HISTORY OF U.S. FISHERIES MANAGEMENT
Until March 1, 1977, which was the effective date of the Fishery Conservation and Management Act of 1976 (FCMA as it was known then),1 marine fisheries management in the United States was minimal (Magnuson, 1977). Prior to the FCMA, fisheries management was generally limited to controls implemented by individual states, pursuant to the Submerged Lands Act of 1953, which provided states with jurisdiction over submerged lands and natural resources within 3 miles of their respective coastlines (Magnuson, 1977).2 The Atlantic States Marine Fisheries Commission (ASMFC) was formed through an interstate compact and was approved by Congress in 19423 to coordinate state fisheries management, but it lacked direct management authority. Similar interstate commissions developed between Pacific States in 19474 and in the Gulf of Mexico in 1949.5
In addition to state efforts, the federal government managed some fisheries under the auspices of international fishery management organizations such as the International Commission for Northwest Atlantic Fisheries Organization (ICNAF, now the North Atlantic Fisheries Organization),6 the International Pacific Halibut Commission (IPHC),7 and the Inter-American Tropical Tuna Commission (IATTC).8
ICNAF was founded in 19499 because of concerns about increasing fishing pressure on stocks in international waters. At the time, the United States and Canada were the main participants in the fishery. With the arrival of distant water fishing vessels from Europe (primarily U.S.S.R., East and West Germany, Poland, Spain, and Portugal) and Asia (primarily Japan) in the 1960s, ICNAF became more active, in particular, to respond to the collapse of Georges Bank haddock and then to overfishing of other groundfish, silver hake, herring, and mackerel. By the mid-1970s, ICNAF had established a Total Allowable Catch (TAC) and national allocations for all of the targeted stocks and an overall TAC for all stocks combined. For example, the 1975 overall TAC (850,000 metric tons) was lower than the sum of the individual TACs (1,053,000 metric tons) to account for biological interactions between the stocks. By 1977, the overall TAC was reduced to 525,000 metric tons to account for technical interactions (i.e., bycatch) and to prevent overfishing of some vulnerable stocks (Brown et al., 1979). Biological and technical interactions are discussed below (Anderson, 1998).
Arguably ICNAF was making progress in bringing overfishing under control. For example, following the initiation of TAC management of Georges Bank haddock in 1972, a large year-class was produced in 1975 with the potential to rebuild the fishery by the late 1970s (Clark et al., 1982). However, public opinion (because of distant water fishing off Alaska and the West Coast, as well as the northwest Atlantic) demanded that the United States extend its jurisdiction to 200 nautical miles (CRS, 1976). In 1976, as part of the FCMA, the United States claimed exclusive fishery management authority over waters contiguous to its territorial sea and extending 200 nauti-
1 Fishery Conservation and Management Act, Pub. L. No. 94-265, 90 Stat. 331 (1976).
2 Submerged Land Act, Pub. L. No. 83-31 § 3-4, 67 Stat. 29, 30 (1953), 43 U.S.C. §§ 1311-1312 (2012).
3 Pub. L. No. 77-539, 56 Stat. 267 (1942); 16 U.S.C. § 4107(c)(1) (2012).
4 Pub. L. No. 80-232, 61 Stat. 419 (1947); 16 U.S.C. § 4107(c)(2) (2012).
5 Pub. L. No. 81-66, 63 Stat. 70 (1949); 16 U.S.C. § 4107(c)(3) (2012).
cal miles from its shoreline.10 This area was originally referred to as the FCZ (Fishery Conservation Zone). Later, however, the United States extended its claim to include jurisdiction over other economic activity, and the zone was therefore renamed the Exclusive Economic Zone (EEZ).11
In the nearly four decades since the FCMA was adopted by Congress, U.S. fishery management law has evolved. The FCMA has been reauthorized and amended several times. The Act’s history has moved through important phases, which are marked by its initial passage in 197612 and subsequent amendments in 1996 (also known as the Sustainable Fisheries Act or SFA) and 2006. The committee refers to these phases as “Americanization,” “Rebuilding,” and “Accountability.” Although the three phases are discussed in more detail below, Table 2.1 summarizes some important elements of each. In addition to undergoing substantive changes, the Act was renamed twice. In 1980, the Act was renamed the Magnuson Fishery Conservation and Management Act (MFCMA) to honor Senator Warren Magnuson for his contributions to the Act.13 The Act was given its most recent title, the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) in 1996 to acknowledge the influence of Senator Ted Stevens of Alaska.14
Phases of the MSFCMA
The first phase of the Act is referred to as the “Americanization” phase because one of the original objectives of the legislation was to reduce the prominence of foreign fishing off the United States’ coasts. This Americanization is evidenced by the significant expansion of U.S. jurisdiction over fisheries as far as 200 nautical miles from shore.
When the FCMA was passed, it was largely seen as a way to exclude distant water fleets and to allow U.S. fisheries to be Americanized.15 Many stakeholders and members of Congress did not believe it was necessary to regulate U.S. fisheries to any significant degree. In 1976, this may have been true in the short term for Alaska and the West Coast, but it was not true for the Northeast. Already, ICNAF had prohibited significant foreign fishing for the most important species targeted domestically off the northeastern United States, and U.S. fishing capacity exceeded what target stocks such as cod, haddock, and yellowtail flounder could sustain. For example, by the late 1970s, the TAC for Georges Bank haddock was quickly exceeded by U.S. fishing vessels.
The FCMA consists of five general resolutions. First, the Act demarks a geographic zone adjacent to the United States’ shoreline in which the U.S. government has jurisdiction over fishery resource management. Second, the Act furthers conservation and establishes optimum yields for fishery resources, taking into account social and economic factors. Third, the Act promotes the harvest and processing of fishery resources by U.S. fishermen and companies. Fourth, the Act establishes an institutional framework and an enforcement authority to carry out its implicit and explicit objectives. Finally, the Act ensures that fisheries management is based on the best scientific information available (NRC, 1994a).
The Act also articulates more specific goals for fisheries management through the promulgation of seven National Standards in Title III, Section 301(a) (see Box 2.1).16 Because the committee was tasked with evaluating the effectiveness of rebuilding plans, it primarily focused on National Standard 1, but National Standards 2 and 8 are also important considerations. However, all National Standards are relevant because fishery management plans, including rebuilding plans, must adhere to them.
