Improving the Management of U.S. Marine Fisheries (1994)

During the past 17 years the United States has attempted to fine-tune fisheries management by making adjustments to parts of the Magnuson Fishery Conservation and Management Act (MFCMA) in reaction to specific problems, rather than collectively addressing the problems in the context of the entire law. This approach has created inconsistencies within the law and has confused the respective authorities and responsibilities of the Secretary of Commerce and the councils. To achieve significant improvements in the conservation and management of fish stocks, it will be necessary to set a national strategy, to develop some long-range strategic goals, and to find mechanisms to achieve these goals. Indeed, proactive management will require a change in the scope and allocation of the responsibilities of those institutions under which the United States manages its fishery resources.

In its review of the MFCMA, the Congress once again has the opportunity to reauthorize, and to amend, this important law. The challenge now is to articulate an economically and ecologically sound vision of fisheries management for the remainder of this decade and into the twenty-first century. The recommendations in this chapter are intended to aid Congress in their deliberations during the MFCMA reauthorization.

Now that foreign fishing in the U.S. EEZ has been significantly reduced, fisheries management needs a new focus. The primary goal of management should be the conservation of fish stocks for long-term sustainable use. A secondary goal should then be the allocation of total allowable catch according to economic and social criteria among the competing domestic user groups, both recreational and commercial, that have increased their fishing capacity since the original implementation of the MFCMA.

The MFCMA specifies in its National Standard One that the purpose of fisheries conservation and management is to prevent overfishing while achieving optimum yield from each fishery for the United States fishing industry. Furthermore, the MFCMA definition of optimum yield is based on the maximum sustainable yield modified by economic, social, or ecological factors. This definition of optimum yield is so broad that it can be interpreted as justifying almost any quantity of catch. It is clear that two mutually exclusive issues are involved in trying to achieve “optimum yield.” One issue is the apprehension about overexploitation of fisheries resources, and the second is the desire for attaining economic efficiency moderated by social factors.

It is the committee's view that the MFCMA needs to be clarified and strengthened to ensure that harvest does not reduce the stock below a level at which it can sustain maximum yield over the long term, to control entry and overcapitalization in order to prevent overfishing stocks of fish, and to cause recovery plans to be put into place for currently overexploited species. The national standards should require conservation and management measures to prevent overfishing and to promote rebuilding of stocks reduced to low levels. In addition, a definition of optimum yield that is consistent with preventing overfishing, and that allows overfished stocks to be brought back to a level that can support maximum yield over the long term, should be a mandatory element in all fisheries management plans. Economic pressures must not influence the establishment of optimum yields to the extent that the maximum sustainable yield cannot be achieved over the long term. Achievement of optimum yield should encourage the development of fishery management plans that limit, and in many instances reduce, investment in fishing fleets, and also encourage full utilization of fisheries resources.

Recommendation 1: Fishery management should promote full realization of optimum yields as originally envisioned in the MFCMA by ensuring that harvest does not reduce stock abundance below levels that can sustain maximum yields over the long term. For currently overfished stocks, harvest levels must allow rebuilding the stock over specified periods of time to a level that can support sustainable maximum yields. Any departure from the above must be supported by persuasive evidence regarding natural variability, ecosystem interdependence, sustainable national income gains, or truly exceptional socio-cultural considerations.

In fishery management plans developed by a council or the Secretary, the realization of optimum yield for fisheries should be promoted by maintaining stock abundance at or above the maximum sustainable yield level. Specifically, when a stock is below its level of maximum biological productivity, allowable

catch levels should not be increased by optimum yield adjustments, but should be kept below the current replacement level to allow rebuilding of the stock over a specified period of time. This recommendation applies to single-species fisheries.

Ideally, allowable catch should take into account the effect of fishing activity on each species in the ecosystem, but much of the information needed for such an approach is not yet available. For fisheries that are part of multi-species complexes, the allowable catch must be determined on a case-by-case basis, but consideration needs to be given to the complex as a whole and to whether some components of the fishery are biologically and/or economically more important.

