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Commercial Fisheries News
Volume 37 Number 7
March 2010
Affidavit required for midwater herring boats releasing fish in CA I
GLOUCESTER, MA – Effective March 5, herring midwater trawlers fishing in Closed Area I will need to submit an affidavit to the National Marine Fisheries Service (NMFS) within 48 hours of the end of a trip if they release unpumped fish before having an observer sample the contents of the net.
Last November, NMFS implemented a rule requiring all herring midwater trawlers to have 100% observer coverage when fishing inside Closed Area I (see CFN December 2009 for details).
The rule also prohibited vessels from: releasing fish from the codend; transferring fish to another vessel, such as a herring carrier, not carrying a NMFS-approved observer; or discarding fish at sea “unless the fish have first been brought aboard the vessel and made available for sampling and inspection by the observer,” except when:
Pumping the catch compromises the safety of the vessel;
Mechanical failure precludes bringing some or all of the catch aboard the vessel; or
Spiny dogfish clog the pump and consequently prevent pumping the rest of the catch.
NMFS said that if vessels were forced to release fish under any of those three conditions, the owner or operator would need to leave Closed Area I immediately and fish elsewhere – and then submit an affidavit describing the details of where, when, and why the fish were released. The affidavit would have to contain a “good-faith estimate of both the total weight of fish caught on that tow and the weight of fish released if the tow was partially pumped.”
All of this paperwork constituted a new “reporting requirement,” which had to be cleared by the federal Office of Management and Budget (OMB). And that process took considerable time. NMFS did not have OMB’s response when it was ready to implement the rest of the rule last fall.
So, NMFS put in place all other measures related to Closed Area I fishing by midwater trawlers but delayed the affidavit requirement.
On Jan. 4, OMB approved the collection of information requirement for the “Closed Area I Midwater Trawl Released Codend Affidavit,” and NMFS then published a notice in the Federal Register on Feb. 3 announcing that the affidavit requirement would become effective March 5 for any vessel fishing in Closed Area I that had obtained a “Gulf of Maine/Georges Bank Herring Midwater Trawl Gear Letter of Authorization” – the first step to even gain access to the area.
Rule challenged
Midwater trawl fishermen fought hard for permission to release unpumped fish for safety reasons, mechanical problems, and dogfish clogging issues, arguing that the exemptions were far more realistic than those in NMFS’s original proposal.
However, on Dec. 2, Chatham, MA hook fisherman Peter Taylor, represented by Earthjustice attorney Roger Fleming, sued NMFS over the rule.
In addition to the fact that it allowed the release of unpumped fish under special conditions, the plaintiff’s primary complaint was that the final rule contained new language that came as “a complete surprise to the public.”
According to the suit, the final rule allows midwater trawlers to “release small amounts of fish that cannot be pumped and remain in the net at the completion of pumping operations.” Yet the rule does not define “a small amount” of fish.
“By reversing course and allowing a surprise exception to the ban on discarding fish before all catch is brought on board the vessel for sampling by the observer, NMFS is allowing for significant amounts and types of unmonitored bycatch to be released in violation of the Magnuson-Stevens Act,” the complaint stated.
At press time, the suit was working its way through US District Court for the District of Columbia.
For more information on the rule itself and the affidavit requirements, contact NMFS’s Doug Potts at (978) 281-9341. /cfn/
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