5. THE MANAGEMENT PLANNING PROCESS
5.1 Provision of resource management advice
The Magnuson-Stevens Act, and its previous versions, requires that stock assessments be conducted for each managed species on a regular basis. The shark FMP requires that NMFS conduct a Stock Assessment and Fishery Evaluation (SAFE) annually. Pending the results of that SAFE, modifications to the regulations may be necessary. There are two processes by which regulations are implemented or modified: for simpler issues a ‘framework regulatory adjustment procedure’ is used; more complicated or more radical changes follow the same procedures, but include more preliminary steps that allow greater input from additional sources prior to the development of final draft rules.
An example of the framework procedure would be an annual quota adjustment. Action for such a procedure would start with the convention of a SAFE (in the case of the shark fishery, the SAFE is called a “stock assessment workshop” or SEW). Participants in the SEW include NMFS, representatives of the affected Management Councils, other regulatory agency personnel from either regional or state organizations, and academics. This is considered a scientific, or technical, working group and not a forum for dialog and debate concerning specific management measures. Thus, interest and user groups that might have a particular view are not invited to participate unless their representative contributes specifically to the scientific activities involved in the stock assessment. The SEW report includes, as possible, (i) landings and discard information; (ii) present stock condition; (iii) an estimate of MSY; (iv) information on which to base optimum yield and TAC; (v) social and economic issues; and (vi), other pertinent data and statistics.
The SEW report is provided to an Operations team (OT). The FMP specifies that this team will be composed of representatives of the NMFS northeast and southeast regional offices and the NMFS Washington office, a staff person, or other representative of each of the five Atlantic Councils, and NMFS scientists as appropriate. In practice, the OT also has included members from user and interest groups and has led to a situation where the OT has become less functional than originally intended. As originally conceived, after review of the SAFE report and other pertinent documents, the OT was to submit a written report of their findings and consensus conclusions to the Assistant Administrator (AA) of Fisheries for NMFS. However, because of limitations imposed by the Federal Advisory Committee Act (FACA), the OT cannot make a consensus recommendation. FACA provides protection against a potential conflict of interest that could occur when a citizen advisory panel provides official recommendations to the government. Depending on the groups and other special interests represented in that panel, it is possible that a biased recommendation could be forwarded. Thus, citizen panels are forbidden from making collective comments; each member of such a panel can only provide individual comment outside of the confines of the panel itself. So, where the OT was originally designed to make final recommendations to the AA, now they can only review the information that will be provided to the AA by NMFS itself.
If the NMFS AA concurs with those recommendations from the NMFS staff, he/she will prepare a regulatory package and within 30 days, file a proposed rule and request for public comment with the Office of the Federal Register. That material is then published in the Federal Register which constitutes official public announcement. The regulatory package includes a discussion of the need for action, the proposed adjustments to management measures, analyses as required of the social, economic, environmental, and biological impacts of the proposed measures and the proposed rule. Written comments to NMFS are usually accepted for a period of 30–60 days and a series of public hearings are scheduled throughout the effected coastal community. These public hearings allow the user and interest groups to give testimony and provide pertinent information to NMFS. This is a not an opportunity for dialog or negotiation between the public and the NMFS; communication is uni-directional to NMFS officials who hear and record the testimony. After reviewing public comments, and any additional information pertaining to the quality of the proposed rule as perceived by the constituents, the AA makes final determinations regarding consistency of the proposed measures with the objectives of the FMP, the national standards and other applicable law. Within 30 days, the AA will determine if the proposed rule is adequate and proper as written, or if modifications are necessary based on information and comments received from the public. If the AA determines the proposed rule to be proper, it is published as a final rule and outlines modifications to existing regulations in the Federal Register.
For more detailed changes to the management strategy, such as implementing a limited entry system in a previously open access fishery, there are several additional steps that would be bypassed under the framework procedures. Initially, NMFS would announce and publish in the Federal Register an “Advanced notice of a proposed rule”; a public comment period may be associated with this announcement. Once the notice is published, scoping meetings will be announced; these meetings will be held throughout the coastal communities that would be directly affected by the proposed rule. These scoping meetings provide the only formal forum for open, interactive dialog between NMFS and the constituents. NMFS then considers the comments and information received at the scoping meetings, and prepares a “pre-draft” of the proposed rule. This pre-draft is provided to consulting parties for comment; such parties would include the regional Management Councils, the Advisory Panels to the Councils, enforcement agencies, and other regional US agencies or international agencies that might be affected by the rulings such as Coastal Zone Management Boards, International Committee for the Conservation of Atlantic Tuna (ICCAT), etc. Comments received from these parties are then incorporated into a proposed rule which is published in the Federal Register. At this point, the procedures outlined above under the framework procedure continue.
The 1996 amendments to the Magnuson Act combined the highly migratory species into a tuna/swordfish/shark unit and a billfish unit. The logic is that the species are taken by similar gear types, often simultaneously. NMFS proposes that one FMP will ease the burden on the user groups that are involved in more than one fishery and that it will be more in line with an ecosystem-based management approach. (There are some distinctions that exist however supporting a separate shark FMP). There is only limited overlap in the species composition of sharks in the pelagic tuna/swordfish effort compared to the directed shark effort (Branstetter 1986; Hoey and Casey 1986; Berkeley and Campos 1988; Power 1993; Russell 1993; Hoey 1996b; Branstetter and Burgess 1997).
To assist in developing the new FMPs, NMFS has convened several citizens' advisory panels that are exempt from the Federal Advisory Committee Act, unlike the current Operations team. These new advisory panels add one additional and very beneficial step in the plan development process compared to the system described above. These advisory panels review information received at the scoping meetings, and then make collective recommendations as to the content and intent of the FMP. At that point the system reverts back to that described above - NMFS prepares a pre-draft of the FMP and solicits comments from consulting parties; however this does result in a forum for outside contribution and actual involvement in the development and amendment processes.
