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 http://conservefish.org/blog/
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