Fishing Industry Alerts

The Office of the Inspector General of the United States Department of Commerce has begun a review of the controls and processes associated with NOAA's catch share programs for commercial fisheries.

February 12, 2013 — This is a continuation of the multiple-phase review of the National Marine Fisheries Service and Fishery Management Councils related to developing rules for the commercial fishing industry.

The objective of this review is to determine the adequacy of controls NOAA has in place to make decisions related to catch share allocations.

Read the letter from Assistant Inspector General for Audit Andrew Katsaros to NOAA Administrator Jane Lubchenco  

 

 

 

 

 

The Gloucester Daily Times investigated the findings of Special Master Charles Swartwood regarding NOAA enforcement actions.

February 11, 2013 (Saving Seafood) — The Gloucester Daily Times published an investigative piece on February 9th which looked into the findings of Special Master Charles Swartwood regarding NOAA enforcement actions against Thomas R. F. Reilly and his partner, Dennis Saluti, of Sea Rich Seafoods. Judge Swartwood found that NOAA charged excessive penalties "in a manner that unfairly forced settlement, that NOAA exercised its broad and powerful authority to force a settlement and that NOAA personnel were arbitrary and capricious…"

The Special Master found that when NOAA attorneys learned of a planned sale of Sea Rich Seafoods they moved quickly to issue a 113 count Notice of Violation seeking a $4.74 million dollar penalty, and that "as a result of a NOAA press release, the potential sale of the company and the companies' credit line were jeopardized…"  He concluded that Mr.Reilly and Mr. Saluti "were coerced into an unfavorable settlement in which they lost the true value of their interest in Sea Rich and Atlantic Gem."

A search of the NOAA employee database shows the attorneys cited by Judge Swartwood as the perpetrators of this prosecution, Charles Juliand and J. Mitch MacDonald, remain employed by NOAA.

– – – – – – – – – – – – – – – – – –
 
February 9, 2013 (Gloucester Times) — The special investigator commissioned by the Department of Commerce has concluded that the same two attorneys in NOAA's Gloucester office who extracted an excessive settlement from a New Bedford scallop fishing business owner in 2005 did the same thing years earlier to a pair of New Bedford fish processors using coercive methods "with an intention to intimidate."

A detailed narrative of how NOAA's Gloucester-based enforcement and litigation attorneys Charles R. "Chuck" Juliand and James "Mitch" MacDonald improperly manipulated the system of fisheries enforcement law to drive Thomas R. F. Reilly and his partner, Dennis Saluti, in Sea Rich Seafoods and another company to pay a $1 million cash penalty plus the loss of business licenses and fishing permits for what were found to be exaggerated charges is detailed in the 554-page report to the acting commerce secretary by special investigator Charles B. Swartwood III.

In releasing a redacted version of Swartwood's second set of case studies into allegations of NOAA Fisheries law enforcement excesses, Acting Commerce Secretary Rebecca Blank on Dec. 14 made reparations to Reilly and Saluti of $373,500, the amount recommended by Swartwood.

According to the report, the abuse and manipulation of the law in the prosecution of the Sea Rich case occurred in 1997. But Reilly and Saluti's complaint of proprietorial misconduct came to light only with the decision by then Commerce Secretary Gary Locke, based on Swartwood's initial report in May 2011, to commission an additional study of industry complaints that NOAA law enforcers harassed and intimidated fishermen and shore-side businesses.

Juliand and MacDonald were also the enforcement attorneys in the prosecution of New Bedford scalloper Larry Yacubian, a case that extended from 2000-2005 and ended only after Yacubian and his wife divested themselves of most of their assets including her ancestral farm to pay a $430,000 fine and legal fees.

The amount of the fine assessed by an administrative law judge was deemed excessive by a U.S. district court judge and by Swartwood, himself a retired federal magistrate.
 
In releasing the first Swartwood report – with formal Cabinet-level apologies to the 11 businesses put in duress by wrongful actions of NOAA litigators and agents – Locke, now the ambassador to China, made more than $650,000 in reparations including $400,000 to Yacubian. Blank, who has been acting commerce secretary since last June, issued no apology but distributed $564,794 to Reilly and Saluti and 13 other businesses, while also forgiving debts of $161,266.66 owed by two other businesses.
 
In reviewing the case against Reilly and Saluti, Swartwood wrote that, in seeking a $4.74 million penalty, Juliand and MacDonald intervened with a prospective buyer of their businesses; they also charged Reilly and Saluti a penalty 17 times for a single allegation of "interference" with law enforcement – a charge that Swartwood dismissed as false. Once they learned of the potential sale, they immediately wrote up the huge penalty and contacted the buyer, actions Swartwood concluded involved "an intention to intimidate."
  
"As a result of a NOAA press release," Swartwood wrote, "the potential sale of the company and the companies' credit line were jeopardized," while NOAA also threatened to seek an "interim" order that would have shuttered the company and prevented the sale."
 

He wrote that under the circumstances, the businessmen "had no options" but to settle the case for $1 million plus permits

Underpinning the actions of NOAA's agents and litigators was a long history and widespread knowledge that the U.S. Coast Guard administrative law judges would side with NOAA.