5.2 Fishery statistics
5.2.1 Methods used for collection of catch and effort data
The United States' recreational and commercial fisheries are monitored through a variety of federal and state programmes. Many states have a “trip ticket” system where commercial landings from each fishing trip are reported on a “weigh-out” form. In the northeast US (Virginia and northward), seafood dealers report landings directly to NMFS; in the southeast (North Carolina to Texas), seafood dealers report landings to their respective state agencies and the state agencies then provide a consistent set of data to NMFS (Poffenberger 1996a). Permitted fishers in several fisheries are required to submit logbooks to NMFS detailing their fishing effort, catch and landings; NMFS uses those logbooks from fisheries that target, or incidentally take substantial amounts of, sharks. In addition, federal port agents visit the various dealers and fish houses to gather much the same landings and weigh-out information and to interview fishers who are at the dock. These interviews are designed to get more detailed information concerning the catch, effort, location, etc. from the last fishing trip. Recreational fishing is monitored by a federal Marine Recreational Fishery Statistics Survey (MRFSS) which contacts individual households to solicit information on the frequency, intensity, and target of fishing activities (NMFS 1993). For-hire vessels must also submit detailed logbooks concerning the number of trips, anglers, and catch taken by the vessel. Additionally, there may be short, or long term, observer monitoring/research programmes and biological research projects on specific species that are funded by various grant agencies. The data generated through these grants, especially those administered by NMFS, are used by the NMFS for stock assessment and fishery management.
5.2.2 Evaluation of the data collection process
There are some shortcomings to the commercial monitoring programme. The dealer reporting requirements are designed to provide information on the total landings in a timely manner and dealers are required to submit their reports bi-weekly. However, some do not report on time, and given that the quota is reached rapidly and that advanced notice is necessary to close the fishery, these delays can result in overages in the quota. Fishers who sell directly to retail businesses or individuals would be excluded from these data. Further, much catch is reported as “unclassified”, and NMFS has no system to collect individual weights; this information must be obtained from other sources and applied to the composite landings data. Attempts to cross reference logbook records of species and counts to ‘trip ticket’ or weigh-out sheets are not completely successful because the same species may not be recorded on the two forms for the same trip. In addition, errors or intentional misreporting of species and weights occurs in the logbook data; for example, Poffenberger (1996b: Table A-5) indicates the logbook records provide an average weight of bonnethead sharks of 20lb, finetooth sharks-421b, bull sharks - 800lb, and blacktip sharks - 122lb. These weights are all excessive for the average-sized individuals, and in some instances may represent values in excess of the maximum weight found for the species. In addition, logbooks may provide a better record of the sharks processed than for the total catch. Although most captains may be able to provide exact numbers of carcasses and an estimated weight of the boarded catch it is highly unlikely that the crew would keep detailed records of the numbers of each species which were brought to the boat and discarded or released. At least from anecdotal information, it appears that some captains fill out logbooks just prior to the deadline for submssion to NMFS, so the entries would rely heavily on memory or imagination.
There are also several data collection shortcomings regarding the recreational fishery. Perhaps the biggest drawback is that the MRFSS samples only a small fraction of the vast number of recreational anglers and shark fishers make up only a small fraction of all recreational fishers. And, the results are dependent upon the memory of the fisher to describe fishing activities over an extended past period. The memory recall required most likely results in overestimates of the final catch tallies, and as noted earlier in this report, species identification by recreational angler is highly suspect. Also, whereas commercial effort can be more directly measured in terms of target species, recreational effort is measured in terms of “total angler days” or “total angler hours” devoted to fishing in general - not just directed at shark. This may provide a standardized measure, but over a long-term period, total angler effort can vary depending on the availability of specific fish resources (other than shark); for example, reef fishing is a popular recreation, and as quota and bag limits change for these resources, so will recreational effort. Obviously, shark fishing effort will most likely not change at the same rate. In addition, over a long period of time, recreational angling effort will fluctuate according to the general economic climate. Thus, generating a CPUE for shark catches from these type of effort data to ascertain trends is, at best, a first order approximation. Given the decline in the number of recreational tournaments for sharks, this data collection method is unlikely to provide substantial amounts of useful information. Fisher and Ditton (1993) suggested that surveys of shark fishers in general fishing tournaments could be used as a proxy to represent the private boat shark fishery and suggested that this method would be less costly than increasing the MRFSS to the point that shark fishers are adequately represented in the sampling. However, although the Fisher and Ditton study was a successful endeavor, it was only a one-time grant-supported study.
Lastly, an important component of any fishery assessment is data from fishery independent resource surveys that encompass the range of the stock and/or fishery. Such data are sparse; some long-term independent indices exist, but they are for limited areas. NMFS-sponsored resource survey data does exist, but surveys have not been consistent substantial efforts. Currently, an annual 6-week summer survey is conducted by NMFS, however considering the area covered (Massachusetts to Texas), the sampling is inadequate especially from a seasonal standpoint.
5.2.3 Data processing and storage accessibility
All data used for official assessments by NMFS are archived and managed by NMFS. In general, data for both recreational and commercial landings are either provided to the state or NMFS. Data given to the state must forwarded on a standardized form to NMFS who usually request that data be submitted by grantees in either ASCII format or some other standard format, e.g. dBase, Access, etc.
Confidentiality requirements concerning data provided to a government agency exist. Usually, individual records cannot be made available outside the data management group; to do so would provide information that could be used to generate conclusions on the individual's personal finances, or it could provide information on exactly who the individual was dealing with and what prices they paid or received for products. Thus, data are usually provided to requestors in an aggregate, or summarized, form where individual records are not discernable.
5.3 Stock assessment
5.3.1 Background
The Magnuson-Stevens Act (and versions of the Act back to 1976) mandates that fishery management must be implemented for stocks that are overfished or deemed susceptible to becoming overfished in the near future. Overfishing is measured against the MSY. The shark FMP used the maximum annual production during 1986–1989 as a first order estimation of MSY, assuming that any annual production, including a maximum, is sustainable. For the purposes of the shark stock and its management, overfishing was defined as a fishing mortality rate (F) that exceeded the fishing mortality rate that would produce MSY on a continuing basis (NMFS 1993). In general terms, a stock is defined as overfished if removals exceed replacement (i.e. recruitment) (Parrack 1992). To assess the removal and replacement variables, two general methods have been used: demographic analysis for particular dominant species in the fishery and stock production models using either simple likelihood estimates or general linear procedures (Fowler 1988; Cortes 1996; Sminkey and Musick 1995b; Sminkey 1996; Parrack 1996; NMFS 1996a).