The first national standard should specifically mention recreational fisheries, since recreational fishing significantly affects the yield for some fisheries. Also, because of our improved understanding of fish stocks as genetically as well as geographically distinct populations, the first national standard should specify optimum yield from each stock, rather than from each fishery.

One important technique for achieving optimum yield is to control the number of units of fishing gear such as vessels, traps, and nets. The MFCMA establishes guidelines for council consideration of fishing vessel restrictions and limited access systems but until recently few plans including limited access systems had been implemented. When unlimited entry is permitted, each fisherman increases the number and harvesting capacity of vessels and gear in order to capture the largest share of the allowed catch. The committee believes that open access to fisheries and the resulting overcapitalization are major problems that are inadequately addressed in most contemporary fisheries management. Although most of the important fisheries are now under management plans that include some form of limited entry, or are being considered for such plans, limited entry alone cannot prevent overcapitalization or reduce pressure to exceed acceptable biological catch levels; some form of control of fishing effort and/or total catch is also needed. Prevention of overcapitalization requires individual allocations of catch or effort; the latter works only if units of effort are strictly defined.

Recommendation 2: Fishery management should control entry into and wasteful deployment of capital, labor, and equipment in marine fisheries.

To be effective, the method used to control entry and capitalization must be responsible and equitable, and have adequate phase-in periods. The form of controlled entry should be decided by the councils, which can tailor the approaches to the regions and species fished. Management plans or amendments should address restriction of entry, although this action should be modified to provide a phased expansion for those fisheries which are not yet overcapitalized. Each council should be required to prepare and implement a plan for controlling entry and capital in order to prevent overfishing and to rebuild stocks reduced to low levels.

In Chapter 3 the committee identifies a number of inadequacies in fisheries management and conservation that have contributed to the present condition of many U.S. stocks as overutilized and depleted. A principal finding of the committee is that the lines of authority and responsibility between the Secretary of Commerce and the regional fishery management councils regarding management of marine fishery resources are unclear, and therefore confuse participants, create inefficiencies, and generate adversarial positions without a satisfactory mechanism for conflict resolution. In addition, the committee finds that except for the traditional oversight function of Congress, the present system of fisheries management lacks independent checks and balances. Therefore, the committee recommends a management structure consisting of three major components: the Secretary of Commerce, as the official of the federal government; the regional fishery management councils, as legislatively provided representing the expertise, knowledge, and interest regarding the conservation and management or the commercial or recreational harvest of regional fishery resources; and an independent oversight body, as an independent advisor to the Secretary, the councils, and Congress. The regional fishery management councils should continue to bear the responsibility for allocation and capitalization controls. The Secretary should continue to have the primary responsibilities for providing scientific and technical information to the councils and for implementing and enforcing approved fishery management plans, but should not be involved in the allocation process, except at the review level. The oversight body should be established as an independent mechanism responsible for strategic planning, review of management decisions and actions, and conflict resolution by providing recommendations to the Secretary, the councils, and Congress.

Recommendation 3: Congress should clarify the authority and responsibility of the Secretary of Commerce and of regional fishery management councils with respect to allocation and capitalization controls, implementation and enforcement of fisheries management plans, strategic planning, review of management decisions and actions, and conflict resolution.

As the nation's primary fishery manager, the Secretary of Commerce has the responsibility of administering an effective and cost-efficient fishery management system. To meet this obligation, the Secretary must balance the need to separate appropriately the responsibilities of the scientific, fishery management, and enforcement sections of the department with the necessity for promoting close cooperation between them. However, scientific and technical fishery management functions should be clearly separated from the enforcement of regulations.