The FCMA establishes eight Regional Fishery Management Councils (RFMCs) designated to cover the following geographic areas (Figure 2.1): New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, North Pacific, and Western Pacific Fishery Management Councils.17 RFMCs are responsible for preparing Fishery Management Plans (FMPs) for achieving Optimum Yield and for satisfying the National Standards.18 The federal government reviews the FMPs to assure compliance with the National Standards and other applicable federal laws.19 If they comply, then they are approved, and their implementation (including monitoring and enforcement) becomes the responsibility of the federal government. The committee considers the RFMCs to be a
10 FCMA, Pub. L. No. 94-265, 90 Stat. 331 (1976); 16 U.S.C. § 1811-12 (2012). Interestingly, several other countries (particularly in Latin America) had already extended their jurisdictions to 200 miles because of concern about U.S. tuna fishing off their coasts (Nandan, 1987), to which the United States objected. In fact, the U.S. extension to 200 miles initially excluded highly migratory species such as tunas. The law was amended in 1990 to make the EEZ applicable to highly migratory species subject to international treaties ratified by Congress (Fishery Conservation Amendments of 1990, Pub. L. No. 101-627, 104 Stat. 4436-39 (1990)).
11 In 1983, President Ronald Reagan, through Presidential Proclamation, asserted jurisdiction over an EEZ extending 200 nautical miles from the shoreline. The proclamation stated that, “[w]ithin the Exclusive Economic Zone, the United States has, to the extent permitted by International Law, (a) sovereign rights for the purpose of exploring, exploiting, conserving and managing natural resources, both living and non-living, of the seabed and subsoil and the superjacent waters and with regard to other activities for the economic exploitation and exploration of the zone.” Exclusive Economic Zone of the United States of America, Proclamation No. 5030, 48 Fed. Reg. 10605 (March 10, 1983).
12 FCMA, Pub. L. No. 94-265, 90 Stat. 331 (1976).
13 Salmon and Steelhead Conservation and Enhancement Act of 1980, Pub. L. No. 96-561 § 238, 94 Stat. 3300 (1980).
14 Department of Commerce and Related Agencies Appropriation Act, 1997. Pub. L. No. 104-208 §§211(a)-(b) (1996).
15 H.R. Rep. No. 94-445, at 1, 2, 24-36, 42, 43 (1975); http://www.nmfs.noaa.gov/stories/2011/20110411roadendoverfishing.htm.
16 FCMA, Pub. L. No. 94-265 § 301(a), 90 Stat. 331, 346 (1976); Sustainable Fisheries Act, Pub. L. No. 104-297 § 106, 110 Stat. 3559, 3570 (1996).
17 FCMA, Pub. L. No. 94-265 § 302(a), 90 Stat. 331, 347 (1976).
18 FCMA, Pub. L. No. 94-265 § 302(h), 90 Stat. 331, 350 (1976).
19 FCMA, Pub. L. No. 94-265 §§ 301(a), 304(a), 90 Stat. 331, 346, 352 (1976).
TABLE 2.1 Phases of the MSFCMA
|Phases||Time Period||Important Elements|
• Extended jurisdiction to 200 miles
• Created the objective as Optimum Yield (OY)
• Required Fishery Management Plans (FMPs) in accordance with National Standards
• Established co-management between eight Regional Fishery Management Councils and the federal government
• Made provisions for foreign fishing to continue off the United States until fisheries were Americanized
• Changed definition of OY to deem F≥FMSY to be overfishing
• Required overfished stocks to be rebuilt
• Limited the rebuilding time to 10 years with exceptions
• Called for overfishing to end immediately
• Required annual catch limits (ACLs)
• Required accountability measures if ACLs are exceeded
• Strengthened the role of Scientific and Statistical Committees (SSCs)
The 1976 FCMA defined seven national standards.
1. Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery.
2. Conservation and management measures shall be based upon 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 United States fishermen, such allocation shall be (A) fair and equitable to all such fishermen; (B) reasonably calculated to promote conservation; 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, promote efficiency in the utilization of fishery resources; 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 costs and avoid unnecessary duplication.
The 1996 SFA added three additional national standards.
8. Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities by utilizing economic and social data that meet the requirements of paragraph (2), in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities.
9. Conservation and management measures shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.
10. Conservation and management measures shall, to the extent practicable, promote the safety of human life at sea.
FIGURE 2.1 Map illustrating the jurisdictional boundaries of the eight Regional Fishery Management Councils (RFMCs).
SOURCE: Modified from http://www.fisherycouncils.org/USFMCsections/USRFMCintro.pdf.
creative form of co-management involving the federal government, state governments (i.e., state officials are council members), and citizen stakeholders.20
In addition to the eight RFMCs, the Highly Migratory Species Division of the National Marine Fisheries Service is responsible for managing Atlantic highly migratory species (HMS), pursuant to a 1990 amendment of the MFCMA.21 HMS are tunas and tuna-like species (e.g., billfish including swordfish and marlins) and most sharks species. The HMS Division implements measures recommended by the International Commission for Conservation of Atlantic Tunas (ICCAT). Public input is obtained from the HMS Advisory Committee. Management is promulgated under the Consolidated HMS Fishery Management Plan (2006) and its amendments.22 This Plan serves as an umbrella for implementation of ICCAT recommendations as well as for domestic management of non-ICCAT HMS (e.g., sharks) and other requirements of U.S. law (e.g., Endangered Species Act and Marine Mammal Protection Act).
The FCMA effectively reduced foreign fishing within the U.S. EEZ from approximately 60% of the commercial catch in 1981 to approximately 1% in 1991. During the same time, domestic fisheries grew. Foreign fishing in the U.S. EEZ remains insignificant today, although there is some foreign ownership of U.S. fishery enterprises (NRC, 1994a).
Although the Act was successful at Americanizing the fisheries, many problems persisted. Most notably, overfishing was a serious problem in some regions (e.g., New England), but not all (e.g., stocks under the jurisdiction of the North Pacific RFMC). According to Parsons (1993), U.S. fisheries management was problematic because of “continued overfishing of some stocks; lack of coordination between councils and the NOAA/National Marine Fisheries Service in setting research agendas; conflicts among users; the vulnerability of the fishery management process to delays
20 FCMA, Pub. L. No. 94-265 § 302-04, 90 Stat. 331, 347-51 (1976).
21 Fishery Conservation Amendments of 1990, Pub. L. No. 101-627, § 103 (1990).
and political influence; lack of accountability; inconsistency in state and federal management measures; and adoption of unenforceable management measures.”
