When the Mid-Atlantic
Fishery Management Council (Council) and the Atlantic States Marine Fisheries
Commission’s (ASMFC’s) Interstate Fishery Management Program Policy Board
(Policy Board) met in joint session on June 7, 2022, they approved the so-called “Percent Change Approach” to a
“Harvest Control Rule” (Control Rule) which will be used to manage summer
flounder, scup, and black sea bass, as well as to manage bluefish, once
that overfished stock is rebuilt.
As described in
a Council press release,
Under the
selected approach, managers will consider two factors when determining whether
recreational measures should be restricted, liberalized, or remain unchanged
for the next two years. First, they will look at how recreational harvest
limits (RHLs) for the next two years compare to recent estimates of
recreational harvest. This gives an indication of whether recreational harvest
is likely to exceed the RHL if recreational measures remain unchanged. Next,
managers will consider the most recent estimate of stock size relative to the
target stock size. These two factors, in combination, will be used to determine
the percentage change in harvest that management measures should aim to
achieve.
That might sound like
a simple approach, but when the Control Rule was first put to use at the
December 13, 2022 joint meeting of the Council and the ASMFC’s Summer Flounder,
Scup, and Black Sea Bass Management Board (Management Board), things didn’t go
smoothly at all.
Given the haste and
unanswered questions that plagued the Control Rule’s adoption, such problems
were probably inevitable.
Scientific Reservations
In the spring of 2022,
the Council’s Scientific and Statistical Committee (SSC) created a subcommittee
of experienced fisheries scientists, who were asked to examine the several proposed versions of the Control Rule, and
provide their opinions on the potential benefits and risks. That proved to be
an impossible task, as the subcommittee lacked information that it needed to
make a meaningful evaluation. So, instead of endorsing the Control Rule, the subcommittee
produced a report which concluded, in part, that
the actual
efficacy of the proposed alternatives in the Addendum/Framework is unknown.
This uncertainty comes from two sources. First, the actual measures that will
be taken in response to any of the triggers identified in the
Addendum/Framework are not specified. Until such specificity is provided,
quantitative evaluation of the performance of the options is not possible.
Second, performance of the discontinuous nature of the options proposed in the
Addendum/Framework has not been proven effective in other fisheries nor
formally evaluated, to the knowledge of the sub-committee. Preliminary modeling
conducted by the sub-committee to evaluate the binning of population states, reliance
on various metrics of stock condition and recent catch history, and
implications of recruitment could result in an increased risk of overfishing
and becoming overfished. This suggests that the appearance of precision in the
process that leads to regulatory specifications does not necessarily translate
into precision in catch performance and compliance…
Comments were even
more pointed during subcommittee discussions held on April 29, 2022.
Dr. Lee Anderson, a
subcommittee member, bluntly stated that if he was peer reviewing the Control
Rule as a submission to an academic publication, his response would have simply
been “reject and resubmit.” He advised the subcommittee that “I think that we
should send it back…I don’t think we should say anything but ‘Come back and do
your homework.'”
Another subcommittee
member, Dr. Alexei Sharov, noted that “The proposed document is not considering
at all the efficiency of the tools that we have,” which were already being used
to manage the mid-Atlantic’s recreational fisheries.
Later in the meeting,
Dr. Anderson made what might have been the most damning comment of all,
observing “I’m very concerned that if this [Harvest Control Rule] goes forward,
it’s going to give the impression that there’s science involved.”
The comments of
Council staff present at the subcommittee meeting probably did little to
increase the subcommittee’s confidence in the Control Rule. When asked how the
Control Rule would constrain landings to the acceptable biological catch (ABC),
as the Council and NMFS are legally bound to do, Julia Beatty, who headed the
Council’s Fishery Management Action Team, responded that she couldn’t
definitively state “Yes, this will not exceed ABC.”