5.3.2 Measures of stock abundance
Data available for the stock assessment used in implementing the management plan were meager, but deemed sufficient to allow start of a regulatory regime (Parrack 1992). Data used in the assessments (NMFS 1993, 1994, 1995, 1996a) have included gross commercial landings, and in some cases where numbers of fish were included in a landing report, average weights. Recreational catch was available in the form of the Marine Recreational Fishery Statistics Survey telephone interview system and from charter (6 or less paying customers) and headboat (9 or more paying customers) logbooks and surveys. Additional fishery independent databases were available for examination. As noted in Section 5.2.2, most of the fishery independent data sets cover only limited regional areas; a coast-wide annual survey has only recently been initiated by NMFS and the intensity of that programme could be vastly increased. However, these various data sets provide a basis to compare the status of the stock and ascertain trends in stock abundance.
In all, 58 time series (of varying length) of catch, or CPUE, data were available for consideration. Of these, 13 provided catch rate information for aggregated “large coastal” species or other shark categories. A generalized linear model was applied to each dataset to scale the various time series into single series representing an average species or species-group catch rate trajectory. Overall, the model applied to these data indicated that “large coastal” shark catch rates were 15–60% of the levels in the mid to late 1970s, i.e.stocks have declined between 40 and 85% from the former levels. The only species examined that did not show this trend was the blacktip shark (Carcharhinus limbatus).
In all cases, due to the limited data, there is great uncertainty associated with the calculations concerning the stock, and thus uncertainty in the effects that fishery management actions will have on the stock. Even though the analysis indicated a declining trend of stock size over time, the stock assessment (NMFS 1996a) was careful to note: “The variation resulting from the bootstrapping showed that the CV on the 1996 stock size was about 80% and that one could not show statistically significant differences between the 1996 stock level and any other year's level throughout the time series.” However, uncertainty does not preclude the need and justification for continued management actions (NMFS 1996: Federal Register 62(66):16649).
5.3.3 Biological advice review process
A stock assessment and fishery evaluation (SAFE) must be conducted on a regular basis (see Section 5.1). In the case of the shark fishery, this is done through an annual Stock Assessment Workshop (SEW). To facilitate the evaluation in 1994, NMFS convened a panel of NMFS and non-NMFS scientists to evaluate the available information so that options could be developed should there be a need to alter the initial management measures. The first workshop in 1994 focused on integrating information available on trends in species abundance. A series of CPUE data sets were analyzed and standardized. Other information considered included assessments of vital rates, estimations of catch and landings, and an evaluation of resource status vs. target levels. A second evaluation in 1995 was conducted solely by NMFS since few new data were available for detailed consideration. A third SEW was conducted in 1996, again convening a group of NMFS and non-NMFS scientists. Each subsequent workshop considered much the same kind of information as the first. Although NMFS noted in 1996 (Federal Register 61 (241):67296) that within one year it intended to convene a panel of scientists to review alternative management strategies, it is understood that the 1997 SEW report, which updated the 1996 report, was generated in-house by NMFS.
One common criticism by the SEW participants in the two detailed assessments of 1994 and 1995 was that the workshop is conducted too quickly. The workshop covers two days, and although the data summaries are completed prior to the workshop, the participants do not see them until they arrive; the participants are unable, individually or collectively, to assimilate, review, and prioritize the value of these data in such a short time. This leads to instances where important points are glossed over or ignored, only to be recognized for their importance later, once the SEW report is completed.
5.3.4 Biological management reference points
The goal of the management strategy was to reduce to fishing mortality to a level that would allow a fishery to produce a MSY by decreasing F to the point where removals did not exceed replacement. The initial estimate in 1993 (the beginning of the management period) was that F=0.30, and needed to be reduced to approximately 0.20. In 1994 and 1996, F was estimated to be between 0.20 and 0.25.
An F>0.20 contrasts sharply with the maximum intrinsic rate of increase (r) calculated from demographic analyses for the major species in the multi-species stock (Cortes 1996; Sminkey and Musick 1995b; Sminkey 1996). The SEW estimated that r might, on average, approach 0.10, but also noted that this value was considered high for many of the more slow growing species that dominate in the fishery (i.e. sandbar, dusky, lemon, and bull sharks). Thus, this should be considered an optimistic value. Based on the premise that F cannot exceed r, the 1996 SEW recommended that F be reduced by at least half to increase the probability of increasing stock size by 1999.
An additional caveat exists: The SEW report that notes that the models used all assume a “closed population” where F represents the fishing mortality on the known, or considered, fishery, whereas r is a biological value for the whole resource. But, the species that comprise the “large coastal” group in the US are also common components of the Mexican Gulf of Mexico catch (Bonfil et al. 1990; Marin 1992; Rodriguez et al. 1996; Bonfil 1997), and these species migrate between the United States and Mexico. The extent (percent of the population) of this migration is unknown, but tag returns over the past 25 years (Koehler 1996) indicate that such migration is not rare. Thus, using a F calculated under the assumption that the US population is the entire stock, when it is a transboundary stock, may not be appropriate. If the transboundary portion of the stock is substantial, then a closed-stock assumption would lead to a greatly overestimated F.
5.3.5 Sustainability of the resource
Historically, relatively large scale shark fisheries have existed sporadically in the western North Atlantic since the 1940s (Springer 1979; Anderson 1990; Bonfil et al. 1990; Bonfil 1994). In addition to US fisheries, a fishery for the skins and livers developed in the Yucatan Peninsula of Mexico during the 1940s, and shark fisheries have existed in countries such as Cuba, For years, the draft management plan for sharks of the Gulf of Mexico (Gulf of Mexico Fishery Management Council 1980) suggested that shark populations were affected by these fisheries and that the stock(s) increased appreciably during the 1960s and declined in the 1970s because of an increasing recreational fishing pressure. That Plan noted however that the stock(s) still exceed the equilibrium level associated with the MSY calculated at that time.
