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
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).
(Magnuson-Stevens Act, sec. 301)
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
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—
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
Mammal Protection Act and the Endangered Species Act, because they contain similar directives on the use of scientific information in formulating policies.
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 interpretation 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:
A brief report will be produced with recommendations for more uniform application of “ best scientific information available” in the preparation 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.
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.”