Ms. Beatty went on to
note that the Control Rule’s emphasis was not on the ABC, but on not exceeding
the overfishing limit (OFL). Later in the meeting, she informed the
subcommittee that, pursuant to the Control Rule, management measures might not
be “directly connected” to the recreational harvest limit (RHL), and that by
adopting the Control Rule, the Council and NMFS were “not really proposing to
tie [management measures] directly back to a change in the ABC or something
like that.” She also stated that, under the management approach used to set
measures through the 2022 season, the RHL and annual catch limit (ACL) “scale
up and down,” but under the Control Rule, management “measures won’t change
with changes in the ACL.”
Yet, regardless of any
concerns or reservations that the members of the subcommittee might have expressed,
the Council moved forward with the Control Rule, even though Council
staff advised against its adoption, saying,
Council staff
do not recommend implementation of the Percent Change, Fishery Score,
Biological Reference Point, or Biomass Matrix Options…as they reduce the
flexibility managers currently have to set measures to prevent overfishing…
…measures
recommended by the Council must prevent recreational ACL overages in order to
prevent overfishing and comply with the law…Options B-E will not change the
process for setting ACLs and they will not change the requirement to prevent
ACL overages. Therefore, Options B-E could require frequent changes in measures
unless managers are willing to set more restrictive measures to allow for
stability while preventing ACL and RHL overages.
However, the National
Marine Fisheries Service’s (NMFS’) Greater Atlantic Regional Fisheries Office
(GARFO) insisted that the Council move forward with the Control Rule. Michael
Pentony, the regional administrator, wrote a letter that urged the Council to “lead on a course of
action that will meaningfully improve the methods used to set management
measures,” and followed up with the threat that “In the absence of meaningful
action, NOAA’s National Marine Fisheries Service may be required to make
regulatory changes under our own authority.”
Unseemly Haste
Over the previous
months, some Council and Policy Board members suggested that no action could be
taken on the Control Rule until two supporting models, which the ASMFC’s Plan Development Team and the Council’s Fisheries Management Action Team
deemed “critical for thorough analysis of the options,” and
said “would greatly improve the process for setting management measures,” were
completed and ready for use.
But Mr. Pentony
repeatedly expressed his concern that, if the Control Rule wasn’t approved at
the June Council meeting, there wouldn’t be time to move it through the federal
rulemaking process quickly enough for a final regulation, authorizing the
Council’s use of the Control Rule to set 2023 management measures, to be issued
prior to the December 13 meeting.
Such haste
characterized much of the Control Rule’s development. Although it represented
the biggest change in mid-Atlantic recreational fisheries management since the
passage of the Sustainable Fisheries Act of 1996, the Council elected to
fast-track the measure as a “framework” to the Summer Flounder, Scup, and Black
Sea Bass Fishery Management Plan (FMP) and the Bluefish FMP, rather than as a
plan amendment.
By using the framework
process, the Council was able to avoid the need to hold public hearings, and so
severely limited the opportunity for public comment prior to the Council’s vote
on the Control Rule. The ASMFC’s decision to address the Control Rule in an
addendum also provided less opportunity for public input, although the ASMFC
did, at least, hold one round of hearings, and shared the resulting comments
with the Council.
As it turned out, such
haste was entirely unnecessary.
No Regulation? No Problem
When the Council and
Management Board met on December 13 to discuss summer flounder, scup, and black
sea bass management measures for the upcoming season, NMFS had not yet issued a
final regulation that approved use of the Control Rule to manage those species.
In fact, even proposed regulations relating
to the Control Rule were not released until two days after that meeting.
The long delay between
the Council’s decision to adopt the Control Rule in June, and the issuance of
proposed regulations more than six months later, strongly suggests that someone
in the NMFS legal or administrative hierarchy had real reservations about such
management approach.
Nevertheless, even in
the absence of proposed regulations, the Council decided to use the Control
Rule to manage summer flounder, scup, and black sea bass in 2023. GARFO did not
object, and so made it appear that its previous insistence that the Council
adopt the Control Rule in June, in order to have a final regulation in place by
December, was unnecessary, and that it could have allowed the Council more time
to consider the issue.
Given events at and
before the December 13 meeting, taking a little more time to consider the
Control Rule would have undoubtedly proved beneficial.
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This essay first appeared in “From the Waterfront,” the blog
of the Marine Fish Conservation Network, which can be found at http://conservefish.org/blog/
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