In the United States, the use of “ best scientific information available” and related terms originated in legislation protecting marine mammals (Marine Mammal Protection Act of 1972), in amendments to the Endangered Species Act of 1973, and in establishing management standards for marine fisheries (Fishery Conservation and Management Act of 1976; reauthorized in 1996 as the Magnuson-Stevens Act). Under the Magnuson-Stevens Act, National Standard 2 specifies that “conservation and management measures shall be based upon the best scientific information available” (Magnuson-Stevens Act, sec. 301). Similar terminology has been included in subsequent federal and state environmental statutes.
Numerous lawsuits have challenged whether National Standard 2 has been met in fisheries management plans and other federal actions under legislation mandating the use of “best scientific information available.” The federal courts have not defined “best scientific information available,” but instead have examined the amount and quality of information available at a particular time in relation to the National Oceanic and Atmospheric Administration (NOAA) Fisheries’ regulatory responsibilities to conserve and rebuild stocks.
National Standard 2 is currently under scrutiny as Congress develops legislation for reauthorizing the Magnuson-Stevens Act. Therefore, it is an opportune time to consider whether the phrase “best scientific information available” requires further explanation or definition in the new legislation or whether National Standard 2 can be implemented more effectively through agency-developed regulations or guidelines. The motivation behind these approaches lies in the desire to improve the application of scientific information in conservation and management decisions to reduce costly and time-consuming litigation.
A previous National Research Council (2002a) report also recognized this issue:
…the National Standard 2 directive to use the best scientific information available has not provided sufficient guidance. Instead, it appears to have served as an invitation to challenge the validity of the scientific information used for stock assessments and for decisions on ecosystem aspects of management.
This study takes a more in-depth look at National Standard 2 and provides recommendations for more uniform application of “best scientific information available” in the preparation of fishery management plans.
NOAA Fisheries asked the National Research Council’s Ocean Studies Board to 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. In particular, the National Research Council was asked to consider the following questions:
How should adherence to National Standard 2 be measured?
How and when should it be employed?
Should National Standard 2 be applied to exclude information deemed inadequate, or should information be ranked and applied in relation to relevance and rigor?
To gain perspectives on this issue from a broad spectrum of interested parties, the study committee convened a workshop in September 2003 to discuss the original rationale behind National Standard 2 and its subsequent application in developing fishery management plans. In addition to considering the above questions, workshop participants (Appendix B) explored the interpretation of National Standard 2 by the courts in response to legal challenges of the scientific basis of regulatory actions. The committee also requested information from each of the regional fisheries science centers and fishery management councils on their interpretation and application of National Standard 2 (Appendix C).
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.
DEFINING THE PROBLEM
NOAA Fisheries is responsible for fisheries management within the exclusive economic zone of the United States. NOAA’s regional fisheries science centers conduct stock assessments, gather scientific information, and provide social and economic analyses for fisheries on an annual basis. The scientific information they produce is provided to the eight regional fishery management councils and their advisory committees for the development of fishery management plans for stocks within each region. The Secretary of Commerce is invested with the authority to approve or remand the plans based on whether they are in compliance with the 10 national standards specified by the Magnuson-Stevens Act.
The interpretation and application of scientific information in fishery management plan development may have the potential to form the basis for contentious policy decisions. Council members generally have little or no expertise in stock assessment science, and they rely on advice received during council meetings from their expert panels as well as from NOAA scientists and interested members of the public. The role of the councils is to use scientific advice to manage and conserve resources while simultaneously balancing competing fishery interests. In some cases, controversy over the scientific information used in stock or other assessments has delayed management action or reduced the influence of the scientific advice in the development of a management plan. Without a clearer understanding of how scientific assessments are developed, validated, and applied under National Standard 2, more management decisions will be destined for costly and time-consuming litigation.