The current shark fishing efforts in the region include several nations. The Mexican fishery increased its production dramatically about 1980 and total landings of sharks increased from approximately 4000t in 1980 to 10 000 – 15 000t/yr (Bonfil 1994). The fishery takes many of the same species as in the US (Marin 1992; Rodriguez et al. 1996; Bonfil 1997). Cuban landings averaged about 3000t through the 1970s. In the US, a commercial fishery redeveloped during the 1980s stimulated by increased demand for shark fins and a greater acceptance of the meat by consumers. This fishery peaked in 1989 at more than 7000t. Similarly, US recreational fishing increased during the 1970s following the release of the movies “JAWS” and shark fishing clubs and tournaments expanded rapidly (Casey and Hoey 1985; Hueter 1991). In addition, declines in other more traditional sought-after big game (i.e. marlin, tuna) and reef (snapper, grouper) fishes led many private, as well as charter and head, boats to target sharks during part of their trips (NMFS 1993). Recreational catches of sharks (excluding dogfishes) during the early 1980s increased to 20 000– 50 000t with an associated mortality of more than 10 000t (Hoff and Musick 1990).
Overall, during the 1980s, shark catches in FAO Area 31 were estimated to exceed 42 000t, of which 22 000t came from US waters (Anderson 1990). This exceeded the MSY estimated for US waters (Anderson 1990; Parrack 1990). Thus, although the shark stocks of the Northwest Atlantic were considered underutilized in the 1970s and early 1980s (Colvocorresses and Musick 1980; Branstetter 1981; Cook 1982), they were more likely fully exploited, or overexploited, and subsequent governmental support for the development of a directed commercial shark fishery was, in hindsight, ill-conceived.
The increased exploitation and subsequent declining catch rates led to the development of a Federal Shark Fishery Management Plan for US Atlantic waters in 1993. Initial regulations focused on curtailing an excessive harvest that was occurring in the unrestricted fishery. A wildly optimistic two year rebuilding schedule was proposed. This schedule was based on a projected 5–10% annual increase in stock size (this is approximately the intrinsic rate of increase, r, calculated for many species, and does not consider fishing mortality). On the positive side, the measures did provide the first restrictions on the take of the commercial and recreational sectors, reducing the average landings by 29% during 1986–1991. The large coastal component taken by the commercial sector was reduced by 60% compared to the peak in 1989 (NMFS 1993). NMFS (1997) notes that the mortality reductions may actually be greater because data on fin landings (i.e. landing the fins without the carcass - legal prior to FMP implementation) were not available.
The 1994 and 1996 stock assessments indicated, that the initial management measures were successful in curbing the excessive removals from the stock. Declines in stock abundance of large coastal species since the 1970s have stopped and apparently the stock has stabilized, albeit at a low level. The 1994 SEW also determined that the “large coastal” group continued to be overfished and that the pelagic and small coastal groups were fully utilized. The SEW report corroborated many scientific opinions that the initial rebuilding schedule projections were optimistic, and given the current status of the stock, it would not be rebuilt in the specified timeframe. In fact, the report concluded that given the rate of increase of most shark species, that measuring recovery under a TAC implemented only in 1993 would likely be impossible for a decade or more. Thus, NMFS rejected its initial rebuilding schedule and froze quotas at the 1994 level until a more precise rebuilding schedule could be developed.
The next detailed stock assessment occured in 1996 (see Sections 5.1 and 5.3 for explanations of assessment procedures). That review indicated that the stock size at the beginning of 1996 was 59 to 65% of that which would produce MSY. Conclusions of that report, based on demographic analyses (Fowler 1988; Cortes 1996; Sminkey and Musick 1995b; Sminkey 1996) and production model projections (Parrack 1996; NMFS 1996a) using general linear models, were that F was still too great for the “large coastal” segment of the stock, i.e. removals exceeded replacement. It recommended a 50% reduction in catches to increase the probability of maintaining stock sizes at current levels and noted that a stock increase might be discernable by 1999. This is defensible; based on the 1996 assessment, the current estimated F of ~0.20 was greater than the intrinsic rate of increase for the stock (r~0.10). As noted, F cannot be greater than r and still enable stock biomass increase! Even so, NMFS (1997), considering the biology of the resource, thought a two-year target date was rather optimistic. In addition, as noted in Section 5.3.3, F is currently calculated on the assumption of a closed US stock; if the population is transboundary (Bonfil et al. 1990, Marin 1992, Koehler 1996, Rodriguez et al. 1996, and Bonfil 1997), and thus appreciably larger than would be estimated based on US catches, then F due to US fishing would be overestimated.
Even if the estimates of F are correct, a direct translation between quota and F reduction is not always realized. For example, in some areas it is possible to fish on abundant smaller juvenile sharks in nearshore waters. The introduction of the reduced quota reinforced the derby mentality: the closeness of these nearshore fishing grounds to the landing docks meant that more trips could be completed in a given time frame, and thus provide a larger portion of the quota to the recreational fishers pursuing this type of fishing. Obviously, it takes twice as many 20lb fish to fill a 4000lb trip limit as it does 40lb fish, thus with the alteration in fishing behavior that occurred from the regulation, even with the reduced quota, the goal of mortality reduction was partially not achieved.
The 1996 SEW report (page 21) noted that given the uncertainties in the data, there was a chance that the stocks could increase or decrease under any F. Thus, there was substantial uncertainty associated with the projection of a 50% probability of stabilizing the stock with a 50% reduction in effective fishing mortality. This is best illustrated by the fact that with no reduction in F there was a 38% probability of stock stabilization, and with a fishery closure (100% F reduction) there was a 57% probability of stock stabilization. This is a wide range of fishing mortality reduction for only a 19% change in probabilities. The general consensus is that the stock has declined by 40–80% since the 1970s, but the conclusions of the SEW indicate that the data are so sparse and uncertain that even this substantial decline is not statistically significant. Thus, even if quota reductions were necessary, given the uncertainty associated with the database and the analysis, the argument forwarded by NMFS for such action was no more substantive and defensible from a scientific standpoint than if no action was taken.
