that data on specific — the specific association are [sic] not strong." AR1296-97, 1122, 1116.
Commenters who opposed the "inference" that bottom-tending mobile gear negatively impacts tilefish habitat generally based their arguments on the lack of available evidence. AR1092-95, 1111-17, 1135. Commenters who supported the inference generally sought a precautionary approach, that is, limiting or banning the use of bottom-tending mobile gear despite the lack of evidence of its effects on tilefish habitat. AR1296-97, 1381, 1873, 2338; see also AR1252.
Interested parties, including Dr. Ken Able, a recognized expert on tilefish, AR1224, 1252, representatives from the Nat'l Marine Fish. Serv. and Mid-Atl. Fish. Mgmt. Council, and others met in September 1999 as a working group to discuss, among other things, bottom-tending mobile gear's impact on tilefish habitat. AR1196, 1224, 1252. Dr. Able was "unaware of any work on the east coast that would address gear impact questions for tilefish. . . . Theoretically, trawls could pass over the burrows without destroying them or could potentially cause sediments to fill the burrows. Able ha[d] not seen evidence of burrows filled in by trawls in his submersible work." AR1196. In short, no scientific data existed which proved a negative impact on tilefish habitat, according to Dr. Able. AR1196-99. The Mid-Atl. Fish Mgmt. Council acknowledged that they lacked evidence for their opinion that bottom-tending mobile gear had an adverse impact on tilefish habitat. AR1203, 1224-25, 1297, 1873.
At an October 14, 1999 meeting of the Mid-Atl. Fish. Mgmt. Council, the chairman of the Council stated that "what [Dr. Able] said and what the rest of the researchers concluded was that there really is nothing definitively known on tilefish gear or on bottom tending gear impacting tilefish habitat. . . . We can make all the associations we want, but we don't have any direct evidence. There's nothing in the literature. He knows of nothing." AR1224.
At a November 1999 meeting of the Mid-Atlantic Fish. Mgmt. Council, one staff member noted that "the conclusion of the working group was that nothing definitively was known directly about tilefish being directly impacted by bottom tending mobile gear. There is nothing direct in the literature. Unquestionably, trawl gear-patterns are found in tilefish burrows. . . . What the working group and the tilefish technical team now is recommending is that there not be gear impact measures in this FMP at this time, that there be a research approach." AR1289. A Council member noted: "The fact is there is no evidence as to what mobile gear does. It's not that there isn't much. There isn't any. . . . We simply have no information to justify . . . the proposals we went out to public hearing with. We just had nothing." AR1297 (emphasis added). Consequently, the Council voted to "eliminate the recommendation [from the draft FMP] to close ocean areas to protect tilefish habitat from supposed impact from mobile gear at this time." AR1299. Rather, the Council approved a plan to implement a research program to study the impact of bottom-tending mobile gear on tilefish habitat within two years. AR1322-24, 1382, 1903.
The Council submitted the revised tilefish FMP and Envtl. Imp. Stmt. to the Nat'l Marine Fish. Serv. in March 2000. AR1387, 1894. The final FMP states:
It was concluded that there is nothing definitively
known about tilefish-mobile fishing gear
interactions. There is nothing specifically described
about the sensitivity of tilefish burrows in the
scientific literature. Unquestionably, from
submersible vessel research, there are trawl door
patterns observed in areas with tilefish burrows, but
how much of an impact the doors have and how quickly
tilefish can reopen their burrows, if sediment
closed, is completely unknown at this time. . . .
[I]mpacts of bottom tending mobile gear specifically
to tilefish habitat are unquantifiable at this time.
The Secretary approved the FMP on May 10, 2001. AR2527.