In his December report on the case, Swartwood notes that Juliand told an attorney for the businessmen that "he should not be too sure about his assessment of the case and that he believed he could get whatever assessment he sought" from the judges. The report states that Juliand confirmed that in his interviews with Swartwood.

Swartwood's study of the Yacubian case also contains the statement that a redacted email covering five lines was "credible evidence that money was NOAA's motivating objective."
 
Read the full story at the Gloucester Times
 
Read Judge Swartwood's report on the case of Mr. Reilly and Mr. Saluti   
 
NOAA Employee Database
 

 

The group requested that the Commerce Department "exercise all authority under the law to preserve New England's fishing industry and its groundfish populations for future generations."

WASHINGTON (Saving Seafood) February 8, 2013 — A group of 13 Senators and Members of Congress from New England have written to Acting Secretary of Commerce Rebecca Blank, requesting that the Commerce Department "exercise all authority under the law to preserve New England's fishing industry and its groundfish populations for future generations." Specifically, the group called for NOAA to cover the cost of at-sea monitoring, and to reach a timely decision on carryover.

 

Noting that the economic hardship imposed on the fishery by recently implemented cuts in Gulf of Maine and Georges Bank cod, the letter requested that NOAA fully fund the costs of its at-sea monitoring program, stating that "our fishermen cannot feasibly afford their expected share of at-sea monitors." Other improvements in the program, such as implementing a system of virtual monitoring, were also suggested as ways of reducing costs.

The letter also requested that NOAA make long-term improvements to its stock assessment process, and to "prioritize federal programs that have the potential to improve fisheries science and management and support long-term sustainability of the resource and fishing communities." It specifically called for more frequent stock assessments, as well as improvements in the assessments that would address climate change, interactions between species, and the structure of fish stocks.

The letter concluded by emphasizing the importance of cooperation and collaboration between NOAA and fishermen, calling for the agency to "fully engage fishermen and fishing communities as we work together to make targeted investments that will allow the industry to survive and become more sustainable in the years ahead."

The text of the letter is reproduced below:

February 7, 2013

The Honorable Rebecca Blank
Acting Secretary of Commerce
1401 Constitution Avenue NW
Washington, DC 20230

Dear Ms. Blank:

We write to request that you exercise all authority under the law to preserve New England's fishing industry and its groundfish populations for future generations. In particular, we urge the National Oceanic and Atmospheric Administration (NOAA) to fully cover the costs of at-sea monitoring, as fishermen cannot bear this added cost coupled with dramatic cuts to catch limits. We also urge you to make a timely decision regarding carryover, as fishermen cannot make decisions about their businesses without knowing what to expect next year.

In December, the New England Fishery Management Council (the "Council") affirmed the findings of earlier stock assessments that found significantly reduced abundance of groundfish stocks, particularly Gulf of Maine cod. Last week, in response to these findings, the Council approved significant cuts in future groundfish quotas. Among these are a 77 percent cut to the catch limit for Gulf of Maine cod for the next three years and a 61 percent reduction in the catch for Georges Bank cod for the next year.

We are deeply concerned about the ability of the fishing industry to survive these considerable catch reductions, as well as the implications for the future sustainability of the resource. Scientific and anecdotal evidence suggests a serious resource problem that must be addressed through science-based management. More needs to be done to improve our data collection and analysis because sound management can only be built on a strong understanding of the resource.

We have consistently supported and will continue to support federal actions to improve fisheries science, invest in necessary infrastructure, and address the considerable economic burdens that fishing communities are facing. Now, in the face of an economic disaster declaration and looming cuts to catch limits, we urge you and the Administration to exercise all authorities available through NOAA, the Small Business Administration (SBA), the Economic Development Administration (EDA) and other agencies to ensure the future of this industry.

NOAA Fisheries must seriously consider the impact of further burdening our fishermen with at-sea monitoring costs and dedicate the resources necessary to continue to cover these costs. Even without the drastic reductions in catch limits, our fishermen cannot feasibly afford their expected share of at-sea monitors, and it is vital that NOAA provide full funding to cover these costs. NOAA Fisheries must also move to rapidly and effectively implement virtual monitoring and other measures to further reduce costs while ensuring adequate coverage.

Additionally, as you prepare your budget request for fiscal year 2014, we encourage you to prioritize long-term investments in New England fisheries that will continue to improve our understanding of this resource and help move the fishery towards a healthy, sustainable future. With incredible challenges ahead for fishermen and in rebuilding the resource, now is the time to prioritize federal programs that have the potential to improve fisheries science and management and support long-term sustainability of the resource and fishing communities.

Further, we urge you to invest in more frequent and improved stock assessments to help NOAA Fisheries and the Council work through the backlog of assessments for critical species and investigate the impacts of changing ocean temperatures, species interactions, and stock structure. This will help improve the timeliness and accuracy of data for the most critical target species and help facilitate better management decisions while creating more business certainty. We ask you to fully cover the cost of at-sea monitoring and to consider investing in electronic monitoring. It is critical to work with fishermen to ensure that the sharing of monitoring costs is equitable and sustainable in the long run. We also ask that you make timely decisions on issues like carryover so fishermen can make business decisions with the best information available. We urge that cooperative research efforts be broadened to ensure widespread participation, and we urge you to use the information collected to take meaningful action that will benefit fishermen and the resource. Finally, we ask that you work with the EDA and SBA to support working waterfronts and handling and processing infrastructure, which are vital to the future of fishing communities throughout New England.