Some of the problems with fisheries management during the Americanization phase can be attributed to growing pains associated with instituting an entirely new system of co-management and to confusing or conflicting objectives. Specifically, on both policy and technical grounds, criticism was levied on the definition of Optimum Yield (OY), which was the amount of fish—
(A) which will provide the greatest overall benefit to the Nation, with particular reference to food production and recreational opportunities; and
(B) which is prescribed as such on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor. (NRC, 1994a)
In terms of policy, the National Research Council (1994a) concluded, “Unfortunately, this definition is so broad that it can be used to justify almost any quantity of catch.” This issue was addressed by the 1996 amendment of the Act23 as described below. From a technical perspective, Sissenwine (1978) questioned whether Maximum Sustainable Yield (MSY) is an adequate basis for OY because of species interactions, environmental variability, and other factors. Technical issues are also considered below.
During this period of implementation of the FCMA, the U.S. Secretary of Commerce issued guidelines, known as “602 guidelines,” to provide an interpretation of OY and to encourage conservation. The 602 guidelines called for quantitative (or measurable) definitions of overfishing and highlighted the need to avoid “recruitment overfishing,” which is generally understood to mean avoiding reductions in spawning stock size that jeopardize future recruitment.24 The concept focuses on fishing activities and stock responses to be avoided, not on targets or objectives such as MSY and/or OY. However, the 602 guidelines lacked a precise scientific or legal definition, which meant the occurrence of recruitment overfishing was usually debatable.
The 602 guidelines provided a limited exception to the requirement to prevent overfishing, as follows:
Harvesting the major component of a mixed fishery at its optimum level may result in the overfishing of a minor (smaller or less valuable) stock component in the fishery. A council may decide to permit this type of overfishing if it is demonstrated by analysis (paragraph (f)(5) of this section) that it will result in net benefits to the Nation, and if the council’s action will not cause any stock to require protection under the Endangered Species Act.25
This exception provided flexibility to generate net benefits even if it meant sacrificing long-term yield of some species so long as no species was at risk of extinction. However, because this provision was subject to abuse, it was modified in subsequent guidelines. As discussed later in this report, although this loss of flexibility may prevent abuse, it may result in a substantial loss of potential sustainable yield.
The 602 guidelines also required Stock Assessment and Fishery Evaluation (SAFE) reports to document the performance of fishery management. However, the National Research Council (1994a) stated that “[t]he implementing regulations, known as the ‘602 guidelines,’ do not provide the specification and guidance needed.”
It is also noteworthy that the National Research Council (1994a) recommended “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.” Although it is not known whether this recommendation influenced Congress, the Act was amended in 1996 along the lines recommended by the National Research Council.
The Act was amended in 1996 by the Sustainable Fisheries Act.26 In addition to changing the title of the Act to the Magnuson-Stevens Fishery Conservation and Management Act, the 1996 amendment made many important and substantive changes. Along with the three new National Standards, the most important aspects of the 1996 amendments were as follows:
- A change in the definition of optimum yield from MSY as “modified” by ecological, economic, and social factors to as “reduced” by these factors,27
- The requirement to rebuild overfished fisheries,28 and
- The requirement to identify and attempt to conserve Essential Fish Habitats (EFHs).29 Requirements with respect to EFH are considered in Chapter 5.
Specifically, the SFA defined OY from a fishery as
the amount of fish which—
(A) will provide the greatest overall benefit to the Nation, particularly with respect to food production and recreational opportunities, and taking into account the protection of marine ecosystems;
23 Sustainable Fisheries Act, Pub. L. No. 104-297, 110 Stat. 3559 (1996).
24 Guidelines for the Preparation of Fishery Management Plans Under the FCMA, 50 C.F.R. Part 602 (1989).
25 Guidelines for the Preparation of Fishery Management Plans Under the FCMA, 50 C.F.R. § 602.11(c)(8) (1989).
26 SFA, Pub. L. No. 104-297, 110 Stat. 3559 (1996).
27 SFA, Pub. L. No. 104-297, § 102(7), 110 Stat. 3559, 3562 (1996).
28 SFA, Pub. L. No. 104-297, §§ 108(a)(1), (7), 110 Stat. 3559, 3574, 3575 (1996).
29 SFA, Pub. L. No. 104-297, §§ 101(1),(2), (7), 102(3), 108(a)(3), 110 Stat. 3559, 3560, 3561, 3574, 3575 (1996).
(B) is prescribed on the basis of the maximum sustainable yield from the fishery, as reduced by any relevant social, economic, or ecological factor; and
(C) in the case of an overfished fishery, provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery.30 (emphasis added)
In addition, the SFA states that “[t]he terms ‘overfishing’ and ‘overfished’ mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.”31
In a section labeled “Overfishing,” SFA describes the requirements for rebuilding overfished fisheries. It requires the Secretary of Commerce to report annually on fisheries that are overfished or approaching the condition of being overfished. For these fisheries, within 1 year, the appropriate RFMC must develop a Fishery Management Plan (FMP) “(A) to end overfishing in the fishery and to rebuild affected stocks of fish; or (B) to prevent overfishing from occurring in the fishery whenever such fishery is identified as approaching an overfished condition.”32 Furthermore,
For a fishery that is overfished, any fishery management plan, amendment, or proposed regulations prepared . … shall—(A) specify a time period for ending overfishing and rebuilding the fishery that shall—
i) be as short as possible, taking into account the status and biology of any overfished stocks of fish, the needs of fishing communities, recommendations by international organizations in which the United States participates, and the interaction of the overfished stock of fish within the marine ecosystem; and
ii) not exceed 10 years, except in cases where the biology of the stock of fish, other environmental conditions, or management measures under an international agreement in which the United States participates dictate otherwise.33 (emphasis added)
The SFA also requires the U.S. Secretary of Commerce to review rebuilding plans at routine intervals not to exceed 2 years and to take immediate action to revise plans when “adequate progress” is not being made.34
The SFA profoundly changed U.S. marine fisheries management. It shifted the emphasis from avoiding undesirable conditions (e.g., recruitment overfishing) to achieving high long-term yields on a sustainable basis (MSY). It attempted to put “teeth” into the law as it pertains to stopping overfishing and rebuilding fisheries. Despite this improvement, however, the SFA still required legal and scientific interpretation with respect to several of its provisions.
