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Commercial Fisheries News
Volume 35 Number 1
September 2007
ASMFC finds ME out of compliance on herring
ALEXANDRIA, VA – Deeply disturbed by Maine’s failure to implement regulations to prohibit all directed herring fishing during spawning closures, the Atlantic States Marine Fisheries Commission’s (ASMFC) Atlantic Herring Section voted on Aug. 13 to recommend that Maine be found out of compliance with the Interstate Fishery Management Plan for Atlantic Herring, but with an understanding that the noncompliance finding won’t go into effect until Sept. 24 to give Maine time to work out a solution to the problem.
The commission’s policy board made it official by adopting that recommendation three days later.
The specific charge against the state of Maine was “not fully and effectively implementing and enforcing Amendment 2 and Technical Addendum 1” to the interstate herring plan.
The section’s vote, which passed 6-1 with only Maine voting “no,” stated: “The spawning restrictions are necessary to protect the spawning aggregations that are highly susceptible to fishing in order to ensure continued recruitment to the stock. In order to come back into compliance, the state of Maine must implement the spawning restrictions as detailed in Amendment 2 and Technical Addendum 1.”
Adding even more tension to the matter, the first spawning closure for 2007 went into effect on Aug. 11 in eastern Maine and was scheduled to remain in place through Sept. 8. Contrary to ASMFC, Maine regulations currently allow fishing in the area “so long as herring in spawn Stages V or VI comprise zero percent of the catch or (herring) are less than or equal to 9".”
New Hampshire Commissioner John Nelson, who made the motion for the noncompliance finding, said, “We’ve debated this type of issue for many years. Unfortunately, I don’t think we can make exceptions. Just because somebody doesn’t like something doesn’t mean they can do what they want.”
Voluntary action
The Maine Department of Marine Resources (DMR) and the state’s herring fishermen had hoped to thwart the noncompliance finding.
DMR Commissioner George Lapointe told the herring section that more than 40 industry members, including both herring and lobster fishermen, attended an Aug. 3 meeting to discuss the possibility of a noncompliance finding.
There, herring fishermen suggested they could sign a memorandum of agreement (MOA) stating their willingness to voluntarily not fish in closed areas despite the state’s existing allowance to fish on all but Stage V or VI fish.
Furthermore, said Lapointe, “To a person, they thought we should get the regulatory process started prior to this meeting” to implement zero tolerance regulations as stipulated by ASMFC. The language would specify: “It shall be unlawful to fish for, take, possess, transfer, or land in any state of Maine port or facility, or to transfer at sea from any Maine registered vessel, any catch of herring harvested from” a spawning closure area.
Mary Beth Tooley of the Small Pelagics Group, who attended the ASMFC meeting, said her members did not support ASMFC’s zero tolerance language at all.
“However,” she said, “a good number of us do not support being out of compliance with the plan either.”
While the Small Pelagics Group intends to work hard to change the zero tolerance language, being out of compliance “is not the way to go about it,” Tooley said.
Lead-up to MOA
The DMR already tried once to implement the regulations back on June 20. But the DMR Advisory Council, which, under the Maine Administrative Procedure Act, must provide “advice and consent” to all regulations proposed by the commissioner, voted against the zero tolerance regs by a 0-7 vote with two abstentions (see CFN August 2007 for details).
Herring fishermen were quick to understand the potential consequences of being out of compliance with the ASMFC plan, which could involve a shutdown of the fishery, and this concern led to the Aug. 3 DMR/industry meeting.
By Aug. 6, the DMR had drafted and circulated the MOA. Within days, the department had numerous signed copies in hand.
The MOA states: “While the Maine herring industry strongly opposes the zero fishing in the spawning areas provision … and requests that the ASMFC Atlantic Herring Section immediately begin work on investigating alternative conservation equivalencies, the Maine herring industry fully understands the gravity of noncompliance and voluntarily agrees to maintain compliance with the zero fishing in the spawning areas provision contained in the DMR-proposed ASMFC herring compliance rules.”
Round 2
Following the Aug. 3 meeting, DMR officials immediately began the regulatory process all over again.
