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Introduction

“It is a mistake to suppose that the whole ocean is practically one vast store-house.”

Ray Lankster 1884

AGENCY RESPONSIBILITIES

The National Marine Fisheries Service (NMFS) manages the living resources in all federal waters from 3 nautical miles (and in some places 9 nautical miles) from shore to 200 nautical miles offshore, a jurisdiction covering 3.4 million square miles (11 million square kilometers) of coastal and oceanic waters. That is the largest exclusive economic zone (EEZ) of any nation in the world. The diverse habitats that NMFS manages range from arctic to tropical. The United States is the world’s fifth largest fish producer, with commercial landings of 9.1 billion pounds in 2000 that were worth in excess of $3.5 billion, with an estimated value to the U.S. gross domestic product of more than $20 billion (NMFS, 2001a; NRC, 1999b). By weight, almost 50 percent of the commercial catch comes from only three species: walleye pollock (Theragra chalcogramma) in the Pacific Ocean and two species of menhaden (Brevoortia tyrannus and B. patronus) in the Atlantic Ocean and the Gulf of Mexico. An estimated 17 million or more recreational anglers land another 254.2 million pounds. Combined, the recreational and commercial fisheries add more than $40 billion per year to the nation’s economy (NRC, 1999b).

In EEZ waters, NMFS manages 905 stocks. The status of 674 (75 percent) of these stocks is unknown (NOAA, 1999; NMFS, 2001a), but most of the species involved are of minor commercial importance (Hogarth, 2002). Of the 283 stock groups whose status is known, 14.6 percent are



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Science and Its Role in the National Marine Fisheries Service 1 Introduction “It is a mistake to suppose that the whole ocean is practically one vast store-house.” Ray Lankster 1884 AGENCY RESPONSIBILITIES The National Marine Fisheries Service (NMFS) manages the living resources in all federal waters from 3 nautical miles (and in some places 9 nautical miles) from shore to 200 nautical miles offshore, a jurisdiction covering 3.4 million square miles (11 million square kilometers) of coastal and oceanic waters. That is the largest exclusive economic zone (EEZ) of any nation in the world. The diverse habitats that NMFS manages range from arctic to tropical. The United States is the world’s fifth largest fish producer, with commercial landings of 9.1 billion pounds in 2000 that were worth in excess of $3.5 billion, with an estimated value to the U.S. gross domestic product of more than $20 billion (NMFS, 2001a; NRC, 1999b). By weight, almost 50 percent of the commercial catch comes from only three species: walleye pollock (Theragra chalcogramma) in the Pacific Ocean and two species of menhaden (Brevoortia tyrannus and B. patronus) in the Atlantic Ocean and the Gulf of Mexico. An estimated 17 million or more recreational anglers land another 254.2 million pounds. Combined, the recreational and commercial fisheries add more than $40 billion per year to the nation’s economy (NRC, 1999b). In EEZ waters, NMFS manages 905 stocks. The status of 674 (75 percent) of these stocks is unknown (NOAA, 1999; NMFS, 2001a), but most of the species involved are of minor commercial importance (Hogarth, 2002). Of the 283 stock groups whose status is known, 14.6 percent are

