May 2, 2022 — The following was released by the Gulf Coast Seafood Alliance:

Today, the U.S. Department of Commerce and NOAA Fisheries formally published their decision to take fish from working families, markets, restaurants and consumers, even though this decision comes as a result of flawed procedures, inaccuracies and inadequacies in their economic analysis, and numerous legal precedents which will be violated.

Amendment 53 to the Reef Fish Resources Fishery Management Plan as formulated by the Gulf of Mexico Fishery Management Council (Gulf Council):

• Will reallocate 20 percent of commercial red grouper quota to the recreational sector (a 32 percent decrease from what would have been allocated without the amendment) causing significant harm to restaurants, markets, distributors, processors, harvesters, and ultimately end consumers;

• Will deny the citizens of the United States access to 1.2 million pounds of red grouper currently being caught annually by commercial fishermen and enjoyed by anyone who does not have the ability or opportunity to fish recreationally;

• Will deprive restaurants of revenue from those landings, negatively affect the tourist industry, and deprive non-angler citizens of their access to Gulf of Mexico seafood resources.

During the public comment period, the Gulf Coast Seafood Alliance (GCSA) submitted an analysis conducted by respected independent experts in opposition to the proposed rule. In addition to our comments, seventeen major organizations registered their opposition to Amendment 53, including the Environmental Defense Fund, the National Restaurant Association, the National Fisheries Institute, the Gulf of Mexico Reef Fish Shareholders’ Alliance, and the Charter Fisherman’s Association.

On February 18^th, public comments were due to NOAA Fisheries on the proposed rule for the implementation of Amendment 53 to the Reef Fish Resources Fishery Management Plan. On March 9, just 12 workdays later, Andrew Strelcheck, the regional administrator, approved the Amendment in a letter to Dale Diaz, chair of the Gulf Council. Given the typical length of time required by NOAA to conduct analyses, it is incomprehensible that the agency undertook a serious analysis of the comments submitted by GCSA and the numerous other organizations and individuals who raised serious concerns.

Instead, NOAA appears to have taken an “approve now, analyze later” approach.

THE GCSA REVIEW

GCSA’s expert panel analyzed the Gulf Council’s actions in the development of Amendment 53, and found significant problems, from three perspectives:

• Process: flaws in the processes and procedures undertaken by the Gulf Council that led to its adoption
  • An analysis of the Gulf Council process under the supervision of Dr. Steve Cadrin, Professor of Fisheries Oceanography at the University of Massachusetts, Dartmouth, School of Marine Science and Technology, and past president of the American Institute of Fisheries Research Biologists, conducted by Aubrey Ellertson Church, a graduate student at the same institution.

• Economic: inadequacies and inaccuracies in the economic and environmental studies conducted
  • An economic analysis by Dr. Tom Sproul, Associate Professor of Environmental and Natural Resource Economics at the University of Rhode Island, who represents Rhode Island on the Committee for Economics and Social Science at the Atlantic States Marine Fisheries Commission.

• Legal: the legal precedents that would be violated by implementation of the Amendment
  • A legal analysis by attorney Drew Minkiewicz, a partner in the Washington, DC law office of Kelley Drye & Warren LLP. In his second decade of legal practice, he represents commercial fishing interests and maritime shippers. Prior to joining Kelley Drye, Drew served as senior counsel and staff director of the Subcommittee on Oceans, Atmosphere, Fisheries and Coast Guard of the Senate Committee on Commerce, Science and Transportation.

PROCESS ISSUES AND STATISTICAL ANALYSIS PROBLEMS

The review found these serious issues in the Gulf Council’s promulgation of Amendment 53:

• The Gulf Council’s economic analysis in the Final Environmental Impact Statement (FEIS) contains a pattern of assumptions and omissions that bias the cost-benefit analysis against commercial fishing and in favor of recreational fishing. Accordingly, an unbiased FEIS would come to the opposite conclusion, that recreational quota should be reallocated to the commercial fishery.

• The Gulf Council’s analysis to calculate economic value for recreational fisheries included all value added from the time a fish was swimming freely below the waves until it was caught by a recreational fisher’s hook, but that Council analysis to calculate economic value of commercially-caught fish ended with the ex-vessel value at the dock, and ignored all additional value added from the dock to the restaurant plate or the market seafood counter.

• Significant concerns exist on efforts to retroactively interrelate estimates of recreational fishing effort derived from the Coastal Household Telephone Survey (CHTS) with the Fishing Effort Survey (FES). These concerns emerged in the Marine Recreational Information Program (MRIP) Calibration Model Peer Review organized by NOAA Fisheries in 2017, and are expressed in the minority report on Amendment 53.

• Anomalies in the record of the NOAA Fisheries analysis of the 2017 MRIP Calibration Model Peer Review indicating that the data from Florida private vessels most representative of recreational red grouper catch are not aligned with the macro assumptions used by the Council in the adoption of Amendment 53.