The DMR has scheduled a Sept. 4 public hearing on the proposed zero tolerance regulations. Those proposals contain a transport exemption that “any herring vessel having onboard spawn herring, which were caught outside of a management area that is under a herring spawning closure may transit the closed or restricted area and land at a Maine port” but with this stipulation – “only if all of its fishing gear has been stowed.”
The public hearing will begin at 6 pm at the DMR laboratory in West Boothbay Harbor. The deadline for public comment is Sept. 14.
The DMR Advisory Council is scheduled to meet again on Sept. 19 to vote on the regulations, and five days later on Sept. 24, the regulations are likely to take affect.
This is why the ASMFC herring section gave DMR until Sept. 24 before the out of compliance finding becomes real.
Will MOA hold?
It was clear that Maine was on its own during the Aug. 13 ASMFC herring section meeting.
Well aware that other states were planning to vote Maine out of compliance, Lapointe emphasized, “The whole issue of the spawning restrictions has been a tough one for the state of Maine.”
He also gave fishermen enormous credit for suggesting – and following through with – the MOA to not fish in spawning closure areas.
“They knew they needed to put forward an effort of good faith,” he said.
While many ASMFC commissioners agreed that the MOA was a positive step forward, several questioned whether boats would adhere to it.
Massachusetts Commissioner Bill Adler asked, “What does this bind them to? What if they signed the thing and they change their minds?”
DMR’s Terry Stockwell, who had been collecting the signed MOAs and was overseeing the effort, said, “It’s going to be self-policing by the industry. No one wants noncompliance.”
Lapointe added, “It binds them to good faith.”
ASMFC concerns
Massachusetts ASMFC representative David Pierce thanked Lapointe for the “impressive” effort he, the DMR, and fishermen made to address the noncompliance situation.
Pierce said the MOA and the re-filing of proposed regulations “certainly has made it easier for us to deal with the next few weeks” while the Eastern Maine Spawning Area closure is in effect, followed by the western Maine closure and then the Massachusetts/New Hampshire closure.
Still, Pierce said he supported the noncompliance motion.
“It has to be made,” he said.
John Nelson said he, too, appreciated Maine’s efforts.
“I do give credit to the state of Maine for working with industry and understanding the gravity of the situation,” he said.
But Nelson deemed the noncompliance issue, which he thought Maine pushed to its limit, to be extremely serious and “a breach of trust” with ASMFC. He said some states had seriously considered taking legal action against Maine.
“Going the legal route was not something we wanted to do but that was a distinct possibility,” said Nelson.
“Overall, this has worked out very effectively,” he concluded.
Check the science
Even if the DMR Advisory Council adopts the zero tolerance spawning language at its Sept. 19 meeting and the regulations go into effect on Sept. 24, the fact remains that Maine vehemently opposes the restrictions.
“It’s obvious this issue is not going to go away,” said Jeff Pike of the Washington, DC-based firm Sher & Blackwell, which represents the Bumble Bee/Stinson Seafood sardine plant in Prospect Harbor, ME, which Pike called the “last cannery in the US” for Atlantic herring.
“What’s needed is to put some science back into this,” he said.
Pike called for more biological input into determining, for example, whether more frequent but much more discrete spawning areas would be more effective. He noted that the current spawning areas are extremely large and at times block off access to much of the available herring.
Furthermore, between the zero tolerance restrictions, the June-September ban on midwater trawling in Area 1A, the reduced quota in Area 1A, and the fact that the vast majority of herring landings first go into lobster bait, the supply of herring available for canning “is extremely limited,” Pike said.
“We have 140 employees in a plant with no local source of supply,” he said.
Reconsideration?
Mary Beth Tooley also asked the herring section to immediately begin the process of addressing the zero tolerance language.
“There’s a great deal of frustration among our fishermen,” she said. “If we could go back and say the section intends to revisit the spawning regulations, that would be extremely helpful.”
But the section wasn’t prepared to initiate any such action at the Aug. 13 meeting and section Chairman Eric Smith of Connecticut said the issue needed to be put on the section’s work list and properly identified as an agenda item for a future meeting.
Lapointe indicated that he’d be fully prepared to make that happen.
“It’s my intention to go back to Maine and have some of those discussions about what to do next,” he said.
Janice M. Plante
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