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Science and Its Role in the National Marine Fisheries Service overfished, and 39 percent are fished at or near their long-term potential yield. In addition, biological data on only 119 of those species are sufficient to permit the use of size- or age-structured models. Age-structured models provide the most reliable management advice regarding the status of fish stocks. As data collection is improved and more species are analyzed with age-structured models, more species may be shown to be overfished or fished at their long-term potential yield. NMFS manages not only fish but also other marine organisms, including marine mammals and sea turtles. About 195 stocks of over 100 species of marine mammals reside in U.S. waters. Forty-four of those stocks are considered “strategic,” because (1) they are listed as threatened or endangered under the Endangered Species Act (ESA, 1973), (2) they are declining and likely to be listed as threatened or endangered, or (3) the directly human-caused mortality exceeds the potential biological removal rate (NMFS, 1999a). In 1999, 47 marine mammal species were listed as endangered, 27 were listed as threatened, one was proposed to be listed, and 37 were candidates for listing under the ESA, for a total of 112. Endangered or threatened marine animals include all the large whales, all species of sea turtles in U.S. waters, the Steller sea lion (Eumetopias jubatus), the Hawaiian monk seal (Monachus schauinslandi), and the Gulf sturgeon (Acipenser oxyrhynchus desotoi). In 2001, the smalltooth sawfish (Pristis pectinata), a cartilaginous fish, was the first domestic marine fish to be listed under the ESA, and the white abalone (Haliotis sorenseni) became the only marine mollusk to be listed as endangered. According to a study by the American Fisheries Society, 31 species of marine fish are thought to be at risk of extinction in North America, including the Atlantic cod (Gadus morhua), several Puget Sound species of rockfish, two herring-type fish, and groupers along the southeast Atlantic coast (Musick et al., 2000). Signs of success in NMFS management are also evident, including the recent rebuilding of stocks such as summer flounder (Paralichthys dentatus), Atlantic mackerel (Scomber scombrus), surf clams (Spisula solidissima), some yellowtail flounder (Pleuronectes ferrugineus), and sea scallop (Placopecten magellanicus) stocks on the Atlantic coast; and a major increase in pollock in the North Pacific region; and king mackerel (Scomberomorus cavalla) in the Gulf of Mexico. While it may be true that there may have been strong recruitment events or favorable environmental factors that have resulted in increases to the abovementioned stocks, NMFS management did not simply increase catch limits, but instead has allowed dominant year classes to contribute to the rebuilding of the stocks.

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Science and Its Role in the National Marine Fisheries Service To simultaneously manage U.S. fisheries and protect and recover stocks of marine mammals and other protected species, NMFS must implement the mandates of several major laws that have potentially conflicting objectives and provisions. And the laws themselves sometimes appear to mandate the attainment of multiple goals that contradict one another and to provide unclear guidance on how to reach an appropriate balance among goals. That is common in resource-management legislation, and often it is only through litigation that the intent of Congress is clarified. The primary law that Congress enacted to manage the exploitation of marine fish species was the Fishery Conservation and Management Act of 1976. Amendments changed the act’s name to the Magnuson Fishery Conservation and Management Act in 1980. The act was modified substantially in 1996 by the Sustainable Fisheries Act and is now known as the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA). Under the MSFCMA, NMFS is charged with rebuilding overfished stocks while creating opportunities for commercial and recreational use, minimizing adverse social effects on fishing communities, and protecting marine habitats and endangered species. Court decisions after the 1996 amendments have clarified that Congress intended the rebuilding requirement to take precedence over the requirement to minimize socio-economic impacts. NMFS manages marine mammals under the direction of the ESA and the Marine Mammal Protection Act (MMPA, 1972). NMFS also operates under several acts and executive orders that ensure that government agencies follow particular procedures and analyses, including the National Environmental Policy Act (NEPA, 1969), the Regulatory Flexibility Act (RFA, 1980; amended in 1996), and the Administrative Procedure Act (APA, 1946). Two of the major laws that NMFS implements require the direct involvement of the fishing industry in decision-making. The MMPA requires industry members to help prepare “take-reduction plans” to reduce the incidental take of marine mammals in commercial fisheries. The greatest degree of industry involvement, however, is mandated under the MSFCMA. The Secretary of Commerce is legally responsible for implementing this Act, but NMFS works with eight regional FMCs to develop plans and regulations for fisheries in their regions of the EEZ. The regional FMCs (also referred to as “councils”) are composed largely of members of commercial and recreational fisheries interest groups and state fishery officials. The councils have substantial authority in determining policies and regulations for commercial and recreational fisheries in their regions. The concept of regional councils was heralded as a promising new

