New England Fishery Management Council 50 WATER STREET I NEWBURYPORT, MASSACHUSETTS 01950 I PHONE 978 465 0492 I FAX 9784653116 John Pappalardo, Chairman I Paul J. Howard, Executive Director
Herring Amendment 4 Scoping Comments New England Fishery Management Council 50 WATER STREET I NEWBURYPORT, MASSACHUSETTS 01950 I PHONE 978 465 0492 [ FAX 9784653116 John Pappalardo, Chairman [ Paul J. Howard, Executive Director
Herring Amendment 4 Scoping Comments Comments received via Email to NMFS with Attachments AMERICAN PELAGIC ASSOCIATION 4 Fish Island New Bedford, MA 02740 (508) 979-1171
June 30, 2008
Via Electronic Mail
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930
Re: Scoping Comments on Herring Amendment 4
Dear Ms. Kurkul:
I would like to make reference to a letter submitted to you today by Kelly Drye, on behalf of Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern Pelagic Group, LLC, Western Sea Fishing Co., Inc., and the numerous vessels associated with and supplying these businesses. In addition to the Kelly Drye comment letter, we wish to make the following comments in response to the National Marine Fisheries Service's ("NMFS") call for comments on the elements under consideration in Atlantic Herring Amendment 4.
1. Catch Monitoring
The herring fleet and shoreside processors are currently subject to some ofthe most stringent monitoring and reporting requirements of any fishery in the northeast.
Any additional monitoring and reporting requirements should be consistent with other fisheries in the region, should be developed to support fisheries management plan goals and objectives, and not made "punitive".
The loudest critics ofthe current herring fishery management are those associated with the Cape Cod Commercial Hook Fishermen's Association (CCCHFA) and their proxies.
A recent e-mail correspondence (June 6, 2008) with NMFS NERO (Mark Grant, Sector Policy Analyst) showed that "the two groundfish sectors currently operating have a few more-stringent reporting requirements, primarily the necessity to notify their manager of all landings more rapidly and the manager's responsibility to track landings and provide data to NMFS in addition to the required VTR submissions."
Reporting requirements for the herring fishery are as follows, according to an e-mail of June 24 from Carrie Nordeen, NMFS NERO Herring Plan coordinator: "In general,
APA, Herring Amendment 4 scoping comments 1 7/8/2008 reporting requirements for the herring fishery include weekly IVR (limited access vessels must report every weekly even ifthere was zero catch; open access vessels must report if their catch was greater than or equal to 2,000 lb in one trip) and monthly VTR reports. If a vessel anticipates landing herring, it should declare a herring trip in VMS, contact the Observer Program about carrying an observer, and make the pre-landing notification. Reporting requirements may vary ifthe vessel has a herring carrier or herring transfer/receive catch at sea LOA. Quota monitoring for herring is based on a combination ofIVR and dealer data."
Perhaps NMFSINEFMC staff should conduct an analysis ofthe differences in the reporting requirements ofthe two groundfish sectors (with only a handful ofvessels participating) compared to the herring fishery with upwards of20-30 vessels participating.
Our sense is there would be little problem bringing herring vessels and plants onto a reporting "par" with the CCCHF A sectors, ifit served important fishery management plan goals and objectives. This could include provision offederal fishery observers according to SBRM guidelines, and of 100% weighing ofthe catch at first point of offload (or first point ofprocess, whichever achieves this goal best).
We do object to the more "punitive" proposals for monitoring and reporting requirements advanced by the CCCHFA and its proxies.
Thank you for considering these comments.
Sincerely,
Peter Moore American Pelagic Association
APA, Herring Amendment 4 scoping comments 2 7/8/2008 Friel10s of the Blacksume Frank Matta, President
June 29. 2008
To: The New England Fishery Management Council Re: Herring Amendment 4 Scoping Comments
On behalf of the state-designated Blackstone River Watershed Council/Friends of the Blackstone, I write to express our concern about the fate of river herring in danger of being caught up as by-catch by fisheries harvesting other small species out in the ocean. As the initial proponents of the fish ladders scheduled to be constructed as of August 2008 at the three southernmost dams ofthe Blackstone River, we are especially concerned about the anadromous fish that we hope will soon have access to these passages and to the their natural spawning grounds. The Blackstone River Watershed Council/Friends of the Blackstone strongly urges that the New England Fishery Management Council, in reviewing its fishery management plan, require more stringent monitoring of the herring fishery, assure appropriate enforcement of pertinent regulations, raise fines for non-compliance and endorse the notion that such fines be channeled towards supplemental environmental projects (SEPs) promoting fish ladders not only in the Blackstone but in other supporting waters ofthe state. We thank you for your attention to what we believe is a matter ofconsiderable urgency, given the federal government's designation ofriver herring as a "species ofconcern".
Sincerely yours, t> : /~ (L [) '- \k..L- II ~'-- Alice R. Clemente Secretary, BRWC/FOB OUELLETTE & SMITH ATTORNEYS AT LAW AND PROCTORS IN ADMIRALTY A Professional Association
127 EASTERN AVENUE SUITE 1 GLOUCESTER, MASSACHUSETTS 01930
Stephen M. Ouellette* Telephone: (978) 281-7788 David S. Smith' Facsimile: (978) 281-4411 E-mail: [email protected] http://www.fishlaw.com *Also Admitted in Maine http://www.maritimelawusa.com
June 30, 2008
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930
Re: Comments on Herring Scoping Document for Amendment 4
Dear Ms. Kurkul,
I have been asked to submit comments on the Scoping Document for Amendment 4 to the Atlantic Herring Management plan on behalfofMargaret F., Inc. and the FIV OCEAN VENTURE. My clients are particularly concerned with two aspects ofthe Scoping Document; 1) the proposal to allow formation ofsectors and; 2) the proposed control date ofDecember 31, 2006 for establishment ofquota allocation for Area l A. For the following reasons, my clients believe that the New England Fishery Management Council and NMFS should remove these items from consideration in the current amendment process.
I note initially, that it has barely been one year since Amendment 1 to the Herring Plan implemented a limited access permit structure. Under the implementing regulations, vessels were qualified based on their fishing history between January 1, 1993, and December 31,2003. Following issuance oflimited access herring permits a number ofindividuals, including my clients, have made significant investments in the herring fishery to continue their activity in Area IA. Banks, previously reluctant to finance herring vessels, loaned significant sums relying on establishment ofthe limited access herring permits to these owners. Even before the final application date for those initial limited access permits passed, the NEFMC is considering adopting a proposal to limit any future allocation for an Area lA allocation to history prior to December 31,2006. We have also been advised that NMFS is unable to separate landings by area before 2002, so that, in effect, the Amendment 1 qualifications will be rendered meaningless, and a vessel's future landings from Area lA will be determined based on the 2003 to 2006 timeframe. The proposal will effectively invalidate the recently issued limited access herring permits and threatens to wreak havoc in the existing fishery, as vessels owners and their lenders face significant losses in their investments.
Commnets on Scoping.doc OUELLETTE & SMITH
Patricia Kurkul, Regional Administrator June 30, 2008 -2-
The rationale for this unusual limitation on qualification period makes no sense and appears intended to benefit a few vessel owners who increased effort in the years leading up to 2006. The increase that was so large, it prompted action to seasonally limit access to Area lA to these vessels, which extracted significant and disproportionately large quantities offish from Area 1A. As such, iflandings after December 31, 2006 are utilized, this small number ofvessels will not be disproportionately benefited by their excessive, and determinately harmful, landings, which gave rise to the seasonal gear limitations. It is evident that the dramatic growth in harvesting capacity ofthe mid-water and pair trawl fleet in the past five years placed significant stress on Area lA, resulting in exclusion ofthis excessive fishing power. The proposal would actually reward this harmful explosion in effort by transferring a disproportionate share ofthe fishery to a very few, large vessels, to the detriment ofthe fixed gear and purse seine vessels, most with significant history preceding 2003. In the event that the Council adopted this new control date, this would force vessels remaining in Area lA to buy or lease quota from those excluded based on excessive fishing power. While it is not unusual for fishermen to seek to have quota allocations based on their best years in terms oflandings, NEFMC and NMFSshould not do so where it both runs contrary to the existing limited access qualification criteria, and is so clearly disproportionate and rewards conduct the regulations have recently stopped as being excessive,
The pending proposal becomes even more problematic with the potential ofusing other control dates for other areas. Since the majority oflandings from Area lA in the 2003 to 2006 timeframe were disproportionately landed by a small number oflarge vessels, this fleet will presumably get the majority ofquota in Area lA, based on fishing prior to their exclusion. They will then presumably seek quota based on subsequent fishing in other areas, effectively acquiring more quota than they can fish and in areas they are excluded from. The end result will be that a small number ofowners control virtually all ofthe herring quota, in excess ofwhat their vessels can, or should, be capable ofharvesting, in effect privatizing the entire fishery.
For these reasons, my clients strongly oppose any limitation on the qualifying period for quota allocation for Area lA as it will disproportionately benefit a small number ofvessels by setting quotas based on a limited period oftime when fishing power by a few was deemed excessive.
My clients further discourage development ofsectors for the herring fishery. The future ofsectors in New England is unclear, as the quagmire ofgroundfish sectors has shown. Present sectors have proven extremely costly to industry, with formation costs for the hook sector a reported $600,000, in addition to substantial annual operating costs. Participation in that sector has reportedly declined to less than 20 permits, from over 60 at formation, and currently contains OUELLETTE & SMITH
Patricia Kurkul, Regional Administrator June 30, 2008 -3- only two or three full time commercial fishermen. While the rationale for sectors makes some 1sense-the ability to tailor regulations to a particular groundfish fishery- the same rationale does not exist in the herring fishery. The Council has many more pressing issues to deal. Unlike groundfish, the herring fishery has fewer participants, gear types and regional variations, and does not come with the complications ofbycatch in the multispecies fishery. Most ofthese issues are fairly easily resolved on a fleet wide basis without the need for complicated rulemaking. Sector management in this single species fishery appears to have no purpose other than to secure Individual Fishing Quotas. By establishing a sector quota based on a small number ofvessels with excessive landings over, for example, the proposed qualifying period from 2003 to 2006, a small fleet could effectively monopolize Area lA's entire quota through sector formation. Entry into the sector by the vast majority ofvessels with extensive history in Area lA, but relatively small in comparison to the 2003-2006 time frame, would then require that they "buy-in" to the sector, or lose all access to an area. In short, the combination ofthe proposed timeframe for quota allocation and the use of sectors foretells a very simple outcome. Those few vessels that fished heavily in Area 1A for a few years from 2003 to 2006 will control the entire quota in that area, to the exclusion ofmany vessels with history extending over decades.
The Herring Fishery White Paper: Legal Issues and Management Options for Council Consideration in Development ofHerring Amendment 4 prepared by Kelley, Drye & Warren, LLP provides an informative analysis ofthe relationship between sectors and Limited Access Privileges and Individual Fishing Quotas. While my clients disagree with the suggestion ofthe White Paper to move toward a rationalization ofthe herring fishery, they agree with the paper's call for transparency in the process and compliance with the referendum requirements for IFQs, in whatever form they are presented and however they are titled. The Council and NMFS should proceed cautiously in developing plans or amendments that appear to be an attempt to avoid the statutory requirements ofthe Magnuson Act. My clients firmly believe that the attempt to allocate quota to herring sectors is an attempt to avoid the statutory prerequisites to development ofIFQs and therefore strongly oppose it both substantively and procedurally.
For the foregoing reasons, my clients encourage the Council and NMFS to abandon the December 31, 2006 control date for any future quota allocation for Area 1A and similarly cease development ofa sector management plan for the Atlantic Herring Fishery.
The Scoping Document indicates the proposed allocation end date ofDecember 31,2006 will benefit vessels with decades ofhistory, when in fact it will limit consideration to a three year periods when area specific catch and landings records exist-a period when larger vessel mid water and pair trawl activity significantly increased, making the traditional, decades old, activity such as purse seining and weir fishing a smaller component of the fishery. To the contrary, these long time participants will be significantly disadvantaged by the proposal before the Council. OUELLETTE & SMITH
Patricia Kurkul, Regional Administrator June 30, 2008 -4-
Very truly yours,
/s/ Stephen M. Ouellette Stephen M. Ouellette, Esq. Herring Fishery White Pal!!:!: Legal Issues and Management Options for Council Consideration in Development of Herring Amendment 4
Submitted on Behalfof: Cape Seafoods, Inc. Lund's Fisheries, Inc. and Northern Pelagic Group, LLC Western Sea Fishing Co. Inc. F/V Challenger F/V Crystal Sea F/VDona Martita F/VEastern Hunter , F/VEndeavour . F/VEnterprise F/V GulfStream F/VNordic Explorer F/VRetriever F/VVoyager F/V WesternHunter And numerous. owner/operators supplying Lund's Fisheries in the Mid-Atlantic March 24, 2008
Prepared by: David E. Frulla Shaun M. Gehan Andrew E. Minkiewicz Kelley, Drye & Warren, LLP 3050 K Street, NW-Suite 400 Washington, D.C. 20007 (202) 342-8400 Executive Summary On March 12,2007, Amendment 1 to the Fishery Management Plan ("FMP") for Atlantic Herring was published as a final rule, becoming effective only as ofJune 1,2007. This rulemaking marked a significant departure from prior herring management, instituting limited access and banning mid-water trawlers from the inshore GulfofMaine during key summer months. As described below, the herring fishery is still making adjustments to the new management regime, even as it copes with an erratic and late developing offshore fishing season.
The other major change emerging over the past year has been the reauthorization ofthe Magnuson-Stevens Fishery Conservation and Management Act ("MSA"). The changes made by the so-called Reauthorization Act of2006 ("MSRA" or "Reauthorization Act") became effective in January 2007, and the National Marine Fisheries Service is still in the process ofdeveloping implementing regulations and guidelines forthe law's new major provisions. Among other things, the MSRA established a set ofcriteria for the development ofwhat are known as limited access privilege programs, or LAPPs, ofwhich "sectors" appear to be a species. LAPPs can be comprised ofmany different types ofallocation and management schemes, allowing management ofa fishery at a regional, associational, community, or even individual level. The most familiar ofthese is the individual fishing quota ("IFQ"). The MSRA also established standards for allocating fishing opportunities under LAPP programs, as well as adding a new provision for "fair and equitable distribution ofaccess privileges" under the general requirement provisions for allocating fishing privileges (16 U.S.C. § 1853(b)(6».
Accordingly, scoping will proceed on Herring Amendment 4 while much is still unclear regarding LAPPs generally and ifand how they.might be employed in the Atlantic pelagic fishery. Despite significant public attention, guidance from the National MarineFisheries Service ("NMFS") on implementing a LAPP program is as yet forthcoming, and may be delayed as more time sensitive regulations such as thoserelated to setting ofannual catch limits take precedence. For its part, the herring industry generally is still adjusting to the new management regime under Amendment 1. The new summertime, purse seine-only fishery in Area 1A presents an unresolved challenge to the mid-water trawlfleet, and the fisheries in Areas 2 and 3 are still not yet fully utilized. Vessels which also, and perhaps primarily, participate in the Atlantic mackerel fishery are also attempting to workunder the new herring limited access and general category incidental catch permit restrictions. The Mid-Atlantic Council's halting attempts at creating a limited access program for the Atlantic mackerel fishery add yet another overlay ofuncertainty.
In the face ofthis uncertainty, the Council has decided to consider sectors and perhaps other forms ofLAPPs as part ofAmendment 4, and will be seeking input and comments on these issues during scoping. Amendment 4 is also, perhaps primarily, designed to address monitoring issues in the herring fishery and the MSRA's new requirements for establishing annual catch limits ("ACL") and accountability measures ("AM"). This is a very full regulatory agenda for a council that has many other management responsibilities and which has just undertaken a recent full-blown allocation amendment for herring.
This paper explores the new standards governing LAPPs and analyze some ofthe issues relating to calls by some to move the herring fishery precipitously into "sectors." Among these Executive Summary Page ii
is analysis ofthe NMFSNortheast Regional Office's recent legal opinion which held that the sector program established Amendment 13 ofthe Northeast Multispecies Fishery Management Plan ("FMP") was likely not a LAPP subject to the requirements ofthe new law. The conclusion ofthis analysis is that strong arguments exist leading to an opposite finding, which is ultimately one that willbe determined by a court. Thus, the "riskaverse" course for the Council in developing any new sector proposal would be develop it in accordance with the new standards in order to avoid the possibility ofan unpredictable adverse decision.
With respect to the direction for herring management, in light ofthe recent uncertainties and less-than-full utilization ofthe herring resource in all management areas, that to the extent any type ofsector allocation or LAPP is considered, it would be sensible to limit its application to Area 1 and its subregion. In this regard, however, even under pre-MSRA law, the prior allocation scheme favoring first entrants was likely unsound. A new allocation system must fully allocate the resource as an initial matter, considering the required statutory factors including those related to needs ofboth harvesters and processors and avoidance ofaggregation of excessive shares, either on an entity or geographical basis.
In contrast to the relatively untested sectors concept, this paper also describes current successful models for managing and allocating fisheries which share the same general approach and benefits. The attraction ofutilizing a tested approach, albeit one developed in conformance withthe new LAPP provisions, is thatis avoids the multiplicity ofmonitoring schemes and management proposals that have been proffered in thegroundfish process while lending a readily transferable modelthat would be easy to implement.
This model, based on the use ofcooperatives in the North Pacific region, maybe a better fit for the Atlantic pelagic fisheries ... In particular, cooperatives provides a template that can be developed for Areas 2 and 3 and integrated into the management ofthe Atlantic mackerel fishery in order to address and practicably minimize unnecessary discards in these two interrelated fisheries.
The paper concludes by suggesting that while the Council should consider utilizing an innovative new management approach in the fully utilized segment ofthe fishery in Area 1, it should proceed cautiously in expanding that model inother areas ahead offurther development ofthose fisheries. Abstaining frommovingforward with-further rationalization in Areas 2 and 3 provides a rare opportunity tojointlycoordinate.management ofherring and mackerel with the Mid-Atlantic Council in a positive and proactive manner. I. LIMITED ACCESS PRIVILEGE PROGRAMS UNDER THE MSRA First, this paper explores the legal framework enacted to guide the development of LAPPs, including the special provisions Congress enacted for New England. Then, it analyzes recent legal guidance from NMFSrelating to the relationship between sectors and the MSRA's LAPP standards. This is followed by a discussion ofsome ofthe more promising alternatives to sectors, and as well as listing the myriad important considerations that should guide the Council's choices in Amendment 4. The conclusion is that while much uncertainty surrounds sectors, there are examples ofother LAPPs that have been tested and successfully adopted and which could be tried in the fully utilized Area 1 portion ofthe fishery. Suchan approach could allow the Council more time to take into account operations' co-dependence on mackerel and herring, while avoiding the chaotic and piecemeal approach that is characterizing the groundfish sector development process.
