Improving the Use of the "Best Scientific Information Available" Standard in Fisheries Management (2004)

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1 Introduction The Fishery Conservation and Management Act of 1976 created eight regional fishery management councils (Figure 1.1) that oversee the management of fisheries in federal waters based on scientific advice provided primarily by the National Oceanic and Atmospheric Administration (NOAA) Fisheries. The primary responsibility of the regional councils is the development of fishery management plans (FMPs). The regional fishery management councils are responsible for preparing management plans for marine species under federal jurisdiction within the U.S. exclusive economic zone. The process of FMP development consists of five phases: (1) development of draft documents; (2) public review and council adoption; (3) final plan review for compliance by NOAA Fisheries; (4) approval by the Secretary of Commerce; and (5) implementation. In general, members of the fishery management councils are not fishery scientists. For example, 83 percent of all appointed council members in 2002-2003 were either commercial or recreational fishers (NOAA Fisheries, 2004). Therefore, to develop FMPs the councils depend upon the scientific and technical expertise of the NOAA Fisheries regional fisheries science centers that conduct stock assessments and social and economic impact analyses for the councils. The councils also have their own advisory committees in which NOAA Fisheries scientists, council staff, and independent scientists participate (e.g., scientific and statistical committee, plan development team, social science advisory committee). These committees provide data analysis, review, and advice about the information used in developing FMPs. In some instances, scientists outside of these committees are asked to provide additional advice and commentary. NOAA Fisheries is required to approve, disapprove, or partially approve FMPs developed by the councils. The Secretary of 9 

10 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD States involved with two councils North Pacific States not involved in a council New England Pacific Mid-Atlantic South Atlantic Western Pacific Gulf of Mexico Caribbean FIGURE 1.1 Map of the states and territories covered by the eight regional fishery management councils (used with permission from the National Oceanic and Atmospheric Administration). Commerce, advised by NOAA Fisheries, must determine whether each FMP is in compliance with the 10 national standards contained in the Magnuson-Stevens Act as amended in 1996 (Box 1.1) prior to implementation. These standards include the requirement to prevent overfishing and to rebuild overfished stocks. National Standard 2 specifies that “conservation and management shall be based upon the best scientific information available” (Magnuson-Stevens Act, sec. 301). Similar requirements appear in other environmental statutes such as the Marine Mammal Protection Act, the Endangered Species Act, and the Safe Drinking Water Act (Box 1.2). 

INTRODUCTION 11 BOX 1.1 National Standards in the Magnuson-Stevens Act (Magnuson-Stevens Act, sec. 301) (a) IN GENERAL—Any fishery management plan prepared, and any regulation promulgated to implement any such plan, pursuant to this title shall be consistent with the following national standards for fishery conservation and management. 1) Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the U.S. fishing industry. 2) Conservation and management measures shall be based on the best scientific information available. 3) To the extent practicable, an individual stock of fish shall be managed as a unit throughout its range, and interrelated stocks of fish shall be managed as a unit or in close coordination. 4) Conservation and management measures shall not discriminate between residents of different States. If it becomes necessary to allocate or assign fishing privileges among various U.S. fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conser- vation; and (C) carried out in such manner that no particular individual, corporation, or other entity acquires an excessive share of such privileges. 5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resour- ces; except that no such measure shall have economic allocation as its sole purpose. 6) Conservation and management measures shall take into account and allow for variations among, and contingencies in, fisheries, fishery resources, and catches. 7) Conservation and management measures shall, where practicable, minimize cost and avoid unnecessary duplication. 8) Conservation and management measures shall, consistent with the conservation requirements of this Act (including the preven- tion of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing com- munities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts in such communities. [Added in 1996] 9) Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize mortality of such bycatch. [Added in 1996] 10) Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea. [Added in 1996] 

12 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD BOX 1.2 “Best Science” Clauses in Federal Legislation The Marine Mammal Protection Act of 1972 The Secretary, on the basis of the ‘best scientific evidence available’ and in consultation with the Marine Mammal Commission, is authorized and directed from time to time, having due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals, to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking, or importing… (Marine Mammal Protection Act, sec. 1371). The Endangered Species Act of 1973 • In determining whether to list a species as threatened or endangered, the Secretary shall make determinations based “solely on the best scientific and commercial data available to him” (Endangered Species Act, sec. 1533). • In designating critical habitat, the Secretary shall make designations “on the basis of the best scientific data available and after taking into consideration the economic impact” (Endangered Species Act, sec. 1533). • In taking actions that avoid jeopardy and protect critical habitat, the secretary “shall use the best scientific and commercial data available” (Endangered Species Act, sec. 1536). The Magnuson Fishery Conservation and Management Act of 1976, National Standard 2 “Conservation and management measures shall be based upon the best scientific information available…” (Magnuson Fishery Conservation and Management Act, sec. 301). Amendments to Safe Drinking Water Act of 1996 In carrying out this section and, to the degree that an Agency action is based on science, the Administrator shall use— (i) the best available, peer-reviewed science and supporting studies conducted in accordance with sound and objective scientific practices; and (ii) data collected by accepted methods or best available methods (if the reliability of the method and the nature of the decision justifies use of the data.). (Amendments to Safe Drinking Water Act, sec. 300g-1) 

