WASHINGTON (Saving Seafood) by Christian Bourge — October 24, 2013 — Less than a year into the implementation of the first ever catch limits imposed on the Atlantic menhaden fishery, the state of New York has placed the entire regulatory effort in flux by deciding in September to not enforce its proportional 200,000-pound share of the Eastern seaboard-wide landing limit on the fish.
While New York’s appointees backed the Atlantic States Marine Fisheries Commission (ASMFC) imposed regulations in December 2012, public records and conversations with state officials raise questions about why New York fishery management officials did so given their problems with the validity of their own state-collected landings data on which the regulatory limits are based, and if state-level compliance under the current regulatory model was intended.
Jim Gilmore, Director of Marine Resources at the New York state Department of Environmental Conservation and an ASMFC representative for the state, has cited the state’s poor landings data as the reason for the move, telling New York's Newsday that the resulting limit was too low and would result in a shutdown of the state’s menhaden bait catch in just a few weeks.
“We're not going to start managing a fishery on data we know is wrong," Gilmore told the newspaper.
The move to not enforce menhaden limits raises the possibility of a federal blockade of New York’s menhaden fisheries for violating the mandated limits, as well as the highly controversial potential of the ASMFC adjusting catch limits in waters across the eastern United States before a mandated 2014 scientific review of Atlantic stocks even gets underway. That review is part of regulatory structure established less than twelve months ago and largely understood to be open only to future change in connection with such reviews.
The New York Department of Environmental Conservation’s (NYSDEC) spokesman, Lori Severino, told Saving Seafood that Gilmore was unable to comment on the matter and did not respond to a request to interview Commissioner Joseph Martens, who oversees the agency. But Pat Augustine, appointed to the ASMFC by New York’s governor, confirmed the state’s data problem, adding that he pushed back against the broad state-by-state 20 percent reduction before ultimately backing regulations that state officials hoped would be modified with updated landings data.
“My understanding is that New York has requested a delay in us getting allocated what we were allocated in the first place because the recorded data had not been up to date and there was a massive undertaking at the DEC to get what fisherman had up to date,” said Augustine. “My understanding is that New York has every intention to follow the plan that we agreed to.”
Nevertheless, according to the published minutes from a March 12, 2013 meeting of the state’s Marine Resources Advisory Council (NYSMRAC), which advises the NYSDEC on fishery issues, and at which Mr. Augustine was in attendance, Gilmore said that the state had “hoped to be excluded from the [menhaden] requirement,” and further notes that among those in attendance, “the general consensus is that New York MUST dodge this bullet."
New York’s limit, which represents a 20 percent reduction of the state’s reported menhaden landings from 2009-2011, is proportionally equal to that imposed on all Atlantic state menhaden fisheries. Their decision to not follow the regulations follows adoption of the limits in other states where small bait fisherman balked at the 20 percent reduction in allowed menhaden catch. Maryland, for instance, approved the move in August with regulators making the effective argument to state legislators conducting oversight on the issue that noncompliance would allow the U.S. Commerce Department to shut down menhaden fishing in the state completely, although that is being challenged in court by local bait fisherman.
The ASMFC’s Menhaden Management Board has yet to discuss the matter, but New York’s noncompliance could be an issue during its annual meeting next week on St. Simon’s Island, Georgia on October 28.
ASMFC Executive Director Robert E. Beal confirmed the Commerce Department’s power under law to shut down the New York menhaden fishery as one of the many potential responses, but dismissed this as a possibility, confirming that New York had “a while ago” notified the Commission about issues with its landings data that they were working to correct.
“It’s hard to impossible for me to predict what the Board will do with this information,” Beal told Saving Seafood. “New York will make the case as to how they manage. The managers need to sit down and see how, if, and what course corrections may be needed.”
He added that issues related to landings levels were not unexpected and improved data would be needed, in some cases requiring the menhaden board to revisit the limits and, “work through state situations such as New York.”
“When the Commissioners developed Amendment 2 [of the Interstate Fishery Management Plan for Atlantic Menhaden], they knew the data for the bait landings was not completed and there were a lot of states that had significantly underdeveloped bait landings [data],” said Beal. “Everyone realizes that this is a whole new way of managing menhaden. The Board is going to work and try and figure out the best way to handle this. It’s going to be a process.”
Should an allocation adjustment of catch levels become part of the response to New York’s decision, the specter of inter-industry conflict, particularly between the menhaden bait and reduction fisheries, looms large.
What that process may mean is already of issue to some industry stakeholders. Omega Protein’s spokesman, Ben Landry, said that making near-term changes to the menhaden regulations violates not only the spirit but also the design of the regulations. Omega Protein is the largest menhaden fishing company on the East Coast and the only member of the reduction fishery. Landry noted that the implementation of the quota was not the beginning of a design process for a menhaden fishing regulation, but a base limit subject only to future scientific-based review by way of the 2014 Atlantic menhaden benchmark stock assessment and similar future efforts.
Section 4.2 of Amendment 2 reads that while subject to annual review, the Amendment states the overall and state-level limits will, “remain in place until reviewed after the next benchmark stock assessment is completed, currently scheduled for 2014.”
In addition, given that the regulations were implemented based on claims of sound science underlying the creation of a 170,800 metric ton total allowable catch (TAC) of menhaden for 2013 and the related 20 percent reductions of each state’s declared landings over the review period, being willing to adjust them so soon after initial adoption raises further questions about the validity of the science used, echoing concerns raised by critics prior to the TAC’s approval.
When asked about such concerns, ASMFC Menhaden Management Board Chair Robert Boyles of South Carolina agreed with Beal that changes would be needed because of the complexity of menhaden fisheries. He also defended adoption of the Amendment 2 regulations, noting that, “there are a lot of moving parts” to the Atlantic menhaden fishery.
“I think the Commission made the best decision that they could back in December with adopting the Amendment,” Boyles told Saving Seafood. “I’m not sure we’re going to get it right out of the block. We do our best to make the best decisions we can with the information we have.”
After reiterating that the Commission’s potential actions remain impossible to predict, Beal said that Florida and other states have also indicated that they had historic landings at higher rates than previously indicated. He added that improved reporting in the stock assessment from bait fishing interests could make it appear as though landings are up, stressing that any perceived increased environmental impact has not really occurred.
“If the landings during the history periods were significantly higher than we thought they were for the bait industry, how does the Board handle that?” he asked before predicting that there will be, “some level of sympathy for incomplete data because a lot of states have that issue.”
“Do they [the Menhaden Board] reallocate and give more to states for the bait fishermen and maintain the quota for the reduction fishermen?” asked Beal. “That is one scenario that I could envision how this goes.”
He argued that if this was undertaken, the overall quota for reduction fishermen would stay the same because, percentage wise, they would have a smaller share of a higher TAC number.
“Their access would be the same,” he said.
But Omega Protein’s Landry expressed strong opposition to such a decision, calling it a destabilizing move for menhaden fishing interests as a whole.
"Omega Protein questions the logic of a proposal that adds quota to the existing Atlantic menhaden allocation if the Commission elects to alter the established allocation scheme,” said Landry. “It is akin to throwing a life ring to one sector of the fishery but throwing an anvil to the other. For the ASMFC to adopt this strategy would be to clearly endorse picking the winners and losers of a quota rather than fair and just allocations."