Guidance documents developed by the National Marine Fisheries Service (NMFS) in 1998, known as the National Standard 1 Guidelines (NS1G), replaced the 602 guidelines. The NS1G clarified how the new provisions should be implemented. In particular, the NS1G interpreted the term “fishery” as a stock of fish rather than a group of fishing operations targeting a similar (assemblage of) species, using similar gear, during the same period of the year, and/or within the same area. The NS1G also clarified that the terms “overfished” and “overfishing” are used to describe biomass and mortality rate, respectively. The NS1G stated that the biomass (B) level that defines “overfished” is a level lower than BMSY, the biomass at which Maximum Sustainable Yield is achieved, and that the minimum, or default, biomass indicative of an overfished stock is half of the biomass associated with maximum sustainable yield (½ BMSY).35 Furthermore, the NS1G allowed for rebuilding times longer than 10 years in cases where the probability of rebuilding within 10 years, with zero fishing mortality, is less than 50%. In these limited cases, the allowable rebuilding time was the time necessary to rebuild with a 50% probability, given zero fishing mortality plus the mean generation time of the species.36
The NS1G also called for FMPs to specify an “MSY Control Rule” that characterized a fishing mortality strategy to achieve the maximum long-term average yield (i.e., MSY). The control rule defined overfishing and overfished levels. In practice, the fishing mortality (F) strategy was to maintain a constant F strategy at or below FMSY, unless a rebuilding plan was required. However, the NS1G was flexible enough to allow F to exceed FMSY for a period of time so long as the stock’s long-term capacity to produce MSY was not jeopardized and the rebuilding objective was expected (typically with a probability of 0.5) to be achieved.37
As with the Americanization phase, the rebuilding phase of MSFCMA implementation experienced growing pains. Rebuilding plans were developed and implemented, and several stocks were rebuilt (e.g., Georges Bank scallops). By 2006, 10 stocks that had been declared overfished had been rebuilt. However, overfishing of some stocks continued, and some stocks were rebuilt more slowly than expected or not at all.38
The accountability phase of management under the MSFCMA is just beginning. The 2006 amendment to
30 SFA, Pub. L. No. 104-297, § 102(7), 110 Stat. 3559, 3562 (1996).
31 SFA, Pub. L. No. 104-297, § 102(8), 110 Stat. 3559, 3562 (1996).
32 SFA, Pub. L. No. 104-297, § 109(e), 110 Stat. 3559, 3584 (1996).
33 SFA, Pub. L. No. 104-297, § 109(e), 110 Stat. 3559, 3584 (1996).
34 SFA, Pub. L. No. 104-297, § 109(e), 110 Stat. 3559, 3584 (1996).
35 Separate technical guidelines (Restrepo et al., 1998) indicated that it should be higher than ½ BMSY for most species. In practice, ½ BMSY became the most common specification of the overfished threshold level.
36 Magnuson-Stevens Act Provisions, National Standard Guidelines, 63 Fed. Reg. 24212, 24231 (May 1, 1998).
37 Magnuson-Stevens Act Provisions, National Standard Guidelines, 63 Fed. Reg. 24212, 24229-24231 (May 1, 1998).
the MSFCMA made three important changes relevant to the Committee’s statement of tasks:
- It strengthens the role of scientific advice regarding conserving stocks and avoiding overfishing. The Act requires that the RFMCs’ Scientific and Statistical Committees (SSCs) provide scientific advice, but it allows for advice from another “peer-review process” established by the Secretary of Commerce or a council.39 In practice, peer-review processes for stock assessments exist in most regions of the country, and the results of these processes are used as input to SSCs (Sissenwine and Rothschild, 2011).
- It requires FMPs to end overfishing immediately, although Congress initially (following enactment of the amendment) allowed for 2 years to implement rebuilding plans that end overfishing immediately.40 Prior to the 2006 amendment, rebuilding plans could allow for overfishing during some of the rebuilding period so long as rebuilding was expected to be achieved within the time limit allowed (TMAX as defined above).
- It requires accountability measures if the fishery exceeds its annual catch limit.41
Specifically, the MSFCMA as amended in 2006 states that RFMCs will “develop annual catch limits for each of its managed fisheries that may not exceed the fishing level recommendations of its scientific and statistical committee or the peer review process.”42 It calls on FMPs, FMP amendments, or proposed regulations “(A) to end overfishing immediately in the fishery and to rebuild affected stocks of fish; or (B) to prevent overfishing from occurring in the fishery whenever such fishery is identified as approaching an overfished condition” (emphasis added).43 It also requires FMPs to “establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to ensure accountability.”44
In response to the 2006 amendment, the federal government issued new guidelines for the NS1G in 2009.45 These guidelines interpret the annual catch limit language in the Act as requiring a “hard” limit on catch (known as an “ACL”) rather than implementing regulations or annual specifications establishing other forms of management (e.g., input controls such as closed areas, effort limits, gear restrictions). The guidelines identify three categories of circumstances under which there would be an exception to the requirement for a hard limit on catch:
- Life cycles: This category of exceptions specifically applies to species with a 1-year life cycle.46
- International fishery agreements: This category applies to fisheries that are subject to international agreements.47
- Flexibility: This category, “among other things” applies to management of endangered species, harvest from aquaculture operations, and species with unusual life history characteristics48 (Pacific salmon are provided as an example).
Prior to the addition of the ACL text to the Act and the NOAA Fisheries’ interpretation of the NS1G, some fisheries were managed by input controls such as closed areas and season, gear restrictions, and effort limits, instead of by a hard catch limit. In those situations, the RFMCs believed that the data to support and the ability to enforce a catch limit were inadequate (e.g., most fisheries under the jurisdiction of the Caribbean Fishery Management Council). The reference to “among other things” under the flexibility category could be interpreted as applying to situations in which data and the capacity to monitor and enforce a catch quota are poor. However, the exception has not been applied to such situations to date.
The NS1G also introduce the idea of an annual catch target ("ACT” as an option). The ACT triggers an action to avoid exceeding the ACL. A key aspect of the NS1G is the direction to RFMCs to account for scientific and management uncertainty in the FMPs as they develop their rebuilding plans, even though there is no means for doing so and the word “uncertainty” is absent from the MSFCMA. The revised NS1G also modifies the default biomass level associated with an overfished stock, stating that it should be the greater of either ½ BMSY or the minimum stock size at which rebuilding can occur within 10 years with no fishing mortality. The new NS1G also advises the RFMCs to take account of scientific uncertainty and management uncertainty as they develop their rebuilding plans, and provides means for doing so.
Figure 2.2 describes the relationship between catch l evels described in the NS1G, and illustrates how the ACT safeguards against overfishing by accounting for uncertainties.