The Secretary should establish a program that assures the councils and the public at large that the scientific and technical advice provided by the NOAA/National Marine Fisheries Service is of the highest scientific quality and based on the best available scientific information on the fished population and its environmental constraints (see the listing of responsibilities for the Secretary in Table 1). The NOAA/National Marine Fisheries Service's scientific and technical personnel should be able to cooperate with council staff and with university, state, and private scientific colleagues to procure the best scientific advice available for the councils including estimates of maximum sustainable yield and/or the current replacement yield for the stocks under study. However, such scientific advice should be provided by scientists and technical staff who are not directly involved with enforcement of regulations, and should not be subject to influence by intra-agency conflicts of interest. This separation of advice from scientific and technical staff and enforcement staff would help clarify the issue of legal representation within the councils that often arises with the NOAA/National Marine Fisheries Service's legal counsel being expected to represent both the council's and the Secretary's interest. Perhaps consideration should be given to the need for separate legal representation for the councils.

The function of the councils is to prepare and submit management plans and amendments, to set optimum yield levels, and to make allocations. The control of capital is part of writing a plan or amendment (see the listing of responsibili-

ties for the councils in Table 2). Scientific and statistical committees should be maintained and used by all councils to ensure that the “best scientific information available” is indeed up to date and unbiased. Councils and the Secretary must be required to consider the advice provided by the councils ' scientific and statistical committees. Furthermore, the reports of a scientific and statistical committee should clearly express the basis of the science used to determine the acceptable biological catch levels and the reports should be transmitted by the committee 's chairman to the council, the NOAA/National Marine Fisheries Service, state agencies, the Secretary of Commerce, and other interested parties as independent reports. After a council submits a fishery management plan to the Secretary of Commerce for approval, the Secretary reviews the plan for consistency with the national standards (including the standard requiring that conservation and management measures be based on the best scientific information available), other provisions in the MFCMA, and other applicable law. The Secretary either approves or disapproves of a plan based on these criteria.

The committee believes that establishment of acceptable biological catches should be a scientific determination. This can be accomplished by having the NOAA/National Marine Fisheries Service, state agencies, and other interested scientists provide initial views regarding appropriate levels of acceptable biological catches. To prevent overfishing, it is desirable that a group of scientists be given responsibility for determining acceptable biological catch (ABC) levels for a stock, group of stocks, or multi-species complex. The complexity of population interactions requires that this be done on a case-by-case basis. What is needed is is a consistent organizational process for scientific decision-making nationwide.

Therefore, the committee recommends:

1. The Magnuson Act should be amended to specify that acceptable biological catches be set by scientific advisory committees to the regional Councils;

2. Each Council should be mandated to establish a scientific advisory committee that could be the Council's Scientific and Statistical Committee (SSC), a group drawn mainly from the NOAA/National Marine Fisheries Service Science Center(s), or a separate, new committee.

3. Each such scientific advisory committee would be subject to the following membership and operational provisions to be specified in amendments to the Act.

   1. A majority of committee members should have expertise in marine population dynamics, stock assessment, biology, or ecology; remaining members should also have expertise in natural or social sciences (such as natural resource management, economics, anthropology, or sociology).

   2. The committee should have at least one member from the NOAA/National Marine Fisheries Service, and one from each state agency, if possible, involved in marine fisheries except that the total from such state agen

cies should not be greater than the total membership from outside such agencies, so that the perspective of the committee is broad and inclusive.

3. If a member has a perceived or actual conflict of interest, that member must divulge the conflict and recuse his (or her)self from participation in discussion or decision.

4. Committees should attempt to reach decisions by consensus, rather than formal vote. Committee reports should reflect any major division of opinion.

4. National standards to guide the operations of the Committee should be promulgated by the Secretary of Commerce, except for the membership and operational norms cited in (3), above.

Actual total allowable catches may, of course, be modified by adjustments to the optimum yield by council members provided that, first, maximum sustainable yield can be sustained over the long term, and second, for currently overfished stocks, the permissible harvests allow rebuilding these stocks over specified periods of time to levels that can support sustainable maximum yields. This process of determining harvest levels is, in fact, status quo for some councils. However, such a mechanism needs to be codified so all councils will follow this procedure.

The issues of conflict of interest and competence arise in considering restructuring of the councils. The councils should be balanced in terms of their representation, so as to include individuals knowledgeable about the various fisheries under the councils' jurisdiction. Congress should consider subjecting council members to more stringent provisions to prevent conflict of interest, but should examine the impact that such provisions might have on participation by interested parties and on the efficiency of the council decision-making process.