On the other hand, the action was risk-adverse given that removals exceed replacement (i.e. F>r). There is some question as to whether a shark stock with such an inherently low biological potential to withstand intense fishing mortality can actually support a directed fishery in any form. For the more common species taken in the fishery, r is calculated to be less than 0.10. Thus, given the estimated stock size, an associated F that is less than this value would equate to a TAC of only a few hundred tonnes. This would preclude a fishery of more than a few boats and such a TAC could in fact be taken as bycatch by the recreational and other fisheries.
Alternative methods to reduce F may be more effective and have less impact on the fishing communities, but no alternatives had not yet been considered seriously by NMFS. Based on observer data in the current commercial fishery, Branstetter and Burgess (1997) noted that the imposition of appropriate size limits could effectively reduce mortality with only minimal quota reductions. Mortality could be reduced by eliminating the current contributions that smaller fish make to the landings. Reductions in F to the smaller age classes is important to overall stock rebuilding (Cortes 1996). Such a measure is only feasible if the fish are brought on board alive. According to Branstetter and Burgess (1997), approximately 75% of sharks come to the boat alive. This percentage could be increased through reduced soak times for longline sets, especially when targeting species susceptible to suffocation such as blacktip sharks. Branstetter and Burgess noted further that, beyond the directly calculable mortality reduction, there would be additional benefits from concomitant alterations in the way that the fishery operates. Small sharks exist in high concentrations in nearshore waters and setting longlines in these areas has little chance of taking larger fish. With small fish banned from the market place, fishers would waste time, money, etc. in fishing in the nearshore and would shift to deeper waters where larger, but less densely distributed, sharks occur. This should also increase overall quality of the catch. Although it may take longer to fill a trip limit, the mortality would be reduced because larger and more valuable fish are landed. An indirect effect would be an extension of the season and a higher more stable price for the catch, compared to the boom-and-bust price fluctuations that occur from derby-type fishing efforts.
5.3.6 Discussion1
The manager's perspective: Views of the advisors; What is desired and provided? Deficiencies and intended developments. How do ‘political’ considerations affect the consideration of biological advice, if at all? If biological advice offered is unacceptable, are there formal procedures for coming to a management decision. What are the major factors involved in decision on possible management actions. How are conflicting stakeholder's requests reconciled (if at all)? Is there any expression of uncertainty in the biological resource advice that is given to you? If so, how to you handle it? Is the processes adequate? Is further assistance in handling uncertainty needed? If so how?
In the FMP, it was clearly stated that the OT was intended to be able to affect the management process, but the OT members were frustrated from the restrictions imposed on them according to the Federal Advisory Committee Act (see Section 5.1). In addition, respondents felt that they were not kept informed in a timely manner by NMFS as to current issues. Information was not provided to OT members on a routine basis between annual OT meetings and such information was provided only when requested. One respondent commented: “As a rule, there was no follow up to any of our requests.” Further, even if the OT spent considerable time discussing alternative methods to address an issue, there was the impression among the respondents that NMFS often dismissed, or did not adequately follow up on, the alternative concepts. All three respondents used the example of NMFS' statement in 1996 that the agency intended to examine alternative management strategies in the near future, but as of the end of 1997, the issue has not even been re-introduced for consideration. Last, two of the respondents felt that NMFS downplayed and dismissed the statistical uncertainty associated with the data analyses, and all three were concerned to varying degrees that hidden agendas and special interests were setting NMFS' management agenda. All three respondents were frustrated by the general autonomous control that NMFS has on producing final decisions.
User's perspective: Views of the recipients of the management process. Do they feel their views are considered fairly?
The respondents were unanimous and to the point: “No.”
5.4 Evaluation of the management process
Two major factors substantially effect the management process for the shark fishery. First, this is a Secretarial Management Plan as opposed to a regional Council Plan. Although the outline for the management process is the same, there are subtle, yet important, differences between the two management methods. A Council is composed of numerous individuals who represent the Federal Government, state governments, and interest and user groups. There is considerable discussion among these constituency-representing members concerning the management strategy in question. As such, Council actions are often modified during development to reflect the needs and concerns of the various constituent parties on the Council, whether they be a state or a stakeholder. Until the various members are satisfied that their needs and interests are addressed appropriately negotiation continues until a compromise position is achieved. Most importantly, all rules and regulations are passed by a majority vote of the constituent members. By contrast, although Secretarial Plans must be open to comment, there is only one official opportunity for dialogue and negotiation between the stakeholders and NMFS, and that is in the early scoping phases of management prior to the development of proposed rules. Once the rules are proposed, all comments are one-way from the stakeholders to NMFS. Final determination of the validity and importance of these comments for consideration in generating the final rules is relegated to the management agency - NMFS.
Initially, the SEW report and the OT recommendations were intended to be consensus documents to guide the final recommendations; for various reasons, the influence of these entities has lessened concerning their role in determining strategy and decisions. The stock assessment report is prepared by NMFS scientists and does not have to be a consensus of the SEW members (Federal Register 62{66}:16651). NMFS presents the summary information and makes recommendations to Oversight Committee, but because this committee consists of members of the user and interest groups, they cannot collectively deliberate or reach conclusions as to recommendations that they would like to see forwarded concerning proposed management measures. NMFS then presents its final recommendations to the NMFS Assistant Administrator of Fisheries who either agrees, or disagrees, with the findings of his/her own agency. NMFS then issues the final rule. There is obviously more internal control in this form of management than would be exhibited under the authority of the regional Fishery Management Councils where stakeholders' representatives vote to select management options. This “closed door” approach is perhaps the greatest criticism of the current shark management process.
On the surface, this procedure might appear to be more efficient in that unnecessary delays in meeting the needs of management can be avoided. However, under such a system the varied concerns of those constituents (whether state or regional governments, user or interest groups, or other management agencies) do not have to be directly addressed in order to get the proposed strategy implemented. Concerns have been expressed by the various interest groups that positions which conflict with the position of NMFS and the Secretary are likely to be trivialized in the final rule during justification of the final action by NMFS.
