Improving the Use of the "Best Scientific Information Available" Standard in Fisheries Management (2004)

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Committee on Defining Best Scientific Information Available for Fisheries Management Ocean Studies Board Division on Earth and Life Studies 

THE NATIONAL ACADEMIES PRESS 500 Fifth Street, N.W. Washington, DC 20001 NOTICE: The project that is the subject of this report was approved by the Governing Board of the National Research Council, whose members are drawn from the councils of the National Academy of Sciences, the National Academy of Engineering, and the Institute of Medicine. The members of the committee responsible for the report were chosen for their special competences and with regard for appropriate balance. This report is funded in part by a contract from the National Oceanic and Atmospheric Administration. The views expressed herein are those of the author(s) and do not necessarily reflect the views of NOAA or any of its subagencies. International Standard Book Number 0-309-09263-9 (Book) International Standard Book Number 0-309-53347-3 (PDF) Additional copies of this report are available from the National Academies Press, 500 Fifth Street, N.W., Lockbox 285, Washington, DC 20055; (800) 624-6242 or (202) 334-3313 (in the Washington metropolitan area); Internet, http://www.nap.edu Copyright 2004 by the National Academy of Sciences. All rights reserved. Printed in the United States of America 

The National Academy of Sciences is a private, nonprofit, self-perpetuating society of distinguished scholars engaged in scientific and engineering research, dedicated to the furtherance of science and technology and to their use for the general welfare. Upon the authority of the charter granted to it by the Congress in 1863, the Academy has a mandate that requires it to advise the federal government on scientific and technical matters. Dr. Bruce M. Alberts is president of the National Academy of Sciences. The National Academy of Engineering was established in 1964, under the charter of the National Academy of Sciences, as a parallel organization of outstanding engineers. It is autonomous in its administration and in the selection of its members, sharing with the National Academy of Sciences the responsibility for advising the federal government. The National Academy of Engineering also sponsors engineering programs aimed at meeting national needs, encourages education and research, and recognizes the superior achievements of engineers. Dr. Wm. A. Wulf is president of the National Academy of Engineering. The Institute of Medicine was established in 1970 by the National Academy of Sciences to secure the services of eminent members of appropriate professions in the examination of policy matters pertaining to the health of the public. The Institute acts under the responsibility given to the National Academy of Sciences by its congressional charter to be an adviser to the federal government and, upon its own initiative, to identify issues of medical care, research, and education. Dr. Harvey V. Fineberg is president of the Institute of Medicine. The National Research Council was organized by the National Academy of Sciences in 1916 to associate the broad community of science and technology with the Academy’s purposes of furthering knowledge and advising the federal government. Functioning in accordance with general policies determined by the Academy, the Council has become the principal operating agency of both the National Academy of Sciences and the National Academy of Engineering in providing services to the government, the public, and the scientific and engineering communities. The Council is administered jointly by both Academies and the Institute of Medicine. Dr. Bruce M. Alberts and Dr. Wm. A. Wulf are chair and vice chair, respectively, of the National Research Council. www.national-academies.org 

COMMITTEE ON DEFINING BEST AVAILABLE SCIENCE FOR FISHERIES MANAGEMENT JON SUTINEN (Chair), University of Rhode Island, Kingston GEORGE BOEHLERT, Oregon State University, Newport LOUIS BOTSFORD, University of California, Davis FELICIA COLEMAN, Florida State University, Tallahassee ROBERT DITTON, Texas A&M University, College Station TERRANCE QUINN, University of Alaska, Fairbanks WILLIAM RODGERS, University of Washington, Seattle EDELLA SCHLAGER, University of Arizona, Tucson STAFF SUSAN ROBERTS, Study Director JOANNE BINTZ, Study Director JODI BACHIM, Senior Program Assistant DENISE GREENE, Senior Program Assistant BYRON MASON, Senior Program Assistant REBECCA NADEL, Intern AMINA RICHARDSON, Intern iv 