A variety of remedial actions are available to obviate the conflict-of-interest problem. Administrative remedies exist, including reimposition of the Federal Advisory Committee Act, adoption of a recusal mechanism where financial interests conflict, and extended financial disclosure.

At the outset, renewal of the application of the Federal Advisory Committee Act seems to be a partial solution to the conflict-of-interest problem. However, mandatory reimposition of Federal Advisory Committee Act requirements upon a council, its committees, and its panels would seriously encumber council processes with principles and procedures largely irrelevant to their operation. Faced with this dilemma, a majority of the committee members concludes that the risk entailed in imposing an encompassing federal legislative remedy is less threatening to effective council operation than the risk now posed by inaction. A majority of committee members recommends that the MFCMA be changed as follows:²

1. Reimpose the applicability of the Federal Advisory Committee Act to the regional fishery management councils, excluding the scientific and statistical committees and advisory panels from its operation;

2. Provide that council members must disclose their financial interests on the record at the time a council is to vote on a matter related thereto and recuse themselves from voting on that matter, subject to a waiver if a council member's participation is essential to reach a decision;

3. Mandate that each council create, adopt, and adhere to a conflict-of-interest policy suited to its own regional circumstances, but subject to the requirements in (b) above.

The main feature of the Federal Advisory Committee Act is the requirement that advisory committees must adhere to specified administrative requirements, including notice of all meetings in the Federal Register and other public notices as well, allowing interested persons to appear before the committee, requirements for making available to the public all records, reports, drafts, and studies that are made available to or by each advisory committee, detailed minutes of each meeting containing specified information. The committee must be chaired

by a federal official. This description of the substantive requirements for advisory committee operations indicates the significant logistic and record-keeping requirements for these committees. They are inappropriately burdensome for the operations of scientific and statistical committees and advisory panels. The paperwork and procedural requirements would overwhelm the system. Furthermore, the expected gains from imposing these requirements on groups that are advisory to the councils, which in themselves are advisory committees, is not considered sufficient to warrant the burdens and costs involved.

The present level of oversight of fisheries management by Congress is not sufficient. Based on our analysis it does not appear to provide appropriate independent checks and balances. We believe that this could best be remedied by establishing an independent body for strategic planning, review, and conflict resolution. The committee does not envision this structure is not envisaged as a substitute for action by other properly constituted bodies, or for conflict resolution among entities empowered to resolve their own conflicts. As we envision it, this would be a body whose charge would be to review and report to the Congress on performance and problems in U.S. marine fisheries under the MFCMA, as amended. Included in this charge, among other factors, might be scientific and technical issues, management goals and strategies, jurisdictional problems, and environmental and conservation concerns. At the request of either the Secretary or a council, and at its sole discretion, the body may engage in ad hoc conflict resolution by considering and rendering a non-binding decision upon those in conflict.

Some mechanism is needed to provide strategic management, and to deal with issues where science and technology are not making progress. We believe that the independent body described above would fill these roles. Such a body could be tasked with making recommendations related to needed research and to improving cooperation among agencies. Other functions that could be accomplished by this body include reviewing both the scientific methodology and the concordance of national goals with other areas of environmental management, and working with other bodies, such as the Marine Mammal Commission, toward the protection and conservation of habitat, marine mammals, birds, and fish. The new body should be able to develop or contract for reports on issues of interest and concern, and should be assisted by a group of science advisors in providing recommendations to Congress and to the new body. Such an independent oversight body was envisioned in bills introduced in the Ninety-Fourth Congress, and is part of the official legislative history of the MFCMA.³

