Magnusion-Stevens Act Provisons; Scientific and Statistical Committees; Peer Review; National Standard Guidelines

RE: Proposed Revisions to National Standard 2 Guidelines (73 Fed. Reg. 54132, RIN 0648-AW62) The Center for Biological Diversity offers these comments on the National Marine Fisheries Service's ("NMFS") proposed rulemaking for revisions to the guidelines to National Standard 2 ("NS2") of the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"). This rulemaking is geared toward expanding and clarifying the guidelines for the use of the best scientific information available in light of the priorities and instructional language contained in the Magnuson-Stevens Reauthorization Act of 2006 ("MSRA"). Therefore, NMFS is soliciting comments on whether the NS2 guidelines should (a) provide additional guidance on the use of the "best scientific information available"; (b) articulate an official peer review protocol for science used in fisheries management decisions; (c) clarify the role of the scientific and statistical committees ("SSCs") within the Regional Fishery Management Councils; and/or (d) specify the inclusion of SSC scientific recommendations, including acceptable biological catch ("ABC"), in the Stock Assessment and Fishery Evaluation ("SAFE") Reports. The MSRA recognized overfishing as a significant threat to global fishery resources and mandated the federal government to do more to address that problem. The U.S. must take a leadership role in ensuring the sustainable, scientific management of fisheries. Toward that end, the NS2 guidelines should clearly require that catch limits and fisheries management plans be developed using the best available science while accounting for scientific and management uncertainty. Given that fishery managers must often rely on incomplete data and less than perfect modeling exercises, catch limits must be set at levels that prevent overfishing and allow rebuilding even when uncertainty in estimating stock levels or fishing effort results in greater impacts on the stock than expected. Indeed, the historic failure to take this precautionary approach has resulted in sustained overfishing and prevented the recovery of many of the nation's fish populations. Any changes to NS2 guidelines should be premised on this precautionary management approach and should facilitate the efficient, responsive use of the best scientific information available in fisheries management. As the National Research Council ("NRC") has noted, developing a narrow definition of "best scientific information available" may "unduly restrict the incorporation of scientific advances into policy, thus increasing rather than decreasing the current gap between scientific information and the policy it is supposed to support" (NRC 2004 at 55). In lieu of a definition, the NRC recommended a set of guidelines to help ensure consistency in the application of NS2. These guidelines include relevance, inclusiveness, objectivity, transparency, timeliness, and a flexible system of peer review (id. at 55-58). With the exception of the peer review recommendation, which warrants some clarification, these NRC guidelines can and should be incorporated into the NS2 guidelines. The NRC report asserts that "NOAA Fisheries should establish an explicit and standardized peer review process for all documents that contain scientific information used in the development of FMPs" (NRC 2004 at 57). The standards for a peer review process recommended by the NRC will help to ensure a minimum level of consistency in the way scientific data are used in the fishery management process, and the NS2 guidelines should incorporate these NRC recommendations. Given the fragile status of the world's fisheries and oceans, it is reasonable to require that any proposal likely to increase stress on a given fishery or ecosystem be justified on the basis of rigorously and transparently peer reviewed science. But while some level of peer review should be required for scientific information used in the development of fisheries management plans, the syste…