INTRODUCTION 13 The scientific information produced under the authority of the Magnuson-Stevens Act leads to policy decisions in the form of FMPs. FMPs come under close scrutiny by environmental, recreational, and commercial fisheries and seafood processor groups. In some cases, these groups have sued the Secretary of Commerce, in part, over whether management actions are based upon the “best scientific information available” as required under National Standard 2. The quality of the scientific information used in stock assessments has been a frequent target because these assessments form the basis for establishing fishing limits, which in turn affect the allocation of fish among user groups. In these cases, the federal courts have not defined “best scientific information available” but have ruled that the standard does not require conclusive evidence. The courts have required that management measures be based on scientific information and not on political judgments. In part as a consequence of frequent litigation and complaints from constituents, current bills for reauthorization of the Magnuson- Stevens Act include detailed definitions of “best scientific information available.” The scientific information used in FMPs has become a target of lawsuits because the Magnuson-Stevens Act requires that fisheries be managed to prevent overfishing while achieving optimum yield (Box 1.1) based on the “best scientific information available.” If the scientific information indicates that a stock is overfished, the act requires that regulations must be enacted to constrain fishing and allow the stock to recover. To avoid being subject to sometimes severe reductions in allowable catch, the industry has often challenged the scientific information underlying the finding that the stock is overfished. PURPOSE AND GOALS OF THE STUDY The National Research Council Committee on Defining Best Available Science for Fisheries Management was charged with examining the application of the term “best scientific information available” as the basis for fishery conservation and management measures required under National Standard 2 of the Magnuson-Stevens Act (Box 1.3). The committee focused on the application of National Standard 2 and the development of procedures to ensure that the “best scientific information available” is used consistently to support management decision making. In carrying out its charge, the committee considered related environmental legislation, such as the Marine 

14 “BEST SCIENTIFIC INFORMATION AVAILABLE” STANDARD Mammal Protection Act and the Endangered Species Act, because they contain similar directives on the use of scientific information in formulating policies. BOX 1.3 Statement of Task This study will examine the application of the term “best scientific information available” as the basis for fishery conservation and management measures required under National Standard 2 of the Magnuson-Stevens Act. A workshop will be convened to discuss the original rationale behind this standard and its subsequent application in developing FMPs. Workshop attendees will also explore the interpre- tation of this standard by the courts in response to legal challenges of the scientific basis of regulatory actions. Questions to be considered include the following: How should adherence to the standard be measured? How and when should it be employed? Should the standard be applied to exclude information deemed inadequate, or should information be ranked and applied in relation to relevance and rigor? A brief report will be produced with recommendations for more uni- form application of “best scientific information available” in the prepara- tion of FMPs. This report refers to previous efforts to define “best scientific information available” or develop processes that will standardize the way in which the information is generated and applied. During the course of this study, the committee sought to identify procedures that could be adopted to standardize the application of the term “best scientific information available” as it is applied to fisheries management. The committee recognized that the process of fisheries management is complex and includes issues beyond those addressed here. However, because of the short time frame provided to complete this report and address its charge, the committee concentrated the discussion and recommendations on those aspects that are most directly affected by application of the “best scientific information available” standard. 

INTRODUCTION 15 REPORT STRUCTURE The report is organized to first present an overview of how “best scientific information available” has been formulated in legislation, implemented by management agencies, and interpreted by the courts. Chapter 2 presents the legislative history of the phrase “best scientific information available,” the application of National Standard 2 to fisheries management, and the challenge of addressing uncertainty in the decision- making process. Chapter 2 also includes a summary of the court’s interpretation of National Standard 2. Chapter 3 presents previous and ongoing efforts to define or delimit “best scientific information available.” Chapter 4, the final chapter of this report, contains the committee’s findings and recommendations, which include guidelines for standardizing the production and application of “best scientific information available” in the development of FMPs. This report contains eight appendixes that provide additional background information. Appendix A presents the biographies of the National Research Council Committee on Defining Best Available Science for Fisheries Management. Appendix B lists attendees that participated in the Workshop on Defining Best Available Science for Fisheries Management in September of 2003. Appendix C contains questionnaires sent to the regional fisheries science centers and regional fishery management councils to help the committee determine how they use “best scientific information available” in their decision-making process. Appendix D provides federal regulations that support FMP development with regard to National Standard 2. Appendix E contains a list of acronyms used in this report. Appendix F is a compilation of regional fisheries science centers and the committees that conduct stock assessment and peer review and of the fishery management councils they support and the committees and panels that provide advice. Appendix G is a copy of the report of a fisheries workshop by the Consortium for Oceanographic Research and Education completed on February 18, 2000. Appendix H provides examples of recent case law supporting guidelines for “best scientific information available.”