In declaring New England's groundfish fishery a federal disaster, your agency has acknowledged that the current resource problem comes despite the fishing industry's adherence to rigorous management practices. Many fishermen in the region have been working to make their industry more sustainable and protect the resource. We encourage NOAA to work with fishermen to better understand the ecosystem as a whole, including issues such as warmer water temperatures, critical habitat, and predator/prey dynamics, as we work toward management efforts to rebuild and sustain healthy stocks.

We deeply appreciate NOAA's continuing efforts to work creatively with the Council to ensure a future for this critical and historic industry. We encourage you to fully engage fishermen and fishing communities as we work together to make targeted investments that will allow the industry to survive and become more sustainable in the years ahead. We are dedicated to working with our fishermen and with you to find ways to avert the collapse of this important fishery and secure a healthy and vibrant future for our coastal communities.

Sincerely,

Senator Susan Collins (R-ME)
Senator Angus King (I-ME)
Senator Elizabeth Warren (D-MA)
Senator William Cowan (D-MA)
Representative Michael Michaud (D-ME)
Representative Chellie Pingree (D-ME)
Representative Michael Capuano (D-MA)
Representative William Keating (D-MA)
Representative Joseph Kennedy III (D-MA)
Representative Stephen Lynch (D-MA)
Representative Edward Markey (D-MA)
Representative John Tierney (D-MA)
Representative Carol Shea-Porter (D-NH)

 

Read a PDF of the letter here

 

Related information:

 

NEFMC Motion to maintain monitoring at level NOAA can fund

 

The New England Fishery Management Council adopted the following motion at its November meeting.  It is currently pending NOAA's approval of Framework 48:

"Mr. Stockwell moved on behalf of the committee: to include in Framework 48 the Planning and Development Team's (PDT) Option X for observer coverage for FY 2013: at-sea monitoring coverage of sector trips at the level that NMFS can fund during FY 2013. The motion carried on a show of hands (14/2/1)."

This motion follows the text of the PDT Option X referenced in the motion adopted by the Council.  This appears in the following PDT report at p. 23.   

 

View the PDT Report here 

The text from the PDT report follows:

At-Sea Monitoring Coverage Level Alternative

Option X: Removal of Requirement for Industry-Funded At-Sea Monitoring for FY 2013

This option would maintain at-sea monitoring coverage of sector trips at the level that NMFS can fund during FY 2013. Under this option, sectors would not be required to implement an industry-funded at-sea monitoring program in FY 2013. Instead, NMFS will provide as much funding as possible for at-sea monitoring of sector trips in FY 2013. Absent further action, industry will be responsible for the portion of these costs not funded by NMFS in FY 2014.

Rationale: Amendment 16 mandated that the industry will fund at-sea and dockside monitoring costs beginning in FY 2012. To date, NMFS has had sufficient funding to provide an at-sea monitoring program to fulfill this requirement for sectors annually since FY 2010. Absent continued funding for the NMFS at-sea monitoring program in FY 2013, sectors would be responsible for implementing industry-funded at-sea monitoring programs to monitor their fishing activities beginning May 1, 2013. The Council is concerned that imposing these costs on the industry in FY 2013 will reduce profitability and result in making the sector system an economic failure. This action delays by one year industry responsibility for those costs. A sunset date has been included so that the Council may further modify this requirement in the future as more information becomes available on the appropriate monitoring levels, costs of those programs, and implementation of electronic monitoring systems.

 

 

 

At-Sea Monitoring Costs Affect Small Vessels the Most

 

In the "Break-Even Analysis of the New England Groundfish Fishery for FY2009 and FY2010" submitted as part of Massachusetts Governor Deval Patrick's November 2011 application for Federal economic disaster aid for fisheries the cost of At-Sea Monitoring was analyzed. In Section 4.3 "Effects of Subsidized Costs" the authors found that the burden of At-Sea Monitoring costs falls disproportionately on gill-net vessels and small trawlers. "Based on FY2010 activity, the ASM costs would have a greater impact on gill-net gear and small otter trawl vessels ranging from 7 to 10 percent of groundfish revenue."

 

View Governor Patrick's full November 2011 Application for Economic Disaster Aid here

 

Read Section 4.3 of the request, which addresses ASM costs, here

 

 

 

National Oceanic and Atmospheric Administration General Counsel Lois Schiffer has denied seven changes requested by three prominent attorneys and former NOAA officials to procedures related to the adjudication of NOAA Fisheries Enforcement cases.

WASHINGTON (Saving Seafood) 7 Feb. 2013 — Attorney James (Bud) Walsh of Davis Wright Tremaine LLP in San Francisco, together with Attorney Eldon Greenberg of  Garvey Schubert Barer in Washington, DC and Attorney Michael Stanley of Juneau, Alaska petitioned NOAA to make these changes last June. In her response, Ms. Schiffer stated that her office "reexamined NOAA's civil procedure regulations and continue to believe that they are reasonable, impartial, and fair."