The form of this independent body should be defined by its duties (the recommended responsibilities are described in Table 3), but it should be a standing entity with stable funding appropriated by Congress. The body should be independent of both the Secretary of Commerce and the regional councils, so as to provide objective advice and review. Its membership should be balanced in terms of expertise in areas related to fisheries (including science, management, industry, environment, and consumers). Members should be subject to both public financial disclosure and conflict-of-interest provisions, and their terms should be staggered. Members should be appointed by the President, subject to approval by the Senate. To encourage serious consideration of recommendations from the body, federal officials should be required to respond to any recommendations within 120 days, and to explain in detail any decisions not to follow them. There is a wide range of existing federal review and advisory bodies that could serve as a model, including the Marine Mammal Commission, the Federal Communications Commission, the National Transportation and Safety Board, the Federal Energy Regulatory Commission, the Securities and Exchange Commission, and the Federal Trade Commission. The committee did not review nor assess all of these federal bodies regarding their appropriateness for fulfilling the roles and functions described for the new independent body. Congress will have to decide on the exact form of the new body that will be most appropriate for fisheries management.

The information collected by NOAA/NMFS and used by the fishery management councils is frequently insufficient for making management decisions. On the biological side, some assessments rely on fishery performance information that may have bias and variability large enough to prevent accurate assessment of population condition. For many fisheries, the magnitude of bycatch mortality is unknown, which precludes precise assessment of the effects of fishing. Furthermore, insufficient information about the effects of the environment and multi-species interactions may prevent accurate evaluation of current and future recruitment. Finally, in some situations, both the personnel and the time needed to process the information collected are lacking, resulting in long delays.

Councils must make decisions about management actions in light of their potential socio-economic effects. Frequently, insufficient economic and sociological information exists to determine these effects accurately, due to a lack of data on fishing costs, demand and supply relationships, employment, and micro-and macro-economic impacts and distributional effects as called for within the new Executive Order 12866 (see Appendix 2). Risk assessment techniques could help councils make rational decisions by clarifying the sources and levels of uncertainty. Unfortunately, it will always be difficult to compare scientific data on such things as fish ecology with personal testimony on economic and social impacts.

Recommendation 4: The Secretary of Commerce should improve the NOAA/National Marine Fisheries Service's scientific programs by making them responsive to management needs and to possible societal and economic effects. Improved data collection, analysis, and dissemination are needed to make evaluations and policy decisions.

The NOAA/National Marine Fisheries Service should improve its programs for collection, analysis, and dissemination of data for fisheries management and scientific research. The information should include stock data, clear descriptions of these data and the analysis techniques applied to them, and, finally, the best estimate of stock histories and an appropriate estimate of the reliability of the analysis. The data should be easily accessible to all personnel involved in the process of fisheries research, management, and operations.

The present Act, with its reliance on management of individual populations without regard to the ecological context of these species, has emphasized the use of population-level analyses. From the perspective of fish and fisheries ecology, several elements of ecology on which effective fishery management depends are not required or encouraged in the existing Act. Two of these elements are the ecological interactions in the biological communities in which these populations exist, and the ecological dependencies on the physical and chemical environment on which these populations depend. Both are serious omissions if sus-

tained yields of high-quality fishery products are to be obtained from U.S. waters over the long term. The science of multispecies fishery management has a long history, but has had little influence to date on fisheries management as practiced.⁴ The Act should incorporate concepts related to species interactions into the requirement to use best available science.

Decisions will be very hard to make without better data. Fishermen are an obvious source for providing catch data. The committee believes that obtaining accurate catch data is essential. Therefore, it is the committee's view that all fishermen should be obligated by law to report their catch (including bycatch, fishing effort, and related biological information) to the program, and confidentiality must be assured. Economic information on fishermen's catch is very useful; it must be obtained by methods that provide reliable data. These data should be available to fisheries managers in a readily accessible data base that includes information and documentation about the methods, access, and limitation of the data⁵ and proper quality checks. Aggregate summaries of the resulting statistics should be available to all parties. Implementation of this recommendation will require mechanisms to encourage data submission, data analysis, quality control, and easy access to data by remote users.

The long-range goal of ecosystem management is to develop a comprehensive management framework that ensures sustainable levels of natural resources, and that minimizes the effects of human actions both on the ecosystem as a whole and on the individual components of the ecosystem—for example, species' habitats and food-web structure. Because the cause-and-effect interactions of most of the environmental factors in an ecosystem are not understood, and methods of ecosystem management are not well defined, considerable research to quantitatively determine the relationships among the various environmental factors must be undertaken before the long-term goal of full ecosystem management can be attained. In the meantime the NOAA/National Marine Fisheries Service and the councils should do everything in their power to prevent further habitat degradation and to minimize losses of non-target species.