The circumstances leading to Amendment 53 arose from changes in the way that recreational fishing catch is estimated. Starting in 1979, data about recreational fishing effort was collected by phone survey. This method became less practical over time—due in large part to a decline in the use of landline telephones. It was replaced with the FES, a postal mail survey sent to a sample of residential households in coastal states. Between 2016 and 2017, NOAA Fisheries staff and independent consultants worked to develop a calibration model to re-estimate statistics produced by the phone survey.

During the 2017 MRIP Calibration Model Peer Review, NOAA Fisheries researchers were unable to explain the large difference in MRIP-FES catch estimates using covariates in the statistical calibration model. Reviewer Jason McNamee noted it was impossible to certify the accuracy of the predictions backwards in time. Neither of these difficulties are surprising given the difficulty of retrodicting data going back decades from just a few recent years of calibration data.

Members of the GCSA are concerned about an anomaly we have found in the official record of the 2017 MRIP Calibration Model Peer Review. In examining the records of the estimated retrodicted FES values (the recalculation of the historic numbers) against the previously existing CHTS values, and using what can be called the “Sesame Street analysis,” we see that that “one of these things is not like the other, one of these things just doesn’t belong”:

• The additional materials from the 2017 MRIP Calibration Model Peer Review panel contain a series of plots of the estimated retrodicted FES values against the previous CHTS values for each of the 17 Atlantic and Gulf Coastal states.

• An examination of the plot of retrodicted FES values against previous CHTS values for private boat trips by Florida anglers – who represent the overwhelming majority of the Red Grouper recreational fishery – shows that nearly all the pre-existing CHTS values over the period 1986 – 2005 fall inside the confidence interval for the newly calculated MRIP-FES predictions.

• The implication of this one-state anomaly is important. It implies that the retrodicted FES values for Florida anglers – who comprise much of the Gulf red grouper recreational fishers – are not statistically different from the previously existing CHTS estimates.

In other words, there appears to be insufficient statistical information to determine that historical catch for these anglers was different from the previous estimates, and therefore there is no basis for reallocation.

Our combined review of both the Council procedures and the ultimately selected alternative using questionable historic statistical analyses demonstrates that Amendment 53 to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico:

• Does not promote conservation for a highly vulnerable stock;

• Does not advance objectives of the Fishery Management Plan;

• Ignores factors that would have increased the commercial sectors allocation;

• Does not minimize bycatch;

• Does not provide information on how NOAA Fisheries recalibrated historical red grouper landings;

• Ignored the Council’s allocation policy;

• Ignores recommendations of the Reef Fish Advisory Panel and IFQ Advisory Panel.

ECONOMIC ANALYSIS PROBLEMS

To translate the term “consumer surplus” from terms used by economists to the commonly used vernacular, what this means is that the economic analysis used by the Council includes the value of any fish caught by a recreational angler all the way to the hook of the recreational fisher. But when we examine the application of the same “consumer surplus” concept as it is applied to the commercial fishery in the Council analysis, the calculation ends at the “ex-vessel” value that is paid by a “fish house” or processor at the dock. So, all of the additional economic value added by the GCSA members who distribute seafood wholesale, or own markets or restaurants, is ignored in the Council calculations, as well as the value to the end consumers of seafood.

There is no justification for this choice, nor even any disclosure that this choice was made.

Our economic analysis found that the FEIS contains incomplete, arbitrary and biased analysis – it cannot be relied upon for federal rulemaking until corrections are made.

The key points in our review are as follows:

• Estimates of angler consumer surplus are arbitrary and overstated.
• Estimates of consumer surplus from commercial harvest are missing.
• Estimates of producer surplus from commercial harvest are missing for secondary wholesale, retail and restaurants.
• Estimates of climate change impacts are missing. Our estimates indicate substantially larger climate change impacts from recreational trips than from commercial harvest.
• Indirect and induced economic impacts are omitted from the cost-benefit analysis.
• Objective cost-benefit analysis favors increasing commercial quota allocation.
• Confidence in the analysis is overstated because estimates of uncertainty are missing.

The economic conclusions drawn in the FEIS to support Amendment 53 hinge entirely on the arbitrary assignment of outsize enjoyment benefits to recreational anglers of $110 per fish. This value is based on a single research study using hypothetical tradeoffs, and it is more than 25x the value determined appropriate by the U.S. Environmental Protection Agency.

Without this single arbitrary assumption, the economic analysis in the FEIS would come to the opposite conclusion: Amendment 53 should be rejected and, if anything, recreational quota should be reallocated to the commercial fishery.