Mr. Walsh served as Deputy Administrator of NOAA from 1978-1981. Mr. Greenberg served as general counsel of NOAA during the Carter Administration, and is an Adjunct Professor of Law at Georgetown University. Mr. Stanley is a former NOAA Enforcement attorney. 

The following is a description by the petitioning attorneys of the changes they requested:

1. Have a NOAA program official participate in bringing cases, as is the case with Coast Guard civil penalty cases.  At NOAA, enforcement attorneys act alone in bringing cases.  In other agencies, such as the Federal Trade Commission, the Commission must approve bringing a case after recommendation by its enforcement staff.

2. Allow a respondent to ask for a delay in the hearing request if the Notice of Violation and Assessment (NOVA) is erroneous or needs to be changed.  As it is, all one can do is ask for a full-blown hearing to remedy such an error.  This creates pressure to settle, even if the NOVA is incorrect, given the cost of hearings.

3. Federal Rules of Evidence do not apply in hearings before an Administrative Law Judge (ALJ), leaving it uncertain as to whether any rules apply.  Other agencies, such as the Federal Maritime Commission, apply those rules, which are known to all lawyers and are universally workable.

4. Make the regulations clear that NOAA has the burden of proof in all cases, including with respect to the basis of the penalty.

5. Allow the respondent to ask for the hearing record to include the record of development of the regulation itself, if its legality is at issue.

6. Provide for summary adjudication of an issue if there is no dispute at to material facts, if the respondent requests it.  Now, NOAA attorneys can veto summary adjudication of issues not really in dispute, forcing a respondent to go to a costly hearing.

7. Provide provisions to allow for alternative dispute settlement, rather than just the all-or-nothing hearing option which gives NOAA’s attorneys great leverage over settlement.

The attorneys note that all of their suggestions are found in the regular practice of other agencies, which they noted in their letter.  They  argue that these changes would provide more balance to the NOAA procedures and perhaps avoid the serious problems found to exist in a number of cases by Special Master Charles Swartwood.

In denying the request of Attorneys Walsh, Greenburg, and Stanley, NOAA General Counsel Lois Schiffer wrote:

You seek seven changes to NOAA's civil procedure regulations. As outlined below, we believe that four of your proposed changes are already addressed by current regulations, and we have legal or policy concerns with the remaining three. On balance, while we appreciate your attention to NOAA's enforcement process, we have decided not to initiate rulemaking on these regulations at this time.

Your petition indicates that it is supported, in part, by the Department of Commerce Inspector General's findings during 2010, and the April 2011 Report and Recommendations of Special Master Charles B. Swartwood, III. It is important to emphasize that since 2010, NOAA has made transformational changes to its enforcement program, creating a more effective, fair, and transparent enforcement process. An extensive list of modifications to the enforcement program is provided at [web address]. This list includes issuance in June 2010 of a new civil procedure regulation relating to burden of proof on penalties; mandated headquarters review and approval of all charging and settlement decisions since March 18, 2010; issuance of a new national penalty policy; implementation of greater compliance assistance by the Office of Law Enforcement; implementation of a new Office of Law Enforcement workforce management plan; replacement of key enforcement leadership and personnel; the creation, with public input, of national and regional enforcement priorities; implementation of a new Enforcement Section internal operations and procedures manual; publication of on-line biannual reports of enforcement charging and settlement decisions; a significant increase in oversight of the Asset Forfeiture Fund; development and implementation of a new Enforcement Section case tracking database system; and Secretarial commitment to work with fishery councils, fisherman, and stakeholders to streamline and simplify fishing regulations. In short, the enforcement program is substantially different from the program considered in the materials you reference.

We also note that NOAA periodically reviews its civil procedure regulations to ensure that they are both fair and efficient.' NOAA's most recent revision of its civil procedure regulations occurred in June, 2010. This revision eliminated the presumption in favor of NOAA's assessed penalty or sanction at a hearing, thereby enhancing the fairness of NOAA's administrative proceedings. See 75 Fed. Reg. 35631 (June 23, 2010). In light of your petition, we have reexamined NOAA's civil procedure regulations and continue to believe that they are reasonable, impartial, and fair.

Read the complete response from NOAA General Counsel Lois Schiffer

Read the initial petition by Attorneys Walsh, Greenburg, and Stanley

Read news coverage of the request from July 13, 2012

 

 

Rep. Edward J. Markey asked acting Secretary of Commerce Dr. Rebecca Blank to consider the potential impact of offshore aquaculture on wild fisheries before accepting a plan to permit such operations in the Gulf of Mexico.

The following was released by the office of Congressman Ed Markey (D-Mass.), the ranking member of the House Committee on  Natural Resources:

WASHINGTON (February 6, 2013) – Today, Rep. Edward J. Markey (D-Mass.) asked acting Secretary of Commerce Dr. Rebecca Blank to consider the potential impact of offshore aquaculture on wild fisheries before accepting a plan to permit such operations in the Gulf of Mexico. The Gulf of Mexico Fishery Management Council is expected to vote to approve an Offshore Aquaculture Fishery Management Plan at its meeting tomorrow. The letter sent to Commerce echoes concerns expressed by fishermen in Massachusetts and elsewhere that a hasty introduction of large scale aquaculture could threaten the recovery of wild fish stocks.