A. LAPPs Under the MSA A limited access privilege is defined as "a Federal permit, issued as part ofa limited access system under section 303A to harvest a quantity offish expressed by a unit or units representing a portion ofthe total allowable catch ofthe fishery that may be received or held for exclusive use by a person; and includes an individual fishing quota,"! 16 U.S.C. § 1802(26)(A), (B). In general, LAPPs are designed for use in fisheries that are overfishedor subject to overfishing in order to end these conditions, to reduce capacity in fisheries determined to have excess capacity, and to promote safety, fishery conservation and management,and social and economic benefits. ld. § (c)(1 )(A)-(C)~ The Atlantic herring fishery is healthy, and capacity was addressed through Amendment 1, leaving only the last three elements, those contained in subsection (C), as potential justifications for undertaking a new allocation program for this fishery. Ofthese, it is important-that any justification for further allocation not be made on purely economic grounds,as such can run afoul ofNational Standard 5.2
Each LAPP must "include an.effective system for enforcement, monitoring, and management ofthe program." ld. § (c)(l)(H). All fish harvested under such a program must "be processed on vessels ofthe United States or on United States soil," although the Secretary may issue a waiver under certain conditions. ld. §§ (c)(1)(E), (c)(2). Each LAPP mustalso provide for transferability that protects against aggregation ofexcessive shares by privilege holders, id. § (c)(7), and a council must consider (though not necessarily adopt) "an auction system or other program to collect royalties for the initial, or any subsequent, distribution ofallocations." Id. § (d). A LAPP program must "provide ... for a program offees paid by limited access privilege
A "person" is defined as "any individual (whether or not a citizen or national ofthe United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws ofany State), and any Federal, State, local, or foreign government or any entity ofsuch government." ld.§ (36). The definition ofan IFQ is essentially identical to that ofa limited access privilege. See id.§ (23).
2 ld. § 1851(a)(5) ("Conservation and management measures shall, where practicable, consider efficiency in the utilization offishery resources; except that no such measure shall have economic allocation as its sole purpose."). Herring Fishery White Paper Page 2 holders that will cover the costs ofmanagement, data collection and analysis, and enforcement activities." Id. § (e). No permit issued under a LAPP shall be issued for more than ten years, although it may be renewed prior to expiration. Id. § (f).
Under a special clause, the New England Fishery Management Council may not propose an IFQ program (nor may the Secretary approve one), .unless such a program has been developed and "approved by more than 2/3 ofthose voting in [a] referendum among eligible permit holders.,,3 Id. §'1853a(c)(6)(D)(i). The law, however, specifically differentiates between IFQs and sectors, the effect ofwhich is to exclude any sector management plan from the need to hold a referendum. Id. § (vi). '
Parenthetically, although the definitions oflimited access privilege and IFQ are virtually identical, each being defined as a permit to "harvesta quantity offish," representing.some portion ofthe total allowable catch ("TAC"), that "may be received or held for exclusive use by a person" (as broadly defined, supran.l), the requirement for the referendum applies onlyto IFQs. Apparently, IFQs are, as is the common understanding, any plan that gives an individual permit holder the exclusive right to fish, lease, or sell a percentage ofthe overall total allowable catch ("TAC"), as in the surfclam/ocean quahog, halibut, and sablefish fisheries. Other forms of LAPPs, such regional fishery associations andfishing community-based allocations (described below), are arguably, ifnot in fact, excluded fromthe referendum provision. This being the case, the specific exemption for sectors in section 1853a(c)(6)(D)(iv) is likely superfluous.
But sectors are not without their own confounding complications. In NewEngland, "sectors" are, by definition, a form ofLAPP4 that appear to be most closely related to what the MSRAdefinesas a "regional fishery association."Bothin the groundfishcontextand in the sector proposal.considered and rejected in Herring Amendmentl,the sector proposals involve issuance of"a permit ... as part ofa limitedaccess... to harvest a quantity offish expressed by a unit or units representing a portion ofthe total allowable catch ofthe fishery that maybe received or held for exclusive use.by a person." Id.§ 1802(26)(A) (statutory definition of "limited access privilege"). In fact, the lawspecifically authorizes Councilsto allow'.'those in a specific sector of[a]fishery" to hold, acquire, or use limited access fishing privileges. Id. § 1853a(c)(5)(E). Because sectors are, ;LAPPsdeveloped (at least in the case ofgroundfishand the Amendment 1 herring proposal) priorto the passage ofthe MSRA, questions exist as to how well they fit with the new law'sprocedural standards and its substantive mandates, which the next section's subject ofdiscussion. .
3 Moreover, the Reauthorization Act requires the Secretary to "promulgate criteria for determining whether additionalfishery participams are eligible to vote.in the NewEngland referendum ... in ordertoensure that crewmell1bers who derive a signifiCant percentageoftheir total incomefrom the fishery under the proposed program are eligible to vote in the referendum." Id. § 183a(c)(6)(D)(v). Until such criteria are developed, it is impossible to predict when and under what conditions crew members will be entitled to vote. 4 See Section I.C for a discussion ofNMFS's legal advice regarding the applicability ofthe MSRA's LAPP provisions to sectors. Herring Fishery White Paper Page 3
For comparison's sake, it is worth explaining how the MSRA defines and describes regional fisheries associations ("RFA"). These are voluntary associations, "located within the management area ofthe relevant Council, ... with established by-laws and operating procedures." Id. § (c)(4)(A)(i),(iii). The criteria for forming an RFA are to be "developed by the Council, approved by the Secretary, and publish in the Federal Register." Id. (ii). While the law is devoid ofspecifics, the members are entitled to hold "quota shares," which are pooled and managed by the association under a plan submitted to the Council. Id. § (iv),(vi). In these respects, sectors are very closely akin to RFAs in the way they are conceived and designed to function.
One major difference, however, is that current sector models are designed to make allocations directly to the legal entities comprising each sector. However, the MSRA states that "a regional fisheryassociationshall not be eligible to receive an initial allocation ofa limited access privilege but may acquire such privileges after the.initial allocation, and may hold the annualfishing privileges that [its] members contribute." Id. § 1853a(c)(4)(A)(v)(emphasis added). It is not immediately apparent that this provision is a barrier to development ofsector plans as currently envisaged-that is, again, a question that is likely to be answered once NMFS issues its guidance.
At a more general, yet related, level, a common theme in the LAPP provisions is that for any such program, the fishery in question should be fully allocated on an individualbasis as an initial step in the process. For example, the LAPP standards require inclusion of"measures to assist, when necessary and appropriate, entry-level and small vessel owner operators, [etc.,] through set-asides ofharvesting allocations ... ." Id. § (c)(5)(C). Provision for the consideration of such set-asides makes no sense outside the context ofa fully-allocated.fishery. More generally, the necessary considerations for making "fair and equitable initialallocations" all relate to fishery-wide factors, suchas current and past harvests, fisheries employment and investment, current fishing community participation, and "the basic cultural and social framework ofthe fishery." Id. §(A),(B). Indeed, it is impossible toimagine any system which allocates to some but not all current participants being considered "fair and equitable." In short, the new standards likely prescribe the unfair sequential allocation scheme proposed in Amendment 1, favoring instead a total allocation offishing privileges, based on a common baseline, to all participants.
To be clear, allocation ofinitial privileges on an individual basis as an initial step in devising an RFA or sector LAPP does not necessarily convert such a program into an IFQ program potentially subject to a referendum. There are models ofmanagement regimes in the North Pacific that Congress might have had in mind when it developed the criteria for RFAs. Under these "cooperative" programs.each.permit holder is allocated a share ofan overall TAC, but this share may only be pooled together as part ofa cooperative's allocation or allocated to a commonpool in which all non-cooperative members would engage inarace for such fish. In neither instance does the managementregime provide an.individual vessel the exclusive right to harvest its share-.which is the sine qua non ofan IFQ-though practically speaking, a cooperative could allocate fishing opportunities (but only among its members) on that basis. Herring Fishery White Paper Page 4
Presumably all these issues will become clearer with further direction from NMFS. In the interim, it is most likely that a herring sectors program must meet the MSRA's new standards for allocating fishing privileges. At the very least, as demonstrated below, the most reasonable approach would be to prepare-any such proposal, and certainly any new type ofLAPP, for herring management in conformance with these standards. The MSRA requires is the subj ect of the next section.
B. The MSRA's Substantive and Procedural Requirements for Allocating Fishing Privileges Under LAPPs As mentioned above, the Reauthorization Actcreates an overarching scheme for allocating fishingprivileges under any LAPP. Congress used mandatory language-"a Council or the Secretary shall establish procedures to ensure fair and equitable initial allocations'f-c-in defining the Council's duties with respect to development ofsystems for allocating the rights to harvest fish under LAPP programs such as sectors. [A similar non-discretionary duty arises with respect to the creation of"a policy and criteria for the transferability oflimited access privileges (throughsale or lease), that is consistent withthe [allocation] policies adopted by the Council ... ." Id§ 1853a(c)(7).] The objective is to have a well-developed set of standards and processes in place to guide decisions on how to make allocations underpinning a sector or other LAPP, and a consistent set ofpolicies in place to govern subsequent transfers ofrights, that meet objectives required by Congress."
All LAPPs are subject to the same set ofconsiderations when making initial allocations offishery resources. These criteria differ.in many significant ways from the general allocation standards under which Councils have operated for years. Itis therefore worthwhile to reproduce them here in full:
(5) ALLOCATION.-In developing a limited access privilege program to harvest fish a Council or the Secretary shall- (A) establish procedures to ensure fair and equitable initial allocations, including consideration of.- (i) current and historical harvests; (ii) employment in the harvesting and processing sectors; (iii) investments in, and dependence upon, the fishery; and (iv) the current and historical participation offishing communities;
5 16 U.S.C. § 1853a(c)(5)(A). 6 Another area ofuncertainty is whether Congress intended for Councils to develop a general setofcriteria to govern allocations across all fishery management plans, or whether these policies are to be established on a plan-by-planbasis. Either approach is likely within the scope ofthe law and equally viable. This is yet another issue on-which NMFS'santicipated guidance would be ofgreat interest and benefit to the Council as it moves forward. Herring Fishery White Paper PageS
(B) consider the basic cultural and social framework ofthe fishery, especially through- (i) the development ofpoliciesto promote the sustained participation ofsmall owner-operated fishing vessels and fishing communities that depend on the fisheries, including regional or port-specific landing or delivery requirements; and (ii) procedures to address concerns over excessive geographic or other consolidation in the harvesting or processing sectors ofthe fishery; (C) include measures to assist, when necessary and appropriate, entry-level and small vessel owner-operators, captains, crew, and fishing communitiesthrough set-asides of harvesting allocations, including providingprivileges, whichmay include set-asides or allocations ofharvesting privileges, or economic assistance in the purchase of limited access privileges; (D) ensure that limited access privilege holders do notacquire an excessive share of the total limited access privileges in the program by-. (i) establishing a maximum share, expressed as a percentage ofthe total limited access privileges, that a limited access privilege holder is permitted to hold, acquire, or use; and (ii) establishing any other limitations or measures necessary to prevent an inequitable concentration oflimited access privileges; and (E) authorize limited access privileges to harvest fishto be held, acquired, used by, or issued under the system to persons who substantially participate in the fishery, including in a specific sector ofsuch fishery, as specified by the Council. ld. § 1853a(c)(5). Worth special mention are the provisions which require the development of procedures designed to ensure consideration ofthe processing sector's needs, investment in the fishery, and measures to prevent "excessive geographic ... concentration" in the harvesting and processing sectors.
These new standards are much broader than those that apply to limitedaccess systems generally (see id. § 1853(b)(6)), under which Amendment 1 was developed. Applying those latter-referenced standards,the Council found that it would have been inequitable and legally suspect to exclude the new retrofitted vessels associated with shoreside plants from Area lA and the herring fishery more generally." Ifanything, the new LAPP standards provide an even stronger legal basis for ensuring continued resource-wide access for all participants under any new allocation scheme.
7 Indeed, the general allocation standards also have been strengthened. The MSRA added a provision requiring "the. fair and equitable distribution ofaccess privileges in the fishery" under any type oflimited access system. ld. § 1853(b)(6)(F). Herring Fishery White Paper Page 6
C. Analysis of the Northeast Regional Office's Advice on Sectors Vis-it-Vis the New MSRA LAPP Standards On September 12,2007, NMFS's NortheastRegion office sent a letter to New England CouncilExecutive Director Paul Howard expressing a legal opinion that TAC-based sectors in the New England multispeciesfishery were likely not LAPPs under the MSRA. (Attached as Exhibit 1.) The upshot ofthe advice is that Council need not follow the MSRA's standards or procedures governing LAPPs explained above, at least in the context ofthe development of groundfishsectors. The Council should be cautious in charting such a course as it considers any new sector proposal, particularly for the herring fishery which does not have the days-at-sea overlay.
The primary reason for caution is not thatthe agency's interpretation is necessarily wrong or unreasonable. The concern should be that a 'court oflaw, not NMFS, will be the final arbiter ofwhether ornotany regulations implementing a sector program must comply with 16 U.S.C. § 1853a. The sector development process ingroundfish has been particularly contentious and is likely to leave some parties dissatisfied, meaning a realistic.possibility ofjudicialchallenge exists. Given that, there is some risk that by not applying LAPP standards to sectors, the resulting program could be overturned and the process would have to begin anew. Conversely, assuming that sectors are LAPPs and following the law's standards and processes insulates the final product from an easy and obvious legal argument.
This should be a matter ofgreat concern, moreover,because NMFS's legal analysis may not be the most sound interpretation. 'The opposing argumentwould begin by noting thatthe MSRAspecifically identified and exempted a "sector allocation for which the Council has .taken final action ..•. within six months after the date ofenactment'.' from the requirements ofthe MSRA section 1854a, whi.chsetsoverallstandardsforall LAPPs.. IfCongress did not consider a sector allocation program to.be a LAPP,it would not have-needed to include sector allocations, along with individual quota programs and.cooperative programs,.intheseLAPP "transition rules.t" The fact that Congress carved out this •limited exception for sectors is .. strong evidence that it did notintend to create the more sweeping exemptionthat NMFS claims.
Further, sectors are not, as the Regional Office seems to allude, simply a matter of administrative convenience supporting a private contractualrelarionship. See Exh. 1 at 2 ("[T]he TAC assigned to sectors is a management restriction on a group ofvessels, not a permit to harvest fish that can beheld for the 'exclusive use bya person.'''). The agency's argument rests on two propositions: (1) that "no Federal permit [is] issued to the sector" and (2) that a sector "does not clearly qualify as a 'person' eligible to hold a LAPP under section 303A(c)(1)(D)." Id. NMFS thus views the process by which sectors operate as an administrative sequestration offish forthe benefit ofa group ofvessels. The proposition seems-to be thatwhile the sector holds the exclusive right to harvest a setportion ofthe overall T AC,itis the vessels forming the sector which are granted a "letter ofauthorization" ("LOA") to harvest the fish in accordancewith the
8 Similarly, ifCongress did not consider sectors to be LAPPs, it was unnecessary to create the specific exemption from the New England referendum found in section 1853a(c)(6)(D)(vi). Herring Fishery White Paper Page 7 contractual arrangement. Followed to its logical conclusion, sector allocations would not be governed by any MSA standards whatsoever.
Courts tend to disfavor such hyper-technical reasoning, particularly when it appears that an agency is seeking to evade procedural requirements and public protections provided for by law. More importantly, this reading ofthe law is inconsistent with the MSA. The fact that sectors are not issued a permit under the groundfish rules is oflittle relevance to the determination ofwhether sectors provide a "limited access privilege," which is defined inthe law, whereas "limited access privilege program" is not. A limited access privilege is a "permit ... held for exclusive use by a person." 16 D.s.C. § 1802(26)(A). In the groundfish context, the privilege is assigned by NMFS via an LOA to vessel owners - clearly "persons" under the MSA - who are part ofan entity that is assigned exclusive rights to harvest a portion ofthe TAC. While an LOA is distinguishable from a fishing permit for agency purposes, the distinction is not relevant to legal definition of"permit,"which is "a certificate evidencing permission." BLACK'S LAWDICT. at 1160 (7th Ed. 1999). By contrast, the section cited by NMFS, 16 U.S.C. § 1853a(c)(1)(D), relates to prohibitions on who may acquire the privilege under the limited access privilege program; i.e., an American "citizen, partnership, or other entity" formed under federal or state law, and permanent resident aliens. 9
In New England, a Sector Allocation Plan is subject to Administrative Procedure Act rulemaking requirements, each sector participant receives a formal LOAfrom NMFS to participate in sector fishery operations, and each sector is granted the exclusive right to harvest a portion ofthe overall TAC. •See generally 50 C.F.R. § 687.87. Violation ofthe terms and conditions ofthe Sector Allocation Plan and Letter ofAuthorization, moreover, are treated as a "permit" violation, subject to the MSRA's civil and criminal penalty provisions. 16 U.S.C. § 1853a(b)(1). Most tellingly, the MSRA specifically provides for the development ofsector programs as provided under the groundfish regulations and envisioned in Amendment 1, by authorizing "limited access privileges to harvest fish to beheld, acquired, used by, or issued under the system to persons who substantially participate in the fishery, including in a specific sector ofsuch fishery, as specified'bythe Council." Id. § (c)(5)(E). By the "duck test,,,IO the right to participate in a sector isa limited access privilege, and program implementing them is a LAPP. . .
All this is not to conclusively demonstrate thatsectors are LAPPs, or would be considered to be so by a court called upon to make such a judgment. Rather, the purpose is to demonstrate that substantive, and even compelling, arguments can be made to support a finding that sectors are governed by the LAPP standards established under the MSRA. The risk averse
9 Parenthetically, any entity operating tinder a contractual relationship necessary to form a sector is likely a de jacto(ifnot explicit) "partnership or other entity" under any state's laws. Groups ofcompanies and/or individuals banding together to form a joint enterprise to manage an allocation offish under rules ofjoint and several liability would be unwise not to seek protection under a state's laws governing business associations and corporations. However, nothing in the MSA should or does tum on what business arrangements such groups make.
10 "Ifit looks like a duck, walks like a duck.and quacks like a duck, it's a duck." Herring Fishery White Paper Page 8
approach to sector development would be simply to apply these standards to the development of sector proposals. An even more precautionary approach would be to apply these standards to existing and proven methods ofallocating fishing privileges.
D. Discussion of Issues Related to the New Standards and Development of LAPPs or Other Programs in the Atlantic Herring Fishery Apart-from any question ofwhether sectors are LAPPs, the sector development process should not be used to exclude midwater trawlers and the owners ofsuch vessels from Area 1 or otherwise to institute geographic-based exclusions (even defacto exclusions) against certain pelagic fishermen that foreclose reasonable opportunities to harvest and process herring. The New England Council should also tread cautiously in herring sector development, investigating other models forallowing flexibility in this fishery, such as those employed in the North Pacific region. The advantage offollowing the methods already tried and implemented is that it avoids many ofthe thorny legal questions and confusion which has attended the groundfish sector development process.
In this regard, uncertaintyin allocating fishery privileges in the herring fishery will be most pronounced in Areas 2 and 3, where the TAC has yet to be fully utilized and the fishery overlaps to a.significant extent with that for Atlantic mackerel. These uncertainties include what constitutes a "fair and equitable" distribution ofthat portion ofthe TAC that has remained unused while still providing a means for this fishery to develop, as required by the Herring FMP and the MSA. Fortunately, there is no great pressure to institute a new herring allocation program justone year into the newlimited access program established underAmendment 1. This affords the Council an opportunity to develop a discrete program.for Area 1,. where the needs for further rationalization are much more pronounced, shouldit decide to proceed with any type ofLAPP program atall.
Moreover, investigating other management approaches, such as the cooperative programs used for fisheries ofsimilar scale to the Atlantic pelagic fisheries, may well help to prevent the same level ofuncertainty and even acrimony which has arisen during the development of Multispeci~sArnendment16. That alone appears to have led the Council to vote to defer indefinitely sector development in the limited access. scallop fishery.. Moreover, debate and deliberation over these. imPlementation difficulties have•slowedthe groundfishamendment development process to the. point that NMFS.·has .threatened to.establish.a secretarialamendment to develop groundfish rebuilding measures, ACLs,and AMs. By the sametoken, a similar debate in the herring.sectorwouldlikely delay, and possibly derail, Amendment 4's.important monitoring and ACL and AM development objectives.