The Overfishing Limit (OFL) corresponds to the catch applying the Maximum Fishing Mortality Threshold (MFMT), which is used to determine when overfishing is occurring (i.e., F>MFMT). FMSY is the upper limit of the
39 MSFCMA, Pub. L. No. 109-479 §103(c)(3), 121 Stat. 3575, 3581 (2006).
40 MSFCMA, Pub. L. No. 109-479 §104(a)(10), 121 Stat. 3575, 3584 (2006).
41 MSFCMA, Pub. L. No. 109-479 §104(a)(10), 121 Stat. 3575, 3584 (2006).
42 MSFCMA, Pub. L. No. 109-479 §103(c)(3), 121 Stat. 3575, 3581 (2006).
43 16 U.S.C. §1854(e)(3)(A)-(B) (2012).
44 MSFCMA, Pub. L. No. 109-479 §104(a)(10), 121 Stat. 3575, 3584 (2006).
45 50 C.F.R. 600.310 (2009); 74 Fed. Reg. 3178 (Jan.16, 2009).
46 50 C.F.R. 600.310 (h)(2)(i) (2009).
47 50 C.F.R. 600.310 (h)(2)(ii) (2009).
48 50 C.F.R. 600.310 (h)(3) (2009).
FIGURE 2.2 Relationships between various catch levels and limits.
SOURCE: Draft National Standard 1 Guidelines. 73 Fed. Reg. 32526, 32534 (June 9, 2008). The diagram was used by the National Marine Fisheries Service to describe the NS1G, and it appeared only in the draft NS1G. However, it provides an accurate characterization of the terms therein.
MFMT, but it can be a function of stock size. The Acceptable Biological Catch (ABC) is a reduced catch to account for scientific uncertainty in OFL. The Annual Catch Limit reduces the catch an additional amount to account for management uncertainty (e.g., the within-year catch estimate is lower than the actual catch). The annual catch target is even lower as a safeguard against exceeding the ACL.
The NS1G call for accountability measures (AMS) if the ACL is exceeded. AMs are implemented to avoid exceeding future ACLs and to mitigate adverse impacts on the stock that might have resulted from the excess catch. There are “in-season” accountability measures (such as a closure of the fishery when the estimated catch equals the ACT) and measures applied in the future years (such as time or area closures or a reduction in the ACL or ACT). According to the NS1G,
If catch exceeds the ACL for a given stock or stock complex more than once in the last four years, the system of ACLs and AMs should be re-evaluated, and modified if necessary, to improve its performance and effectiveness. A Council could choose a higher performance standard (e.g., a stock’s catch should not exceed its ACL more often than once every five or six years) for a stock that is particularly vulnerable to the effects of overfishing, if the vulnerability of the stock has not already been accounted for in the ABC control rule.49
The NS1G do not explicitly indicate how the ABC and ACL should account for scientific uncertainty and management uncertainty, respectively. Nor do they revise the previous interpretation of the time limit for rebuilding overfished stocks, which defines TMIN as the time it takes to rebuild to
49 74 Fed. Reg. 3178, 3208-09 (Jan. 16, 2009).
BMSY with a probability of 0.50 with F=0.0. According to the NS1G,
If TMIN for the stock or stock complex exceeds 10 years, then the maximum time allowable for rebuilding a stock or stock complex to its BMSY is TMIN plus the length of time associated with one generation time for that stock or stock complex. “Generation time” is the average length of time between when an individual is born and the birth of its offspring.
The NS1G revised the way the biomass level corresponding to an overfished stock (or Minimum Stock Size Threshold, MSST) is specified, by stating,
The MSST or reasonable proxy must be expressed in terms of spawning biomass or other measure of reproductive potential. To the extent possible, the MSST should equal whichever of the following is greater: One-half the MSY stock size, or the minimum stock size at which rebuilding to the MSY level would be expected to occur within 10 years, if the stock or stock complex were exploited at the MFMT. … Should the estimated size of the stock or stock complex in a given year fall below this threshold, the stock or stock complex is considered overfished.50
The NS1G do not specify the probability of the stock rebuilding to the MSY level when fishing at the MFMT (FMSY) and are therefore incomplete with respect to the specification of the MSST. Because there is no guarantee that a stock will rebuild, the NS1G states,
If a stock or stock complex reached the end of its rebuilding plan period and has not yet been determined to be rebuilt, then the rebuilding F should not be increased until the stock or stock complex has been demonstrated to be rebuilt. If the rebuilding plan was based on a TTARGET that was less than TMAX, and the stock or stock complex is not rebuilt by TTARGET rebuilding measures should be revised, if necessary, such that the stock or stock complex will be rebuilt by TMAX. If the stock or stock complex has not rebuilt by TMAX, then the fishing mortality rate should be maintained at FREBUILD or 75 percent of the MFMT, whichever is less.51
TTARGET is the rebuilding time used in a rebuilding plan, and TMAX is the maximum rebuilding time allowed.
The NS1G permit overfishing of a stock under certain limited circumstance, as follows:
Harvesting one stock at its optimum level may result in overfishing of another stock when the two stocks tend to be caught together (This can occur when the two stocks are part of the same fishery or if one is bycatch in the other’s fishery). Before a Council may decide to allow this type of overfishing, an analysis must be performed and the analysis must contain a justification in terms of overall benefits, including a comparison of benefits under alternative management measures, and an analysis of the risk of any stock or stock complex falling below its MSST. The Council may decide to allow this type of overfishing if the fishery is not overfished and the analysis demonstrates that all of the following conditions are satisfied:
(1) Such action will result in long-term net benefits to the Nation;
(2) Mitigating measures have been considered and it has been demonstrated that a similar level of long-term net benefits cannot be achieved by modifying fleet behavior, gear selection/configuration, or other technical characteristic in a manner such that no overfishing would occur; and
(3) The resulting rate of fishing mortality will not cause any stock or stock complex to fall below its MSST more than 50 percent of the time in the long term, although it is recognized that persistent overfishing is expected to cause the affected stock to fall below its BMSY more than 50 percent of the time in the long term.52
These limited circumstances under which overfishing is allowed in order to achieve long-term net benefits when there is bycatch are more restrictive than the exception in the 602 guidelines discussed above. For example, paragraph 3 above forbids a stock from having a 50% probability of falling below its MSST, whereas the 602 guidelines refer to the Endangered Species Act listing (presumably a lower stock size than the MSST).