OCEAN STUDIES BOARD NANCY RABALAIS (Chair), Louisiana Universities Marine Consortium, Chauvin LEE G. ANDERSON, University of Delaware, Newark WHITLOW AU, University of Hawaii, Manoa ARTHUR BAGGEROER, Massachusetts Institute of Technology, Cambridge RICHARD B. DERISO, Inter-American Tropical Tuna Commission, La Jolla, California ROBERT B. DITTON, Texas A&M University, College Station EARL DOYLE, Shell Oil (retired), Sugar Land, Texas ROBERT DUCE, Texas A&M University, College Station PAUL G. GAFFNEY II, Monmouth University, Long Branch, New Jersey WAYNE R. GEYER, Woods Hole Oceanographic Institution, Massachusetts STANLEY R. HART, Woods Hole Oceanographic Institution, Massachusetts RALPH S. LEWIS, Connecticut Geological Survey (retired), Hartford WILLIAM F. MARCUSON III, U.S. Army Corp of Engineers (retired), Vicksburg, Mississippi JULIAN MCCREARY, JR., University of Hawaii, Honolulu JACQUELINE MICHEL, Research Planning, Inc., Columbia, South Carolina JOAN OLTMAN-SHAY, Northwest Research Associates, Inc., Bellevue, Washington ROBERT T. PAINE, University of Washington, Seattle SHIRLEY A. POMPONI, Harbor Branch Oceanographic Institution, Fort Pierce, Florida FRED N. SPIESS, Scripps Institution of Oceanography, La Jolla, California DANIEL SUMAN, University of Miami, Florida STAFF SUSAN ROBERTS, Director JENNIFER MERRILL, Senior Program Officer DAN WALKER, Senior Program Officer ALAN B. SIELEN, Visiting Scholar NANCY CAPUTO, Research Associate v 

ANDREAS SOHRE, Financial Associate SHIREL SMITH, Administrative Coordinator JODI BACHIM, Senior Program Assistant SARAH CAPOTE, Program Assistant vi 

Preface Understanding what comprises the best available science for fisheries management is a subject of evolving interest to Congress, scientists, and stakeholders interested in effective management of the nation’s living resources. The science used to support fisheries manage- ment is integral to providing sustainable fisheries. To this end, the National Research Council Committee on Defining Best Available Science for Fisheries Management (Appendix A) was charged with the difficult task of examining the application of the term “best scientific information available” as the basis for fishery conservation and management measures required under National Standard 2 of the Magnuson-Stevens Act and recommending approaches for the more uniform application of the standard based on the “best scientific information available” for fisheries management. The committee gave careful consideration throughout this process to keeping its recommendations within the context of current and future fisheries management efforts. Committee members were chosen for their expertise in fisheries science and management. The committee met on two separate occasions to discuss and plan this report. At the first meeting in Seattle, Washington, on July 16-17, 2003, the committee organized a workshop to draw upon additional expertise and points of view on the perceived need for further definition of “best scientific information available” and to explore approaches for improving the application of National Standard 2 in the preparation of fishery management plans. The workshop was convened in Washington, D.C., on September 8-9, 2003 (Appendix B). At the workshop, the committee and attendees heard keynote presen- tations and participated in panel discussions on perspectives from regional fisheries management councils, House and Senate sub- committees involved in reauthorization of the Magnuson-Stevens Act, and organizations involved in fisheries-related lawsuits. In breakout groups, participants were asked to comment on how “best scientific vii 

PREFACE viii information available” should be defined, if a ranking or bar system should be employed to information submitted to councils, and whether it should be codified in law or in guidelines or regulations. Workshop participants, panels, and discussions helped set the stage for the fruitful committee discussions that followed. The committee also relied on written comments provided by the National Oceanic and Atmospheric Administration’s (NOAA’s) regional fisheries science centers and regional fishery management councils responding to an e-mail question- naire on how they interpret best science to develop fishery management plans (Appendix C). The committee hopes that the recommendations provided in this report can be used to guide NOAA Fisheries continued commitment to the effective management of the nation’s fisheries resource for the benefit of all stakeholders. Committee on Defining Best Available Science for Fisheries Management 

Acknowledgments This report was greatly enhanced by the participants of the workshop held as part of this study. The committee would first like to acknowledge the efforts of those who gave presentations at meetings: Dayton Lee Alverson, Carli Bertrand, Eric Bilsky, William Fox, David Fluharty, Daniel T. Furlong, Peter Huhtala, Andrew Minkiewicz, Graciela García- Moliner, Jake Rice, John Sibert, Margaret Spring, Patrick J. Sullivan, Usha Varanasi, Catherine Ware, and Pat White. These talks helped set the stage for fruitful discussions in the closed sessions that followed. In addition, the committee and staff would like to thank the following fisheries science center directors and the fishery management council executive directors for their prompt responses to the questionnaires; this was much appreciated, and the responses were extremely useful to the committee. • Regional Fisheries Science Center Directors: Douglas P. DeMaster (Alaska), John Boreman (Northeast), Usha Varanasi (Northwest), Jeff Polovina (Pacific Islands), Nancy Thompson (Southeast), and Michael F. Tillman (Southwest) • Regional Fishery Management Council Executive Directors: Paul J. Howard (New England), Chris Oliver (North Pacific), Daniel T. Furlong (Mid-Atlantic), Donald McIsaac (Pacific), Robert Mahood (South Atlantic), Kitty Simonds (Western Pacific), Wayne Swingle (Gulf of Mexico), and Miguel A. Rolon (Caribbean) This report has been reviewed in draft form by individuals chosen for their diverse perspectives and technical expertise, in accordance with procedures approved by the National Research Council’s (NRC’s) Report Review Committee. The purpose of this independent review is to provide candid and critical comments that will assist the institution in making its published report as sound as possible and to ensure that the report meets institutional standards for objectivity, evidence, and ix 