1. Amendment 1's Sector Plan is a Poor Model From Which to Develop Any New LAPP Program The conceptofsectors as a means for managing the herringfishery was considered and rejected for inclusion in Amendment 1 in January 20Q6. The rationale for postponing action on this issue was stated as follows, .andthe concerns raised are equally applicable today: Herring Fishery White Paper Page 9
The Council was uncomfortable with some ofthe details ofthe process and the uncertainties associated with the long-term impacts, particularly in Area 1A where the potential exists for a small number ofvessels to monopolize the quota. There was significant concern about the impacts ofsector allocations on smaller vessels that have historically depended on 1A fish and qualify for a limited access permit in this amendment. The. Council determined that the most appropriate course ofaction for this fishery is to implement a limited access program in all management areas and address quota allocations in the future through a separate action.
Amendment 1, § 5.2.12, at 77. Subsequently, Congress passed the ReauthorizationAct which, as mentioned, established new procedural requirements and standards for programs ofthis type, and which otherwise modified the criteria to be considered when allocating fishery resources.
Similar to the sector development plan currently underway ingroundfish, the rejected herring proposal would have allowed groups to form and propose unique management structures and petition for an allocation ofherring that would be managed according to individual operations plans. Any group oftwo or more permit holders could form a sector, and those who could not find sector partners or who preferred not to join would forced into a common pool. Sector applicants were to be responsible for drafting appropriate NEPA documentation analyzing the expected environmental impacts oftheir proposal.
Some ofthe drawbacks and pitfalls ofthis approach are becoming obvious as the industry and Councilgain moreexperience with this untested form ofmanagement. For instance, in the groundfish context, sector applicants have been forced to make decisions about howto structure their proposals and operating structures ahead ofknowing what allocation decisions will be made or what "common rules" will govern the fishery that will apply to each sector. The parallel development ofsector proposals and the ground rules governing the fishery have proven inordinately complex.
The allocation scheme in Amendment 1 is similarly problematic from both practical and legal standpoints. The rejected scheme would have allocated area-based fishing quotas, sector by-sector as proposals come in, based on an average ofthe best three years since 2001. Allocating quota on such a basis would cheat late forming sectors and those stuck in the common pool because early entrants would lockin higher than average quotaleaving progressively less fish as new sectors are formed. Those in the common pool Would be left with remnants far below their average catches.II From a: legalstandpoint, nothing in the rightlyrejected
11 This factis acknowledged in Amendment 1 (see Am. 1 at82 (noting that it might "seem unfair" that groups with identical landings would be allocated different amounts ofTAC)), but it is inexplicably not considered problematic. Thejustification was that non-sector vessels have a choice to remain in the common pool to try to achieve a higher three-year average to secure a greater sector allocation (although with declining allocations, vessels would have to catch increasingly more just to get a similar share as the first sectors). What is unrecognized by the analysis is that this is a prescription for a massive race for fish in the common pool, creating a counterproductive and potentially hazardous derby, all for diminishing returns in both fish and Herring Fishery White Paper Page 10
Amendment 1 allocation scheme takes into account the statutorily mandated factors, including the needs ofprocessors and protections against geographic concentration ofquota shares. It also likely runs afoul ofthe MSA's new "fair and equitable" standard.
Amendment l's whole approach to sectors is fraught with complexity and inequities. This system is, by design, guaranteed to lead to a hodgepodge ofidenticallysituated vessels fishing under different rules, subject to different monitoring andreporting systems, and fishing allocations that are distributed on an unequal basis. To say the least, sectorswill provide a serious enforcement challenge. It also favors better funded and more.organized groups ofpermit holders who can retain the technical assistance necessary to prepare NEPA documentation and sector agreements. Most importantly,the move to sectors based on a modeldevelopedbefore the MSRA's enactment will very likely undo the well-considered and balanced limited access decisions made in Amendment 1, while still failing to measure up to law's requirements.
In particular, many ofthe proponents ofherring sectors are those with the mosthistory in Area 1A. The reason for this is clear.. With the ability to form sectors solely among themselves, these permit holders could lay claim to nearly the entire allocation ofherringtotal allowable catch ("TAC") allocated in this area. This would deny access to vessels associated with the herring processing plants that were provided access tothe area underAmendment 1. As members ofthe industry noted duriIlg that amendment's development, such access is acritical component ofthese plants' continued success.•Allowing such concentration is inconsistent with the MSA's LAPP provisions and preventing it should remain one ofthe Council's chiefconcerns as it moves forward with analysis ofany new management measures.
In sum, the Councilshould think carefully about the pros and consofeitherimportingthe groundfish sector process into the.herring amendment or moving forwardwith thepre-MSRA sector plan in Amendment 1. Certainly onelessonlearned over the pastyear or so is that, given this is an entirely new form ofmanagement, many unexpected complications arise as the theory is put into practice. Meanwhile, as explained below, there are many tested methods for achieving the same results which have been proven effective and popular overtime.
2. There Exist Proven and Feasible Models for Allowing Flexibility that Can Be Developed Consistent with the New Legal Standards A carefully considered and designed LAPP for pelagic fisheries canavoid some ofthese pitfalls and practical constraints-.One.model worth investigating is the North Pacific Council's recent programfor trawlfishennen in the Bering.SealAleutian Islandsgroundfish fishery. That program is similar to sectors in that allocations are made to individual vessels which can then bring thathistory into a cooperative to be fished by whatever meansmakes the most economic sense (while also providing general rules limiting the amount ofconsolidation that can occur and
long-term shares. Such a derby would be most intense.and have the most negative consequences, in Area 1A. Herring Fishery White Paper Page 11 other similar provisions). Those who chose not to fish in a cooperative, or are unable to find partners with whom to co-op, bring their allocation into a common pool.
The major difference, however, is that everyone in the fishery operates under the same rules, with standardized monitoring and enforcement measures. Allocations were made for all directed and incidental catch species at the same time with a common baseline that took into account both historical participation and dependence on the stocks. Permit holders, armed with certain knowledge as to the percentage ofTAC they were permitted to harvest, couldthen negotiate with others to form cooperatives with others, subject to rules to avoid formation ofan unmanageable number ofco-ops, to jointly harvest the sum ofall members' shares.
There.are, however, other factors which limitthe.Council's ability to attempt to simply duplicate a program suchas this one. For one, all species in the North Pacific have been under hard TAC management for a long time and all fisheries are fully utilized. A complex set of regulations have been developed over time forallocating directed, incidental, and prohibited species catch to which the industryhas had years to adjust. Perhaps the most stark difference is that no fishery in the region is overfished, and so incidental catch allowances are not as constraining as they are likely to be in New England.
That said, an opportunity exists to attempt, through Amendment 4, to develop an MSRA compliant cooperative program-.soin,~what ofa pilot program-for Areas 1A .and 1B. This sub region is amenable to separate management because it.is governed by a distinct TAC. It.is also fully utilized, allowing for afull allocation in line with the legal standards. The challenge, however, will be to develop a fair and equitable system to distribute harvesting privileges that maintains the delicate balance struck in Amendment 1 and which incorporates all the new standards imposed by the Reauthorization Act. These include weighing and balancing such considerations as recentinvestment in a fishery with historical participation, the needs of processors vis-a-vis harvesters, and what thresholds constitute excessive geographic concentration.
This is an idea worth exploring. The Herring Committee should see this as an opportunity to blaze a new path in New England fisheries management.
3. Summary of Discussion and Additional Considerations The Council should strive to avoid an ill-conceived rush downthe path to sectors in the herring fishery by instituting a deliberativeprocess to determine whether sectors or any other type ofLAPP are an. appropriate management tool for the Atlantic herring fishery. Thesepoints should be considered as before the Council gets too invested in thesector development process to the exclusion ofinvestigation ofother, more readily adoptable management approaches:
• The Council should learn from the.experience gained in developing groundfish sectors before embarking on development ofnew sector proposals in other fisheries. Indeed, it appears the Council on February 12, 2007,just voted by a 2-1 margin to strip sectors from the next major scallop amendment, because ofuncertainty regarding sectors' complications. Herring Fishery White Paper Page 12
• The Council and NMFS have limited resources and a large regulatory agenda over the next couple ofyears. Not only are they dealing with groundfish sectors, but they must establish a new rebuilding trajectory and management measures for the fishery in order to meet the terms ofAmendment 13. They must also develop amendments to all regional FMPs to meet the new legal requirements under the MSRA, such as establishing annual catch limits and accountability measures. They also have other big challenges, such as finalizing the long-delayed OmnibusEssential Fish Habitat Amendment,and dealing With monitoring issues in the herring fishery - a matter whichwill be.complicated by the need to coordinate limited observer resources across all fisheries (especially ifnew demands are created by groundfish sector monitoring) as required by the newly adopted Standardized.Bycatch Reporting Methodology Amendment. These factors put a premium on consideration ofproven and readily adaptable forms ofmanagement. • Although the experience gained in development ofgroundfishsectors will afford some experience in developing a model that may be transferred to design programs in other fisheries, this process will not provide a perfect model. For example, part ofthe difficulty in multispecies relates to the need to consider the sector development provisions ofAmendment 13, while also trying to incorporatenew legal standards, including and beyond the LAPP provisions. This has ledto confusion and piecemeal development which should be avoided in any new allocation process designed from scratch. • The Council should avoid either sector or LAPP managementin the portions ofthe herring fishery which. are.not fully utilized. Questions as to how to allocate privileges inAreas 2and3aremuch more complex than in Area 1. Starting in Areal wherethe resource conflicts are m~ch morepionounced will help provide a model for future management in the otherregions.
• Postponing further allocations inAreas 2 and 3 will give the herringindustry time to adjust to the AmendiTIent 1 management regime and find its equilibrium. Moreover, waiting todevelopsome type ofLAPP program in the offshore and southern reaches ofthe fishery offers the New England and Mid-Atlantic. Councils opportunities to integrate herring and mackerel manage in order to meet important MSA objectives. • Finally, no new initiatives forArea 1, involving sectors, cooperatives, or some other form ofLAPP, should upset the delicate balance ofinterests the Council undertook in developing Amendment 1.
These final points are the subject-ofdiscussion in the next two sections.
H. THE RECENT DEVELOPMENT OF THE HERRING FISHERY REPRESENTS AN IMPORTANT CONSIDERATIONIN ANY SUBSEQUENT HERRING SECTOR OR OTHER LAPP DEVELOPMENT PROCESS Amendment 1 is not yet one yearold, having only become effective.on June 1,2007. This amendment marked a significant shift in the management ofthe herring fishery, such as by Herring Fishery White Paper Page 13 instituting a limited access system, readjusting stock area boundary lines, and, most importantly, effecting dramatic changes to the regulations governing the vital and fully subscribed fishery in Area 1A. Specifically, the new rules prohibit midwater trawlers from operating in Area 1A between June 1 through September 30 each year. As a result, industry participants and herring markets are still adjusting to the new regime.
In its overall approach to the management ofthe Atlantic herring fishery, the New England .Council adopted a carefully designed program specifically tailored to this maturing fishery. Among the issues facing the Council was the fact that while the Area 1 TAC has been fully utilized in mostrecentyears, harvests in Areas 2 and 3 have fallen far short ofsustainable levels (indeed, TACs are set at what can be characterized as overly precautionary levels). Moreover, in part in.response to the Herring FMP objective ofexpanding the domestic value added production, companies like Norpel, Cape Seafoods, and Lund's Fisheries made significant investments in processing facilities and vessel retrofits to be able to produce food-grade herring and mackerel. The Council.In Herring Amendment 1, recognized that the strict adherence to a stale control date would not foster these goals, and also responded to arguments that the ability to fish in, particularly, Area lA was a small, but critical, part ofthese businesses' successful operation.
The Council also responded to concernsraised by certain vessels that have historically fished in the.GulfofMaine by instituting a summertime ban on the use ofmidwater trawl gear in Area 1A, running from June 1 to September 30 each year. It was justified as a "precautionary" measure designed to address concerns ofpotential "localized depletion" and to indirectly achieve a number ofconservation objectives. See 72 Fed. Reg. 11252, 11258-59 (March 12, 2007). This ban, however, did not preclude vessels that otherwise qualified for.access to this area from retrofitting from midwater to purse seine. gear and fishing during this season. While some vessels attempted this switch in2007,it is unclear what adjustments fishermen.may make in the future basedon only one season fishing under the Amendment 1.regime.
Generally speaking, outside ofthe bait and Maine sardine fishery, the herring industry is in its infancy. Prior to 2001, the only domestic herring processing plants were in Maine (two canning plants) and Cape May, NJ (a mackerel/herring/squidfreezing plant). In recent years, particularly since the advent ofAmendment 1, herring is becoming more important to the plants in the southern range. In 2001,Cape Seafoods, Inc., in Gloucester came on line to take advantage ofthe vastly underutilized Atlantic herring resource. Even prior to the development ofthis plant, the foundersofthis.business initiated the conversion oftwo former scallop vessels (F/V Endeavour andF/VChallenger) to serve as RSW-equipped mid-water trawlers in the herring fishery in 1999. Following closely on the heels ofthis development, Norpelleased facilities in New Bedford in July 2002, and built out a similar herring/mackerel processing facility that began its operations in December ofthe same year. The total cost ofdevelopment was in the neighborhood of$5 million.
As with Cape Seafoods, the business plan for the Norpel operationincluded the conversion oftwo large, dedicated vessels to supply the facility. The F/VDona Martita was fitted with tank liners and a RSW system in 2002 and underwent other conversions totaling about $1.1 million in order to begin delivering food-grade fish to the plant at the time it opened. Herring Fishery White Paper Page 14
Shortly thereafter, the F/VNordic Explorer underwent a similar conversion at a similar cost and began delivering product to Norpel. These businesses are currently producing whole, frozen, food-grade herring and mackerel. They are also major suppliers offresh herring and mackerel to the bait markets, and supply fresh herring to the domestic sardine cannery.
The 1999 herring control date was considered to have lost its utility by the time the Council voted in 2006 to adopt limited access for the herringfishery due to passage oftime and the investments these companies made, with government encouragement. .As a result, the Council, through Amendment 1,struck a delicate balance with respect to Area 1 by choosing a qualification period that balanced historical participation with recent investment and dependence on the fishery. In some respects, the.push by some participants in the northern range ofthe fishery to hasten implementation oftheir sector plan for herring is in actuality an.attempt to get the Council to revisit these decisions. This would be a step backward for the Council, a legally suspect one at that.
Rather;any new proposals for Area 1 should be approached with the same care and level ofreflection that characterized the decisions the Council just recently made in Amendment 1. Additionally, anynew allocation system mustfully integrate new LAPP standards, which include honoring the.Massachusetts- and New Jersey-based shore plants' dependence on andinvestment in the fishery. It is a delicatebalance, but one .whichis well within reach.•At the.same time, there is no commensurate pressure to •. add to the cornplexity ofthe taskbyattempting to complicate the matter by seeking to craft a one-size-fits-all programthat worksequally well for the fully subscribed fishery in Area 1 and the under-developed portions ofthe hering fishery in the remaining management areas.
III. TheR.elationship Between. the Herring and Mackerel Fisheries While herring is a critical fishery in its own right, reasonable access to mackerel is vitally important-to many companies, as-well, (The converseis also true. In the mid-Atlantic, rnany primarily mackerel vessels rely on herring as an importantcomponent Of the fishery.) While it is hard to argue with the logic ofthe decision to allocate authority over herring to the New England Council and mackerel to the Mid-Atlantic Council, giventhatthe "epicenter" ofeachfishery falls within each Council's respective jurisdiction, it is nonetheless problematic.. Given the co dependence most ofthe large herring and mackerel vessels have on access to the other species, particularly in Areas 2 and 3, and giventhateach can be and frequently are caught together, it would be helpful ifmanagement ofthetwo fisheries (oratleast allocations)wereatleast coordinated. To date, this has not been the case.
There are stronglegal arguments for moving toward a coordinated approach. While often overlooked, National Standard 3 states: "To the extent practicable, an individual stock offish shall be managed as a unit throughout its range, and interrelated stocks offish shall be managed as a unitor in close coordination." 16 HS.C.§ 1851(a)(3} (emphasis added). This legal preference for close coordination, ifnot outrightjointmanagement, ofsuch "interrelated stocks offish" argues foramore rational approach to this mixed fishery.
One ofthe greatest current disconnects relates to the fact.that mackerel remains an open access fishery, albeit one with a control date ofJuly 5, 2002, which was "reaffirmed" by the Herring Fishery White Paper Page 15
Council in 2005. 70 Fed. Reg. 33728 (June 9, 2005). Ofcourse, as NMFS stated in response to Amendment 1 comments regarding its obligation to use the control date it established for the Atlantic herring fishery:
Control dates are set to alert the fishing community to the possibility, not the certainty, that vessels thatenter the fishery after thatdate mightbe.treated differently than vessels that were in the fishery prior tothat date, in the event that a limited access program is implemented. However, a Council is under no obligation to use the control date in establishing criteria fora limited access program. Ifa Council decides to.develop a limited access program, the program must comply with the requirements ofthe Magnuson-Stevens Act outlined insection303(b)(6). These requirements include theneed to take into account the present and historical participation. With regard to herring, .the Council was aware that new vessels had entered the herring fishery since the September 1999 control date and were fishing for herring in various management areas. One ofthe goalsand objectives ofAmendment 1 is to, "provide, to the extent practicable, controlled opportunities for fishermen and vessels in other Mid-Atlantic and New England fisheries." Due tothe nature ofthis fishery and recent developments in shoreside processing, the Council determined thatactive.participants up through 2003 with significant landings should be accommodatedin at least some management•areas. NMFS concludes thatthe COuncil selected eligibility criteria consistent withthe requirements ofthe Magnuson-Stevens Act.
72 Fed. Reg. at 11259-60 (March 12, 2007). For its part, the mackerel control date isbecoming increasingly stale, and the Mid-AtlanticCouncil is not making much headway on Squid, Mackerel, Butterfish FMP Amendment 11, which is to establish a mackerel limited access system. Once this is established, however, there will be mackerel-qualified vessels that do not qualify for limited access herring permits. Lack ofadequate access to herring by vessels primarily fishing mackerel, and mackerel by herring vessels will lead to waste and economic losses. Thus, not onlyis there an opportunity to insure thatthe eachFMP fully integrates the needs ofherring/mackerel fishermenand shoreside operations, but a strong, MSA-based reason for working towards this objective:
However, a move towards a sector approach in herring by the New England Council is not likely to be matched by the Mid-Atlantic Council, which appears to be somewhat more skeptical ofthis type ofmanagementsystem. As a result, a precipitous rushto sectors through the full range ofthe herring fishery could drive management ofthese two species in different directions. This could further complicate compliance for vessels with permits and significant operations in each fishery.
Ideally, the two councils would work along parallel lines to create complimentary, ifnot highly integrated, LAPP programs thai could potentially create tremendous efficiencies and conservation benefits in these two fisheries. The best prospects for ultimately unified or at least closely coordinated management lay in utilizing a management scheme like cooperatives, which are not only provento work in a multispecies fishery, but which are more uniform and flexible. Herring Fishery White Paper Page 16
By taking the lead and investigating such options for Area 1, the New England Council could establish a model that is more likely to find acceptance by its counterpart, which is well aware of the difficulties engendered by the sector debate.
Uniform management schemes could help to minimize bycatch and discard concerns and enable the industry to harvest the total allowable herring and mackerel catches with less capacity. It is unrealistic, however, to expect that this can be achieved in the short run. The prudent approach would be forestall further rationalization in Areas 2 and 3 for the time being. Instead, the Herring and Mackerel Committees should work jointly to investigate complimentary management approaches.