To some extent, NMFS has vacillated on its position over time causing stakeholders to speculate that NMFS is attempting to satisfy various interest groups. Whereas, in 1993, NMFS rejected the findings of the 1992 SEW findings with no particular justification for its position, in 1996, NMFS (1996b, 1997) supported the SEW report and conclusions as the best scientific information available on which to base its subsequent management decision to cut the quotas despite that the 1996 SEW report contained sufficient uncertainty to rationalize/justify a variety of options for management, ranging from no action to full closure of the fishery. From this standpoint, the adequacy of the process is dependent upon the particular viewpoint of the specific user/interest group and how their particular agendas have been addressed (or ignored). For those who believe that the stock is so overfished that the fishery should be closed, current management is not restrictive enough; for those who believe that the stock is larger than the assessment indicates, the current management is too restrictive.
This management system may change soon. Provisions in the new revisions of the Magnuson-Stevens Act require that Secretarial Plans be developed, implemented, and modified with the full participation of Advisory Panels (APs) composed of user and interest groups. These APs would be exempt from the restrictions imposed by the Federal Advisory Committee Act, similar to Panels and Committees of the regional Councils. This should provide more realistic checks-and-balances in the management process and should de-emphasize the single-entity management as currently practiced. This should help the NMFS too, lessening any potential perception of political agendas influencing their actions. On the other hand, NMFS has determined that all highly migratory species which include tunas, billfishes, and pelagic (oceanic or large) sharks, should be managed under a single FMP. Given the high profile of the more lucrative fisheries for tuna and billfishes and the limited resources available to address fishery management needs, there is now concern among a broad spectrum of shark-related user and interest groups that sharks may not receive the attention needed to adequately manage the stock(s).
6. REGULATIONS FISHERY MANAGEMENT
6.1 The regulations
The following regulations exist to manage the shark resource of the US Atlantic EEZ:
39 species are identified in 4 groups (large coastal, pelagic, small coastal, prohibited
Annual fishing permits required for commercial vessels fishing in the US EEZ
Data reports required from owners/operators of permitted vessels
Data reports required from persons conducting shark fishing tournaments
Permitted vessels must accommodate an observer on request
A fishing year is established from 1 January through 31 December with two fishing seasons: one beginning 1 January the second beginning 1 July
Finning (retaining the fins and discarding the carcass) prohibited; fins must be landed with the carcasses, and the quantity of fins landed cannot exceed 5% of that carcass weight
Sharks not retained must be released in a manner assuring survival
Recreational bag limits currently allow the take of 2 sharks of any combination of categories per boat per day, excluding Atlantic sharpnose sharks where each person on board may possess two per day or per trip
Commercial quotas currently set at 1285t of large coastals, 580t of “pelagics”, and 1760t “small coastals”
Commercial trip limits of 4000lb of “large coastals” for permitted vessels
Commercial closures when species group semi-annual quotas are reached
Sale of sharks harvested in the EEZ is limited to permitted vessels; no recreational sale
Assistant Administrator of fisheries can implement or adjust management measures in accordance with a specified framework regulatory adjustment procedure
Total allowable level of foreign fishing (TALFF) in the EEZ is zero.
6.2 Regulations and the communication process
Regulations are implemented as management plans or their amendments generated by federal agencies in accordance with the guidelines in the Magnuson-Stevens Act; individual states are requested to gazette compatible regulations for their waters. The state regulations may be more strict, or the states may ignore the federal regulations. State regulations can be in a variety of forms: rules, laws, proclamations, etc.
Enforcement is accomplished through state and federal cooperation. All states have some kind of an enforcement agency, such as the Marine Patrol which is responsible for enforcing individual states' laws governing use of marine resources. Similarly, the Federal Government also has agencies to enforce their laws; these include the United States Coast Guard and an enforcement division of the National Marine Fisheries Service. The Coast Guard tends to provide air and at-sea monitoring including vessel boardings to monitor the fishing efforts of the nation's fisheries. The enforcement division of NMFS and state enforcement agents may focus on dockside monitoring, but also monitor at-sea activities in their respective regions.
The regulations have been effective in curtailing unrestricted fishing mortality. NMFS (1996b) noted that for the period 1993–1995, the catch of “large coastals” has been reduced by 60% from the peak landings recorded in 1989, and the mortalities may have been reduced to an even greater extent because fin landings were not recorded. According to NMFS (1997) recreational catches have declined from a peak of approximately 93 000 fish in 1985 to about 6000 fish in 1994; this may stem from both the recreational bag limits and a shifting interest in recreational anglers' targets once the stocks of nearshore large coastals declined. Although the measures to date have stopped the excesses, there still has been no concerted effort to address a long term rebuilding strategy; measures continue to be implemented on an interim basis to address issues of immediate concern.
Not all regulations are acceptable to all user groups. Prior to the actual implementation of any regulation, NMFS makes the proposed regulations available for public comment. At that time, user and interest groups may comment on the validity and necessity of the proposed regulation and the government is obliged to consider those comments in their final deliberations. Once a regulation is enacted, those with grievances may petition for a change according to guidelines found in the Administrative Procedure Act. As a last resort, one may file a law suit in federal court against NMFS to contest the regulation's validity. These contests are usually based on the concept that the new regulations violate some part of the Magnuson-Stevens Act or the 10 National Standards that govern rulemaking. There have been some instances where rules have been rejected by the courts due to errors in the database or analyses that generated the rule. However, in most cases, rules are based on the best scientific data available and withstand court scrutiny. Such court action is at the expense of the plaintiff. Thus, since the fisheries are primarily composed of small-scale independent fishers, they do not usually have the resources to pursue such actions.
7. THE LAW AND ENFORCEMENT
7.1 Legal status
Most US fishery resources are considered common property, available equally to all US citizens, and are governed by the goals set forth in the Magnuson Act and its amendments. That Act also established Regional Fishery Management Councils which are charged with preparing and submitting management plans and amendments for each fishery under their jurisdiction which need management and conservation. In the case of sharks, or as deemed necessary, the Act gives the Secretary of Commerce (or the Secretary's designee in the NMFS Assistant Administrator of Fisheries) authority to implement management of a fishery. That need is usually defined as when a fishery stock is identified as being overfished or has the potential to become overfished without management intervention. Thus, management plans implement measures designed to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery. These measures become rules (laws) that are legally enforceable.