Recommendation 5: Fishery management should increase the use of the ecosystem approach to management, and include environmental protection goals in the development of fishery management plans.

An important starting point for increasing the use of an ecosystem approach to fisheries management would be the implementation of multispecies management.⁶ A significant first step would be to incorporate bycatch/discard information into fishery management decisions—in particular, into estimating the total mortality for specific fish stocks imposed as a result of fishing. Fishery management plans must deal with direct and indirect effects of bycatch/discards⁷ as well as with other fishery mortality not now reported for target and non-target species—including threatened and endangered species. Management plans should also include procedures designed to reduce the general wastage found in many types of fishing. The possible direct and indirect effects of bycatch on non-target commercial, endangered, and protected species as well as target species should be investigated. Fishery management councils should incorporate provisions to minimize both bycatch and waste in fishery management plans.

The Secretary of Commerce, through the NOAA/National Marine Fisheries Service, should undertake multispecies approaches to fishery management to evaluate the need for, and implement, a formal bycatch reduction program. The bycatch reduction program should identify a set of goals involving biological, ecological, economic, and ethical concerns. Such a program should require a significant reduction in effort, or modification of capture size, for those fisheries involving overfishing. The bycatch initiative should also quantify bycatch data for all major U.S. fisheries, because analysis of bycatch/discards will provide the basis for effective catch management and greatly facilitate understanding of the ecosystem components, species interactions, and multispecies management requirements. The program should provide major funding for the collection of reliable discard data and for a new fishery technology program to improve gear and introduce fishing techniques needed to reduce the bycatch/discard problems.

The stability and productivity of fish resources depend in large part on the number and environmental quality of the habitats in which fish breed, spawn, mature, and live their adult lives. The more a fishery depends on riverine and

coastal environments, the more critical is the habitat issue. Perhaps the least understood environment problems involve habitat alterations, including (1) loss of habitats of species, especially those which form “nursery habitats,” (2) alteration of sediments, (3) the generation of debris such as ghost nets and plastic waste that can kill animals, and 4) the effects of fishing on habitats. Even the cessation of all fishing activities will not guarantee future stocks if there are inadequate habitats to support fish reproduction and growth. To ensure that habitats will be adequate to support fish stocks, some form of habitat protection is essential. Although the MFCMA allows councils to comment and make recommendations on any activity proposed by a federal or state agency that may affect the habitat of a fishery resource under a council's jurisdiction, this provision does not constitute the comprehensive approach that would be most effective in maintaining fishery resources. To be effective, a comprehensive approach must address problems resulting from multi-agency shared responsibility under a number of different federal and state laws; efforts and programs for habitat protection and management of habitat resources must be coordinated. Also, this provision does not address the effects of fishing activities on non-target organisms, and on the physical and chemical environment.

Recommendation 6: The Secretary should provide adequate funding for collection of reliable discard data and for a major new fishery technology program to improve gear and fishing techniques needed to reduce the bycatch/discard problem.

A major national program should be developed to determine what habitats are critical for fish reproduction and growth and how they can be protected. Such a program would bring the problem of degradation of fish habitats to national attention, and would provide a means of coordinating measures to achieve adequate protection. Two early tasks would be to define the environmental components essential for fish reproduction, survival, and production at the level needed for maintenance of fisheries resources, and to identify and understand current causes of habitat degradation. These, along with the multispecies and bycatch measures discussed earlier, constitute essential pieces in the application of an ecosystem approach to fisheries management.

Recommendation 7: The Secretary of Commerce, through the NOAA/National Marine Fisheries Service and under advisement from regional fishery management councils, should be empowered to protect the habitats necessary to sustain fishery resources. A major national program should be developed to determine what habitats are critical for fish reproduction and growth, and how they can be protected.