"Comparing aquaculture to fisheries is like comparing apples to oranges," said Markey, the top Democrat on the House Natural Resources Committee and Dean of the Massachusetts Congressional delegation. "While Massachusetts fishermen are struggling, fishery managers should help solve existing problems before taking on additional responsibilities with no additional funding."

In the letter Markey also cited environmental concerns and argued that the Magnuson-Stevens Act does not authorize the permitting and regulation offshore aquaculture – the raising of fish in enclosed nets or pens more than three miles from the coast. Legislation to create a legal framework for offshore aquaculture stalled in Congress last year.

The text of the letter follows:
 
February 6, 2013

I write to express my concern over the Gulf of Mexico Fishery Management Council's (Gulf Council) proposal to permit and regulate offshore aquaculture operations. If it is passed by the Gulf Council this week, I urge you to consider the broader implications of the proposed rule when making your final determination on it.

I am troubled by the dangerous precedent this action would set by allowing NOAA and the regional fishery management councils to govern aquaculture through the fishery management plan process designed to ensure sustainable harvest of wild fish stocks under the Magnuson- Stevens Fishery Conservation and Management Act (MSA). I share the skepticism of fishermen in my home state of Massachusetts over NOAA's ability to take on this additional responsibility at a time when it is failing in its core fisheries mission to restore wild stocks like cod, haddock, and flounder.

Aquaculture has great potential to create economic growth and jobs in coastal communities while increasing the supply of domestic seafood in the United States. It is also has the potential to negatively impact existing wild fisheries, harm the marine environment, and concentrate profit and power in the hands of a few large corporations, to the detriment of fishing towns like Gloucester, New Bedford, and Chatham that are simply struggling to survive. In evaluating offshore aquaculture, we must ensure that consideration of any federal regulatory scheme takes into account the impact of those operations on wild fish stocks and the fishermen that depend on them for their livelihoods. The proposal put forth by the Gulf Council fails this test by providing inadequate assurances that siting of aquaculture operations would not conflict with ongoing fishing, that pollution from these facilities would be closely monitored and limited to protect water quality and essential fish habitat, and that the potential for the spread of disease and escape of fanned fish would not harm wild populations.

Congress did not intend for NOAA to regulate aquaculture as a fishery under MSA. MSA requires NOAA to prevent overfishing, rebuild depleted fish stocks, and designate and protect essential fish habitat: three actions that make no sense in the context of an aquaculture industry where fish are private property even before they are harvested. Fish farming – which involves selectively breeding, feeding, growing, and harvesting captive fish from crowded enclosures to maximize profit – is oceans away from fishing, which entails capturing wild fish from a functioning ecosystem at a rate that maximizes sustainable harvest over time. Calling aquaculture a fishery is like calling an apple an orange.

Even more fundamentally, NOAA is not in a position to assume the challenging, time consuming, and expensive responsibility of overseeing offshore aquaculture. Limited data, infrequent stock assessments, and a poor understanding of the effects of climate change on fish stocks in the Northwest Atlantic have contributed to crisis conditions in the New England Groundfish fishery, and NOAA owes it to fishermen in Massachusetts and elsewhere to dedicate scarce resources to existing obligations rather than to new programs. NOAA should not attempt to permit and regulate offshore aquaculture until Congress has authorized and appropriated funding for that purpose.

I look forward to working with you in to ensure that offshore aquaculture is appropriately conducted within a national framework of laws and policies that protect the marine environment and create opportunity for, rather opposition from, our hardworking fishermen. I would recommend that the administration instead evaluate what legal authorities, standards, resources, and staffing would be necessary in order for it to carry out this new mission and work with Congress to enact legislation in this area. Should you have any questions, please have your staff contact Matt Strickler on the House Natural Resources Democratic Committee Staff at (202) 225-6065.

Sincerely,

Edward J. Markey
 
 
View a PDF of the original letter from Rep. Markey to acting Secretary Blank 

 

 

Congressman John Tierney (D-MA) announced new legislation to provide disaster relief to our fishermen and direct funding to scientific research to find a long-term solution.

Stating that the need for disaster relief and improved scientific research is even more acute as the Gulf of Maine cod catch has been drastically reduced, the following was released by the office of Massachusetts Congressman John Tierney:
 
Gloucester, MA – February 4, 2013 — Following the devastating decision by the New England Fishery Management Council last week to drastically reduce catch shares for cod in the Gulf of Maine and the continued lack of action by the Department of Commerce to deal with the fisheries disaster declared in 2012, Congressman John Tierney (D-MA) announced new legislation to provide disaster relief to our fishermen and direct funding to scientific research to find a long-term solution. This bill does not increase spending, as it is financed through revenues already collected on imported fish products.

"From Gloucester, Massachusetts to Mississippi to Alaska, fishermen in several states are facing near catastrophic economic situations. Despite the Department of Commerce's recognition of these disasters with emergency declarations in 2012, sufficient relief still has not been provided. This is unacceptable. Fishermen in my district and across the country deserve better," Congressman Tierney said.

