Dr. Brian Rothschild: Congress Must Make Magnuson Recognize Existence, Content of National Standards in Fishery Plans

Four years and counting, the stalled reauthorization of the Magnuson-Stevens Fisheries Conservation and Management Act (MSFCMA) is impeding the progress of U.S. fishery management.

In December 2013, a reauthorization draft was distributed to the 113th Congress. Since that time various versions of the bill have been shuffled between the House and the Senate. The most recent version—”Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act”—was introduced to the 115th Congress on January 3, 2017 by Congressman Young as H.R. 200. On February 10, it was referred to the Subcommittee on Water, Power, and Oceans.

H.R. 200 is a step in the right direction. It builds flexibility into fisheries stock-rebuilding schedules by replacing the current law’s formulaic and impracticable rebuilding strictures. It recognizes, at least implicitly, that stocks that are at a historically low level of abundance should be designated as “depleted”, not as “overfished” and addresses, albeit weakly, improvements in research planning.

However, H.R. 200 only scratches the surface of needed reform. It falls short in failing to recognize the operational quartet that fundamentally shapes fisheries- policy implementation. This quartet consists of the interactions among 1) the “plain language of the law”, 2) the record of “legislative history”, 3) guidelines issued by the agency (NOAA), and 4) day-to-day implementation actions by NMFS.

Given this framework, it is crucial to realize that even the slightest ambiguity or equivocation in the reauthorized law will propagate uncertainty and substantial costs to the over-all economic and social performance of our fisheries.

Let’s look at an example. To begin, it is necessary to recognize that the MSFMCA is based upon 10 National Standards. So, it is only logical that reauthorization language should use the National Standards as a point of departure.

But, in H.R. 200 the National Standards are virtually ignored. This is problematic because reference to, and possible revision of, the National Standards is necessary to improve fishery policy. Not doing so creates substantial opportunity for ambiguity and equivocation.

To further exemplify, two key concepts in National Standard 1 involve: (1) overfishing and (2) optimum yield.

(1) There are many different types and shades of overfishing, so what kind and how much overfishing are we preventing?

Arriving at a determination of overfishing depends on the choice of model (there are several). The magnitude of a overfishing “value” generally differs among “models”. For example, overfishing can be defined in the context of production models, age-structured production models, or yield-per-recruit models, each of which gives a different view of stock status. It is also often the case, amidst this profusion/confusion, that all of these definitions are just simply ignored and replaced by arbitrary “proxies” that rely upon highly uncertain age-structured production models.

Consider also that two different forms of overfishing are well-known: “stock overfishing” and “recruitment overfishing”. Each is determined on the basis of different information requirements. Each has different conservation content.

Stock overfishing can be determined on the basis of data at hand e.g. landings and fishing effort, and has— despite its wide use in managing fish stocks—very little conservation importance. Alternately, determining whether recruitment overfishing exists requires several years of data—and despite its conservation importance— it is seldom done.

So, when we change “overfished” to “depleted”, how do we interpret the status of all the fish stocks previously designated as overfished or at risk to overfishing, definitions that would no longer be relevant? How do we manage stocks that are at a low level of abundance because they are truly depleted by fishing, in contrast to stocks that are depleted by environmental change? Also, there does not appear to be a universally acceptable way to distinguish fishing-depleted from environment- depleted.

(2) Optimum has a specific technical meaning. It refers to something that we want to maximize. The question arises as to what we are maximizing and over what time frame. On one hand, the extant version of the law gives some clues, but following these clues only leads to deeper uncertainty and ambiguity. First, it is clear that the intent of the extant law is to somehow maximize “a quantity of fish”. But it could be “a quantity of fish” that provides the “greatest overall benefit to the nation”, or it could be “maximum sustainable yield as reduced by economic, social, or ecological factors”, or it could be “rebuilding the fishery to an MSY level”.

And, in any event, a little thought might indicate that maximizing a quantity of fish may not be a good idea in general. For example, there are many other measures of performance that are better measures than a quantity of fish and yet optimizing these other measures seems to be virtually ignored.

A relevant example is that optimization, as it is practiced under the current law, is taken to mean that biological productivity is maximized, subject to economic and social constraints. Yet, perhaps a better and different approach would be to maximize economic and social productivity, subject to biological constraints!

So, the reauthorization of the MSFCMA gathers dust. During four decades since its original authorization in 1976, fisheries management has had its bright spots and dark patches. Future dark patches can be considerably reduced by making sure that the elements underpinning the operational quartet in the reauthorization are, at the very least, well-defined and feasible to attain. The consonance among the plain language of the law, the intent of Congress, the regulations and the actual implementation of the Act needs careful scrutiny. “If winter comes, can spring be far behind?” The time is right for fishery policy to come out of hibernation.

About Dr. Brian Rothschild: Dr. Rothschild is the Montgomery Charter Professor of Marine Science and former Dean of the School for Marine Science and Technology at the University of Massachusetts Dartmouth. Prior to joining the University of Massachusetts, Professor Rothschild held professorships at the University of Maryland and the University of Washington. He has had faculty or visiting scientist affiliations with the University of Hawaii; Scripps Institution of Oceanography; Rosensteil School of Marine and Atmospheric Science, University of Miami; Institut fur Meereskunde, University of Kiel; Woods Hole Oceanographic Institution; and Harvard University.