V. CONCLUSION There are myriad strong reasons to avoid the difficulties ofsectors in Amendment 4. On the other hand, by focusing on Area 1 and considering the use ofproven methods currently existing and highly successful in managing fully utilized fisheries, the Council could provide a model for further management ofthis and other northeastern regional fisheries. Deferral of further allocation battles in Areas 2 and 3, moreover, will help streamline the process, and assist the Council in achieving the long-term goal ofintegrating management ofthe herring and mackerel fisheries. . EXHIBIT 1 3. MULT/SPECIES (GF) (September 18·20. 2007)
UNITED STATES DEPARTMENT OFCOMMERCE NaUonal OCeanic andAtmoupherlc Administration NATlONALMARINE FISHERIES SERVICE NORTH'EAST REGION OneEllad\bIlrn Olive GIouc85l8r. MA01S30-2298 :#1
SEP 12 ,. ~ ""':'~'n .",." _.<:.,...... Paul J. Howard f5).. I~ Ii· I~HI I~ 1m Executive Director ij ~ ~ ~ ... ~ W NewEngland FisheryManagement Council 50Water Street SEP 122007 Newburyport, MA 01950 NEWENGLAi';J t ISHERY DearPaul: MANAGEMENT COUNCIL
I recently (August22, 2007)sentyoua partialresponse to yourletterofJuly 2,2007, in which youposedfourquestions regarding how sectorsareto betreated underthenew limited access privilege program (LAPP) requirements of the Magnuson-Stevens Act (MSA) Reauthorization Act(MSRA). Reviewof all ofthe issues has now been completed, and Leannowprovide you answersto the otherquestions you posed.
Question: AIesectors, as implemented by this [Northeast Multispecies]FMP, consistent withthe term"sectorallocation" used. in section303A(c)(6XD)oftheMSRAandexempt fromthe requirement to holda referendum beforesubmission?
Answer: MSRA sections 303A(c)(6)(D)(i) and(vi)require a referendum for individual fishing quota(IFq) programsbutprovide that an IFQ doesnot"forpurposes of the. referendum requirement, include a "sectorallocation.". MSRA section 303A(h) provides that nothing inthe MSAor MSRA shall requir
Question: Are sectorallocations, al> implemented bythis FMP,considered LAPPs and thussubjectto theLAPPprovisions ofMSRA?
Answer: •Sectorallocations. as ctu'Iently implemented by the Northeast Multispecies FMP, do notappearto be LAPPs. Whetheranynew,proposed"se.ctor allocation" would be considered a LAPP is a fact-based. questionthat wouldneedto'be' reviewed as prOposals dev~lop.Se.ction 3(26) of theMSRA, 16U.S.C. 1802(26), statesthat a "limitedaccess privilege":
(A)Means a Federal perroit, issued as partofalimitedaccesssystemunder section303Ato harvest a quantity offishexpressed by a unitor unitsrepresenting ~ /~•,,, ~ ~ . """ ,.-;,- t";~...., a portion ofthetotal allowable catchof the fishery thatmaybe received or held for exclusive usebya person; and (B) Includes an individual fishing quota; but (C) Does not include community development quotas as described in section 30S(i).
Under the multispeciesregulations, a "sector"is "a group of vessels thathave voluntarily signed a contract andagree to certain fishing restrictions, andthat have beenallocated a portion of the TAe[total allowable catch] of a species, or an allocation of DAS[days-at- . seaJ." 50 CFR648.2.. A DAS sector, on its face, does notappear to be aLAPP because ~t doesnotinvolve theallocation of a specific quantity of fishor a portionofthe TAC. NMFS'slongstanding positionis thatinputcontrols suchasDASare not the equivalent of quantities of fish or IFQ~. Therefo~e, sectors allocating DAS. would notbe subject to theIFQor Lt\PP provisions ofthe MSRA.
A TAC-based sectorallocation alsodoes notappear to be a LAPP, becauseit doesnot involve issuance of"Federal permit, issued as partofa limited access systemunder . 'section303A toharvest a quantity of fish. expressed bya unit.or. unitsrepresenting a portion ofthe totalallowable catch'ofthe.fishery thatmaybe received orheldfor exclusive useby a person." As notedabove, a "sector" underthe. multlspecies regulations' isa contract arrangement amonga group of vessels, andNMFS implements sectorallocations through framework adjustments and. otherregulatory actions ..• See.e.g., 50 CFR648.87(a)(2)and 6.48.90(a)(2). There is noFederal permitissuedto the "sector" per se.: Rather, theTA,C assigned·to:.sectorsunder themultispecies.regulations.is a management restriction ona group ofvessels, not ~ permit to harvest fish that Can beheld . ~or "exclusive usebya person." .
A "sector," as defined in them:ultispecies' regulations,also·does notclearlyqualify as a "person" eligible to hold.aLAPPundersection303A(c)(I)(P).. OnlyaU.S.citizen, corporation, partnership, orotherentityestablishedunder.F'ederai or statelaw, or a permanent residentalienmayhold LAPPs. MSRAsection 303A(c)(l)(D). Agroupof vessels undera voluntary contract-arrangement does notseemto fall wi1h.in the definition of "pers~:>n" as thattermis usedinthe MSRA.
. AS a.finalnote, yourlettersuggested that sectorallocations couldbeinterpreted to be limited.access privileges, because limited access privileges aredefined as "Federal permits" (MSRA section 3(26» andMSRAsection303A(b)(1) refersto quota shareand . othermeasures as"permits." •Asa clarification, section 303A(b)(l) ~fers to three categories ofmeasures.thaetshaltbeconsidered apermitfQrthe purposes of sections
307,308,and.309,nor in other words, forenforcement purposes e . The categories are . .quotashare, otherlimited access system authorization; andlimited accessprivilege.. As notedabove, limited access privilege has itsown, separate definition thatincludes the term"Federal permit," 'However; "limitedaccess system"isnot defined as a'tFederal permit" and"quotashare"is notdefinedat all.SeeMSRA section 3(27). WhlleMSRA section 303A(bX1) specifies that thethree categoriesofmeasures are permitsforthe
2 specific purpose of enforcement. this doesnotnecessarily mean thatallquotashares and otherlimited access systemauthorizations are limited access privileges.
. Forall of these reasons. the conclusion thata sector as currently provided for in the multispecies regulations is not a LAPP undertheMSRA isthemostlegally reasonable and supportable interpretation.' ."' ,..
I hopethese responses willbe helpful to youand the, Council as youconsider additional sectors inNewEngland fisheries. '
Sincerely. Go:b~~ Patricia A. Kurkul Regional Administrator
3 June 30, 2008
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930 [email protected]
RE: Herring Amendment 4 Scoping Comments
Dear Ms. Kurkul,
On behalf of the Herring Alliance please consider these scoping comments for Amendment 4 to the Atlantic Herring Fishery Management Plan (FMP). The Herring Alliance includes international, national, regional, state and local conservation organizations with a combined membership ofwell over 1,000,000 individuals who support marine conservation. The mission of the Herring Alliance is three-fold:
• to establish ecosystem-based catch limits which leave sufficient herring in the ecosystem as forage for other marine predators; • to spatially and temporally apportion herring trawling using buffer zones and time and area closures which both minimize bycatch and avoid localized depletion to ensure sufficient herring is present when and where it is most needed by other predators; and • to fully monitor and minimize bycatch of commercially and recreationally important fish stocks - including juvenile or spawning Atlantic herring and depleted river herring and groundfish - as well as whales, seals, dolphins and porpoises.
It is important to bear in mind in developing this amendment that the National Environmental Policy Act (NEPA) requires scoping in order to assist regulators in defining the range of actions, alternatives, and impacts to be considered in an environmental impact statement (ElS).! Amendment 4 was initiated in order to "improve monitoring of catch in the Atlantic herring (herring) fishery and to manage the fishery at long-term sustainable levels, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA)."z Additional management measures are being considered in Amendment 4 specifically because the National Marine Fisheries Service (NMFS) and the New England Fishery Management Council (Council) determined that action is needed to "further address issues related to the health of the herring resource throughout its range, how the resource is harvested, how catchlbycatch are accounted for, and the important role of herring as a forage fish in the Northeast region," and to address new provisions in the Magnuson-Stevens Reauthorization Act of2006 (MSRA). 3
1 See 40 C.F.R. § 1508.25 (2007). Z 73 Fed.Reg. 26082 (May 8, 2008) 3 See id. at 26083. Herring Alliance 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Therefore, NMFS and the Council must consider scoping comments that raise potential conservation and management measures, alternatives, or impacts from the proposed amendment that are consistent with these identified purposes and the need for action."
Part I: Summary of Comments
The Council defined five "objectives" to help guide development of the conservation and management measures to be considered in the amendment. There is also a continuing obligation to comply with all parts of the MSA, including requirements to prevent overfishing, base decisions on the best available science, avoid or minimize bycatch, and to protect essential fish habitat. s The Herring Alliance's comments are shaped around the five defined objectives, and many of the comments address more than one objective and / or otherwise address the purpose and need for the amendment. Part I provides a summary of our comments and is intended to provide reviewers, policy makers and the public with a concise outline of the issues that, in our view, should be analyzed and considered as part of Amendment 4. Part II provides the more detailed comments intended to assist staffand others in preparing these issues for analysis.
The Herring Alliance recently completed two reports related to this fishery that are included with these comments; Out ofBalance: Industrial Fishing and the Threat to Our Ocean, and Empty Rivers: The Decline ofRiver Herring and the Need to Reduce Mid-water Trawl Bycatch" The comments in this letter are intended to address the most timely scientific and management information available, including recent presentations and publications, and each of these reports provide information that specifically supports the comments. The reports are attached to this letter and should be considered part ofthe Herring Alliance's formal scoping comments.
In general, the Herring Alliance asks that you consider the following management measures, alternatives, and impacts in your development ofAmendment 4:
Objective 1: To implement measures to improve the long-term monitoring of catch (landings and bycatch) in the herring fishery. e A shore-based monitoring system that provides certified offloads, actual weights, and real time catch reporting and quota tracking. e lOO percent observer coverage levels. e Onboard sampling of all catch or maximized retention and shoreside sampling (prohibit at-sea dumping ofunsampled catch). e Bycatch and incidental catch caps monitored in real-time.
4 See 40 C.F.R. 1503.4. 5 See 16 U.S.C. 1851(1)(2)(9); l855(b). 6 The Out ofBalance report is available in two formats- a complete Adobe Acrobat PDF file with tables, figures, and sidebars, and an Adobe Acrobat version ofthe main text with inline citations. Both are appended to this letter and also available online through these links:
Empty Rivers report is available at:
Herring Alliance 2 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Objective 2: To implement Annual Catch Limits (ACLs) and Accountability Measures (AMs) consistent with the Magnuson-Stevens Reauthorization Act (MSRA).
The measures outlined below and explained in more detail in Part 2 ofthese comments can also be considered under Objective 5 because they meet the specific purpose and need for the amendment consistent with the Council's continuing obligation to meet the MSA.
• The current good faith hail system as the basis for tabulating the catch of herring does not meet the ACL and AM requirements and needs to be changed. • Establish a method for collecting the information necessary to quantify the amount of herring necessary for predators, including needs as predator populations change, and explicitly incorporate this amount into stock assessments and as an allocation in setting catch limits. • The Science and Statistical Committee (SSe) must revise biomass targets and catch limits to ensure Atlantic herring populations are maintained above the fishery's biomass for maximum sustainable yield (Bmsy), as recommended in the NMFS proposed rule for ACLs. As part ofthis, the SSC and Council must: • set the biomass target sufficiently above Bmsy to maintain stocks at a stable level of high abundance; • raise the stock-status (overfished) threshold to Bmsy (rather than the current Y2 Bmsy), and; • set fishing targets sufficiently below annual catch limits to prevent overages. • Revise area boundaries, catch limits, and sub-area temporal catch limits as ACLs, with AMs in order to reflect themost current science on herring sub-populations and mixing. • Develop and set accurate and precautionary predator allocations using the most current information on predator.needs as part ofthe ACLs and AMs. • Factor scientifically sound estimates of predation into stock assessments in place of the current static estimates of natural mortality, and adjust Maximum Sustainable Yield (MSY) harvest levels in order to explicitly account for predation mortality. Such accounting must take into account that the present population levels ofmany predators are well below where they should be, allowing for recovery (e.g., Atlantic Cod and various species of marine mammals). • Account for evidence of "gorge-feeding" by Atlantic cod on herring through consideration of fine-scale spatial/temporal predator needs in ACLs and AMs. • Establish timelines for incorporation ofpredator needs into ACLs on an ongoing basis. • Establish a transparent and adaptive process to incorporate predator/prey information into the Council's policy-making responsibilities. • Aggressively protect river herring and its key role as forage for the ecosystem by not only counting, but also by capping river herring mortality. • Apply strategies to protect herring and its predators in the places and times when the species are at greatest risk, including consideration of local predator needs. • Prohibit midwater trawling in Groundfish Closed Areas. • Establish inshore closures of river herring catch hotspots to protect river herring and the predators that depend on the inshore migrations. • Prohibitmidwater trawling within 50 miles of shore. • Establish appropriate limits on the size ofthe gear used by purse seine vessels. • Prohibit midwater trawling in areas with high fixed gear interactions. • Bycatch caps must be monitored in real-time. Herring Alliance 3 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Objective 3: To implement other management measures as necessary to ensure compliance with the new provisions of the Magnuson-Stevens Reauthorization Act (MSRA).
Comments related to the MSRA's explicit authorization for councils to include management measures designed to conserve target and non-target species and habitats in view of a variety of ecological factors, such as predator-prey interactions, are specifically included under objectives 1, 2 and 5, though all ofthose measures would also fit under this objective, meet the specific purpose and need for the amendment, and/or couldbe included under the Council's continuing obligation to meet the MSA's requirements to conserve fish species and essential fish habitat. • Allocate the entire $2,000,000 cooperative research program established to investigate the role of herring in the Atlantic ecosystem toward improving monitoring (observer) programs in order to develop the information necessary for ecosystem-based management. • Establish a clear policy that encourages public access to information through timely release of observer data and other information, thus enabling independent analysis of monitoring performance, the performance of the industry, and the development of measures that will improve management.
Objective 4: To develop a sector allocation process or other Limited Access Privilege Program (LAPP) for the Atlantic herring fishery.
Eliminate from further analysis in Amendment 4 any and all measures related to sector allocation or LAPP (i.e., Objective 4 above). Attempting to develop a sector allocation program or other LAPP now will not only bog down the critical monitoring and conservation components of this amendment, but will fail in the absence ofsufficient data on catch, discards and landings.
Objective 5: In the context of Objectives 1-4 (above), to consider the health of the herring resource and the important role of herring as a forage fish and a predator fish throughout its range.
The comments below can also be considered under Objectives 2 and 3 because they meet the specific purpose and need for the amendment consistent with the Council's continuing obligation to meet the MSA.
• Require clear, rigorous, and independent examination, by the SSC, of the most current information in the context of the entire ecosystem in order to establish sustainable ACLs, the AMs required to enforce those limits, and the monitoring and conservation and management measures required to manage the fishery at long-term sustainable levels. • Many of the measures outlined above under Objective 2 also fit squarely under this objective because of the need for the Council to consider the critical role of herring as a forage species. In particular, measures outlined above that can also be considered independently, or jointly, under Objective 5 include: • setting accurate and precautionary predator allocations using the most current information on predator needs as part of the ACLs and AMs; • Factoring scientifically sound, real-time estimates of predation into stock assessments in place of the current static estimates of natural mortality and adjust Maximum Sustainable Yield (MSY) harvest levels in order to explicitly account for predation mortality on an ongoing basis;
Herring Alliance 4 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group • Accounting for evidence of "gorge-feeding" by Atlantic cod on herring through consideration of fine-scale spatial/temporal predator needs in ACLs and AMs; • Establishing a transparent and adaptive process to incorporate predator/prey information into the Council's policy-making responsibilities; • Aggressively protecting river herring and its key role as forage for the ecosystem by capping river herring mortality; and • Applying strategies to protect herring and its predators in the places and times when the species are at greatest risk, including consideration of local predator needs by: • Prohibiting midwater trawling in Groundfish Closed Areas; • Establishing inshore closures of river herring catch hotspots to protect river herring and the predators that depend on the inshore migrations; • Prohibiting midwater trawling within 50 miles ofshore; • Establishing appropriate limits on the size of the gear used by purse seine vessels; • Identifying important foraging grounds that may be negatively impacted by excessive removals and taking measures to protect these special areas, through gear restrictions, area TAC setting, and / or seasonal area closures.
Amendment 4 to the Atlantic Herring FMP is an opportunity to establish a monitoring system that provides the information necessary to ensure sustainable management of the herring resource for the long-term benefit of the herring fishery, the ecosystem, and the other fisheries and businesses that depend on a healthy herring resource. It also presents a vital opportunity to increase public confidence in the way this critical resource is managed. And Amendment 4 is a vehicle to implement requirements of the MSRA, including ACLs and AMs, which should take into account the health ofthe ecosystem and include special consideration for Atlantic herring and river herring as forage species through the use of appropriate time and area closures and bycatch caps. Until these measures are implemented to improve monitoring and management of the fishery, the Council should not consider sectors or LAPPs.
We look forward to working with the Council, its staff and NMFS in the development of this amendment.
Sincerely yours,
Peter Baker, Director John Crawford, Ph.D., Science Director Herring Alliance New England Fisheries Project Pew Environment Group Pew Environment Group
Roger Fleming, Attorney Alison Chase, Policy Analyst Herring Alliance 5 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Earthjustice Natural Resources Defense Council
Pam Lyons-Gromen, Executive Director Sean Mahoney, Attorney National Coalition for Marine Conservation Conservation Law Foundation
Gilbert Brogan, Campaign Projects Manager Phil Kline, Senior Oceans Campaigner Oceana Greenpeace
Winston Vaughan, Field Organizer Environment Massachusetts
Herring Alliance 6 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Part II: Detailed Comments
Amendment 4 must establish an effective monitoring system for the Atlantic herring fishery's catch and bycatch, and the complimentary conservation and management measures necessary to improve the fishery and long-term health of the ecosystem. This amendment is critical not only to the future of the herring fishery, but given Atlantic herring's ecological role as a keystone forage species, it is also critical to nearly all other New England fisheries and the health ofthe larger Gulf of Maine ecosystem. This part of our comments provides additional detail and support for the recommendations found in Part 1 and is intended to assist staff and others in drafting altematives and preparing issues for analysis.
As noted above, we request that in addition to this document, you consider the two enclosed reports, Out ofBalance: Industrial Fishing and the Threat to Our Ocean and Empty Rivers: The Decline ofRiver Herring and the Need to Reduce Mid-water Trawl Bycatch, as official Herring Alliance comments.
Objective 1: To implement measures to improve the long-term monitoring of catch (landings and bycatch) in the herring fishery.