LEGAL PROBLEMS

Our legal analysis shows the rule would violate existing law in several ways:

• Under the law, if fishing privileges are allocated to a specific group, that allocation must actually “promote” a conservation purpose. Because the allocation fails to promote the conservation of a fish stock, the rule violates National Standard Four of the Magnuson-Stevens Act. 16 U.S.C. § 1851(a)(4).
• It does not advance the objectives of the Fishery Management Plan to achieve robust fishery reporting and data collection systems across all sectors for monitoring the reef fish fishery, which minimizes scientific, management, and risk uncertainty; to minimize and reduce dead discards; and to promote and maintain accountability in the reef fish fishery. By selecting alternatives that contradict these stated goals the Agency is acting in an arbitrary and unreasonable fashion. Oceana, Inc. v. Evans, 2005 WL 555426, *7 (D.D.C. 2005), quoting City of Alexandria v. Slater, 198 F.3d 862, 867 (D.C. Cir. 1999).
• National Standard 9, 16 U.S.C. § 1851(a)(9) directs those measures to minimize bycatch or mortality of bycatch. Amendment 53 has no measures to reduce bycatch. Rather, the rule would increase bycatch in a directed fishery. In Coastal Conservation Ass’n v. Gutierrez, 512 F.Supp.2d 896 (2007), and in Flaherty v. Bryson, 850 F.Supp.2d 38 (2012), courts found that NMFS violated the law by not including measures to address the minimization of bycatch.
• 16 U.S.C. § 1851(a)(2) dictates that conservation and management measures shall be based upon the best scientific information available. Yet, as our economic analysis shows, the Environmental Protection Agency’s meta-analysis is far superior than the economic analysis used to justify Amendment 53 in every objective way. In Hall v. Evans, 165 F. Supp. 2d 114 (D.R.I. 2001), the Court concluded that NMFS violated National Standard 2 because the Secretary had not utilized the best scientific information available to the agency.
• The proposed rule for Amendment 53 is similar to the rule promulgated for Amendment 28 to the Reef Fish FMP which was rejected in Guindon v. Pritzker, 240 F. Supp. 3d 181 (D.D.C. 2017), in which the Court struck down a reallocation that rewarded the recreational sector for overharvesting as not “fair and equitable”.

OTHER MAJOR ORGANIZATIONS OPPOSING THIS ACTION
Following are excerpts from their public comments:

Environmental Defense Fund:

• Much of our U.S. work supports the development and implementation of fishery management best practices and climate resilience. Key to progress in these areas is ensuring that fishery management policies are rooted in sound public process, are consistent with governing laws, and use the best available science. It is through this lens that we respectfully request that you reject Amendment 53 in its current form and send it back to the Gulf Council for further consideration, following the Gulf Council’s designated allocation review process.

National Restaurant Association

• [Amendment 53 will] cause significant harm to the entire seafood supply chain, including restaurants, and is inconsistent with the requirements of the Magnuson-Stevens Act Fishery Conservation and Management Act [and] would remove hundreds of thousands of red grouper servings from restaurants and their consumers.

National Fisheries Institute

• If adopted, Amendment 53 will establish a worrisome precedent against the science-driven, collaborative MSA framework. That framework has enabled NMFS and the fishery management councils to restore dozens of significant fisheries to maximum sustainable yield and then to keep them there in the face of conservation and other headwinds. But if one sector can successfully engineer a dramatic reallocation in the red grouper fishery as proposed here, that will tempt others to seek similar, one-sided outcomes in other, completely unrelated fisheries that (like this one) do not face sustainability disaster. Gulf Council management of the red snapper fishery in recent years has already prompted similar concerns from environmental advocates, commercial seafood producers, Gulf Council members, and other parties. This will undermine the MSA framework and if repeated often enough will cause its collapse.

Gulf of Mexico Reef Fish Shareholders Alliance

• NMFS attempted to re-create historical ACLs based on FES calibrations for other species like king mackerel. No similar attempt was made for red grouper. Our understanding is that attempting to calculate historical ACLs going back to years used for red grouper allocation (1986-2005) was difficult. But without undertaking that exercise, reallocation is just a one-way ratchet in which only the recreational sector can ever benefit. In that regard, red grouper reallocation under Amendment 53 is similar to red snapper reallocation under Amendment 28, which a court struck down as not fair and equitable as required by National Standard 4.

Charter Fisherman’s Association

• Amendment 53 appears to punish the commercial sector for the discards of the recreational sector (the commercial sector loses 1.2 million pounds of red grouper while the recreational sector’s quota only increases 550,000 pounds; the remaining 650,000 pounds goes to accounting for the recreational sector discards) and we can’t support that…Each sector, or subsector, should be responsible for their own discards and not be forced to subsidize the dead discards of others.

The Gulf Coast Seafood Alliance (GCSA) is an organization of stakeholders seeking a common goal: equitable and sustainable fisheries along the Gulf Coast for commercial and recreational use alike. Our members make up a diverse group of restaurant owners, chefs, vessel owners, and seafood market owners. GCSA members represent the entire spectrum of commercial fish production in the Gulf of Mexico, from harvest at sea, to processing, and ultimately to the end consumer – shoppers in markets and diners in restaurants.