"The bill I plan to offer is just the beginning of the comprehensive reform that is needed, but it is a creative and responsible solution to help provide immediate disaster relief to fishermen and ensure that funding is directed to research in the longer-term."

"Congress must take bold and immediate action to protect this historic industry. I will be aggressively pressing my colleagues to move this common sense legislation quickly, while also continuing my efforts to pass comprehensive reforms to the Magnuson-Stevens Act and hold NOAA and the Department of Commerce accountable to our fishing community," Tierney concluded.

Congressman Tierney's Fisheries Disaster Relief and Research Investment Act would:

 – Allocate the funds directed to the Department of Commerce under the Saltonstall-Kennedy Act only in Fiscal Year 2014 to be used for assistance to those states affected by fishery disasters declared by the Secretary of Commerce in calendar year 2012. (While the specific amount that would be generated in 2014 is not yet known, it is worth noting that in Fiscal Year 2013 the amount directed to Commerce under Saltonstall-Kennedy was $124 million; and in Fiscal Year 2012, it was $109 million)

 – Beginning in Fiscal Year 2015, the bill would direct those same funds to research, and put fisheries research, monitoring, and data collection in the hands of regional management councils by requiring multi-stakeholder regional committees, authorized by the bill and appointed by the nation's eight fishery management councils, to develop plans to identify priorities for investment in each region. The committees would use those priorities to evaluate and recommend grants for funding.

The Saltonstall-Kennedy Act of 1954 ensured that a percentage of tariffs on imported fish products go to benefit and improve our domestic fishing industry. Since then, these funds have been inappropriately redirected to the operations fund at NOAA, depriving our nation's fisheries of potentially hundreds of millions of dollars.

Previous Saving Seafood coverage of efforts to redirect Saltonstall-Kennedy funds:
 
Saving Seafood Radio interview with Sen. John Kerry
 
Senators Kerry and Snowe will introduce bill to restore intent of Saltonstall-Kennedy Act
 
Kerry-Snowe Provision to take Saltonstall-Kennedy funds from NOAA and return them to fisheries is included in Senate Appropriations Bill
 
Kerry's effort to boost fisheries funds inserted in appropriations bill  
 
Senate bill seeks millions to improve fishery science and stock assessments  

 

 

The court-approved settlement agreement in Oceana v. Blank challenging the NMFS approval of 2012 sector operations plans on grounds that the level of at sea monitoring (ASM) coverage of sector operations plans was not adequately explained or justified.

WASHINGTON – Feb. 1 2013 — On May 31, 2012, Oceana filed a Complaint for Declaratory and Injunctive Relief challenging a rule that defined the Service's at-sea monitoring and enforcement obligations related to sectors operating under the Northeast Multispecies Fishery Management Plan for fishing year 2012, ECF No.1.

A settlement agreement was entered into between plaintiff Oceana, Inc. and federal defendants Dr. Rebecca Blank, in her official capacity as Acting Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service.

An excerpt from the agreement follows:
 
1. On or before the date of publication in the Federal Register of the proposed rule to approve sector operations plans in the Northeast Multispecies Fishery, which for the upcoming fishing year is expected to occur on or about January 31, 2013, the Service will publish in the Federal Register the appropriate level of observer coverage for at-sea monitoring (as defined in 50 C.F.R. § 648.2) that is required for sector vessels operating in the Northeast Multispecies Fishery, as well as the web address (URL) that will have, in an online, text-searchable format, a summary of the Service's analyses regarding the appropriate level of observer coverage (unless the Fishery Management Plan for the Northeast Multispecies Fishery is modified in such a way that the Service no longer has responsibility for setting that level of at-sea monitoring). That summary shall include (1) a description of the data upon which the Service relied; (2) summary tables or graphs of that data the Service prepared; (3) a presentation of the data for each sector, by stock and gear, including the number of unique vessels, discarded pounds, the number of subtrips, the number of observed subtrips, the percent of subtrips observed, the realized stock coefficient of variation ("C.Y."), and the percent observer coverage required to achieve the minimum c.y. of 30% (except where the disclosure of such data would conflict with ~ 4 below); and (4) an explanation of the standards the Service applied to that data to determine the appropriate level of coverage (including, but not limited to, the target c.y. and the standards used to ensure observer data as a whole, including the data from both the Northeast Fishery Observer Program and at-sea monitors, is accurate and timely). The Service will also present the data referred to in subparagraphs (2) and (3) for previously completed fishing years from 2010 forward, as well as the upcoming fishing year for which the analyses are conducted.

2. The Service will publish the summary analyses referenced in Paragraph I for the 2013, 2014, and 2015 fishing years, each time in the same manner and subject to the same qualifications that appear in that paragraph (unless the Fishery Management Plan for the Northeast Multispecies Fishery is modified in such a way that the Service no longer has responsibility for setting the level of at-sea monitoring).

3. If the Service changes the at-sea monitoring level for sector vessels for a particular fishing year after the Federal Register publication referenced in Paragraph 1 but before the issuance of the final rule approving the sector contracts, the Service will announce the change in that final rule and explain the change online at the same address referenced in Paragraph 1.