Violations may consist of technical or fishery violations. Examples of technical violations are failing to meet safety standards aboard a vessel, or possessing illegally conformed gear if legal gear requirements are described (e.g. the angle of a turtle-excluder device in a shrimp net). These violations are usually not monetary, but the vessel is cited and the problem must be corrected. Habitual, or repeat, offenders are liable to civil actions. More pertinently are fishery violations where a fisher or vessel owner is cited for failing to comply with the regulations pertaining to the fishery.
7.2 Enforcement problems
The primary problem with enforcement is lack of manpower to survey the managed marine area. This is especially true for wide-ranging shark fisheries which extend from Canada to Mexico. Few specific rules governing shark fishing exist except that fishing in the EEZ is only allowed during an open season, commercial fishers are limited to a 4000lb trip limit on “large coastal” sharks, and all fishing by permitted fishers for a particular category of sharks must stop when that fishery season is closed. There are no size limits or closed areas in federal waters (except for areas designated as national marine parks or sanctuaries), and only recently has there been any prohibition on the possession of particular species; capture of these species constitutes a rare event for the average commercial fisher, thus this rule does not substantially affect the fishery.
According to information received from NOAA's General Counsel Office, there is not a substantial amount of fishing violations related to shark fishing. The most common violation is the illegal possession of fins without associated carcasses. In many cases, this violation is more common where shark is a bycatch from fishing targeting other species. Other violations include fishing during closed seasons and possession of landings in excess of commercial trip and recreational bag limits.
Enforcement of commercial landings is aided in that only permitted fishers are allowed to sell catch taken from the EEZ and only permitted dealers may buy the catch and they can only purchase from permitted fishers. A permitted fisher is not allowed to fish for, or sell, shark during a closed season. Failure to comply with these rules can lead to forfeiture of the fisher's/owner's permit. However, this does not preclude non-permitted fishers/vessels from fishing for, and selling, shark to non-permitted buyers during the closed season provided that they are not fishing in the EEZ (i.e. they conduct all fishing in state waters). States have sovereign rights over the fishing activities in their territorial waters and they may, or may not, follow federal closures. Recreational charter/headboat operations must be aware of the regulations governing the fish they target for their clients. Failure to comply with these regulations could lead to a forfeiture of the vessel operator's permit or licences. A greater enforcement problem is monitoring the catch of the private recreational sector which may fish from the beaches in any coastal area, or from boats launched at any of the thousands of public and private boat ramps in the coastal area. This fishery is open all year, but enforcing adherence to bag limits is almost impossible for this sector.
7.3 Surveillance
Surveillance is accomplished through state and federal cooperation. All states have some kind of an enforcement agency responsible for upholding their laws governing use of marine resources. Similarly, the federal government has agencies to enforce the federal laws; these include the United States Coast Guard and an enforcement division of the National Marine Fisheries Service. The Coast Guard tends to provide air and at-sea monitoring, including vessel boardings to monitor the fishing efforts of the nation's fisheries. The enforcement division of NMFS and state enforcement agents may focus on dockside monitoring, but also monitor at-sea activities in their respective regions. NMFS (1993) estimated that enforcement actions cost approximately $500 000/yr; state costs would be extra.
7.4 The legal process
The Magnuson-Stevens Act provides the general legal basis for enforcing regulations concerning all federally managed fisheries, and enforcement of any additional state regulations would be based on the laws governing fishing for that particular state. A series of events occur when a fisher is charged with violating a regulation. If discovery of the alleged violation occurs at sea - by either the Coast Guard, NMFS enforcement, or state agency enforcement - the vessel is usually escorted to the dock and the catch seized. The catch is generally sold with proceeds going to the agency. In such instances, a Notice of Violation and Assessment (NOVA) is usually issued by NOAA enforcement attorneys; this NOVA document outlines the violation and specifies the penalty assessed. Several options are then available to the respondent (defendant). If there is no contest, and agreement is reached on how the fine will be payed, the case is closed. If the respondent contests the NOVA, an administrative civil hearing is held. All such cases are heard by an Administrative Law Judge hired by the US Department of Commerce. If guilty of a violation, a fisher is subject to monetary fines and their permit may be suspended or revoked. There are no imprisonment punishments for fishery violations. The fisher may appeal the decision to the Administrator of NOAA, and finally have the case reviewed in a federal district court.
Fines are collected in one of three ways. The respondent may pay and the case is then closed. Delinquent payments may be referred to NOAA Finance Office which requests an Internal Revenue Service (IRS) tax Refund Offset; any tax refunds owing to the respondent are then transferred to the NOAA General Counsel. If this does not provide full payment, the amount due may be “written-off” by the Finance Office. In this case, although no money is actually received, the respondent is charged with receiving “income” in the amount due which is then considered taxable income to the respondent during the next federal and state tax period. Last, General Counsel can take the respondent (debtor) to court to collect the money owed, or, General Counsel can issue a permit sanction or maritime lien on the vessel.
8. MANAGEMENT SUCCESS
8.1 Profitability of the fishery
NMFS (1997) noted that there was little or no quantitative social or economic data on which to base management decisions. Most likely the fishery does not create considerable wealth because of the limited timeframe during the year that the fishery is prosecuted. According to some commercial sources, there is a profit margin of about 10% through each step of the marketing chain, but in terms of overall economic wealth, the fishery would not be considered to be profitable.
Prior to the promulgation of any new regulations, under the Regulatory Flexibility Act, the management agency is required to conduct a review of the regulations' impacts on small business entities. In this instance, a rule is considered to have a significant impact if a significant number (20%) of those engaged in the fishery have either: (i) a reduction in gross annual revenues by more than 5%, (ii) an increase in total costs of production by more than 5%, (iii) a 10% increase in compliance costs, (iv) heavy capital costs of compliance, or (v), 2% of small business entities are forced to cease business operations. Because there were no empirical data available on the social or economic aspects of the fishery, NMFS' regulatory impact review and analysis have to rely on qualitative discussions of the proposed rules using general economic theory, or applying the results of empirical studies on other fisheries.