Out ofBalance: Industrial Fishing and the Threat to Our Ocean analyzes flaws in all aspects of the existing monitoring program and outlines several ways in which solutions may be achieved in the Atlantic herring fishery, including the following:
• Quota tracking and.reporting, already suspect due to the fact that the inputs to that system are inaccurate and incomplete, are also not timely enough and, as a result, over-harvesting of time and area-specific quotas is common, as in Area 1B in 2006 and in Area 1A pre June TAC in 2007 (Out ofBalance page 13). o Input quality and quantity issues should be addressed through improvements in coverage rates and protocols for at-sea and shore-based observers. o Scales should be used to actually weigh all catch under independent observation and eliminate the use ofunverified captain and dealer estimates. o The current landings tracking system (with its two week lag) must be eliminated in favor of a transparent, publicly-available system which tracks all catch and is updated within 48 hours. • Discard tonnage estimated from observer data does not appear to be factored into quota tracking (Out ofBalance page 13-14). o Transparent tabular information should be provided to the public within 48 hours in order to demonstrate that discard tonnage is factored into quota tracking, similar to the summaries provided for groundfish hard TAC fisheries like Special Access Programs and the U.S./Canada program. • Federally-certified catch monitoring, currently heavily reliant on at-sea observers, takes place at arbitrary and inconsistent rates that are far too low to allow for meaningful extrapolation of catch and bycatch, and at far lower rates than other U.S. fisheries of similar size and catching power (Out ofBalance page 14). o Amendment 4 should mandate 100% catch monitoring by federally-certified observers. This can take place at-sea, on shore, or through some combination of the two, provided that there is verification of 100% compliance. o Dumping of unsampled catch must be eliminated through regulation, whether it takes place at-sea or on shore. Herring Alliance 7 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group o Maximized retention, with verification of compliance, may be a good, cost-saving solution if some observer coverage is shifted from the vessels to the shore, provided Video-Based Electronic Monitoring (EM) is used to verify compliance. o Strong regulations and innovative solutions must be devised to minimize and account for slippage events that are unavoidable due to safety concerns. For instance, an overall cap on allowable slippage, combined with an assumed slippage event tonnage and a trip-termination requirement, should be considered.
In addition to the list above, the Herring Alliance submits the following comments which are based on recent information, and thus may not be fully explained or explored in Out ofBalance.
• Recent work done by Archipelago Marine Research regarding monitoring alternatives for the New England Groundfish fishery provides striking and important insights as to how a useful and robust monitoring system may be designed and implemented. o The Archipelago report makes it clear that less than complete monitoring of catch (i.e., 100% coverage) is ineffective and thus a waste of valuable resources. Complete catch monitoring is clearly the future. The herring fishery is highly industrial and controversial, and the NEFMC must use Amendment 4 to achieve complete monitoring immediately. The relatively small size of the fleet should facilitate this transition. o The Herring Alliance emphatically opposes a phased-in approach to 100% monitoring for the herring fishery. Archipelago suggested this approach for the New England multispecies fishery due to the larger size of the fleet and greater logistical difficulties that fleet size imposes, but was acknowledged as a less than ideal solution with significant sacrifices in data quality. These issues are not present in the Atlantic herring fishery and so similar sacrifices are not merited. Anything less than immediate implementation of full observer coverage should be unacceptable to the NEFMC for the herring fishery. • The recent presentation of information on the Northeast Observer Program by Acting Fisheries Sampling Branch Chief Amy Van Atten (5/22/08) contained many dramatic revelations that point out the need for further auditing of observer program performance and protocols, further analysis of fishery behavior and catch information, and for regulatory change to improve information collection in the fishery. The analysis prepared for Amendment 4 should include diverse, extensive and in-depth examination of all aspects of the current at-sea observer program to identify strengths, weaknesses and solutions. For example: o First, it is now clear that slippage is a very significant problem. The presentation revealed that more than 15% of tows on observed trips generate little or no reliable data because an unknown amount of catch is dumped without being sampled, including an astounding 10% of tows which are dumped completely with no sampling. o Further, the presentation revealed that contrary to industry claims, tows are in fact dumped due tothe presence of bycatch. o It is also now clear that observer coverage rates for the past two calendar years (2006 and 2007) are far lower than was originally believed. Contrary to widely reported numbers in the range of 9% to 12%, it now appears that coverage rates have fallen back to their astonishingly low historic averages of approximately 4% after a brief peak in 2005. Even if the reported range had been attained (i.e., 9-
Herring Alliance 8 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group 12%) this would still be far too low, with roughly 90% of catch going without observation. a Moreover, Ms. Van Atten's analyses clearly indicated that coverage rates based on trips or sea days have lead to inflated coverage estimates. Her insightful analysis based on tonnage confirms long-voiced suspicions that at-sea dumping and changes in fishing behavior when observers are aboard actually result in much lower coverage rates than those calculated simply by the presence of an observer onboard. For example, fishermen are dumping the nets, often selectively, thus hiding fish from the observer. Furthermore, they are likely fishing less and/or fishing differently. a Much more in-depth analyses of the historic observer dataset must be performed as part of the Amendment 4 EIS. These analyses should be carried out by the NEFSC, the SSC, the PDT, or by other qualified scientists, and subjected to peer review just as stock assessments are peer reviewed. a In addition, all of the available data from the observer program should be made available to the public so that interested parties may conduct their own, independent analyses of the data. The data should be coded to protect vessel identities consistent with the law, but should otherwise be presented in its original form to facilitate analysis, and not presented only in summary form. a Ms. Van Atten's analysis only covered fishing years 2005 to 2007. Future analyses must be inclusive of all data available back to at least 1994 when midwater trawling was introduced to the fishery, as well as any and all supplemental data available from other sources including literature from other pelagic fisheries. a The summary of the deck protocols for observers on pelagic vessels also raises many questions. There is an inconsistency in the definition of an "observed" vs. "unobserved" tow and there seems to be a reliance on good-faith catch information provided by the captain in many instances, for instance when slippage takes place or when the observer is on the other vessel of a pair trawl team. The use of categories like "Fish, Not Known" or "Herring, Not Known" is extremely problematic, and eliminating the need for such unreliable characterizations of catch, while difficult, should be one ofthe main thrusts ofAmendment 4. a Ms. Van Atten presented compelling evidence for stratification of fish in the cod end of midwater trawl vessels. This phenomenon combined with the known tendency to dump partial cod-end contents at the conclusion of pumping operations (operational discards) presents strong evidence for the need to sample the entire catch at all times. There exists a very strong possibility that significant bycatch may be present in the cod-end at such a depth or location that pumping less then the entire catch may not reveal it. The use ofsize-specific sorting grates on the actual pump that is inserted into the cod-end obviously contributes to this problem, and regulations must be developed and implemented to address it. o Ms. Van Atten's presentation and short movie of deck operations also presented compelling evidence of the use of sorting grates upstream of the observer, above and beyond the one that is in the net and underwater. Her statement that the use of a second observer to ensure that bycatch removed upstream of an observer is retained for sampling should be taken to the next logical step. Amendment 4 must not rely on the honor system and must instead design and implement systems that provide robust verification, so no catch goes without sampling as a result of pre sorting. In short, the use of a second observer or EM to establish what is, in Herring Alliance 9 1632 Orleans Road Harwich, .MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group effect, a "chain of custody" assurance over the fish stream must be included in the Amendment. o Ms. Van Atten's admission that 100% catch sampling is needed is inconsistent with her stated view that regulations do not require 100% sampling. This needs to be addressed by modifying the regulations to require 100% catch sampling. • All of the concepts in the bullets above apply equally to shore-based monitoring systems. Alaskan fisheries, which include high-volume, high-throughput fisheries, provide strong models for this type of verification in fish-handling on vessels and on shore. Consideration should be given to this type of system in which vessel and processor operators must design and gain approval for a Catch Monitoring and Control Plan (CMCP) that allows them operational flexibility in fish-flow and verification procedures provided they meet clear and rigorous standards. • Alaskan models must also be considered and analyzed for the mandated use of certified weighing systems in the herring fishery. Ms. Van Atten recommends the use of flow scales on at-sea processing vessels, and it is logical to conclude that: a) they are therefore necessary at shore-based processing plants; and b) they are necessary on catcher vessels that discard at-sea as well. • Currently, there is no dedicated funding at NMFS for observers in this fishery. Shifting funds from the groundfish program would be insufficient and unacceptable because that program is also inadequate. Reallocating these funds would also ignore the fact that the herring fishery has observer data needs far surpassing those required to count its groundfish bycatch, such as data on bycatch of mammals, ASMFC managed species like striped bass and scup, birds, incidental mackerel catch, and incidental river herring catch and bycatch - not to mention the need for better information on the actual catch of the target species (Atlantic herring). • A variety of funding sources should be explored to provide the needed 100% catch monitoring, including dedicated non-groundfish NMFS funds, industry funds, and TAC set-asides. Furthermore, the ecosystem-research funds called for in the MSRA should be immediately and entirely dedicated to at-sea and shore-based federal observers. There is no more pressing research need and no way to get more efficient use of these funds than to direct them to more observers. • The confusion in 2007 over the ability of NMFS to place observers on U.S. At-Sea Processing (USAP) vessels was a travesty and resulted ina complete lack of NMFS observation of significant activity in that sector. The situation has not been resolved satisfactorily. While NMFS now maintains that a USAP vessel must carry an observer if requested, NMFS is not required to provide any specified level of coverage. This must be resolved. In addition to specifying 100% catch coverage requirements for catcher vessels at all times, Amendment 4 should specify 100% (or more, if necessary to verify catch composition) mandated coverage for USAP operations aboard processing vessels, and clarify that all the provisions of observer programs apply to these USAP processing vessels. Regulation should require full or partial industry funded observer coverage for this sector. • The sampling that will be. a component of a monitoring system, like the Multispecies Framework 43 monitoring, must be done under rigorous, transparent, and approved protocols that describe sampling techniques, coverage design, and data incorporation. The sampling must be done by NMFS port agents, NMFS lawenforcement personnel, or state law enforcement personnel under cooperating agreements with NMFS. For instance, the requirement now in place for herring vessels to call in 6 hours prior to landing rings hollow because there are no requirements for anyone to actually do anything in response Herring Alliance 10 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group to those calls, and if and when someone does meet the boat, there are no requirements describing what they must measure or how. • It is inappropriate and unacceptable to rely on the Standardized Bycatch Reporting Methodology Omnibus Amendment (SBRM) to address the deficiencies in herring monitoring. The SBRM addresses only the at-sea observer program coverage schedules. Even worse, recent information indicates that as expected, there are insufficient resources to meet the minimum coverage targets called for by the SBRM. As a result, there is a political and arbitrary internal NMFS process underway to shuffle resources around, leaving no assurances that there will be reliable bycatch information for the herring fishery. Finally, there is widespread dissatisfaction with the SBRM, and an independent peer review highlighted several problems with its methodology and results. For example, critical bycatch species were left out of the SBRM analyses including scup and river herring. • The herring midwater trawl fishery remains a relatively new fishery. Thus it is not only the relative poor quality of the observer data that is a problem, but also the short time series of data as compared to many other fisheries like the multispecies fishery. This amplifies the need for high levels of observer coverage and rigorous protocols to generate current, quality observer data for use in management.
Objective 2: To implement Annual Catch Limits (ACLs) and Accountability Measures (AMs) consistent with the Magnuson-Stevens Reauthorization Act (MSRA).
Currently, the herring fishery uses a good faith hail from herring captains as the basis for tabulating the catch of herring. While herring industry lobbyists claim that this system meets the ACL and AM requirements ofthe MSRA, they are incorrect. The current system is insufficient to meet the ACL and AM requirements ofthe MSRA for several reasons, including:
1. The system does not weigh or independently verify the catch (Out ofBalance p. 14); 2. The system does not account for at-sea discards ofherring (Out ofBalancepp. 2-3; p. 15); 3. The system does not use the process set up in the MSRA in which the Science and Statistical Committee (SSC) sets maximum catch levels; 4. The system does not monitor landings, catch, or discards in real-time, leading to an unacceptable risk ofoverages (Out ofBalance pp 13); 5. The TAC setting process does not adequately take into account the changing needs of predators as their populations fluctuate (Out ofBalance p.2); 6. Because the catch is never weighed, discards are not included, and catch/discard data is not tallied and provided in real-time, the system can and does allow overages with no payback provisions (Out ofBalance p. 13).
The Herring Alliance strongly recommends that the Council carefully consider the role of herring as a forage species in the ACL and AM setting process. Per the Council's direction in the Amendment 4 Scoping Document, many of the specific recommendations on ACLs and AMs in the context of herring as a forage species could also be considered under Objective #5, but are primarily discussed here.
The Council should also consider adjusting area boundaries, area-specific catch limits, and temporal catch limits within these boundaries to reflect emerging scientific recognition of herring subpopulations and mixing. Area-specific and temporal catch limits must include AMs including
Herring Alliance 11 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group in-season adjustments to help ensure they are not exceeded and pay-back provisions in the event they are exceeded.
In sum, Annual Catch Limits and Accountability Measures must take into account the unique role of herring as forage, and therefore should include the current and future needs of predators, including those needs on a local scale. Not accounting for at-sea discards and reliance on good faith visual estimates from captains will undermine ACLs and AMs as well -- they will be meaningless without actual weights on all landings and discards that are based on observed and/or extrapolated actual weights. ACLs and AMs must also recognize the emerging scientific information on subpopulations and mixing in order to prevent localized depletion and ensure the long-term sustainability ofthe resource. Thus, Amendment 4 must:
Establish a method for quantifying the information necessary to support the current and future requirements ofpredator populations. These quantifications must take into account the current diminished state of many of the predator populations (e.g., whales, groundfish). If they are to recover to healthy levels in the future, these populations will require an increased allocation of herring as forage. Using the best available data, quantifications of herring as forage must be explicitly incorporated into stock assessments and a precautionary allocation for predators should be used in setting catch limits. Revise harvest targets and catch limits to ensure Atlantic herring populations are maintained above the fishery's biomass for maximum sustainable yield (Bmsy), as recommended in the NMFS proposed rule for ACLs.
III set the biomass target sufficiently above Bmsy to maintain stocks at a stable level ofhigh abundance;
III raise the stock-status (overfished) threshold to Bmsy (rather than the current Yz Bmsy), and;
III set fishing targets sufficiently below annual catch limits to prevent overages.
This recommendation is consistent with the proposed National Standard Guidelines for setting ACLs which state that "consideration should be given to managing forage stocks for higher biomass than Bmsy to enhance and protect the marine ecosystem."? The risk associated with allowing forage stocks to be fished until they are below Yz Bmsy before taking action, which is about Y4 of environmental capacity, is too great for a critical forage stock like herring because it results in a stock size that is likely much too low to fulfill its ecological role. The Pacific Fishery Management Council's FMP for Coastal Pelagic Species (CPS), which includes Pacific sardine, northern anchovy, market squid and Pacific and jack mackerel, focuses on maintaining biomass at .least as high as the MSY stock size, because these species are "very important in the ecosystem for forage.?" Currently, the Atlantic herring stock size is estimated to be substantially above Bmsy, so revising reference points, as recommended above, will not have a negative impact on the fishery. Conversely, a strategy designed to maintain herring at a stable level of high abundance should also assist in maintaining stable catch levels in the long term. Revise area boundaries, catch limits, and sub-area temporal catch limits as ACLs with AMs in order to reflect the most current science on herring sub-populations and mixing. Bycatch caps monitored in real-time.
773 Fed. Reg. 32526 (June 9, 2008 (Proposed National Standard Guidelines for Setting OY)). 8 Pacific Fishery Management Council (PFMC). 1998. The Coastal Pelagic Species Fishery Management Plan, Amendment 8. Pacific Fishery Management Council, Portland, Oregon. Herring Alliance 12 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Several recent papers (Overholtz and Link 2007, Overholtz et. al 2008, Ligenza et al. 2008), as well as a recent presentation to the Council by William Overholtz of the Northeast Fisheries Science Center, have highlighted the importance of herring as a keystone prey species and the critical importance of accounting for natural predation in determining biological reference points (BRP) and setting appropriate catch limits. In traditional, single-species, stock-assessment modeling it is assumed that natural mortality is fixed. However, as discussed by Overholtz (Overholtz and Link 2007; Overholtz et al., 2008) this assumption has been far from true during the recent history of the GOM-GB region, with predator populations, demersal fishes and marine mammals, for example, changing substantially (i.e., PB is variable). When the consumption ofthe prey species by natural predators is massive and the assumption of constant natural mortality is not valid, the reference points developed in a maximum sustainable yield fisheries management context can be misleading (Overholtz et al., 2008). The consequences fisheries management misguided by inappropriate reference points for a keystone species like herring can be devastating for an ecosystem, compromising ecosystem function.
The risks of severing trophic links of this kind are serious and precautionary approaches to setting catch limits should be followed (summarized in Out ofBalance p. 2). As populations of marine mammals, demersal and pelagic fishes, and seabirds grow the importance of accounting for this source of natural mortality in herring will also grow. Fishery-predator compensation (Overholtz et al., 1991) must become a central part of herring fisheries management. Precautionary predator set-asides, based on current estimates of predator consumption demand for herring, must be used in setting ACLs and AMs in Amendment 4. These efforts must take into account desired population growth trajectories for natural predators such as cod and marine mammals.
Overholtz et al. 2008 show that BRPs for Atlantic herring changed dramatically when natural predation was taken into account, with the biomass target (Bmsy) increasing by a factor of 1.6, from 896 kt to 1,452 kt. Accounting for herring consumption by growing populations of natural predators will lead to lower yields available of the fishery (Table 3, Overholtz et al., 2008), and appropriate adjustments to Bmsy and MSY levels.
In the presentation by Dr. Overholtz, June NEFMC meeting, he synthesized these recent papers (2007 and 2008) and offered the following important conclusions: • predation impacts are often larger than landings; • there is an enhanced risk of major stock decline offorage species at high fishing mortality rates; • real-time rather than static estimates of predation mortality (M2) should be included in stock assessments ofprey fish; • assessments of prey fish stock size can be optimistic relative to Biological Reference Points (BRP); and • the fact that if the fishery and predators utilize the same size spectrum of prey, then tradeoffs are probably warranted.
These important recent ecosystem-based findings need to be further developed and integrated as part of the analysis for establishing the new ACLs and AMs in Amendment 4. Additional findings must be considered as well. For instance, the paper by Ligenza et. al., which recently received a positive peer review by the Council's Research Steering Committee, includes striking evidence of gorge-feeding by Atlantic cod on Atlantic herring and highlights the need for careful consideration
Herring Alliance 13 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group of fine-scale predator needs (temporal and spatial) in the ACL and AM process in order to avoid depriving discrete predator aggregations of forage.
Amendment 4 measures under this objective must also take into consideration the guidance in the new ACL and AM proposed rules that asks Councils to account for the benefits to marine ecosystems resulting from "maintaining adequate forage for all components of the ecosystem" when determining the greatest benefit to the nation. Forage fish are identified as an ecological factor to be considered in determining Optimum Yield.9
In addition, the Herring Alliance also generally refutes the contention by some industry lobbyists, NEFMC staff, and PDT members that stocks assessments currently satisfy forage concerns. Again, Dr. Overholtz's recent paper and presentation on predator consumption specifically addresses this deficiency, and NMFS recently confirmed to the council that significant additional science and other information has come to light since the analysis for Herring amendment 1. Further, the task of incorporating predator/prey information into stock assessments in one fell swoop may be daunting for a science center with limited resources. As we point out in the Out ofBalance report, there are major herring predator groups for which little consumption data is available (e.g., some sea birds and demersal fish). As such, serious consideration should be given to NEFMC staff recommendations made during development ofAmendment 1 (found in the staffpaper, "The Role of Atlantic herring, Clupea harengus, in the Northwest ecosystem") that a timeline be established for the incorporation of actual and current predator needs. Amendment 4 offers a chance to revisit this concept and can provide the vehicle to ensure that timeline is met.
Further, predator/prey information must not be limited to quantitative consumption data, and management measures to protect the forage base should not be limited to a conservatively set ACL - though these are important first steps.. The Council and NMFS, through Amendment 4, must also identify important foraging grounds that may be negatively impacted by excessive removals and should establish measures to protect these special areas, through gear restrictions, area TAC setting, and / or seasonal area closures. This is of particular importance for fish species with localized populations and for land-based predators such as seals and seabirds, whose foraging ranges are further restricted during pupping and nesting seasons. (See Ligenza et. al. for an example of this type ofpredator-prey interaction.)