4. Nothing in this Agreement requires or authorizes the Service to disclose any confidential information in violation of the confidentiality provisions of the MSA, 16 U.S.C. § 1881a. For the purposes of 16 U.S.C. § 188Ia(b)(1)(C), this Agreement does not constitute a "court order" requiring the disclosure of such confidential information.

 

Read the complete agreement as filed in the U.S. District Court for the District of Columbia

 

 

The court-approved settlement agreement in Oceana v. Blank challenging the NMFS approval of 2012 sector operations plans on grounds that the level of at sea monitoring (ASM) coverage of sector operations plans was not adequately explained or justified.  

On May 31, 2012, Oceana filed a Complaint for Declaratory and Injunctive Relief challenging a rule that defined the Service's at-sea monitoring and enforcement obligations related to sectors operating under the Northeast Multispecies Fishery Management Plan for fishing year 2012, ECF No.1.

A settlement agreement was entered into between plaintiff Oceana, Inc. and federal defendants Dr. Rebecca Blank, in her official capacity as Acting Secretary of the United States Department of Commerce, the National Oceanic and Atmospheric Administration, and the National Marine Fisheries Service.

An excerpt from the agreement follows:  

1. On or before the date of publication in the Federal Register of the proposed rule to approve sector operations plans in the Northeast Multispecies Fishery, which for the upcoming fishing year is expected to occur on or about January 31, 2013, the Service will publish in the Federal Register the appropriate level of observer coverage for at-sea monitoring (as defined in 50 C.F.R. § 648.2) that is required for sector vessels operating in the Northeast Multispecies Fishery, as well as the web address (URL) that will have, in an online, text-searchable format, a summary of the Service's analyses regarding the appropriate level of observer coverage (unless the Fishery Management Plan for the Northeast Multispecies Fishery is modified in such a way that the Service no longer has responsibility for setting that level of at-sea monitoring). That summary shall include (1) a description of the data upon which the Service relied; (2) summary tables or graphs of that data the Service prepared; (3) a presentation of the data for each sector, by stock and gear, including the number of unique vessels, discarded pounds, the number of subtrips, the number of observed subtrips, the percent of subtrips observed, the realized stock coefficient of variation ("C.Y."), and the percent observer coverage required to achieve the minimum c.y. of 30% (except where the disclosure of such data would conflict with ~ 4 below); and (4) an explanation of the standards the Service applied to that data to determine the appropriate level of coverage (including, but not limited to, the target c.y. and the standards used to ensure observer data as a whole, including the data from both the Northeast Fishery Observer Program and at-sea monitors, is accurate and timely). The Service will also present the data referred to in subparagraphs (2) and (3) for previously completed fishing years from 2010 forward, as well as the upcoming fishing year for which the analyses are conducted.

2. The Service will publish the summary analyses referenced in Paragraph I for the 2013, 2014, and 2015 fishing years, each time in the same manner and subject to the same qualifications that appear in that paragraph (unless the Fishery Management Plan for the Northeast Multispecies Fishery is modified in such a way that the Service no longer has responsibility for setting the level of at-sea monitoring).

3. If the Service changes the at-sea monitoring level for sector vessels for a particular fishing year after the Federal Register publication referenced in Paragraph 1 but before the issuance of the final rule approving the sector contracts, the Service will announce the change in that final rule and explain the change online at the same address referenced in Paragraph 1.

4. Nothing in this Agreement requires or authorizes the Service to disclose any confidential information in violation of the confidentiality provisions of the MSA, 16 U.S.C. § 1881a. For the purposes of 16 U.S.C. § 188Ia(b)(1)(C), this Agreement does not constitute a "court order" requiring the disclosure of such confidential information.

Read the complete agreement as filed in the U.S. District Court for the District of Columbia

 

 

The New England Fishery Management Council (NEFMC) met today to discuss the future of several fish stocks including Gulf of Maine (GOM) cod, Georges Bank (GB) cod, and Southern New England/Mid-Atlantic (SNE/MA) winter flounder.

WASHINGTON (Saving Seafood) January 30, 2013 — The Council recommended cutting Cod fishing limits in the Gulf of Maine by 77% and in George's Bank by 55%.

Saving Seafood has posted audio highlights of today's meeting.

The NEFMC was given a summary of the recent Stock Assessment Workshop/Stock Assessment Review Committee (SAW/SARC 55) meetings by Dr. James Weinberg of the Northeast Fisheries Science Center. The Council also heard from Jack Kritzer, the acting chair of the NEFMC's Scientific and Statistical Committee (SSC), regarding acceptable biological catch (ABC) recommendations for all three stocks for fishing years (FY) 2013-2015.

The afternoon portion of the meeting examined measures proposed by the Groundfish Committee that may be adopted either through a specification package or an additional framework adjustment. These measures regarded ABCs and annual catch limits (ACL) for fishing year 2013, as well as proposals for a revised SNE/MA winter flounder rebuilding plan and alterations to the landings prohibition on this stock.
 
See additional continuing coverage of this issue from the Associated Press, the Wall Street Journal, the Standard-Times, Maine Public Radio, WLBZ,  and the Kennebec Journal.  

