Questions and Answers about The Flexibility in Rebuilding America’s Fisheries Act

Posted on February 23, 2010

Click here for the full text of the Flexibility Act, H.R. 1584 and S. 1255.

Q. Does CCA support H.R.1584 and S.1255?
A. · CCA is opposed to current legislation sponsored by Rep. Frank Pallone and Sen. Charles Schumer, also known as the Flexibility Act, which would weaken the conservation provisions of the Magnuson Stevens Fishery Conservation and Management Act.
CCA does not believe that  H.R.1584 and S.1255 would benefit anglers, as it does not address many of the core problems plaguing recreational fisheries.
Q. What does the Flexibility Act propose to do?
A. The bill does nothing more than delay the rebuilding of depleted populations. It does not provide for better data-gathering. It does not prevent the imposition of in-season closures when NMFS believes there is a danger of overfishing. It does not improve MRFSS data, or the way in which it is used. It just delays rebuilding. In that way, it is largely fighting last year’s—or perhaps last decade’s—fight. For most important recreational species, rebuilding has either been completed or is well underway, and little is gained by stretching out the last few years of recovery periods that are already well underway. The exceptions are those complexes of slow-growing, generally deep-water species which support a mixed commercial/recreational fishery: New England groundfish, southern snapper-grouper and Pacific rockfish.
Claims that the current rebuilding deadlines don’t take biological or ecological conditions into account are false. The current law permits the 10-year deadline to be exceeded when the biology of the fish requires it, in which case the rebuilding period is generally one mean generation (the time it takes a fish of the affected species to mature) plus 10 years.
The extension of the rebuilding deadlines in the Flexibility Act are simply designed to drag out recovery in order to allow the highest level of fishing pressure to continue.
Q. If the rebuilding requirements are not the cause of the fisheries closures anglers are encountering in the Atlantic and Gulf of Mexico, what is the real cause of the problems?
A. The current "perfect storm" of problems facing the recreational fishery is not a simple summer rain shower moving through. It is a major front with many facets colliding at the same time to cause all sorts of problems.
The MSA requirement to end overfishing by 2011. This one requirement sets the stage for all the rest. Congress now requires federal fishery managers to end overfishing no later than 2011, for all managed stocks. This in response to some managers that refused to end overfishing of a managed stock for years, simply because the pain was too great. New England cod are a good example, where the stock rebuilt slowly in response to managers refusal to end overfishing. In many cases stocks can be restored within the 10 year or more overfishing schedule while occasionally allowing slight overfishing to occur in some given years.  In many cases the appearance of overfishing is false and is a result of expanding stocks allowing overfishing quotas  to be met more quickly than in previous years. 
The precautionary tenor of MSA in light of poor data. As a sequel to the above bullet, managers have used lack of data as a reason to delay or simply not implement regulations on depressed stocks. MSA now requires manager to be less tentative in their management by setting lower allowable catches in the face of poor data.  In general many stocks important to recreational anglers in federal waters have received less research and assessment work and therefore qualify ad "data poor."
The precautionary ACL and AM language. As stated above Congress asked that managers be more risk averse in the face of inadequate data and NMFS decided to enforce that via their language on how Annual Catch Limits and Accountability Measures would be implemented. In the face of inadequate data managers must set their total allowable catches further away from what scientists say is the most that can be caught sustainably. With good data, if scientists decide a stock can withstand a catch of 500,000 pounds sustainably, managers might set a reasonable TAC at 450,000 pounds. With poor data and uncertainty they may have to set the TAC at 300,000 pounds.
Past half measures, ineffective regulations and just plain inaction by managers. It is safe to say that when facing controversial measures that would end overfishing and recover stocks, most managers in the past have taken the easy road and put in measures that only went part of the way or, at best, met the required reductions on paper only. We are now paying the piper for these past sins. The South Atlantic snapper grouper complex is a good example of this, with active management for over 30 years and still some stocks in dire condition.
NMFS own inability to handle these requirements. Congress put in a requirement that every fishery have an annual catch limit by sector, by 2011. What that means is each of 8 federal Fishery Management Councils must put in place fishery management plans, or amendments to existing fishery management plans, to put in accountability measures which will regulate the amount of fish taken in every sector for every stock of fish. In the reef fish complex in the Gulf of Mexico, for example, that means, specific measures to regulate the catch of every stock within the reef fish complex. 34 of the 44 species in that complex have never had an assessment. For the recreational sector, all of the accountability will be done through MRFSS. NMFS will have to review and approve all of these plans without extra funding or staff, by 2011.  
Lack of credible recreational data for the above.  The National Research Council examined the current recreational data collection system and determined it is inadequate for current management measures. NMFS is in the process of upgrading the system and will have a new system, the Marine Recreational Information Program, in place within the next 5 years. Until that time we are forced to use the old system to mange in new ways. It will be like using a Volkswagen beetle to run a NASCAR race.   
Q. If the Flexibility Act had been fully implemented in 2009, would the federal government have closed South Atlantic red snapper or Gulf amberjack?
A. The Flexibility Act would not have altered the outcome of last fall’s sudden closure of the recreational Gulf amberjack fishery either. The fishery has a set rebuilding deadline. It was shut down because the recreational sector’s share of the allowed catch was projected to exceed a cap, thus threatening overfishing. The recreational harvest would not have needed to close if their allocation had not been arbitrarily reduced by action of the Gulf Council and NMFS in 2007. Again, the Flexibility Act would have done nothing to address the finding that recreational anglers were overfishing their quota.