In addition, Amendment 4 should establish a transparent process to incorporate predator/prey information into the Council's policy-making responsibilities. To date, the Council has been content to delegate this responsibility to NMFS and the NEFSC. However, this is a management area of responsibility, especially with regard to temporal and spatial measures.
Finally, the problem ofriver herring removals by the sea herring fishery, as incidental catch and as bycatch, should also be considered in the context of Objective #5. The industrial midwater trawl fishery's abuse of the river herring resource, which includes alewives and blueback herring, is not only driving these species towards extinction, it is also detrimentally affecting the overall forage base of the Western Atlantic through the collapse of the river herring complex. Amendment 4 must aggressively protect river herring and their key role as forage by not only counting, but by capping river herring mortality caused by vessels catching sea herring in Federal waters. In addition, inshore closures of river herring bycatch and incidental catch hotspots must be
9 73 Fed. Reg. at 32526. Herring Alliance 14 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group implemented to protect river herring and the predators that depend on river herring during their inshore migrations.
As the discussion in the prior paragraphs indicates, the council should adopt strategies to protect herring and its predators in the places and times when the species are at greatest risk from trawlers, including consideration of local predator needs. In addition to some of these strategies already discussed, such as finer-scale spatial and termporal catch limits Amendment 4 should: • Prohibit midwater trawling in Groundfish Closed Areas; • Prohibit midwater trawling within 50 miles of shore, establishing an "Offshore fishery Promotion Zone" for midwater trawl gear; • Establish inshore closures of river herring catch hotspots to protect river herring and the predators that depend on the inshore migrations.
The Council should also take steps to ensure that its efforts to establish conservation and management measures necessary to protect the ecosystem from the impacts of midwater trawling do not result in a reckless shift to an under-regulated purse seine fishery or cause conflict with other fisheries. Rules should: • establish appropriate limits on the size of the gear used by purse seine vessels in order to prevent a shift to the use of "super-seiners" that have resulted in negative ecosystem impacts in other areas ofthe world; and • prohibit midwater trawling in areas with high fixed gear interactions.
Objective 3: To implement other management measures as necessary to ensure compliance with the new provisions of the Magnuson-Stevens Reauthorization Act (MSRA).
The MSRA established several new provisions under the MSA, and also reauthorized the entire Magnuson-Stevens Fishery Conservation and Management Act (MSA). In developing and implementing Amendment 4, NMFS and the Council have a continuing obligation on NMFS and the Council to comply with all reauthorized and new provisions. Therefore, while the Herring Alliance has focused on the new provisions of the Magnuson-Stevens Actin this section, we re emphasize that throughout Amendment 4, beginning with this scoping process, NMFS and the Council are obligated to consider all comments that are relevant to efforts to meet the purpose and need for Amendment 4 and to comply with the entire MSA in doing so. This specifically includes comments that are relevant in defining the range of actions, alternatives, and impacts to be considered in Amendment 4 and its accompanying EIS.
The MSRA established a new provision that specifically allows councils to "[i]nclude management measures in the plan to conserve target and non-target species and habitats, considering the variety of ecological factors affecting fishery populations," i.e., predator-prey interactions.!" The Council should implement a robust set of measures necessary to address such ecosystem-based concerns. More specific comments related to this new provision are set forth under Objectives 1,2, and 5.
The amendment should also create a process to govern the distribution of the ecosystem research funding called for in the new MSRA ($2,000,000). Directing this money entirely towards improving fishery monitoring - what appears to be the primary objective of this Amendment is the most pressing need, and will help generate the information required for ecosystem based
10 16.U.S.C. 303(b)(12). Herring Alliance 15 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group decisions. Recent experience with the herring research set aside program demonstrates there is a clear need to provide detailed guidance through Amendment 4 for the allocation ofthese funds. As previously noted by the Herring Alliance, a recent research set aside project did not comply with applicable environmental and administrative procedures and had a stated purpose ofexamining the legitimacy of recently implemented Council policy. Directing the funds to federally certified fishery monitoring programs should be supported by all stakeholders in the fishery and will ensure the money is used for valuable purposes. Further, it will help streamline the planning process and provide more dollars for real services, observers, rather than being lost in the cumbersome Request-for-Proposal (RFP) process or institutional overhead.
Finally, new provisions of MSRA related to Observer data confidentiality!' have resulted in a freeze on the release of all data to the public, preventing independent analysis ofobserver program performance and fishery impacts at exactly the wrong time (see points under Objective 1, page 8 above) .. Data released with appropriate coding present no threat to vessel confidentiality, yet are a critical component of the public's ability to participate in the development of a reasonable set of measures and alternatives for this Amendment. While the impacts of the recent denials of information requests may be irreparable, the Council should eliminate the freeze on observer data immediately. Amendment 4 must set a clear policy that encourages public access to information through timely release of observer data and other information, thus enabling independent analysis ofmonitoring performance, the performance ofthe industry, and the development ofmeasures that will improve management. Further, absent the immediate resolution of the rulemaking delay and thus the release to the public of aggregated observer data, the Council's Herring Committee must be prepared to direct the SSC to undertake analyses at the request ofany interested party.
Objective 4: To develop a sector allocation process or otber Limited Access Privilege Program (LAPP) for the Atlantic herring fishery.
Plans to develop sector or other limited access privilege programs (LAPP) for the herring fishery (i.e., objective 4) should be eliminated from further analysis as part ofAmendment 4. Attempting to develop a sector allocation program or other LAPP now will not only bog down the critical monitoring and conservation components of this amendment,but will fail in the absence of good data on catch, discards and landings. Further, this objective and any related alternatives are not necessary to meet the purpose and need for this Amendment - to improve monitoring of catch in the herring fishery and to manage the fishery at long-term sustainable levels, consistent with the MSA.
Creating a sector allocation program or other LAPP for the Atlantic herring fishery will be a long and arduous task. The recent attempts at allocating the groundfish fishery have shown the allocation process to be time consuming and complex. It can be anticipated that there will be many data problems in the herring fishery, such as the inability to assign catch by management area, making it nearly impossible to allocate the fishery without first completing considerable additional work.
The eventual move toward sectors or LAPPs will be better served by implementing an effective monitoring program and effective bycatch controls before the allocation process is undertaken. Delaying Amendment 4, while the intricacies of allocation are solved, will needlessly delay the
11 See 16 U.S.C. 1881(a)(b)(2). Herring Alliance 16 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group main goal of creating an effective monitoring system and complimentary conservation and management measures necessary to improve management ofthis fishery.
Objective 5: In the context of Objectives 1-4 (above), to consider the health of the herring resource and the important role of herring as a forage fish and a predator fish throughout its range.
As noted above, the scoping process is not only designed to assist regulators in identifying the actions and alternatives that may achieve the purpose and need for Amendment 4, but also to flesh out the impacts and analysis required as part of the EIS. Amendment 4 requires clear, rigorous, and independent examination, by the SSC, of the most current information on the herring resource in the context of the entire ecosystem in order to establish the ACLs, the robust set of AMs required to enforce those limits, and the monitoring and conservation and management measures required to manage the fishery at long-term sustainable levels.
Consistent with this, the majority of the Herring Alliance's comments that would otherwise fall under this objective are included under Objective 2, and the comments under both of these sections should also be considered because they meet the specific purpose and need for the amendment and/or fall under the Council's continuing obligation to meet the MSA.
Specifically, measures outlined above and the supporting discussion that can also be considered independently, or jointly, under Objective 5 include: • setting accurate and precautionary predator allocations using the most current information on predator needs as part of the ACLs and AMs; • Factoring scientifically sound, real-time estimates of predation into stock assessments in place of the current static estimates of natural mortality and adjust Maximum Sustainable Yield (MSY) harvest levels in order to explicitly account for predation mortality on an ongoing basis; • Accounting for evidence of "gorge-feeding" by Atlantic cod on herring through consideration offine-scale spatial/temporal predator needs in ACLs and AMs; • Establishing a transparent and adaptive process to incorporate predator/prey information into the Council's policy-making responsibilities; • Aggressively protecting river herring and its key role as forage for the ecosystem by capping river herring mortality; and • Applying strategies to protect herring and its predators in the places and times when the species are at greatest risk, including consideration of local predator needs by: • Prohibiting midwater trawling in Groundfish Closed Areas; • Establishing inshore closures of river herring catch hotspots to protect river herring and the predators that depend on the inshore migrations; • Prohibiting midwater trawling within 50 miles ofshore; • Establishing appropriate limits on the size of the gear used by purse seine vessels; • Identifying important foraging grounds that may be negatively impacted by excessive removals and taking measures to protect these special areas, through gear restrictions, area TAC setting, and / or seasonal area closures.
Herring Alliance 17 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group Conclusion:
As stated in our summary, it is of utmost importance that Amendment 4 to the Atlantic Herring FMP establish a monitoring system that provides the information necessary to sustainably manage the herring resource for the long-term benefit of the herring fishery, the ecosystem, and the other fisheries and businesses that depend on a healthy herring resource. It also presents a vital opportunity to build public confidence in the way this critical resource is managed. And Amendment 4 is a vehicle to implement requirements of the MSRA, including ACLs and AMs, which should take into account the health of the ecosystem and include special consideration for Atlantic herring and river herring as forage species through the use of appropriate time and area closures and bycatch caps. These objectives, which will improve monitoring and management of the herring fishery, must be satisfied in order to establish a framework and collect the data required for the successful design and development of a LAPP. We therefore recommend that the Council not consider creating an LAPP through Amendment 4, but instead direct its resources to the recommendations stated above.
We look forward to working with the Council, its staff and MFS in the development of this amendment.
Herring Alliance 18 1632 Orleans Road Harwich, MA 02645 www.herringalliance.org I PewTrusts.org A Project of the Pew Environment Group June 30, 2008
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Road Gloucester, MA 01930
RE: Herring Amendment 4 Scoping Comments
Dear Ms. Kurkul,
The need for Amendment 4 to the Atlantic Herring Fishery Management Plan is clear and undisputed - as recognized by the New England Fishery Management Council, there is a "need to improve monitoring of catch in the Atlantic herring fishery and to manage the fishery at long-term sustainable levels, consistent with the Magnuson-Stevens Fishery Conservation and Management Act (MSA)". I As a member of the Herring Alliance, the Conservation Law Foundation joins in the comprehensive comments filed by the Herring Alliance today. CLF is submitting this letter to emphasize the importance of the other key premise for Amendment 4: the need to "update the Herring FMP in a manner that is consistent with the new requirements of the (Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006),,2 -- specifically the need for the Council to establish Annual Catch Limits (ACLs) and Accountability Measures (AMs) under the MSRA.
ACLs and AMs are necessary to achieve the underlying purpose of fishery management plans - "to prevent overfishing ... and to protect, restore and promote the long-term health and stability of the fishery.:" The MSRA added the specific requirement that fishery management plans "establish a mechanism for specifying annual catch limits in the plan (including a multiyear plan), implementing regulations, or annual specifications, at a level such that overfishing does not occur in the fishery, including measures to assure accountability.?" Objective 2 established by the Council to guide development of Amendment 4 explicitly recognizes that legal obligation. The current Atlantic Herring FMP fails to meet the ACLs and AMs requirements ofthe MSRA and failure to develop and implement them in Amendment 4 would be a clear violation ofthe MSRA.
1 73 Fed. Reg. 26082 (May8, 2008). 2Id. at 26083. 316 U.S.C. § 1853(a)(l) (2007). 4Id. at § 1853(a)(l5). As set forth in the more detailed comments of the Herring Alliance, Amendment 4 must provide a far more inclusive and reliable method for setting ACLs and implementing AMs. To that end, in order to establish ACLs that will not only prevent overfishing and promote the long-term sustainability of the herring fishery but also enhance and protect the marine ecosystem that depends on Atlantic Herring (as called for in the proposed 5 National Standard Guidelines for setting ACLs ), the Council must take into account the critical role herring plays for a range of predator fish, both from a total biomass perspective as well as from a local scale one. With respect to AMs, the current system of using good-faith visual estimates from herring captains to establish total catch is clearly inadequate. Accountability measures must include real time measures to ensure that data is independently verifiable and readily available. To that end, we would emphasize that access to the data that NMFS collects now and going forward with respect to the Atlantic Herring FMP will be a critical component to the successful development ofAmendment 4, just as it was with Amendment 1.
Subject to the comments above and those submitted by the Herring Alliance, CLF believes that Objectives 1,2, 3 and 5 set forth by the Council to guide development ofAmendment 4 to the Atlantic Herring FMP provide the appropriate framework to create management measures that are consistent with the requirements of the MSRA and result in a sustainable Atlantic herring fishery. Thank you for your consideration of these comments.
Very truly yours,
Sean Mahoney Vice-President and Director Maine Advocacy Center cc: Peter Shelley
5 See Proposed National Standard Guidelines for Setting OY, 73 Fed. Reg. 32526 (June 9, 2008)("consideration should be given to managing forage stocks for higher biomass than Bmsy to enhance and protect the marine ecosystem"). Herring Amendment 4 Scoping Comments Page 1 of 1
Subject: Herring Amendment 4 Scoping Comments From: Bruce Peters Date: Tue, 24 Jun 200806:21 :52 -0400 To: [email protected]
Dear NOAA,
Please make sure the herring harvest is 100% observed and monitored for bycatch and discards. No exceptions. It either should be manned observer coverage paid for by the harvester or by video coverage. The herring is too valuable as a forage specie to be managed in such an currently inappropriate manner.
Thanks very much,
Capt. Bruce A Peters Chatham, MA
Capt. Bruce Peters
508 255-0911 508 237-0399
http://www.nero.noaa.gov/nero/dropoff/Amendment_4_Scoping_Comments/Comments%2... 7/8/2008 ~ CHOIR .~ COALITlON~
Coalition for the Atlantic Herring Fishery's Orderly, Informed andResponsible Long-Term Development
June. 29, 2008
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930
RE: Herring Amendment 4 Scoping Comments
Dear Ms. Kurkul,
I am writing to you today on behalf of the undersigned CHOIR Coalition supporters to provide scoping comments on Amendment 4 to the Herring FMP ("amendment"). CHOIR is an industry coalition made up of commercial and recreational fishing organizations, fishing and shore side businesses, researchers and eco-tourism companies. CHOIR is recognized as a stakeholder in the herring fishery and is a leading voice for the responsible management ofthe herring resource.
First and foremost, this amendment must be used to create and implement an effective government and/or third-party monitoring system for 100% of the catch in the herring fishery. Furthermore, catch must be clearly defined to include the entire contents of the net. The current system is entirely inadequate: observer coverage is far too low and erratic; there is not enough shore-side monitoring; landings data is neither accurate nor timely; there is too much reliance on unverified industry reporting; and loopholes in the regulations allow for partial or whole codends to be dumped at sea without being sampled, even on observed trips (slippage).
To address these and other problems, the amendment should ensure that there is 100% catch monitoring. Everything in the net when it is brought to the boat must be accounted for and sampled, whether it is retained or not. There are multiple methods that could allow for this level of monitoring, including the use ofmore observers, electronic monitoring, a combination of both, or other tools. While maximized retention would be ideal, if catch is dumped at sea, it must be sampled before it is dumped. Finally, the amendment should put in place a landings system that provides for certified offloads and actual weights, with the data reported in real time (or as close to real time as possible). There are multiple funding solutions for these changes, including quota set-asides, application ofMagnuson Stevens Reauthorization Act herring research funds, industry funding, and increased NMFS funding.
Second, this amendment should be used to further promote the offshore herring fishery (assuming that there is increased monitoring) and to protect inshore herring stocks and the predators and people that interact with and rely on them. This could be done by using inshore time and area
1 closures (including gear restricted areas), by prohibiting midwater trawling in Groundfish Closed Areas (including rolling closures), and by creating new measures to pace out the fishery so as to avoid temporal and spatial forage depletion. You should also use these tools to address the longstanding gear conflicts between inshore fishermen and the herring fleet. For too long we have watched as the inshore areas (and those who rely on them) have been devastated by parts of this fleet and it is time for this problem to be fully addressed.
Finally, we strongly urge that the Council does not attempt to use this amendment for allocation purposes. Until you install an accurate monitoring system you will not have the data needed to go forward with allocation; at this time, any allocation would likely be both difficult and wrong as it would be based on faulty data. The impact this would have on fishing communities would be negative, both because it would possibly drive out many of the owner/operators in the fishery, while also serving to disrupt the price and supply of bait for the lobster industry. Attempting to do allocation in this amendment will also slow the amendment process down and further delay the important monitoring and conservation needs that need to be addressed as soon as possible.
In short, we urge the Council to use this amendment to fix the many problems within the herring fishery. The herring resource is far too important for it to be managed with a system as inadequate as the one in place today. Time and time again this system has shown its glaring weaknesses and the time has come to fix it, once and for all. This amendment should also promote the offshore herring fishery we all expected (assuming, again, that monitoring is increased) by addressing the longstanding concerns regarding inshore depletion of herring stocks, bycatch, and gear conflict. And lastly, this amendment should exclude allocation by delaying it to a future vehicle. This region relies on herring and there is no excuse for further delaying these important changes.
