to use. He later re-ran the RDM using five years of data, which yielded results which Dr. Carr-Harris initially described as “greatly improved.” Later in his explanation, he reiterated that the “accuracy greatly improved” when he input the additional data, going on to say that such accuracy “increased drastically.”


But when Emerson Hasbrouck, the Governor’s Appointee from New York, asked which of the runs represented “the best scientific information available,” no one offered a clear answer, despite Dr. Carr-Harris’ assurances that the output resulting from five years of data was, by far, the most accurate.

Mr. Luisi said that maybe the Council and Management Board ought to take the two different results and “meet in the middle.” John Manascalco, a New York fisheries manager, admitted that he was “uncomfortable with direction this conversation is going,” when it seemed that many around the table were giving equal weight to the one-year and five-year outputs. Such comment seemed to have little impact, as Mr. Nowalsky moved for status quo management measures, a motion that, he claimed, split the difference between the two model runs.

Toni Kearns, Director of the ASMFC’s Interstate Fishery Management Program, pointed out that the Control Rule did not allow for a status quo option when stock abundance was deemed to be “low.” She observed that the Control Rule, as adopted by the Council and Policy Board, was “pretty specific” as to what management actions were authorized.

Mr. Nowalsky focused on Mr. Pentony’s seeming indifference to the issue, observing that, “Unlike this morning, no one has stood up and said, ‘I don’t want to do this,’ or ‘We can’t do this.'” He admitted that Ms. Kearns was correct in stating that the Control Rule didn’t authorize status quo management measures when the stock was at low abundance, but also pointed out that it did authorize status quo under other situations (i.e., when stock abundance is deemed to be “high”).

In the end, Mr. Nowalsky’s motion was approved by the Council without opposition, and was also adopted by the Management Board, with only New York voting against.

Is There a Better Way?

In her May 27, 2022 memo to the Council’s executive director, Ms. Beatty wrote that Council staff recommended, instead of adopting the Control Rule, that the Council “1) set recreational measures for two years at a time, 2) use improved statistical methods for predicting the impacts of measures on harvest and discards, and 3) incorporate considerations related to variability and uncertainty in the recreational data.” She further noted that


Under the staff recommendation, the only required modifications to the [fishery management plans] would be to allow recreational measures to be set for two years at a time. Council staff do not support modifying the [fishery management plan] to require use of specific statistical methods when setting measures as this can limit the flexibility to adapt to changing circumstances and improved methods…improvements to these methods can and are being made without changes to the [fishery management plan].

But as previously noted, GARFO rejected such advice.

Ms. Beatty’s memo offered a simple approach to improving recreational fishery management without any need to adopt the Control Rule. A simpler approach, which could have achieved most of the Control Rule’s goals while leaving the existing management process intact, would have been to merely account for management uncertainty when setting recreational management measures.

The National Standard 1 Guidelines published by NMFS state, “Management uncertainty refers to uncertainty in the ability of managers to constrain catch so that the ACL is not exceeded, and the uncertainty in quantifying the true catch amounts (i.e., estimation errors). The sources of management uncertainty could include: Late catch reporting, misreporting, underreporting of catches, lack of sufficient inseason management, including inseason closing authority, or other factors.”


Such guidelines also state that “[Annual catch targets], or the functional equivalent, are recommended in the system of [accountability measures] so that ACL is not exceeded. An [annual catch target] is an amount of annual catch of a stock or stock complex that is the management target of the fishery, and accounts for the management uncertainty in controlling the catch at or below the ACL…” The guidelines advise that “If an Annual Catch Target, or functional equivalent, is not used, management uncertainty should be accounted for in the ACL.”

Unfortunately, while the MSA requires that national standard guidelines be developed and published, it also states that such guidelines “shall not have the force and effect of law.” While adopting an annual catch target (ACT) could have accounted for uncertainty in recreational data and provided far greater stability and predictability in recreational management measures, the Monitoring Committee never recommended such ACT for summer flounder, scup, black sea bass, or bluefish. Instead, it regularly ignored the management uncertainty inherent in those fisheries, and recommended RHLs equal to the recreational ACLs, less estimated dead discards, for each stock.

By ignoring management uncertainty and setting RHLs that equal to the recreational ACL (as adjusted for dead discards), the Council and Management Board were able to maintain landings at the highest possible level; while an ACT might have addressed uncertainty and provided regulatory stability, it would also have led to a lower RHL, and resultant criticism from the angling industry and its allies in the angling press.

The Control Rule, despite its inherent complexity and its seeming inability to constrain landings to or below the ACL, was seen as a preferable option.

Public Comment Sought

The Council decided to employ the Control Rule to set recreational management measures, although NMFS had not even published proposed regulations before the December 13 meeting took place. Such proposed rules have now been released, and NMFS will be accepting public comments on the Control Rule through January 17, 2023.


Anyone concerned with the long-term health of mid-Atlantic fish stocks is encouraged to provide their thoughts.


This essay first appeared in “From the Waterfront,” the blog of the Marine Fish Conservation Network, which can be found at