NMFS (1997) determined that the 50% quota reductions enacted in 1997 would not have a significant economic impact on a substantial number of small business entities. NMFS considered all active fishers to be“small entities”, but concluded that because the fishery was open for only a limited time each year, the participants engaged in other fisheries were sufficiently diversified to maintain financial viability. NMFS estimated that a directed commercial shark fisher would earn at most $26 426 in gross revenues from the “large coastal” shark fishery alone, and that these revenues would be supplemented by income derived from other fisheries. They also determined that because the annual ex-vessel value of all Atlantic sharks was less than $15 million it did not have an annual effect on the economy exceeding $100 million, thus the regulations did not have a significant economic impact as defined in Executive Order 12866.
However, it has become obvious that there are drawbacks to such open access systems with the only limitation being controls on the harvest. According to NMFS (1996b), management measures have been primarily directed at controlling the size of the stock rather than correcting the common property externality. This has led to increasingly complex and invasive management regulations designed to correct symptoms instead of causes. Thus, the long term objective of NMFS (1996b) is to develop a management system in which fleet capacity is more closely aligned with resource productivity so as to achieve goals of both economic efficiency and biological conservation. NMFS (1997) notes that because the fishery has been maintained as a common property resource, harvesting costs should be nearly equal gross revenues and the rents should be dissipated at the margin. As the stock recovers and CPUE increases, total revenues to the fishery should increase and positive economic rents be realized. This will attract more entrants into the fishery, negating any gains. Even with a licence limitation system, the fishery will most likely continue to behave as though it were open access, with rent generated by the fishery resource reflected in the value of the licence.
To address this problem, the NMFS has proposed a two-tiered (direct and incidental) licence limitation system for the commercial fishery (NMFS 1996b). NMFS (1997) noted that as long as vessels are free to enter the fishery, short-term rents would dissipated by fleet expansions. With controlled access to the resource, the quota reductions implemented in 1997 (50% reduction in TAC to equate to a 50% reduction in effective fishing mortality) should slow the rate of rent dissipation that will occur as the stock recovers.
NMFS (1997) noted that as the stock recovers the value of the recreational fishery and the value associated with non-consumptive use should increase. As the stock recovers under management, the increased availability of the resource will bring new recreational effort, which will slow subsequent recovery rates. Under a commercial licence limitation system, where the rents are reflected in the price of the licence, this additional removal by the recreational sector would tend to dissipate the potential rents (NMFS 1996b) unless additional restrictions on recreational catch are implemented. The Gulf of Mexico Fishery Management Council (1980) suggested that in 1977 the recreational fishery yielded $3.5 million in business receipts and that coastal communities benefited by roughly $1.0 million in personal income. Fisher and Ditton (1993) estimated that shark fishing generated a total user value of $66 million in 1989.
8.2 Issues of equity and efficiency
National Standard 4 of the Magnuson-Stevens Act mandates that fishery management options provide fair and equitable allocations of available resources to each state and/or user group. As such, under the current system of managing through a TAC, the allocation to each sector is determined by their historical use of the resource. In the case of the “large coastal” shark fishery, the TAC is allocated as 84% commercial and 16% recreational based on the use of the resource during 1986– 1989. There is some concern over the choice of these dates as in the 1970s and early 1980s recreational catches were several times larger than during the late 1980s (Hoff and Musick 1990).
National Standard 5 of the Act states that management shall consider the efficiency in utilization of the resource. Although this standard was designed to address a different situation, it can be related to the shark fishery in that management measures attempt to reduce waste. Prior to management in the fishery, landing the fins and discarding the carcasses was allowed but this is now outlawed. NMFS (1996b) has also considered the effect of gear efficiency in its proposed Amendment 1 to the current FMP. Different gears have different harvesting efficiencies, and those that are most efficient will eventually supplant the less efficient. Lastly, efficiency can be measured in terms of economics, and under the current open access system where the fishery is overcapitalized, the fishery is economically inefficient in utilizing the resource. NMFS considers limited access an important first step in the economic rationalization of fleet size. As the stock recovers, increased economic value to the commercial fishery will be realized, as well as to the recreational fishery and the non-consumptive users, if there is not a concurrent dissipation of the rents because of increased catch-per-unit-effort arising from greater availability of the stock.
National Standard 8 requires that the management agency consider the importance of a fishery resource to fishing communities. Management measures must provide for the sustained participation of the communities and, to the extent practicable, minimize any negative economic impacts. However, on important caveat is that such actions must be consistent with the conservation requirements of the Act, i.e. a management measure cannot allow overfishing to continue, or rebuilding schedules to be compromised because of social and economic needs of the fishing community.
9. MANAGEMENT COSTS
NMFS (1993) estimated the cost of developing, implementing and enforcing the FMP for sharks at approximately $1.2 million, not including a proposed observer programme; private sector costs associated with reporting were estimated at about $150 000. Cost effectiveness of management should be a consideration; obviously it is senseless to spend $1 million managing a fishery worth $500 000. However, given the guidelines in the Magnuson-Stevens Fishery Act, this is a moot point. Fishery Management Councils (or the Secretary of Commerce) must implement measures designed to prevent overfishing and rebuild overfished stocks and to protect, restore, and promote the long-term health and stability of the fishery. Thus, the economic health of the fishery and its participants depends on the continued existence of the fishery; only in rare cases would it be deemed necessary to completely close a fishery. Even then, there would be enforcement costs associated with ensuring that fishers do not harvest that stock.
More important, cost effectiveness is considered for management options from the standpoint of actually choosing the option to implement. The preferred choice is generally the one that rebuilds the stock, provides fair and equitable access and use of the resource to the various user groups, but at the same time, minimizes the economic impacts stemming from restricted access. Viable options may be available, but if such measures are unenforceable or require excessive resources, then alternative options that achieve the same goal with lesser stress will generally be favored. That is, any management policy or regulation must meet the 10 national standards in Section 3.1, and although a variety of options may exist which will meet those standards, the options that meet the management objective with the least management and user costs should be chosen.
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