ACKNOWLEDGMENTS x responsiveness to the study charge. The review comments and draft manuscript remain confidential to protect the integrity of the deliberative process. We wish to thank the following individuals for their partic- ipation in their review of this report: DAVID FLUHARTY, University of Washington, Seattle MARK LUNDSTEN, Queen Anne Fisheries, Inc., Seattle, Washington GORDON H. ORIANS, University of Washington, Seattle ELLEN PIKITCH, Pew Institute for Ocean Science, Rosenstiel School of Marine and Atmospheric Science, New York, New York JAKE RICE, Fisheries and Oceans Canada, Ottawa, Ontario ALISON RIESER, University of Maine, Portland J.B. RUHL, Florida State University, Tallahassee ANDREW SOLOW, Woods Hole Oceanographic Institution, Massachusetts PATRICK SULLIVAN, Cornell University, Ithaca, New York VIDAR WESPESTAD, Resource Analysts, International, Lynnwood, Washington Although the reviewers listed above have provided many con- structive comments and suggestions, they were not asked to endorse the conclusions or recommendations nor did they see the final draft of the report before its release. The review of this report was overseen by John Burris, Beloit College, appointed by the Divison on Earth and Life Studies, and May Berenbaum, University of Illinois, appointed by NRC, who were responsible for making certain that an independent examination of this report was carried out in accordance with institutional procedures and that all review comments were carefully considered. Responsibility for the final content of this report rests entirely with the authoring committee and the institution. 

Contents EXECUTIVE SUMMARY 1 1 INTRODUCTION 9 Purpose and Goals of the Study, 13 Report Structure, 15 2 NATIONAL STANDARD 2: FROM ORIGIN TO APPLICATION 17 Legislative History: Origins and Rationale, 17 Decision Making Under Uncertainty, 19 National Standard 2 in Application, 23 National Standard 2 as Interpreted by NOAA Fisheries Science Centers, 25 National Standard 2 as Interpreted by Fishery Management Councils, 26 National Standard 2 in Practice: Stock Assessment and Fishery Management Plans, 27 Communicating Scientific Results, 32 Flaws in Practice, 32 Interpretation of Best Available Science by the Courts, 34 3 CHARACTERIZING “BEST SCIENTIFIC INFORMATION AVAILABLE” 41 Problems of Interpretation, 41 Science and Its Role in the National Marine Fisheries Service, 42 Consortium for Oceanographic Research and Education Panel, 44 NOAA Fisheries Organized Decision Process, 45 Pew Fellows Program in Marine Conservation Workshop, 46 Canadian Department of Fisheries and Oceans, 46 Statutory-Based Criteria for “Best Scientific Information Available,” 49 xi 

CONTENTS xii 4 FINDINGS AND RECOMMENDATIONS 51 Findings, 52 Recommendations, 54 Guidelines, 55 Adherence to National Standard 2, 58 Effective Communication, 60 Improving the Quality of Scientific Information Used in Fisheries Management, 61 REFERENCES 63 APPENDIXES A Committee and Staff Biographies 69 B Participants at the Workshop on Defining Best Available Science for Fisheries Management 73 C Questionnaires Sent to Fishery Management Councils and Fisheries Science Centers 75 D Regulations Supporting Fishery Management Plan Development and National Standard 2 of the Magnuson- Stevens Act 79 E Acronyms 83 F Compilation of Science Center and Management Council Reports and Committees 85 G Scientific Information in Fisheries Management: The Report of a Consortium for Oceanographic Research and Education Fisheries Workshop 95 H Recent Case Law Support for Guidelines on “Best Scientific Information Available” 99