Thanks for your time,
Steve Weiner, Chair
On behalfofthe undersignedgroups, businesses andothers:
Commercial Fishing Associations/Organizations
East Coast Tuna Association, Executive Director Rich Ruais, Salem, NH General Category Tuna Association, Executive Director Peter Weiss, Boston, MA North Shore Community Tuna Association, President Mark Godfried, Saugus, MA Cape Cod Commercial Hook Fishermen's Association, Ex.Director Paul Parker, N Chatham, MA Midcoast Fishermen's Association, Chairman Glen Libby, Port Clyde,ME Georges Bank Cod Hook Sector, President Kenneth Eldredge, N Chatham,MA Georges Bank Cod Fixed Gear Sector, Manager Eric Brazer, Jr., N Chatham, MA Northeast Hook Fishermen's Association, President Marc Stettner,Portsmouth, NH Port Clyde Draggermen's Co-Op, President Glen Libby, Port Clyde, ME Downeast Initiative, Project Director Aaron Dority, Stonington, ME
Recreational and Charter Fishing Associations/Organizations
2 Recreational Fishing Alliance, Executive Director Jim Donofrio, New Gretna, NJ Stellwagen Bank Charter Boat Association, President Tom Depersia, Marshfield, MA Northeast Charterboat Captain's Association, President Rich Milligan, Revere, MA Maine Association ofCharter Captains, Captain Dave Pecci, Bath, ME Connecticut Charter/Party Boat Association, President Kevin Bentley Massachusetts Striped Bass Association, President Chris Lincoln, Braintree, MA Rhode Island Saltwater Anglers Association, President Steve Medeiros, Coventry, RI Massachusetts Beach Buggy Association, President George Cairns, North Reading, MA New York Sportfishing Federation, Ex. Director Dennis Cataldo, Oakdale, NY New Inlet Boating Association, President Skip Cornell Boston Big Game Fishing Club, President Steven James Northeast Tuna Club, Founder James Johnson
Charter, Guide and Party Boat Fishing Companies
Bunny Clark Deep Sea Fishing, Capt. Tim Tower, Ogunquit, ME Saco Bay Guide Service, Capt. Cal Robinson, Biddeford, ME Lady J Sportfishing Charters, Capt. Adam Littell, Kennebunk, ME Pritnear Heaven Charters, Capt. Dave Johnson, Biddeford, ME Bass I Charters, Capt. Dean Krah, Newcastle, ME Super Fly Charters, Capt. George Harris, Warren, ME Kristin K Charters, Capt. Ben, South Portland, ME Kennebec Tidewater Charters, Capt. Robin Thayer, Richmond, ME Marsh River Charters, Capt. Hank DeRuiter, Newcastle, ME Seafari Charters, Capts. Bryan and Barry Bush, Kittery, ME Full Strike Anglers, Capt. George Lemieux, Wells, ME Helen H Deep Sea Fishing, Captain Joe Huckemeyer, Hyannis, MA Asticou Charter Co., Rich Savage, Northeast Harbor, ME Maine River and Sea Charters, Capt. Mike Jancovic, S Portland, ME Dave's Guide Service, Capt. David Cassidy Sr., Deer Isle, ME Maine Fishing and Diving Charters, Capt. Rob Odlin, Scarborough, ME Captain Doug Jowett Charters, Capt. Doug Jowett, Brunswick, ME Portland Guide Service, Capt. John Ford, Portland, ME Lethal Weapon Charters, Capt. Bob Liston, Wells Harbor, ME Obsession Sportfishing Charters, Capt. Dave Pecci, Bath, ME Offshore Adventures Sportfishing, Capt. John Pappas, Cape Elizabeth, ME Bigger N' Better Charters, Capt. Michael Sosik, York, ME Shark Six Charters, Capt. Barry Gibson, Boothbay Harbor, ME Reel Jerk Sportfishing Co., Capt. Rich Albert, Hampton, NH Sushi Hunter Sportfishing, Capt. Doug Anderson, Newcastle, NH Captain Bill's Charters, Capt. Bill Wagner, Portsmouth, NH Joppa Tern Charters, Capt. Dan Brown, Newbury, MA Walsh's Deep Sea Fsihing, Bob Walsh Jr., Lynn, MA Capt. Tom's Charters, Capts. Tom and Jason Mleczko, Nat Reeder, Corey and Cameron Gammill, Carl Danielson and Collin Sykes, Nantucket, MA Captain Jim's Cape Charters, James Shannon, Provincetown, MA North Shore Charters, Capt. Scott McDowell, Menemsha, MA Sandy B Fishing Charters, Capt. Bruce Bomstein, Gloucester, MA Capeshores Charters, Capt. Bruce Peters, East Orleans, MA Beth Ann Charters, Capt. Rich Wood, Provincetown, MA
3 Kelly Ann Charters, Capt. Mauro DiBacco, Newburyport, MA Miss Ashley Charters, Capt. Bob Simmons, Newburyport, MA Atlantic Fish Guides, Capt. Jonathan Leavitt, Manchester, MA Little Sister Charters, Capt. Jason Colby, Quincy, MA Rockport Cast-Away's Charters, Capts. Peter and Charles Nicolosi, Rockport, MA Sea Dog Sport Fishing, Capt. Bruce Cranshaw, Falmouth, MA Rod's Delight Charters, Capt. Rodney Ratcliffe, Newburyport, MA Atlantis Charters, Capt. Norm Boucher, Newburyport, MA Outer Cape Sportfishing, Capt. JeffDuncan, Provincetown, MA Rocky Point Fishing Charters, Capt. Bill Jarman, Newburyport, MA Tuna Hunter Fishing Charters, Capt. Gary Cannell, Gloucester, MA North Coast Angler, Capts. Skip Montello, Dave Beshara, Al Montello, Allan Smith and Instructor Stephen Papows, Gloucester, MA, Rockport, MA, Newbury, MA and Salem, NH Rings Island Charters, Capt. Gary Morin, Salisbury, MA FN Erica Lee Charters, Capt. Rob & Kate Yeomans, Newbury, MA Massachusetts Bay Guides, Capts. Greg Sears, Dave Newell, Rob Green, Jay Berggren, Don Campbell, Joe Marino, Mike Evensen, Gene Bernard, Greenbush, MA White Cap Charters LLC, President Brad White, Scituate, MA Breakwater Charter, Capt. John Conly, Marthas Vineyard, MA Goosebay Charters, Inc., Capt. Carl Mahlstedt, Lynn, MA Kayman Charters, Capt. Kevin Twombly, Gloucester, MA The Reel Fish Tales Sportfishing, Capt. Rich Milligan, Revere, MA Striper Charters, Capt. Gary Swanson, South Yarmouth, Tailrope Charter Fishing, Capt. Mike Famigliette, Danvers, MA MA Shadowcaster Charters, Capt. James Goodhart,Newburyport, MA GoFish Sportfishing Charters, Capt. Patrick Helsingius, Boston, MA Fishtale Sportfishing, Capt. Mort Terry, Harwich Port, MA Mariner Sportfishing, Capt. Tom Scanlon, Lynn, MA Cape Cod Charter Fishing, Capt. Art Brosnan, South Orleans, MA Black Rose Fishing Charters, Capt. Rich Antonino, Green Harbor, MA Fish Finder Charters, Capt. Frank O'Connor, Newburyport, MAlSalisbury, MA Tide Hunter Charters, Capt. Scott Bradley, Buzzards Bay, MA Captain Bob's New Horizons Fishing Charters, Capt. Bob Beloff, Rockport, MA Cape Cod Bay Charters, Capt. John Carty, Barnstable Harbor, MA Fin Addiction Charters, Capt. Jeff Smith, Wellfleet, MA Flashy Lady Charters, Capt. Dick Vincent, Martha Vineyard, MA Laura-Jay Sportfishing, Capt. Don Cianciolo, E Sandwich, MA Rocky Point Fishing Charters, Capt Bill Jarman, Newburyport, MA Merrimack River Charters, Capt. Robert Bump, Newburyport, MA Maverick Charters, Ltd., Capt. Jack Riley, Harwich Port,MA CJ Victoria Charters & Rod Builders, Capt. Rob Savino, Boston, MA West Wind Charter Fishing, Capt. Robert Rank, Nantucket, MA Cape Cod Angler, Capt. Dave Steeves, Brewster, MA Tomahawk Charters, Capt. Buddy Vanderhoop, Marthas Vineyard, MA Bluefin Charters, Capt. Brian Courville, East Falmouth, MA Big Fish II Charters, Capt. Tom Depersia, Marshfield, MA Albacore Charters, Capt. Bob DeCosta, Nantucket, MA Harpoonist Charters, Capt. Dave Auger, Newburyport, MA Fishy Bizness Sportfishing, Capt. Ed Cloutier, Newburyport, MA Monomoy Charters, Capt. Josh Eldridge, Nantucket, MA Cape Ann Tuna Charter, Capt. Jules Boudreaux, Gloucester, MA
4 Summer Job Charters, Capt. Scott Maguire, Newbury, MA North Shore Charters, Capt. Dave Pelletier, Beverly, MA Reel Pursuit Charters, Capt. Paul Diggins, Boston, MA Boston Fishstix Guide Service, Capts. John Mendelson and Jim Armstrong, Boston, MA Reel Crazy Sportfishing, LLC., Captain Pat Juliano, West Haven, CT Good Company II Charters, Capt. Joseph Garafano, Jr., Waterford, CT After You, Too Sportfishing Charters, Capt. Frank Blume, New London, CT Lauren B Charters, Capt. Steve Burnett, Stonington, CT Right Hook Fishing Charters, Capt. Bob Veach, New London, CT Benmar Custom Charters, Capt. John Groff, Mystic, CT White Ghost Guide Services, Ltd., Capt. Jim White, East Greenwich, RI Cherry Pepper Sport Fsishing, Capt. Linwood Safford, Charlestown, RI Busy Line Charters, Capt. Norm Bardell, Woonsocket, RI
Fishing Vessels
FN Western Sea, Glenn Robbins, Rockland, ME FN Lady Esther, Larry Knapp, Boothbay Harbor, ME FN Nightmare, Gregg Gilliam, Small Point, ME FN Bettina H, Tim Virgin, Ogunquit, ME FN Old MUd, Donald Sproule, ME FN Kathryn Giles, Matt Forbes, Ogunquit, ME FN Heather Kate, Glen Gilliam, Small Point, ME FN Vick, Norman Koehling, Sebasco, ME FN Libreti Rose II, Bruce Hebert, Kennebunkport, ME FN Pelican, Brett Gilliam, Small Point, ME FN Anticipation, Eric Gilliam, Small Point, ME FN Elizabeth Ames, Steve Weiner, Ogunquit, ME FN A. Maria, Sonny Macintyre, Ogunquit, ME FN Ella & Sadi, Colin Yentsche, Boothbay Harbor, ME FN Queen ofPeace, Bobby & Shane Macintyre, Ogunquit, ME FN Julia G III, Bradley Simmons, Boothbay Harbor, ME FN Arco Felice, Lexi Krausse, Monhegan Island, ME FN M&M, Kevin Wilson, Boothbay Harbor, ME FN Michael Kevin, Ralph Pratt, Green Harbor, MA FN Sea Venture, FN Lisa Marie, Mike Pratt, Green Harbor, MA FN Jeanne Marie, Mike Blanchard, Gloucester, MA FN Sashimi, Doug Amorello, Plymouth, MA FN Scotia Boat Too, FN Heidi & Heather, FN Julie Ann, & FN Ryan Zackary, Richard Burgess, Gloucester, MA FN Little Mako, Dan Dunbar, Gloucester, MA FN Kathryn Leigh, BG Brown, Gloucester, MA FN Fair Wind (ISO), Chris Brewer, Gloucester, MA FN Fair Wind (576), Phil Cunningham, Gloucester, MA FN Gillian Ann, Bill Brown, Gloucester, MA FN Sasquatch, Paul Cohan, Gloucester, MA FN Jospehine, Mark Russo, Gloucester, MA FN Cabaret IV, FN Dolores J, Peter Libro, Gloucester, MA FN Chandell, John Montgomery, Gloucester, MA FN Lily Jean, Gus Sanfilippo, Gloucester, MA FN Belinda B, Danny Bubb, Gloucester, MA
5 FN Toby Anne, Bryan Higgin, Gloucester, MA FN Miss Trish II, Enzo Russo, Gloucester, MA FN Pretty Girl, FN Orion C, Lou Williams, Gloucester, MA FN Lilly, FN Never Satisfied, Billy Muniz, Gloucester, MA FN Amborg & Julie, FN Claudia Marie, Ed Smith, Gloucester, MA FN Keep-Ah, Scott Colleary, Hingham, MA FN Belly Filla, Captain Alex Notis FN Haywire, Chris Pistel, Harwich, MA FN Sandra E, Allan Vitkus, Vinalhaven, ME FN Jesse J, John Richardson, Hingham, MA FN Macson, Mac Sprague, Weymouth, MA FN Sue Z, Tom Traina, Harwich, MA FN Hunter, Robert Crowley, Chatham, MA FN Time Bandit, Kurt Martin, Larry Belliveau & Nick Muto, Chatham, MA FN Tuna Eclispe, William Barker, Harwich, MA FN Magic, Mike Abdow, Chatham, MA FN Taint, Mark Liska, Chatham, MA FN Dawn T, Stuart Tolley, Chatham, MA FN Miss Fitz, John Our, Chatham, MA FN Decisive, Glen Legeyt, Harwich, MA FN Constance Sea, Mike Woods, Chatham, MA FN Rug Rats, Bob St. Pierre, Andrew Falcone & Dan Mortar, Chatham, MA FN Bada Bing, Tye Vecchione, Chatham, MA FN Fish Hawk, JeffCapute & Joe Weinberg, Hyannis, MA FN Sea Hawk, Mitch Mills, Hyannis, MA FN Lori Ann, Dorwin Allen, Hyannis, MA FN Rachael M, Roy McKenzie, Hyannis, MA FN Rosey S, Leslie Schwarm, Hyannis, MA FN Typsy, Tom Ryshavy, Hyannis, MA FN Predatuna, Dennis Chaprales, Hyannis, MA FN Angler, Jason Alger, Hyannis, MA FN Sea Bag, Greg Tomasian, Harwich, MA FN Sea Holly, Mark Leach, Harwich, MA FN Kelly J, Michael Terrenzi, Harwich, MA FN Fairtime, Frank Santoro, Chatham, MA FN Wildwood, Nick Hyora, Chatham, MA FN Ocean Lady, Christopher Ripa, Chatham, MA FN Sea Win, Tom Luce, Harwich, MA FN Sea Wolf, Tom Smith, Orleans, MA FN Amanda, Pete Atherton, Newburyport, MA FN The Hook Up!, Eric Stewart, Chatham, MA FN Ouija, Gerald Miszkin, Chatham, MA FN Grey Hound, Will Dickson, Chatham, MA FN Peggy B II, Ronald Braun, Harwich, MA FN Saga, Ben Bergquist, Chatham, MA FN Arlie X, Thomas Szado, Harwich, MA FN High Test, Joe Janciewicz & Jack Cadario, Newburyport, MA FN Horse Mackerel, David Gelfman, Chatham, MA FN Three Graces, Thomas Riley, Chatham, MA FN Lori Ann, Sam Ameen, Newburyport, MA
6 Whale Watch Companies
Bar Harbor Whale Watch Co., Naturalist Zack Klyver, Bar Harbor, ME Newburyport Whale Watch, Capt. Bill Neelon, Newburyport, MA Atlantic Fleet Whale Watch, Capt Brad Cook, Rye Harbor, NH Portuguese Princess Whale Watch & Excursions, Provincetown, MA Granite State Whale Watch, Naturalist Pete Reynolds, Rye Harbor, NH Boothbay Whale Watch, Naturalist Mechele Vanderlaan, Boothbay Harbor, ME Capt. Bill & Sons Whale Watching, Mark Cunningham, Gloucester, MA Cape Ann Whale Watch, Jim Douglas, Gloucester, MA
Marine Eco Tourism Businesses:
Acadian Nature & New Horizons Tour Company, Capt. Gary Fagan, Bar Harbor, ME Ardea Ecoexpeditions, President Darrin Kelly, Gouldsboro, ME Bar Harbor Ferry Service, Capt. Steve Pagels, Bar Harbor, ME Aquaterra Adventures Sea Kayaking, President Dave Legere, Bar Harbor, ME Camp Ocean Adventures, Doug Anderson, Newcastle, NH Downeast Windjammer Cruises, Capt. Steve Pagels, Cherryfield, ME Old Quarry Ocean Adventures, Capt Bill Baker, Stonington, ME Cranberry Cove Ferry Company, Cherryfield, ME Coastal Kayaking Tours, Bar Harbor, ME Downeast Nature Tours, Guide Michael Good, Bar Harbor, ME LuLu's Lobster Boat Ride, Capt. John Nicolai, Gouldsboro, ME
Marine Research, Education and Conservation Organizations:
Penobscot East Resource Center, Director Robin Alden, Stonington, ME Whale Center ofNew England, Executive Director Mason Weinrich, Gloucester, MA Friends ofMaine Seabird Islands, President Jane Hopwood, Rockport, ME National Audubon Society Seabird Restoration Program, Sr. Researcher Scott Hall, Belfast, ME Allied Whale, Director Sean Todd, Bar Harbor, ME Bar Harbor Whale Museum, Curator Toby Stephenson, Bar Harbor, ME Blue Ocean Society, Director Jen Kennedy, Portsmouth, NH CETOS Research Organization, Executive Director Ann Zoidis, Bar Harbor, ME
Tackle/bait shops and boat yards
Hiltons Sport Dock, George Hilton, Newburyport, MA Tightlines Tackle, Dave Mason, Walpole, ME First Light Anglers, Nat Moody.Derek Spingler, Chris Comb, Peter Yukins and Trent Gaffney, Rowley, MA Fisherman's Outfitter, John White, Gloucester, MA Offshore Pursuits Premium Tackle, David Dodsworth, MA White Anchor Bait & Tackle Shop, Carl Jordan, Boothbay, ME Bucko's Parts & Tackle, Michael J. Bucko, Fall River, MA Saco Bay Tackle, Peter Mourmouras, Saco, ME Eldredge Bros. Fly Shop, Jim Bernstein, Cape Neddick, ME Webhannet River Boatyard and Tackle Shop, Wells, ME Nelson's Bait and Tackle, Rich Wood, Provincetown, MA
7 Pamet River Tackle Shop, Sam and Adam Carpentieri, Truro, MA Powderhorn Outfitters, JeffLubin & Andy Little, Hyannis, MA Riverview Bait & Tackle, Yarmouth, MA Sunrise Bait & Tackle, Jerry Armstrong, Harwich, MA Sportsman's Landing, Carl Coppenrath, Dennis, MA
Companies and others:
Rock On Products, Richard Burgess, Manchester, MA Barnacle Billy's Inc., Bill Tower, Ogunquit, ME Marine Systems Custom Boats, Eric Clark, Southwest Harbor, ME Dysart's Great Harbor Marina, Ed Dysart, Southwest Harbor, ME Blunas, Inc., Chris and Ben Weiner, Ogunquit, ME Maguro America, Inc., Robert Fitzpatrick, Chatham, MA Bluewater Fish Co., Bob DeCosta, South Norwalk, CT Navtronics, Tim Greer, Portsmouth, NH JC Boat, Jack Cadario, Hollis, NH Intershell, Paul Muvalli, Gloucester, MA North Atlantic Marine Service, Steve Mcnally, Amesbury, MA On The Water Magazine, Publisher Chris Megan, East Falmouth, MA Gawron Turgeon Architects, Stan Gawron, Scarborough, ME Blue Sea Fisheries, Inc. Dave Pelletier, Beverly, MA NH Precision Metal Fabricators, Mark Poirier, Londonderry, NH Offshore Pursuits, LLC, David Dodsworth, MA NewEnglandSharks.com, Capt. Tom King, Scituate, MA CCNautical.com, Christopher J. DiPilato, Marston Mills, MA Flyfishinginmaine.com, Dan Tarkinson, Portland, ME Stripersonline.com, Tim Surgent, Wall, NJ
8 Executive summary: The Ocean's Keystone Species at Risk
Virtually every major predator in the waters ofcoastal New England eats Atlantic herring (Clupea harengus). The small schooling fish is indispensable to the ecosystem because it consumes vast amounts ofmicroscopic plants and animals known as plankton-the foundation ofthe ocean's food web-and thus unlocks their productivity for humpback whales, white-sided dolphins, giant tuna, cod, striped bass, seabirds and numerous other species that depend on herring for food and survival (Overholtz 2007).
As the ocean's keystone species, herring made the development ofthe region's legendary commercial fishing industry possible-providingforage for cod, haddock and other groundfish, bait for lobsterrnen, and sardines for human consumption (NEFMC 1999). Today the resource continues to support commercial and recreational fisheries with a value ofover a billion dollars (NOAA 2007a), as well as an ecotourism sector that includes whale watching, birding, and boating. Indeed, from both an ecological and economic perspective, it is no exaggeration to describe herring as the most important fish in the sea.
Humans have continuously harvested the region's herring since pre-colonial times, but the time period since 1961 has had the most impact on the marine ecosystem (Bigelow 2002). In the first halfofthe twentieth century, herring were primarily harvested from coastal waters with relatively conservation-friendly gear called weirs, stop seines and purse seines (NEFMC 1999, NEFMC 2006). But during the 1960's, the scale ofthe fishery changed dramatically. In the ensuing two decades, a fleet offoreign factory trawlers began catching previously unimaginable amounts ofgroundfish, mackerel and herring with giant nets called trawls. In 1968 alone, more than a billion pounds ofherring were extracted from the ecosystem. The heavy fishing pressure eventually led to the collapse ofthe herring population on Georges Bank (Bigelow 2002), prompting Congress to expel the foreign trawlers through the Magnuson-Stevens Fishery Conservation and Management Act, passed in 1976.
