On March 9, 2023, the
National Marine Fisheries Service (NMFS) issued a final rule approving the so-called
“harvest control rule” (Control Rule) adopted by the Mid-Atlantic Fishery
Management Council (Council) at its June 2022 meeting. The Control Rule amends
the Council’s Summer Flounder, Scup, and Black Sea Bass and Bluefish fishery
management plans, bringing significant change to the process used to set annual
management measures for the recreational sector.
In the past,
recreational management measures were established by first calculating what
landings were in the previous year (or, in the alternative, by averaging the
landings for the preceding three years). Such past landings were then compared
to the recreational harvest limit for the upcoming season to determine whether
the previous year’s management measures could be kept in place, whether such
measures might be liberalized, or whether management measures would have to be
made more restrictive in order to constrain future landings to the recreational
harvest limit.
Such process was
fraught with management uncertainty, as weather, fuel prices, and the
comparative availability of various fish species cause angler effort to swing,
sometimes wildly, from year to year. The estimates produced by the Marine Recreational Information Program, used to gauge
anglers’ landings, introduced another source of uncertainty into the management
process.
The Control Rule was
intended to address such uncertainties, and hopefully reduce the frequency of
changes to recreational regulations, while allowing anglers to harvest greater
numbers of fish when stocks are at high levels of abundance. Unfortunately, as
critics of the Control Rule noted in comments submitted to NMFS, it does so using a
management approach that received, at best, lukewarm scientific support, was disfavored by Council staff, and may not comply with
language contained in the Magnuson-Stevens Fishery
Conservation and Management Act (Magnuson-Stevens), which
is intended to prevent overfishing and constrain overall landings at or below
the annual catch limit set for each managed fish stock.
NMFS did not have to
adopt the Control Rule to address the management uncertainty issue. It could
have employed an annual catch target instead. Its own National Standard 1 Guidelines (Guidelines) state
that “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
management uncertainty in controlling the catch at or below the [annual catch
limit],” and advise, “If an Annual Catch Target, or functional equivalent, is
not used, management uncertainty should be accounted for in the [annual catch
limit].”
Unfortunately, while
Magnuson-Stevens requires the agency to publish the Guidelines “to assist in
the development of fishery management plans,” it also explicitly states that
such Guidelines “shall not have the force and effect of law.” Despite the high
levels of management uncertainty that chronically plagued the Council’s
recreational management measures, the Council never adopted annual catch
targets to address the problem. As a result, recreational landings, particularly those of black sea bass, frequently
exceeded recreational harvest limits, and regulations often changed from year
to year, frustrating anglers and angling-related businesses.
Instead, the Council
developed the Control Rule, which provides a means for fisheries managers to
address uncertainty in recreational fisheries data, while avoiding the
Guidelines’ call for annual catch targets and the resultant reductions in
harvest. It allows anglers to increase their landings of abundant species, but
in doing so sidesteps the spirit, and very possibly the letter, of federal
fisheries law.
The Control Rule
represents a historic change in the way the Council will manage recreational
fisheries, yet NMFS received surprisingly few comments on its proposed rule. In
total, NMFS received only one letter, signed by five organizations affiliated
with the recreational fishing industry, in support of the Control Rule, one
letter from an individual and two from conservation organizations (one of which
was signed by three different entities) opposing its adoption, and six letters
from individuals that touched on tangential matters, but did not directly
address the Control Rule itself.
In its response to
public comments arguing that the adoption of an annual catch target would have
rendered the Control Rule moot, NMFS responded,
Including management
uncertainty into the process for setting recreational management measures would
result in setting a recreational harvest target below the [recreational harvest
limit], and even more restrictive recreational harvest measures. This would
exacerbate the disconnect between what anglers are observing (e.g., high levels
of abundance of black sea bass and scup) and the increasingly restrictive
management measures. Implementing a large buffer, and further reducing the
quota, does not recognize that uncertainty applies in both directions—catch and
biomass may be higher or lower than estimated. Simply restricting recreational
fisheries more is not solving the fundamental problem, particularly when
considering the lack of success in continually attempting to constrain harvest
to a specific limit that, in retrospect, was lower than needed.