The 2006 amendments of the MSFCMA also provide for “widespread market-based fishery management through limited access privilege programs, and call for increased international cooperation.”53 Market-based fishery management will be considered in Chapter 6 of this report. International aspects of the Act are discussed in the next section of this chapter.
On May 3, 2012, the National Marine Fisheries Service announced it would consider revising the NS1G, and it solicited comments to be submitted by October 12, 2012, which have since been summarized.54
International Provisions of the MSFCMA
The Act’s international provisions are prominent and far reaching (e.g., including provisions for a Tsunami warning system), and the most relevant are as follows:
- The NS1G requirements to prevent overfishing and rebuild overfished stocks do not apply if the stock is subject to management by an international agree-
50 74 Fed. Reg. 3178, 3206 (Jan. 16, 2009).
51 74 Fed. Reg. 3178, 3212 (Jan. 16, 2009).
52 74 Fed. Reg. 3178, 3213 (Jan. 16, 2009).
54 77 Fed. Reg. 26238, 26238-26240 (May 3, 2012), http://www.nmfs.noaa.gov/sfa/domes_fish/NS1/ns1_anpr_comments_summary.pdf.
ment adhered to by the United States (i.e., which it has ratified).55
- Requirements for reporting to Congress on the performance of international fisheries management include details on the efforts to eliminate illegal, unreported, and unregulated fishing (IUU).56
- The United States will promote the provisions of the MSFCMA concerning overfishing and rebuilding overfished stocks internationally.57 This statement is illustrated by the following text from the Act:
If a relevant international fisheries organization does not have a process for developing a formal plan to rebuild a depleted stock, an overfished stock, or a stock that is approaching a condition of being overfished, the provisions of this Act in this regard shall be communicated to and promoted by the United States in the international or regional fisheries organization.’58
Science, Nature, and the Law
Debates about fisheries management commonly end with the exclamation “But it’s the law!” The Committee contends that the law is not always as clear as portrayed—not because of legal considerations but because of the consequences of basing fisheries management on scientific concepts about sustainability and productivity of fishery resource populations.
Scientific concepts are characterizations of nature. However, science is imperfect in its characterizations. Consequently, the law sometimes oversimplifies scientific concepts or applies them inaccurately or in an unclear way. In practice, what is represented as being the law is actually a combination of Executive Branch policies and legal judgments constrained by court rulings. It may or may not be the best interpretation of the science, and there may be other reasonable scientific interpretations. Most importantly, interpretations of the law must be consistent with the realities of nature. The Act does not recognize the dynamic nature of fish stocks and the limits of science. Although the NS1G help, they provide little practical guidance for many, if not the majority, of stocks (e.g., numerous stocks for which data and knowledge about population and ecosystem dynamics are too limited to apply most aspects of the NS1G).
Earlier sections of this report describe several cases in which it has been necessary to interpret the MSFCMA in order to operationalize it for fisheries management. These interpretations included the following:
- Using the term “overfished” to refer to a low biomass level. The Act frequently uses the terms “overfishing” and “overfished” interchangeably. Section 3, which defines terms, says overfishing and overfished mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis.59 The Act is silent on the stock size that qualifies as being overfished and in need of rebuilding.
- Identifying the maximum allowable time for rebuilding.
- Applying the term “fishery” to individual stocks.
The discussion that follows highlights some of the scientific concepts and realities of nature that make interpretation and implementation of the Act difficult. Some of these realities may provide more scientific justification for flexibility than is commonly acknowledged.
Maximum Sustainable Yield
One of the most important interpretations needed to apply the MSFCMA concerns MSY—a key concept of the Act and fisheries management worldwide. The Act requires that fisheries be managed to achieve optimum yield, prescribed as MSY reduced by ecological, economic, and social factors.60 However, MSY depends on many aspects of fisheries and ecosystems that are not addressed in the Act. At any point in time, MSY of a stock of fish depends on the following:
- Fishing practices: Fishing mortality is an age- and size-specific rate vector. Changing the relative mortality by size or age changes MSY.
- Environmental conditions: Virtually all biological and ecological rates depend on environmental conditions. Some conditions are more favorable than others in terms of the production of a population and MSY.
- Biological interactions: Fish stocks compete with and prey on each other. Thus, MSY of a species depends on the abundance of all the other species with which it interacts.
- Technical interactions: Fishing for one species often results in mortality of other species because of bycatch. Consequently, it is usually impossible to apply the desired fishing mortality to achieve MSY simultaneously to several interacting stocks.
- Scientific uncertainty: There are several reasons why estimates of MSY and management reference levels associated with it (e.g., BMSY) are uncertain even for well-studied stocks, and the situation is
55 50 C.F.R. 600.310 (2012).
56 16 U.S.C. § 1826 (2012).
57 16 U.S.C. § 1812 (2012).
58 16 U.S.C. § 1812 (2012).
59 Sustainable Fisheries Act, Pub. L. No. 104-297 § 102(8), 110 Stat. 3559, 3562 (1996) (amending FCMA, Pub L. No. 94-265 § 3, 90 Stat. 331, 336 (1976)); 16 U.S.C. § 1802(34) (2012).
60 Sustainable Fisheries Act, Pub. L. No. 104-297 § 102(7), 110 Stat. 3559, 3562 (1996).
worse for many stocks that are considered data limited. Estimates may change more rapidly than actual stock conditions change.
MSY is a moving target. Chapters 4 and 5 discuss in greater detail the factors that make MSY dynamic. The MSFCMA largely ignores the complexities associated with MSY and MSY reference points. Although they acknowledge several of the complexities, the NS1G provide only general guidance for accounting for them. An exception is the guidance concerning technological interactions, which is so restrictive that it is rarely (if ever) applied even though technological interactions are common and have important implications for fisheries management.
It should be noted that the MSY concept is limited to biological yield (number, weight, or volume of fish). It does not account for the value of the fish, cost of catching the fish, distribution of benefits from fishing, or social impacts of fishing or alternatively of prohibiting fishing. Certain economic concepts are analogs of MSY (e.g., Maximum Economic Yield). Chapter 6 addresses the human dimension of fisheries rebuilding.
The MSFCMA requires an annual report to Congress on the status of fisheries. The MSFCMA also requires the development of plans to prevent overfishing and to rebuild overfished stocks.61 Although the MSFCMA uses the terms overfished and overfishing interchangeably, the NS1G indicate that overfishing occurs when fishing mortality exceeds FMSY and a stock is overfished if its size falls below the MSST, defined in terms of stock size relative to the stock size associated with MSY.62 The MSST has been interpreted either as a stock size unlikely to occur randomly unless the fishing mortality rate exceeds FMSY or a stock-size level from which the stock will recover to BMSY in 10 years if F=FMSY. As discussed above, neither concept has been precisely specified. In practice, the MSST is generally set at ½ BMSY.