Although there are common elements in the application of “best scientific information available” among the councils, there are differences resulting from region-specific characteristics of the exploited stocks and the types of data available to evaluate fish populations, fish habitat, and the socioeconomic status of the fisheries. In addition, there are differences in data quality (data-rich versus data-poor regions) and
the amount of research conducted independently of the science centers (for example, fishery-funded research or observer programs).
The following findings address the concerns regarding the “best scientific information available” as outlined briefly above. The findings are discussed in greater detail in the body of the report, and additional findings are presented in Chapter 4.
National Standard 2 embodies the idea that decisions regarding management and conservation should be made in a timely and effective fashion with available information despite recognized data gaps.
The Magnuson-Stevens Act provides specific guidelines for the development of fishery management plans; however, no guidelines exist for the uniform application of National Standard 2.
Fisheries science centers and fishery management councils report a common interpretation of National Standard 2; however, there are both institutional and regional differences in the application of the standard.
A statutory definition of what constitutes “best scientific information available” for fisheries management is inadvisable because it could impede the incorporation of new types of scientific information and would be difficult to amend if circumstances warranted change.
Establishing procedural guidelines is the preferred alternative for creating accountability and enhancing the credibility of scientific information used in fisheries management.
NOAA Fisheries should implement the guidelines presented below to govern the production and use of scientific information in the preparation of fishery management plans and supporting documents. Procedural consistency would provide NOAA with a
stronger basis for defending controversial management decisions in court. More specifically, guidelines that address issues of relevance, inclusiveness, objectivity, transparency, timeliness, peer review, and the treatment of uncertainty are consistent with the procedural cues that have been sought by the courts. They will promote consistency in both the production and the use of scientific information without unduly constraining the ability of scientists to adopt new scientific protocols for data collection and analysis. Guidelines should remain sufficiently flexible to accommodate the strong regional differences in fisheries and the amount of scientific information available.
Relevance—Scientific information should be representative of the fish stock being managed, although the data need not be site specific or species specific. In some cases, analogous information from a different region or the biological characteristics of a related species or species with similar life-history strategies will be informative and relevant, and may constitute the best information available.
Inclusiveness—Scientific advice should be sought widely and should involve scientists from all relevant disciplines. The goal should be to capture the full range of scientific thought and opinion on the topic at hand. Critiques and alternative points of view should be acknowledged and addressed openly. Anecdotal (experiential, narrative, or local) information should be acknowledged and evaluated during the process of assembling scientific information. When no other information is available, anecdotal information may constitute the best information available. In addition, anecdotal information may be used to help validate other sources of information and identify topics for research.
Objectivity—Data collection and analysis should be unbiased and obtained from credible sources. Scientific processes should be free of undue nonscientific influences and considerations.
Transparency and Openness—Congress has enacted laws intended to give the public full and open access to the development of federal policies, including advisory meetings, background documents, and other sources of information. Accordingly, the public should have information about each phase of the process from data collection to data analysis to decision making. Decision makers should provide a clear rationale for the choice of the information that they use or exclude when making management decisions. The processes of collecting data and selecting
research for use in support of management decision making should be open, broad-based, and carefully documented. All scientific findings and the analysis underlying management decisions should be readily accessible to the public. The limitations of research used in support of decision making should be identified and explained fully. Stock assessments and economic and social impact assessments should clearly describe the strengths and weaknesses of the data used in analyses.
Timeliness—There are at least two aspects to timeliness. First, timeliness refers to the acquisition of data in such a manner that sufficient time exists to analyze it adequately before it is used to make management decisions. Second, timeliness refers to whether the data are applicable to the current situation. Some types of information, such as the life-history characteristics of a species of fish, may not change over time, so they remain current. Other types of information, such as population survey data, have to be updated on a regular basis. Timeliness can also mean that in some cases, results of important studies and/or monitoring programs must be brought forward before the scientific team feels that the study is complete. Uncertainties and risks that arise from an incomplete study should be acknowledged, but interim results may be better than no new results at all. Management decisions should not be delayed indefinitely on the promise of future data collection or analysis. Fishery management plan implementation should not be delayed to capture and incorporate data and analyses that become available after plan development, except under extraordinary circumstances when a brief and clearly defined postponement is agreed upon by the management council and the Secretary of Commerce, and measures are already in place to ensure that overfishing will not occur during the delay.