It was a strange
response for a number of reasons, and appears to fall short in both logic and
technical comprehension of the issues addressed; because such response was
characteristic of the agency’s overall approach to the Control Rule, it
deserves closer attention.
The response, which
dismisses the use of annual catch targets, makes it clear that NMFS was sharply
focused on setting recreational landings limits, at least for abundant stocks,
at the highest possible level. The Control Rule certainly accomplishes that
goal. But does that justify NMFS ignoring its own Guidelines?
When NMFS published
the Guidelines, it certainly understood that setting an annual catch target
would reduce recreational landings to a level somewhat below the recreational
harvest limit. Even so, the agency chose to recommend the adoption of such
targets, without adding any qualifiers that limited the use of catch targets to
situations where a stock was at low levels of abundance. There is no
suggestion, anywhere in the Guidelines, that an annual catch target should not
be used when stock abundance is high.
Similarly, NMFS’
comment that implementing a buffer, presumably in the form of an annual catch
target, “does not recognize that uncertainty applies in both directions—catch
and biomass may be higher or lower than estimated,” strikes a discordant note.
Once again, when NMFS prepared and published the Guidelines, it must have been
aware that catch could, at times, be overestimated, yet the Guidelines
nonetheless recommend that an annual catch target be used, presumably because
the agency recognized that underestimating catch carried ar greater risks to
the stock than underestimating it (estimating biomass involves scientific,
rather than management, uncertainty, and so does not belong in this
discussion).
Other agency comments
were similarly unpersuasive.
Magnuson-Stevens
plainly states that “Conservation and management measures shall prevent
overfishing,” a mandate that has been enforced by the courts for more than two decades;
the statute defines “overfishing” as “a rate or level of fishing mortality that
jeopardizes the capacity of a fishery to produce the maximum sustainable yield
on a continuing basis.” Several comments opposing the Control Rule advised that
the Control Rule did not, in practice, reliably prevent overfishing, and
the Environmental Assessment of the Control Rule
supported their position.
But NMFS disagreed.
The agency argued that the Control Rule would not lead to overfishing because
scup and black sea bass stocks are currently at very high levels of abundance.
“In theory, for such stocks, fishing at Fmsy [the fishing mortality rate that
would produce maximum sustainable yield] should gradually fish the stock back
down to the biomass target. Fishing above Fmsy for a year may increase the rate
at which this is achieved, but would not jeopardize the long-term
sustainability of the stock.”
According to NMFS,
even if fishing mortality exceeded what biologists deem the “threshold fishing
mortality rate” (Fmsy) in any given year,
overfishing would not occur because an abundant stock could still produce
maximum sustainable yield on a continuing basis,
at least until it was fished down to the biomass target.
Such interpretation
of the term “overfishing” is novel, and unsupported by any interpretation made
by a federal court ruling on the question. It ignores the critical fact that
“overfishing” is defined in terms of a rate of
fishing mortality that would jeopardize the long-term health of a stock. If
fishing mortality exceeds Fmsy in
any year, overfishing is occurring, even if such overfishing will not
necessarily continue long enough to do material harm.
That fact is
recognized in the Control Rule’s Environmental Assessment, which advised that
All combinations of
sub-alternatives under [the Control Rule] would allow for some level of
[recreational harvest limit] overages in some circumstances. [Recreational
harvest limit] overages carry a risk of [annual catch limit] overages, which in
turn risk [acceptable biological catch] and [overfishing limit] overages and
therefore risk resulting in overfishing. Therefore, [the Control Rule] cannot
be demonstrated to proactively prevent overfishing every year in all circumstances. The
[recreational harvest limit] accounts for the best available scientific
information on stock status. Therefore, even at high biomass levels,
[recreational harvest limit] overages can result in overfishing. [emphasis
added]
The Environmental
Assessment clearly acknowledges that calculations of overfishing are based on
an annual fishing mortality rate (the Control Rule “cannot be demonstrated to
proactively prevent overfishing every year…”),
and explicitly states that “even at high biomass levels, RHL overages can
result in overfishing.” In view of such statements, NMFS’ arguments to the
contrary, and in support of the Control Rule, are nothing short of baffling.