The Flexibility Act would not address the South Atlantic red snapper issue either, as the fundamental problem for that stock is ending overfishing, not rebuilding the stock. Red snapper is a fish that lives more than 50 years, yet current science by the National Marine Fisheries Service indicates the age structure of the current population consists primarily of age 5 and under fish. The federal stock assessment indicates the spawning stock is at an extremely low level, less than 5 percent of an unfished stock and we are extracting fish at a rate exceeding 10 times the allowable level for a healthy stock. The science behind these findings is undergoing a review and update process, but the signs for red snapper certainly do not appear to be positive according to the science that is being produced. None of these problems, however, which are fundamental to the health of the stock, would be addressed by a flexible rebuilding schedule and anglers would still be facing massive bottom closures.
In each of these cases, and in virtually every other recent fishery closure, flexible rebuilding timelines would not have made any difference in the ultimate outcome. They still would have been closed to deal with overfishing problems, which are often tied directly to the governments glaring lack of accurate data on recreational angling.
Q. Same question - different coast. If the Flexibility Act had been fully implemented in 2009, how would it have impacted the many species of concern to recreational anglers on the East Coast?
Black Sea Bass 
No effect. As black sea bass are already a “recovered” species, legislation that does nothing more than extend the rebuilding period/extend rebuilding would have no impact on current and future management. NMFS’ obligation to act to prevent overfishing would remain unchanged, so the October “emergency closure” would have been unaffected. The later debate over the Annual Catch Limit, which eventually saw the ACL raised to 3.7 million pounds, could be and was resolved under current law, and did not require “flexibility” legislation to accomplish. 
Blackfish (Tautog)
No effect. Managed by ASMFC, which is not bound by the terms of the Magnuson Act. 
No effect. Bluefish have been deemed recovered, making any change to the rebuilding period irrelevant. 
Rebuilding period could be extended, likely to the detriment of anglers in some states. Anglers currently may retain 10 fish, and are enjoying a resurgence of cod into waters easily accessible by boats near the edges of the cod’s historical range. Extending the rebuilding period would have the effect of increasing the ACL, including commercial harvest, leaving fewer fish in the water than is currently the case. As boats fishing at the southern fringe of the cod’s range are dependent on a population large enough to leave its core New England range and expand into more southerly watersk. Increased commercial harvest would make such expansion less likely, and increase the pressure that commercial vessels would put on the fish. Thus, while “flexibility” legislation might increase the overall ACL, it could easily result in fewer cod being available to many anglers, and actually reduce recreational harvest. 
No effect. Scup are rebuilt, and thus the delayed rebuilding permitted by the proposed “flexibility” language would have no effect. However, overfishing is still prohibited, so the 2010 ACL established by the Mid-Atlantic Fishery Management Council, even if smaller than strictly necessary would not be affected, nor would future increases in the ACL be facilitated, by adoption of the legislation. The only certain way to ease recreational scup limits is to increase the recreational allocation from the current 21% of ACL. 
Striped bass
No effect. Striped Bass are managed by ASMFC, which is not bound by the terms of the Magnuson Act. 
Summer flounder
Rebuilding period could be extended, with debatable benefits. This is arguably the species which launched the “flexibility” movement. However, we are at the stage in the restoration of the stock where the benefits of extension may be moot. With only three years to go in the rebuilding process, and with the largest year class in 26 years having been spawned in 2008 (which will begin to recruit into the commercial fishery this year and into the recreational fishery in 2011), the full recovery of summer flounder by 2013 is likely a done deal. That is when the real discontent will set in, as anglers realize that the effect of the 2008 stock assessment, which lowered the estimate of stock productivity substantially, will be to permanently freeze limits at restrictive levels. The long-term answer to relief for coastal anglers lies in the reallocation of the overall ACL, and in abandoning the current state allocations, which are based on a single year of MRFSS data (1998), probably do not reflect the current summer distribution of the species and allocate nearly 40% of the recreational harvest to a single state, in favor of either coastwide regulations or a new set of state allocations which reflect the realities of today’s fishery, rather than those of a decade ago. “Flexibility” legislation will do nothing to relieve either the inter-sector or the inter-state imbalances which currently plague anglers.  
No effect. Weakfish are managed by ASMFC, which is not bound by the terms of the Magnuson Act. 
Winter flounder
Recovery could be delayed indefinitely so that stocks never rise above current levels; local extirpation is possible. Passage of “flexibility” legislation might well be the final nail in the flounder’s coffin or, at least, in the flounder’s recovery. Section 2(1)(B)(ii)(II) of the bill would permit the rebuilding period to be extended if the agency finds that the “cause of the fishery decline is outside the jurisdiction of the Council or the rebuilding program cannot be effective only by limiting fishing activities.” In the case of this particular provision, there is no restriction on how far out the rebuilding deadline might be set. Thus, if the New England Fishery Management Council, which has a history of denying fisheries problems and of attributing problems to causes other than fishing, were to determine that the winter flounder’s decline was due to pollution, shoreline hardening, dredging, predation, or even overfishing in state waters, which are outside of the Council’s jurisdiction, it could invoke this provision and use it to indefinitely delay the flounder’s recovery. Given the dire condition of the southern New England flounder stock—just 9% of the biomass target—combined with unavoidable scientific uncertainty and the fact that the stock is comprised of local subpopulations of greater or lesser degrees of vulnerability, failure to make a serious effort to recover the species by a date certain is likely to result in the permanent loss of local populations. Such loss, or even the failure to take meaningful measures to recover the stock, would not be of long-term benefit to anglers.
Q. I thought the Flexibility Act addressed overfishing and Annual Catch Limits (ACLs) contained in the 2006 Reauthorization of MSA?
A. Incorrect. The Flexibility Act addresses the rebuilding plans included in the 1996 Reauthorization of the MSA. Those rebuilding plans are not the “culprit” in the closures of 2008 and 2009. ACLs are. And sadly, despite the overheated rhetoric, “Flexibility” does nothing to address the real problem.