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Science and Its Role in the National Marine Fisheries Service approach to managing a public resource (Rogalski, 1980). It was based on the theory that people from various sectors of the fishing industry, the states, and other stakeholders would share relevant knowledge and could agree on conservation and management measures for the marine fishery populations they exploit. Each council determines its organization, practices, and procedures. Councils establish a scientific and statistical committee, advisory committees, and advisory panels as needed. They hire their own scientific and administrative personnel, who receive and analyze information from the NMFS fishery science centers, the fishing industry, and academic and consulting institutions. Scientific information generally flows from NMFS’s regional fishery science centers to stock assessment review committees, to the councils’ plan development teams and scientific subcommittees, and finally to the full councils. A full council adopts a fishery management plan (FMP) or annual specification of catch limits or other measures and then sends it on to the NMFS regional administrator for review and approval. That process has worked relatively well when the scientific information delivered to the councils has indicated healthy stock levels. When stock assessments have indicated population declines, poor recruitment, or the need to reduce fishing-associated mortality, the process has not worked as well. In some cases, NMFS has been inconsistent in using its authority to disapprove FMPs or FMP amendments that allow for unsustainably high levels of fishing. During the 1990s, NMFS’s attention shifted from developing domestic fisheries toward the management and control of resources. Managing access to resources has been difficult and not altogether successful, because of demands by competing sectors of the fishing industry. In less than 25 years, NMFS has changed from a largely scientific agency to a major regulatory agency (it is the fourth-greatest promulgator of regulations in the United States). To judge from the number of legal challenges that the agency faces, the transition has been difficult. It is important to note that NMFS’s legal authority, especially under the ESA, gives it responsibility for some of the most controversial issues in environmental policy and natural resource management. High-quality science, data, and models are essential for NMFS to meet its increasing regulatory responsibilities. The importance of science is emphasized in the NMFS mission statement: Stewardship of living marine resources for the benefit of the Nation through their science-based conservation and management and promotion of the health of their environment.

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Science and Its Role in the National Marine Fisheries Service The purpose of this report is to provide a brief review of the scientific foundation, data, models, and processes used by NMFS to meet its regulatory requirements and respond to litigation. APPROACH OF THE COMMITTEE The conference report that accompanied the 2001 appropriations bill for the National Oceanic and Atmospheric Administration (NOAA), and specifically for NMFS, directed the National Academy of Public Administration (NAPA) and the National Academy of Sciences (NAS) to conduct companion studies to review NMFS’s ability to meet its legal mandates. The objectives of the NAPA study are to provide a thorough review of NMFS’s legal-defense capabilities, financial-management capacity, constituent relations, and organizational structure. The charge to the NAS (through the Ocean Studies Board of the National Research Council) was to provide a summary review of the adequacy of the data, scientific foundation, models, and processes used by NMFS to guide resource management, meet regulatory requirements, and provide support in response to litigation. The Ocean Studies Board convened a committee to conduct the assessment and prepare this report. Because of the very short time frame available, the statement of task specified that the committee should rely largely on previous NRC reports that examined NMFS’s stock assessment models, data-collection methods, and other aspects of the NMFS science program and review the actions taken by NMFS in response to the reports in conducting its assessment (see Appendix D). Therefore, the committee was comprised of experts who had served on one or more previous NRC studies of NMFS. The committee held three meetings and heard presentations from NMFS personnel in response to the findings and recommendations of the abovementioned reports, the NOAA General Counsel, and persons involved in recent litigation. Because time for the study was limited (less than 6 months from the formation of the committee), the committee was unable to visit NMFS regional offices and science centers or the FMCs to supplement the presentations and reports mentioned above. The committee selected and summarized a sampling of recently reported cases against NMFS involving the MSFCMA, ESA, NEPA, and MMPA. Specifically, it reviewed cases in which the court’s judgment was against NMFS and cases that illustrated points of law concerning potential failures in science or the

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Science and Its Role in the National Marine Fisheries Service application of science. No formal budget analysis of NMFS was completed by this committee.