Equally baffling is
NMFS statement that “Scup and black sea bass are stocks in the “very high” bin
[of the Control Rule], meaning biomass is over 150 percent of their respective
biomass targets—the level of biomass associated with maximum sustainable yield.
In plain language, stocks in this bin are at least
1.5 times larger than is ideal for maximizing long-term benefits.
[emphasis added]”
Such comment suggests
that stocks which see biomass increase above target levels somehow provide
lesser benefits than those maintained at the supposedly “ideal” target.
Nothing is farther
from the truth.
The target biomass
level (Bmsy) is a purely
biological measure; it represents the biomass level that will produce maximum
sustainable yield, provided that the fishing mortality rate does not rise above
Fmsy. It has nothing to
do with “maximizing long-term benefits” from the
resource, although benefits decline one biomass falls below Bmsy.
Once again, NMFS
appears to have overlooked the significance of the fishing mortality rate, which essentially measures the proportion of
fish removed from the stock each year. If a stock at Bmsy and another
stock at 150% of Bmsy are fished at
the same fishing mortality rate, the landings from the stock at 150% of Bmsy will be 50%
higher than the stock that is merely maintained at Bmsy; the larger stock
will yield substantially greater benefits, whether such benefits are measured
by the amount of food produced, the recreational opportunities offered, or the
level of social and economic benefits garnered from that particular resource.
Long-term benefits
are not maximized at Bmsy,
as NMFS seems to contend; instead, Bmsy represents the lowest biomass level that can produce maximum
sustainable yield, although greater benefits can accrue, if only for a limited
time, if biomass rises higher. NMFS’ apparent willingness, perhaps even
eagerness, to use the Control Rule as a vehicle to reduce very abundant stocks
to Bmsy does not have a
rational basis.
NMFS made other
arguments in support of the Control Rule, relating to its compliance with
Magnuson-Stevens, its use of the best available science, and whether it
constituted a de facto reallocation of
commercial and recreational quota. But, like the arguments detailed above, the
agency’s responses seemed to be less a logical refutation of public comment
than an effort to justify a management action that was not, in the end,
justifiable.
Beginning with NMFS’
and the Council’s decision to address the Control Rule in a “framework” action,
which offered very limited opportunity for formal public comment, and extending
through the June 2022 Council meeting, which saw NMFS’ Greater Atlantic
Regional Fisheries Office threaten to adopt the Control Rule through agency
action if the Council did not approve it, the Control Rule seemed a management
measure that was being relentlessly advanced by a regulator who was either
inherently sympathetic to, or had been bludgeoned into submission by, elements
of the recreational fishing industry who have long been aggressively critical of
the federal fishery management process.
The fact that NMFS
justifies its adoption of the Control Rule by citing “what anglers are
observing (e.g., high levels of abundance of black sea bass and scup),” rather
than the results of state and federal fisheries surveys and other objective
data, further contributes to that impression.
Rather than take the
time to craft a scientifically vetted management approach that clearly accords
with Magnuson-Stevens, NMFS hastily adopted what it admits, in its response to public comments, was “intended to be an
interim approach” to setting recreational management measures, and then
attempted to justify its actions with dubious arguments that, in some cases,
are in direct conflict with statements included in the Control Rule’s
Environmental Assessment.
Nonetheless, unless
and until someone seeks judicial review of the agency’s action, and a court
finds the Control Rule invalid, it will now govern the recreational summer
flounder, scup, and black sea bass fisheries, and will govern the recreational
bluefish fishery as well, once the current rebuilding plan has run its course.
Stakeholders can only
hope that such important fish stocks are not harmed as a result.
-----
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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