At its June 2022 meeting, the Mid-Atlantic Fishery
Management Council (MAFMC) adopted the so-called “Percent Change Approach”
(PCA) for managing the recreational summer flounder, scup, and black sea bass
fisheries; the PCA will also be used to manage the recreational bluefish
fishery, once the bluefish stock is no longer subject to its current rebuilding plan.
Unlike previous management approaches, the PCA does not
constrain recreational landings to a recreational harvest limit (RHL) or even
to an annual catch limit (ACL); instead, it employs a table that
dictates whether recreational landings should be increased, decreased, or left
unchanged, depending on the most recent estimate of spawning stock biomass
(SSB) and whether future landings are calculated to be above, below, or
approximately equal to a theoretical RHL.
When the PCA was proposed, some individuals and
organizations argued that it didn’t comply with the Magnuson-Stevens Fishery
Conservation and Management Act‘s (Magnuson-Stevens) statutory
requirements and so made overfishing more likely; MAFMC staff also argued
against its approval. The National Marine Fisheries Service
(NMFS) nonetheless approved final regulations adopting
the PCA on March 9, 2023.
The Natural Resources Defense Council (NRDC) is seeking judicial review of
such regulations, but until that lawsuit is decided, the PCA will determine how
recreational fisheries are managed in the mid-Atlantic.
In December 2022, the PCA was employed for
the first time. Now, managers and stakeholders have their first opportunity to
evaluate whether the PCA is living up to its supposed promise of
providing “greater stability and predictability in recreational measures from
year-to-year while accounting for uncertainty in recreational catch estimates.”
It may be too soon to draw any conclusions. For the 2024
fishing year, the PCA is calling for recreational summer flounder landings to
be reduced by 28% and scup landings to be reduced by 10%. It is also calling
for black sea bass landings to be reduced by 10%, but the Summer Flounder,
Scup, and Black Sea Bass Monitoring Committee (Monitoring Committee) advised
the MAFMC to leave those landings unchanged, although though nothing in the PCA
permits such an outcome.
Summer Flounder
The 28% reduction in recreational summer flounder landings
was a response to an unexpected finding that
the summer flounder stock experienced overfishing in 2022, after the 2023 management track
stock assessment determined that fishing mortality had slightly
exceeded the threshold.
While such overfishing was unrelated to the PCA, the MAFMC
did fail to follow the PCA’s direction with respect to 2023 summer flounder
management measures. Because it was faced with two different calculations of
2023 RHL, one based on a single year’s data, which called for a 10% increase in landings and another, more
accurate estimate based on multiple years’ data, which called for a 10% decrease, the MAFMC decided to leave landings
unchanged, although such status quo outcome was not authorized by the PCA.
Had the MAFMC imposed a 10% reduction in 2023 landings,
effectively phasing in the 28% over two years, it might have blunted the impact
of the unanticipated landings cut. Now, the entire reduction must be taken in a
single year, angering stakeholders. The summary of
the December 4, 2023 Summer Flounder, Scup, and Black Sea Bass Advisory Panel
meeting (Advisory Panel Summary) reported that
Multiple advisors expressed frustration with the 28%
reduction in harvest needed for summer flounder under the Percent Change
Approach. One advisor noted that this reduction will be devastating…Another
advisor noted that this is particularly going to hurt the for hire industry
that is already severely suffering, and it will also hurt tackle shops and
shoreside suppliers of fuel…
One advisor stated that fishery management should come with
a warning label that “harvesting and releasing fish may result in severe
management decisions…” He stated that the 28% reduction was going to put party
boats out of business…Summer flounder has gone from a 16% liberalization a few
years ago to a 28% reduction this year, which is “feast or famine” management…
Their only solace is that, since the PCA sets management
measures for two-year periods, the landings target should remain unchanged in
2025; to that extent, at least, the PCA is providing some level of stability
and predictability.
Scup
Although scup landings need only be reduced by 10% in 2024,
the Advisory Panel Summary reported
that “Multiple advisors expressed frustration with the 10% reduction in harvest
required for scup under the Percent Change Approach. Several advisors said
reductions are not necessary given biomass is so high. Instead, measures should
be liberalized.”
Because recreational scup landings for 2019-2022 exceeded the recreational
sector’s ACL by an average of 126%, the fishery management plan
required the MAFMC to consider imposing additional restrictions on the fishery,
to comply with Magnuson-Stevens’s requirement that management measures “ensure
accountability” for excessive harvest. However, NMFS’ Greater Atlantic Region
Fisheries Office (GARFO) informed the MAFMC that
no such measures were needed, as the combination of the 10 percent reduction in
2023 landings and improvements made to the Recreational Demand Model (RDM) used
to predict future landings adequately addressed the “conditions that
precipitated the overage.”
Black Sea Bass
Black sea bass landings will not be reduced in 2024,
despite the PCA’s direction to do so, because of the Monitoring Committee’s
creative interpretation of the PCA. The Monitoring Committee advised the MAFMC
that the PCA assumes stocks will be assessed every two years, and that the
theoretical RHL, as well as the recreational landings limit for each stock,
will only change in response to an assessment. Since the black sea bass stock
assessment was delayed until 2024, and since the PCA is meant to promote management
stability, the Monitoring Committee suggested that leaving the landings target
unchanged was consistent with the intent of the PCA.
Such argument was not illogical, yet it remains flawed, for
nothing in the explicit language of the PCA supports such status quo outcome.
Under the conditions prevailing for black sea bass—an SSB more than twice the
target level, and anglers predicted to exceed the RHL in 2024—a 10% reduction
was the only action permitted by
the PCA. The Monitoring Committee’s advice, and the MAFMC’s ultimate decision,
to leave landings unchanged relied on an interpretation of fishery regulations
that elevated the expressed purpose of the PCA—providing stable and predictable
management measures—above the clear language of such regulations.