Status determinations are challenged by the facts that fisheries are almost never prosecuted in a manner that achieves the absolute maximum long-term average yield and that MSY reference levels (in terms of yield, fishing mortality, and biomass) are dynamic. Determinations are even more difficult for data-limited stocks.
Status determinations are usually based on current or recent fishing practices (e.g., no change in selectivity or no change in size or age preference of the fishery). The dynamic nature of MSY is often taken into account by estimating the MSY reference levels over a period of time during which average conditions that affect MSY are believed to be the same as current conditions. In practice this usually means making a choice between using the data from the entire time series or the data from a period that is deemed more reflective of current conditions (see Chapter 3). In some cases, there is no conclusive scientific basis for making the choice even though the choice has a major effect on status determinations, rebuilding targets and rates, and social and economic impacts of fishery management.
Fishery Versus Stock and the Mixed-Stock Exception
The MSFCMA refers to overfishing fisheries and overfished fisheries, although it also refers to rebuilding affected stocks. A common scientific interpretation of the term “fishery” is a group of fishing operations targeting similar (assemblage of) species, using similar gear, during the same period of the year, and/or within the same area (or “métier”) (ICES, 2010).
The MSY concept and MSY reference points could be applied to fisheries in the context of a métier. However, the NS1G interpret a fishery as a single stock of fish, which creates the likelihood that long-term sustainable yield of some stocks will be sacrificed to prevent overfishing of other stocks in a mixed-stock fishery. It is also likely that this constraint will be necessary to rebuild some overfished stocks. The sacrifice in yield and benefits from a fishery may be large if the stock at risk of overfishing or in need of rebuilding is small (i.e., low potential yield or value) compared to the stock for which yield and value are sacrificed (e.g., canary rockfish).
The NS1G acknowledge the mixed-stock problem by providing an exception (referred to as the “mixed-stock exception”) under certain conditions (see “Accountability,” above). The conditions for the exception are demanding:
- The stock cannot be overfished (i.e., below the MSST). If it is overfished, then presumably it must be rebuilt, which usually means fishing mortality must be lower than the overfishing level.63
- The probability of the stock falling below the MSST cannot exceed 50%. For minor (usually data-poor) stocks for which the mixed-stock exception might be beneficial, it may not be feasible to estimate such a probability.64
Also of issue is the rationale for limiting the probability of falling below the MSST to 50%. Ideally, there should not be concern about jeopardizing long-term yield from the stock because the mixed-stock exemption requires that net benefits from the fishery be higher when it is applicable. If it is about long-term risk of recruitment failure, or, worse, extinction, then the MSST is the incorrect threshold. As discussed earlier, the specification of the MSST was based
61 16 U.S.C. §§ 1801-1881.
62 50 C.F.R. 600.310 (e)(iv)(2)(B)-(E) (2009).
63 74 Fed. Reg. 3178, 3213 (Jan. 16, 2009).
64 74 Fed. Reg. 3178, 3213 (Jan. 16, 2009).
on the time it takes to rebuild to BMSY, not on recruitment failure or extinction.
If the mixed-stock exception is applied, and the stock falls below the MSST (expected 50% of the time), then it may be necessary to rebuild the stock (which is not clear from the NS1G). If so, then F will have to be reduced below the overfishing level until the stock rebuilds. Presumably F can then be increased again. Thus, applying the mixed-stock exception potentially creates a “yo-yo” effect of increasing and decreasing F as stock size falls below the MSST and is then rebuilt to BMSY.
The Act states that the rebuilding time should be as short as possible and the rebuilding time “shall … not exceed 10 years, except in the cases where the biology of the stock” or some other considerations “… dictate otherwise.”65 If a stock cannot rebuild with greater than 50% probability with F=0.0, then the implicit interpretation of the NS1G is that biology of the stock dictates that the rebuilding time can exceed 10 years. Other interpretations were possible, such as the biology of the stock only dictates that the rebuilding time can exceed 10 years if there is zero probability with F=0.0. The Committee does not have an opinion on the implied interpretation in the NS1G except that by necessity it is an interpretation because the law is not specific enough.
Regarding the requirement that rebuilding must occur within 10 years unless factors dictate otherwise, the Committee notes that many factors are relevant to rebuilding time, including
- Mean generation time of the species to be rebuilt. The longer the mean generation time, the longer it will take to rebuild, all other factors being equal.
- Degree of depletion of the stock. The more depleted the stock, the longer it will take to rebuild.
- Environmental and ecological conditions. If conditions are favorable for the stock, then it will rebuild faster than if they are unfavorable.
- Strength of year-classes (i.e., recruitment) entering the fishery. A stock will rebuild faster if year-classes entering the fishery at the time a rebuilding plan is initiated are relatively large, and vice versa.
All of these factors might explain why the biology of the stock dictates that the rebuilding time could be less than or exceed 10 years. On scientific grounds alone, it is difficult to justify 10 years, or any other specific value, as a standard for rebuilding time, although 10 years is probably a reasonable time for many stocks. If the biology of the stock or other factors dictate that the rebuilding time may exceed 10 years, then the NS1G allow an increase in TMAX to TMIN years plus one mean generation time of the stock to be rebuilt.
FIGURE 2.3 Relationship between TMIN and TMAX, where T = time in years, for a stock with a generation time of 20 years. TTARGET must be selected from within the shaded region. The vertical line at TMIN = 10 years indicates the discontinuity in the specification of the time horizon available for rebuilding resulting from the addition of one generation time, once it is determined that the stock cannot rebuild within 10 years (i.e., TMIN > 10).
One problem ensuing from this interpretation of the Act is that it creates the potentially counterintuitive situation whereby a more pessimistic stock assessment results in a higher allowable fishing mortality rate. This occurs when the more pessimistic assessment means a stock can no longer be rebuilt in 10 years, leading to an increase in the allowable rebuilding time (often by a factor of 2 or more depending on mean generation), and in turn a higher fishing mortality rate (Figure 2.3).