Peer Review—Peer review is the most accepted and reliable process for assessing the quality of scientific information. Its use as a quality control measure enhances the confidence of the community (including scientists, managers, and stakeholders) in the findings presented in scientific reports. Peer review is not infallible, but it has proved valuable for uncovering errors and providing diverse perspectives on data collection, analysis, and interpretation. This includes cases in which documentation of the scientific information would be insufficient to validate or reproduce the results of an analysis of a given set of data. Reproducibility of data analysis is one important method for ensuring the validity of scientific information.
NOAA Fisheries should establish an explicit and standardized peer review process for all documents that contain scientific information used in the development of fishery management plans. Each region should have some flexibility to adapt peer reviews to individual circumstances; however, the following key elements should be included:
the review should be conducted by experts who were not involved in the preparation of the documents or the analysis contained in them;
the reviewers should not have conflicts of interest that would constrain their ability to provide honest, objective advice;
all relevant information and supporting materials should be made available for review; and
a peer review should not be used to delay implementation of measures when a fishery has been determined to be overfished.
Internal peer review of scientific information is often sufficient; however, an external review may be advisable when one or a combination of the following circumstances applies: questions exceed the expertise of the internal review team, there is substantial scientific uncertainty, the findings are controversial, or there are a range of scientific opinions regarding the proposed action.
Adherence to National Standard 2
NOAA Fisheries should require each fishery management council to provide explicit findings on how scientific information was used to develop or amend a fishery management plan. The use of the guidelines provided in this report will facilitate more uniform application of National Standard 2 and may help reduce the pressure on the councils to disregard scientific advice that would require difficult management decisions. Compelling the councils to explicitly document their interpretation and use of the scientific information would clarify their decision-making process and would provide the Secretary of Commerce with a clearer rationale for evaluating the merits of the fishery management plans in terms of National Standard 2.
The Secretary of Commerce should determine whether a plan adheres to National Standard 2 by the extent to which the guidelines
have been followed as part of the review for compliance with all 10 national standards specified by the Magnuson-Stevens Act. A rigorous secretarial review of the use of scientific information will result in a feedback process that will improve the compliance of fishery management plans with National Standard 2. The goal is to reduce the pressure on all parties to tailor the management plans to the interests of any one constituency, regardless of the scientific findings.
Scientific reports should explicitly identify the level of uncertainty in results, provide explanations of the sources of uncertainty, and assess the relative risks associated with a range of management options. Decision making in fisheries requires an accurate and understandable assessment of uncertainty and risk. Managers need to take into account both the short-term and the long-term effects of management actions. Scientists can help by estimating the risks to the fish population and to the fishery over different periods and in relationship to the uncertainties. Descriptions of uncertainty can also provide an index of the quality of available information that should then be used to help set research priorities.
NOAA Fisheries should develop and implement a plan to systematically improve the quality of the “best scientific information available” that includes regular assessments of the outcomes of management actions and evaluation of the predictive quality of the scientific information supporting those actions. After a management action has been passed by the council and approved by the Secretary of Commerce, a follow-up evaluation of the effects of that management action is rarely undertaken. Yet evaluation of the outcomes of management actions over time is necessary to ensure the continued use and refinement of scientific information. As the quality of scientific information improves, the basis for good management decision making will be stronger. Such an evaluation process requires explicit hypotheses (statements about relationships) regarding potential actions and their related system components. Properly designed studies will provide new knowledge that tests these hypotheses and leads to a more refined understanding of the consequences of management actions.