 

 

The scientific basis for the current “reference points” used for New England groundfish management has recently been questioned by respected scientists, industry members, and elected officials.

The largest organization representing groundfishermen in New England, and the mayor of the nation’s most profitable seaport, have asked the New England Fishery Management Council to reconsider the calculation and use of the current reference points.

Because this issue is highly technical and development of the current reference points are the result of a unique history, Saving Seafood has undertaken this analysis to shed some light on the background behind these requests for reconsideration.

by Sarah Hanselman and Bob Vanasse

WASHINGTON (SavingSeafood) January 30, 2013 — In a January 7, 2013 op-ed (“The end of ‘overfishing’?”) in the New Bedford Standard-Times, Dr. Brian Rothschild, dean emeritus and current professor at the University of Massachusetts School for Marine Science and Technology, pointed out that current fisheries management strategies for New England fisheries are “based on an arbitrarily selected biological reference point, and we have relatively little idea how close the real fishery is to the arbitrarily selected reference point.”

Reference points include fishing mortality values chosen by management bodies, which, if exceeded, indicate that overfishing has occurred in a population. 



On January 17, 2013, the Northeast Seafood Coalition (NSC) wrote to the New England Fishery Management Council (NEFMC) raising questions about the reference points currently used in groundfish science and management. They suggested that alternative reference points are available and should be evaluated. Yesterday, New Bedford Mayor Jon Mitchell wrote to the NEFMC with five requests, including asking that the “Council reconsider the current reference points for all groundfish stocks” in accordance with the request made by the NSC.

National Standard One of the Magnuson-Stevens Act requires that fisheries management end or prevent overfishing on all fish stocks. To ensure compliance with this standard, the National Standard guidelines require scientists to estimate a management target that results in the Maximum Sustainable Yield (MSY). This target, known as Fmsy, is the level of fishing mortality that allows for Maximum Sustainable Yield (MSY). When a direct estimate of Fmsy cannot be made, a proxy for Fmsy must be determined. It is important to understand that FMSY is only a management target, and that yield (catch) both above and below MSY can be sustainable.  



Before 2002, Fmsy was directly estimated on a stock specific basis for about 2/3 of groundfish stocks. But, after exploring a wide range of direct estimates for FMSY, the Working Group concluded FMSY could not be reliably estimated for most groundfish stocks. Thus, In 2002, the Working Group on Re-Evaluation of Biological Reference Points for New England Groundfish began to replace direct estimates of Fmsy with “proxy” values. Specifically, the Working Group chose an approach based on Maximum Spawning Potential (MSP), a theoretical measure of a stock’s potential population without exposure to fishing pressure. The Working Group chose 40% MSP as the best proxy measurement for Fmsy. F40%msp suggests an associated level of fishing pressure that would reduce the stock to 40% of a theoretically unfished population. Though some studies disagree that stock can be theoretically estimated using MSP.



By 2007, the Groundfish Assessment Review Meeting (GARM III) Working Group transitioned all New England groundfish stocks from direct estimates of FMSY to proxy reference points, based on the 2002 Working Group report.
 


Although a variety of approaches are available to estimate Fmsy and alternative proxies, the current system has adopted F40%msp proxy as the default reference point for most groundfish stocks. This has been criticized by some industry observers, non-Federal Government scientists, and at least one NEFMC member, who argue that a range of alternatives should be presented to the NEFMC for comparison and deliberation.
 


Since 2002, the FMSY estimate or the proxy has been revisited at each benchmark. As a result, several stocks now use a direct estimate of FMSY.

The NSC also raised questions about the appropriateness of using F40%mp as a reference point for all groundfish stocks. They suggested that if it is determined that an MSP-based proxy is appropriate for a particular stock, the percentage should be evaluated and optimized based on the characteristics of that stock and the NEFMC’s management objectives. The NSC argued that the F40%msp  reference point is arbitrary and antiquated. 



According to the scientist who originally proposed the F40%msp  reference point, William G. Clark: “It was motivated by the need of the North Pacific Fishery Management Council for a harvest rate to use in setting levels of acceptable biological catch or Alaska groundfish” (“F35% Revisited Ten Years Later”, 2002). Its development gave little consideration to similar groundfish populations on the East coast. 

Since the implementation of the reference point on the West Coast, The Pacific Fishery Management Coincil has adopted different values for several species as an FMSY proxy, based on the advice of their peer review process. Nonetheless, the original F40%msp remains in effect for New England groundfish stocks.


In his op-ed, Dr. Rothschild noted that the “council does not have to go with the 40 percent reference point. It is scientifically acceptable for it to have gone with a 35 percent reference point. This is the level used to manage most species on the U.S. West Coast.” And he raised the question: “If 35 percent is OK on the West Coast, why is it not OK on the East Coast?”

As a result of the reasons and history outlined above, the NSC has asked the Council to consider returning to the direct calculation of Fmsy for stocks when possible, and to re-evaluate proxy values for Fmsy on a species-by-species basis. They also asked that an evaluation of the consequences of those choices, comparisons to other available data, and the effect on the rebuilding target for each stock also be evaluated.