This is more than a hypothetical problem. The 9th Circuit Court ruled on this exact issue.66 In this case, NMFS’s 2002 fishing harvest level for darkblotched rockfish (Sebastes crameri), based on the NS1G rebuilding time, was challenged. In 2000, NMFS determined that the darkblotched rockfish stock was “overfished” but could be rebuilt within 10 years. The following year, revisions to its assessment indicated that the stock could not be rebuilt within 10 years. Subsequent calculations led to an increased allowable harvest level in 2002. The court ruled that dramatically increasing the fishing pressure and annual catch when a stock is in significantly worse shape than previously thought is incompatible with the Act.
65 Sustainable Fisheries Act, Pub. L. No. 104-297 § 109(e), 110 Stat. 3559, 3584 (1996).
66 Natural Res. Def. Council, Inc. v. Nat’l Marine Fisheries Serv., 421 F.3d 872 (9th Cir. 2005).
NOAA proposed to eliminate this counterintuitive situation in 2005 with revisions to the NS1G, as follows:
1. The “minimum time for rebuilding” means the amount of time expected to rebuild a stock to its MSY biomass level in the absence of any fishing mortality, starting in the first year after a stock is determined to be depleted. In this context, the term “expected” means to reach a 50% probability of attaining the BTARGET. Also, technical updates to the minimum time (TMIN) calculations must be retrospective to the same starting date.
2. If the minimum time for rebuilding a stock plus one mean generation time for the stock is 10 years or less, then the maximum time allowable for rebuilding that stock to its BTARGET is 10 years.
3. If the minimum time for rebuilding a stock plus one mean generation time for the stock exceeds 10 years, then the maximum time allowable for rebuilding a stock to its BTARGET is the minimum time for rebuilding that stock, plus the length of time associated with one mean generation time for that stock.
NOAA proposed revisions were not adopted, and in 2005, the 9th Circuit Court in that case ultimately held that
Whatever the outer limits of the range of permissible constructions of the Act, … what lies beyond them is an interpretation allowing the Agency, upon discovering that a species is in significantly worse shape than previously thought, to increase dramatically the fishing pressure on that species. Increasing the annual take in these circumstances is simply incompatible with making the rebuilding period as short as possible.67
Accounting for Uncertainty
The NS1G do not explicitly indicate how scientific uncertainty and management uncertainty should be accounted for in acceptable ABCs and ACLs, respectively. However, some RFMCs and SSCs have applied an approach known as the “P*” approach. P* is the allowable probability that the ABC will exceed the OFL (Shertzer et al., 2010). For example, P*=0.25 has been used for some fisheries, and a court ruling for summer flounder in the Mid-Atlantic region makes it clear that it should not exceed 0.50. The U.S. Court of Appeals for the District of Columbia described a catch with only an 18% chance of preventing overfishing as only existing “in Superman Comics’ Bizarro world, where reality is turned upside down.”68 In that case, the settlement agreement required at least 50% chance of preventing overfishing. Another approach is to apply a constant multiplier to the OFL to calculate ABC (e.g., ABC=0.75 OFL).
The NS1G call for an additional reduction in catch from the ABC to the ACL to account for management uncertainty. Furthermore, they call for (as an option) an ACT that is even lower, such that the probability of exceeding the ACL should not exceed 25% (i.e., the ACL should not be exceeded more frequently than 1 out of every 4 years).
Another consideration is the accuracy of FMSY proxies when FMSY cannot be estimated with stock-specific data. The proxies are based on experience with fisheries management worldwide. Proxies are another source of uncertainty, and if they are selected conservatively, as some have argued (Rothschild and Jiao, 2011), then they may also mean a reduction in yield. The total reduction to account for uncertainty is unspecified, but it could be substantial.
The 2009 version of the NS1G’s introduction of guidance on accounting for uncertainty in setting ABCs and ACLs was not aimed at rebuilding plans. In the case of rebuilding plans, the catch must be reduced below OFL to rebuild the stock within the rebuilding period with an acceptable probability. The U.S. Court of Appeals’ court ruling cited above makes it clear that the probability must be 50% or greater, but there is no further guidance.
The Role of Scientific and Statistical Committees
The MSFCMA charges SSCs (or some other peer-review process) with recommending an ABC that may not be exceeded. Presumably, the intent is to separate conservation decisions and allocation decisions (i.e., who gets the fish) and to remove politics and value judgments from the former. In reality, this objective is difficult to achieve, primarily because of uncertainty. For example, SSCs are expected to recommend an ABC reduced from the OFL to account for scientific uncertainty. The P* method is one way to account for scientific uncertainty, but managers should be allowed to decide how much risk of exceeding the OFL is acceptable. For well-studied fisheries where the probabilities can be estimated, it may be possible for RFMCs to provide guidance on the risk. In fact, the NS1G call for RFMCs to develop ABC control rules that presumably would specify a risk level. However, SSCs have often been left to recommend an ABC without guidance on risk. Similarly, for rebuilding plans, managers need to decide on the probability of reaching the rebuilding target within the rebuilding period.
Because preventing overfishing or ensuring a high probability of rebuilding a stock is ultimately a management responsibility, managers must be informed by science. Obviously, a lower probability of overfishing means overfishing will be less frequent, but what is the right probability? Managers must be knowledgeable about the potential yield that is foregone when the probability of overfishing is decreased and about the conservation implications if overfishing occurs (keeping in mind that overfishing is not necessarily unsustainable). The acceptable probability of overfishing or not rebuilding within the maximum allowable time should be based on analysis, not on intuition or emotion.
67 Natural Res. Def. Council v. Nat’l Marine Fisheries Serv., 421 F.3d 872, 881 (9th Cir. 2005).
68 Natural Res. Def. Council, Inc. v. Daley, 209 F.3d 747, 754 (D.C. Cir. 2000).
Chapter 2 FINDINGS
2.1: The MSFCMA bases the success or failure of fisheries management on the MSY concept. However, it does not account for the complexity and dynamic nature of the MSY concept.
2.2: National 1 Standard Guidelines operationalize the MSFCMA with respect to overfishing and other aspects of the Act. These guidelines are by necessity a blend of legal, policy, and scientific interpretations of the Act. In some cases, interpretations alternative to those chosen would have been reasonable from a scientific point of view. For example, there is a discontinuity in rebuilding times at 10 years. There are alternatives that avoid this problem.
2.3: U.S. fisheries management has evolved substantially since 1977 when the United States extended its jurisdiction to 200 miles. The evolution has been in the direction of being more prescriptive and precautionary in efforts to prevent overfishing and rebuild overfished fisheries. However, the tradeoffs between precaution, ecosystem impacts, and net benefits from fisheries have not been fully evaluated.