As was the case with scup, the average of recreational
black sea bass landings for the past three years exceeded the recreational
ACL, requiring the MAFMC to consider accountability measures. And,
as was the case with scup, GARFO cited a
10 percent reduction imposed on 2023 landings, combined with the improvements
in the RDM, as reasons why no additional measures need be imposed.
Given the unambiguous language of the regulations, the
decision to not reduce black sea bass landings was, at best, legally
questionable. It also failed to mollify stakeholders. The Advisory Panel Summary noted
that
One advisor said the black sea bass fishery is poorly
managed and there is little support among the recreational fishing community
for management. He said the measures for both scup and black sea bass should be
liberalized because biomass is so high. It feels as if the recreational fishery
is penalized each year, even for rebuilt stocks…
Another advisor from Connecticut agreed with the previous
comments…He said the Monitoring Committee’s justification for status quo
measures in 2024 should instead be used to justify a liberalization…
A third advisor expressed agreement with the previous two
speakers and questioned why management is considering cuts for very abundant
species like scup and black sea bass…
One advisor from New York said he would have previously
thought status quo was a good outcome. However, the current black sea bass
measures are problematic, including the 16.5 inch minimum size limit in New
York. Discard mortality is very high. Regulations should be liberalized to
reduce discards…
Lessons Learned?
What, then, are the lessons of the PCA’s first year?
It’s probably too early to consider how the PCA impacts
fish stocks, since final recreational landings data for 2023, the first year
affected by the PCA, will not be available until April 2024. But we did get
some insight into how the PCA influences people.
The PCA has relieved fisheries managers, including members
of the MAFMC, of the discipline imposed by earlier management approaches. Prior
to the PCA, past fishery performance was used to predict future landings.
Management measures for the upcoming year were adjusted, becoming more or less
restrictive, depending on whether past landings were above or below the next
year’s RHL.
It was an imperfect system. Uncertainty in recreational
landings estimates often led to management measures that were either more
restrictive than they needed to be or not restrictive enough to keep landings
at or below the RHL. The seeming impossibility of accurately predicting
anglers’ response to new management measures, and to other factors affecting
the fishery, also made it difficult to predict management outcomes. Yet because
the former approach was focused on the RHL, it presented a disciplined, systematic
methodology that almost always prevented overfishing and led to the recovery of
overfished fish stocks.
In theory, the PCA brought even more discipline to the
process by establishing a series of predetermined management actions that the
MAFMC would be required to take,
depending on the whether the SSB was above or below the biomass target and
whether future landings were predicted to be above or below the RHL. The PCA
made allowances for the uncertainty inherent in recreational fishing data,
while the RDM provided a more accurate prediction of how anglers would respond
to management measures.
Unfortunately, nothing in the PCA prevents anglers from
exceeding not only the RHL, but also the ACL. Nothing in the PCA prevents
combined recreational and commercial landings from leading to overfishing.
Changes to recreational landings are made mechanically, with no consideration
of the impact from commercial landings and no provision to cap recreational
landings at a level that would prevent either the ACL or the overfishing limit
(OFL) from being exceeded. NMFS has admitted that
the PCA “would allow for some level of RHL overages in some circumstances. RHL
overages carry a risk of ACL overages, which in turn risk [acceptable
biological catch] and OFL overages and therefore risk resulting in
overfishing.”
Although Magnuson-Stevens requires that fishermen be held
accountable for exceeding the ACL, the accountability measures adopted by NMFS
pursuant to the PCA can be toothless. It is difficult to successfully argue
that a one-time 10% reduction in landings truly holds the recreational scup
fishery accountable for overages that exceeded the ACL by an average of 126
percent for three consecutive years.
While the MAFMC has demonstrated a
willingness to apply the PCA’s provisions mechanically to
increase landings, even if such increase would cause landings to exceed the
ACL, it has also demonstrated a willingness to ignore the PCA’s requirements to
decrease landings in the case of both the 2023 summer flounder management
measures and the 2024 black sea bass measures, although nothing in the PCA or
related regulations justified such action.
The PCA is also notable for its impact or, more accurately,
its lack of impact on stakeholder attitudes toward fisheries management. While
the MAFMC states that
its so-called “Recreational Reform Initiative,” including the PCA, “aims to
address a range of challenges,” which include “widespread angler
dissatisfaction with some recreational management measures, stakeholder
perceptions that measures are not reflective of stock status, and concerns
about how Marine Recreational Information Program (MRIP) data are used to
manage these fisheries,” nothing in the Advisory Panel Summary suggests that
stakeholders are any less dissatisfied with recreational management measures
today than they were before the PCA was adopted.
If the comments expressed in the Advisory Panel Summary
make anything clear, it is that most panel members are only interested in
harvesting more fish, and not in the fisheries management process; any
management measure that leads to reduced or, in the case of black sea bass,
even status quo landings, is simply unacceptable to them.
Such attitude ought to cause both MAFMC members and GARFO
to ask whether they gave too much weight to stakeholder comments when
considering the PCA, and whether stakeholder support of the PCA was motivated
by nothing more than a hope that it would provide a means to evade the
strictures of Magnuson-Stevens and put more dead fish on the dock.
Unfortunately, both MAFMC and GARFO now have so much
institutional prestige invested in the PCA that neither is likely to admit it
is flawed. Instead, unless NRDC’s lawsuit succeeds, and a court invalidates the
PCA, it is likely to survive in its present form until 2025 when, absent
further action by the MAFMC, it may no longer be used.
When that time comes, we can only hope that it is replaced
by something better designed to prevent overfishing and sustain the long-term
health of fish stocks.
-----
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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