Fish populations gradually rebounded during the 1980s (Overholtz 2006) and 1990's, (NEFMC 2006), and with the overall herring population recovering, investments in herring harvesting and processing capacity increased to capitalize on the growing resource, (NEFMC 1997, NEFMC 1999, NEFMC 2006).
At the center ofthe fishery's new business model in the 1990's would be the midwater trawler: the largest fishing vessel the region had seen since the departure ofthe foreign fleet (Overholtz 2006, NEFMC 2006). Up to 165 feet in length, the ships dwarfthe quintessential New England fishing boat, which is only 40 to 50 feet from stern to stem (50 CFR Part 648.4, 2008). The vessels' nets are just as imposing, spanning the width of a football field and the height ofa five-story building (Daley 2003; NEFMC 2006b). The midwater trawler build-up began in 1994. Within a decade, more than twenty ofthe large ships were plying the region's waters (NEFMC 2006). The fleet became more efficient when the trawlers increasingly began towing a large net-known as a pair trawl between two vessels (GMA 2007b).
1 Today, stock assessments claim that herring are not overfished (TRAC 2006), but the analysis only looks at the population's overall health and does not effectively consider the changing needs ofpredators, or that the critical inshore segment ofthe stock is bearing the brunt offishing effort (NEFMC 1999,2006, 2006b). In addition, there are emerging concerns about the overall impacts ofthe industrial fishery on herring and other ocean wildlife. In fact, a diverse array ofnew evidence suggests that regulatory steps must be taken to protect the resource and the ecosystem it supports (Golet 2007; Audubon 2005; Read 2003; Neal 2001).
First, emerging research on the dietary needs ofocean predators indicates that fishery managers may underestimate the amount ofherring eaten by marine mammals, seabirds, and numerous fish species (Read 2003). Managers do not specifically set aside herring in order to meet the changing needs ofpredators; rather, a static estimate is used to account for what is called natural mortality (NEFMC 1999,2006, 2006b). This method of calculation ignores the fact that efforts to bring back herring predators, such as cod, will require additional herring for these species as forage (Read 2003). As one scientific paper notes, "lacking these considerations, an over-optimistic picture ofsustainable yield may result, and important trophic links may be severed ifa prey resource is overfished."" (Overholtz 2007). Even this recent study did not include the dietary needs ofsignificant herring consumers, such as haddock, puffins, and terns despite other evidence in the literature that they are important herring predators (Read 2003; Audubon 2005, GMA 2007d, Bigelow 2002). The findings underscore the high level ofuncertainty that currently characterizes our understanding ofpredator needs, and thus the need for precaution in making important management decisions about forage fish like herring.
Second, a lack ofgovernment oversight has raised questions about bycatch in the fishery (non-targeted species that are accidentally killed or injured by fishing gear). In order to have statistically justifiable bycatch estimates for fisheries like the midwater trawl industry that can capture rare species, like threatened marine mammals, at least 50 percent ofthose fisheries' trips should carry an observer to monitor catch (Babcock 2003). However, less than three percent ofthe vessels' trips taken in New England since 1994 carried observers, which has likely led to an underestimation ofthe fishery's impacts (NEFMC 2006, 2007). As we will see, the rare but serious bycatch events involving marine mammals, giant tuna, and groundfish documentedby government officials show that higher levels ofmonitoring are needed (NEFMC 2006).
Third, current rules allow the trawlers to dump nets loaded with fish at sea ifthe crew believes they contain excessive bycatch. Not only is the practice wasteful, the fish that are dumped cannot be reliably quantified and may undermine the management ofother fisheries like cod and haddock.Worse, the crews are allowed to do this even when observers are on board, which further weakens what little bycatch data in the fishery is collected. Furthermore, the ships dump "un-pumped" fish at the conclusion ofthe vessels' pumping operations (NOAA 2007b).These "operational discards" also go un-sampled, and in conjunction with the use ofsorting grates that separate catch by size, may disguise significant bycatch mortality including marine mammals (NEFMC 2006, Morizur et al 1999).
2 Finally, approximately 60 percent ofall the herring landed in New England today are caught in the coastal waters ofthe GulfofMaine even though the area is estimated to have only 18 percent ofthe region's total herring population (TRAC 2006; NEFMC 2007). This concentrated fishing effort may cause what is known as "localized depletion," in which key areas ofthe ocean utilized by predators are stripped ofthe amount ofherring necessary for them to thrive. By focusing efforts inshore, the trawlers are able to reduce costs, but may disproportionately burden this portion ofthe ecosystem and the small-boat fisheries that rely on it (NEFMC 2006b).
Managers at the National Marine Fisheries Service, New England Fishery Management Council and Atlantic States Marine Fisheries Commission can help safeguard the herring resource and the ecosystem it supports over the long-term by taking the following actions:
(l) The fishery's annual catch limits must reflect the best available information about the dietary needs ofthe ocean's predators and be set conservatively in order to ensure that those needs are met.
(2) A robust monitoring system needs to be developed to ensure compliance with landings and bycatch standards.
(3) Closures must be established to protect habitat essential to the life cycle ofherring and other species, including spawning protections and feeding considerations such as adequate availability ofprey to predators, and to reduce bycatch and gear conflict.
Throughout history, the ocean has shown a remarkable ability to regenerate from overexploitation. But it must be given a chance. Balance must be returned to New England's Atlantic herring fishery.
An Abbreviated Life History ofthe Most Important Fish in the Sea
The Atlantic herring, or seaherring, is one ofthe most abundant fishes in coastal New England-making it a familiar sight to commercial fishermen, recreational anglers, bird watchers and other naturalists (GMA 2007a; Bigelow 2002).
With a streamlined torso, silvery scales and protruding jaw, the herring resembles its cousins, the blueback herring and alewife. At around 12 or 13 inches in length and weighing in at about a pound, a full-grown sea herring can be distinguished from its relatives by steely blue scales on its upper body, a short fin located on the middle ofits spine, an oval cluster ofteeth on the roofofits mouth, and the lack ofrough ridges (called scutes) found on the belly ofthe alewife and blueback but not sea herring (Bigelow 2002; GMA2007a).
For protection, herring gather in dense schools, with individuals on the outside sacrificed to predators in order to shield the core group. The fish's shiny scales also provide a
3 measure ofsafety-serving as camouflage by scattering light in the open water (GMA 2007a). However, the signature luster can also alert fishermen on the surface to the presence ofa school and the tightly packed fish are vulnerable to giant trawl nets.
On this side ofthe ocean, the fish is widely distributed from the Outer Banks ofNorth Carolina to the Labrador Sea, with distinct breeding populations recognized in the waters ofMaritime Canada as well as a combined stock in both the Gulf ofMaine and Georges Bank (Overholtz 2006). However, research suggests that an additional sub-population may reside in shallower waters near the coast ofMaine, a distinction we will see, with important implications for sustainable management (Overholtz 2006; Neal 2001).
Herring migrate hundreds ofmiles to eat and reproduce throughout the year. As mentioned, the fish provide a critical link between the ocean's smallest organisms and its largest-by converting vast amounts ofenergy from plankton into a form that can be consumed by cod, tuna, whales, birds and even us (Bigelow 2002; Overholtz 2007; GMA 2007a).
The species is generally thought to begin spawning in the waters ofMaritime Canada in late August, with activity progressing southward through the GulfofMaine in the fall, and concluding on Georges Bank in late December (Bigelow 2002; GMA 2007a; Neal 2001). However, fishermen and scientists have long described separate spawning events in Maine's coastal waters later in the year, indicating the existence ofa locally adapted population there (Neal 2001). And, while the region's overall herring population has recovered substantially in recent years, some coastal populations (and the ecosystems they help sustain) appear to be at risk (Neal 2001; Audubon2005; Read 2003; Golet 2007).
For example, schools ofjuvenile herring (or sardines) have "all but vanished" from inshore habitat, according to the GulfofMaine Research Institute (GMA 2007e). Additionally, a 2001 study showed a reduction in the species' overall spawning activity offthe middle and eastern coast ofMaine since the early 1990s (Neal 2001).
Furthermore, other research suggests that the fishing industry may not be leaving enough herring in the ocean for the predators that rely on the forage. In recent years, for example, scientists and naturalists have been particularly concerned about declining availability of herring for threatened puffin and other seabird populations on Maine's remote islands. Research conducted by the National Audubon Society found that in 2005 the presence of herring was severely reduced or absent at every nesting colony studied. Consequently, tern productivity was below average and "some breeding puffins and razorbills either deferred nesting or perished at sea," according to the organization's Spring 2005 Newsletter. "Collectively these data suggest that herring populations are declining; these declines coincide with an increase in the quantity ofherring harvested by midwater and pair trawls" (Audubon 2005).
Another study showed that despite an overall increase in herring, there has been a sharp decrease in the fat content ofbluefin tuna that swim a thousand miles or more to gorge on the forage in New England's waters. The researchers hypothesized that the decline may
4 in part result from localized depletion ofherring requiring the bluefin to swim farther and harder to get a meal (Golet 2007). In fact, marine scientists attributed a recent decline in the number ofwhale sightings in the GulfofMaine to the same phenomenon (NEFMC 2006b).
Other fisheries experts believe that midwater trawling may be responsible for the persistent decline ofthreatened blueback herring and alewife populations, in spite ofa series ofrestoration projects in the past few decades and even with fishery closures in four states (Pollock 2008, ASFMC 2003). Also known as "river herring"-because they spawn in the rivers and streams oftheir birth-we now know that hundreds ofthousands ofpounds ofthe fish are being accidentally captured by midwater vessels when they travel to the ocean to feed (Herring Alliance 2007).
Because ofuncertainty regarding the role herring play in relation to the ocean's major predators, the unknown impact ofincreased fishing effort on the inshore segment ofthe population, and a lack ofreliable data about the vessels' catch and bycatch, scientists and conservationists are calling for a new level ofprecaution in the management ofthe ocean's keystone species (NEFMC 2006b; Federal Register 2007).
The Herring Fishery
While New England's herring fishery has undergone dramatic changes since severe overfishing occurred in the 1960s and 1970s, it remains essential to the region's marine resource-based economy (GMAc 2007c). Today, more than fifty percent ofall the herring caught goes to the lobster bait market, making it indispensable to that $260 million fishery (NEFMC 2006,DMR 2006). Most ofthe remaining fish is canned or smoked for human consumption, and increasingly, frozen for export at a value ofnearly $30 million a year (NMFS 2006). However, arguably the species' most important role is as a forage foundation that supports countless ecological relationships in the marine ecosystem (Overholtz 2006).
The history ofthe Atlantic herring fishery runs deep. Native tribes harvested herring for sustenance with weirs-large pens constructed out oftree branches and brush-that trap schools in shallow water at low tide. A similar practice was adopted by European settlers and continued to provide the region with a substantial amount ofherring as late as the 1980s (NEFMC 1999).
During the colonial period, a sizeable commercial harvest developed to supply the region's cod fishermen with bait and continued to grow until the cod fleet increasingly switched from hook-and-line gear to bottom trawls in the early 1900s (NEFMC 1999).
But the rise ofMaine's lobster fishery in the l860s, and about a decade later, the development ofthe state's sardine industry, sustained a robust harvest for another hundred years (NEFMC 1999). During the first halfofthe nineteenth centurypurse seiners-vessels that circle schools offish with large sinking nets-increasingly became a principal gear in the fishery (NEFMC 1999). From 1900 to 1940, landings ranged
5 between 176 and 200 million pounds annually. World War II caused an increased demand for canned fish and landings grew steadily, peaking at more than 530 million pounds in 1948, before stabilizing to pre-war levels in the 1950s. At the time, approximately 50 canneries in Maine employed thousands ofworkers and packed an average ofthree million cases of sardines a year (Bigelow 2002; Canfield 2005).
The 1960s witnessed a major turning point in the fishery, with the arrival offoreign factory trawlers-giant ships that netted and processed fish onboard-from the Soviet Union, Germany and other European nations (Bigelow 2002). The ships mostly stayed offshore, but the intensity ofthe fishing exacted a severe toll on many ofthe region's stocks. In 1968 alone, more than a billion pounds ofherring were extracted from the resource, leading to a precipitous decline in landings and the eventual collapse ofthe Georges Bank stock in the late 1970s (Bigelow 2002). At the urging ofthe region's fishermen, Congress passedthe Magnuson-Stevens Fishery Conservation and Management Act in 1976, which effectively banned foreign fishing, and the resource was able to recover.
Since the collapse, the herring fishery has experienced several shifts, beginning with the sharp decline oftraditional stop seine and weir operations, whose landings fell from more than 96 million pounds in 1981 to only about 350,000 pounds annually in recent years (NEFMC 1999; NEFMC 2006). The traditional sardine industry has also virtually disappeared (GMA 2007b). Maine, once the largest producer ofsardines in the world, is now home to the country's last remaining herring cannery (Canfield 2005).
Since 1989, herring landings have been on the rise, with most ofthe catch coming from coastal waters (Neal 2001; NEFMC 2006). While the figures do not exceed historic levels, the decline ofjuvenile herring inshore, and a significant reduction in the size and number ofspawning events offMaine, could mean the population offish there is nearing its productive limit in some areas
Starting in the mid-1990's, pressure on coastal herring stocks further intensified with the arrival of domestic midwater trawlers. At the time, the government had encouraged investment in the fishery to capitalize on the growing resource, particularly the offshore stock on Georges Bank (NEFMC 1997, 1999). However, the landings distribution since then clearly shows that this promise has not been fulfilled, and instead the vessels have increasingly focused their efforts in coastal waters (NEFMC 2006). In 1995, more than 234 million pounds ofherring were harvested, an increase ofalmost 100 million pounds from the previous year. By 1998, just four years after the midwater trawler build-up began, the ships had decisively replaced purse seines as the fishery's primary technology (NEFMC 2006).
ANew Generation of Industrial Trawlers
Today, working individually and in pairs, midwater trawlers account for more than 80 percent ofthe region's total herring catch (NEFMC 2006). The vessel's rapid ascendance as the fishery's dominant gear-type speaks to its tremendous efficiency and power. To be
6 sure, the industrial fishing system has been made even more efficient with the rise of "pair trawling," where two ships team up to tow larger equipment that has too much drag for one vessel to handle alone (GMA 2007b, NEFMC 2006). In 1995, pair trawlers landed approximately two million pounds ofherring; by 2004 that number had climbed to more than 127 million pounds (NEFMC 2006).
The term midwater trawl refers to the depth at which the gear is supposed to be used. Unlike groundfish vessels, which tow their nets on the bottom, midwater equipment was designed for use higher in the water column (GMA 2007b). However, former trawler captains have said they frequently went after schools ofherring on the bottom, putting groundfish and other species in jeopardy (NEFMC 2006b). In fact, herring are known to congregate near the seafloor during the day, and the 24-hour nature ofmidwater trawl operations led to an acknowledgement in the herring fishery's management plan that the gear is often fished near or on the bottom (NEFMC 2006). Fisheries observers have also documented metallic debris mixed in with the catch, further indicating that the gear is scooping up items that have sunk to the seafloor (NEFMC 2007b). In contrast, purse seine gear can only be fished near the surface and is therefore used only at night (GMA 2007£).
What's more, the back ofa midwater trawl net is made out ofapproximately 1 Yz-inch mesh (Orphanides et aI2007), which is necessary to hold the small herring, but could threaten virtually any larger species that swims in its path. By comparison, the region's groundfish fleet uses nets with 6 Yz-inch holes to minimize impact to juvenile and other undersize fish (50 CFR Part 648.80 2008; NEFMC 2006). Representatives ofthe midwater fleet frequently downplay this risk, but the numerous cases ofbycatch documented by government officials, and extensive testimony about seals, whales, groundfish and other species killed by the trawlers indicates otherwise (NEFMC 2001, NEFMC 2006, NEFMC 2006b). All this, oupled with little government oversight at best means the true impact on the ecosystem is unclear.
Low-Tech Management for a High-Tech Industry
For generations, New England's fixed gear and purse seine herring operations provided the region with a sufficient supply ofproduct, while co-existing with the ecosystem and other sectors ofthe fishing industryy (NEFMC 1999). However, since the arrival of today's midwater trawlers, there has been a sharp increase in reports ofbycatch, a decline in marine mammals and bluefin tuna found in coastal waters and numerous instances when the trawlers wereblamed for towing up tens ofthousands ofdollars worth of lobster gear (NEFMC 2006, 2006b, Richardson 1997, Richardson 2003)-all ofwhich point to the need for more robust fishing rules to protect the long-term viability ofherring and the wider marine ecosystem.
Today, the resource is managed as a single stock in both the Gulf ofMaine and Georges Bank. The strategy helps scientists streamline the process used to estimate the region's overall herring population (Overholtz 2006), but there is considerable debate over whether it is the most prudent approach, because additional herring stocks.have long been described in coastal waters. In fact, some fisheries experts believe that the
7 disproportionate abundance ofherring on Georges Bank makes the inshore population appear to be much healthier than it actually is (NEFMC 2006, 2006b, 2007, Federal Register 2007, 2007c).
As mentioned above, new evidence suggests that managers may not adequately consider the amount ofherring consumed by predators when they estimate the overall size ofthe resource (Read 2003). A failure to explicitly include the current needs ofpredators in the stock assessment may lead to prescribed harvests that are too large for the stocks to support. Nevertheless, the estimate is used to determine the fishery's annual catch limit, which is divided across four sub-areas: inshore and offshore components ofthe Gulf of Maine, south ofCape Cod, and near Georges Bank (NEFMC 2006, 2007).
In 1994, the arrival ofthe .new midwater trawlers on the scene heightened the risk ofover exploitation. Priorto the adoption ofa formal fishery management plan in 1999, which set overall and area-specific total allowable catch limits, landings increased dramatically with the inshore GulfofMaine taking the brunt ofthe effort- nearly 200 million pounds were taken from Area lA in 1997 (NEFMC 1999,2006). The high landings appear to have taken a toll on the marine environment as indicated by the decline in puffin, tern, and razorbill nesting in those years (Audubon 2005). To be sure, the harvest limits were implemented largely due to such concerns, but even after, the fleet continued to overshoot those limits. For example, in 2006 the limit for the back side ofCape Cod was surpassed by about 30 percent before the end ofthe season; the next year the fleet exceeded its pre-June limit for the inshore GulfofMaine by more than 60 percent (NEFMC 2007b, Plante 2007).
These figures may mask an even worse problem. The herring fishery's management plan calls for a limit on total catch, but something is being lost in translation and managers do not take the critical step offactoring in total discards as derived from observer data, as is the case in other fisheries in New England with hard catch limitsTAC's (NMFS 2007, 2007b, 2008). In practice this allows the fleet to land and sell herring right up to, or even beyond the allowable total catch limit, as demonstrated by total herring sales in 2006 which alone are in excess oftotal supposed catch and discards. (NEFMC 2007b). The system fails to account for the significant amounts ofherring that are discarded at sea for a variety ofreasons. Federal and other observer data document large herring bycatch events for such reasons as poor fish condition, fish ofunmarketable size, presence of bycatch, gear malfunction, or because the vessel is full (NEFMC 1999,2006). These discard events on observed trips may.have estimated sizes, but these are based on a visual estimate and the discarded catch cannot actually be sampled to determine composition (NOAA 2007b). Also, landed fish are never weighed. Instead, managers rely on good faith estimates provided byseafood dealers and vessel captains, in contrast withsimilar U.S. fisheries which mandate the use ofcertified scales by vessels and processors (50 CFR part 679.28 and 679.83).
To make matters worse, the midwater fleet operates with less government oversight than fisheries ofa similar scale in the U.S. For example, ifthe samevessels were in Alaska, they would be required to have observers onboard for 30 to 100 percent oftheir fishing trips, compared to the barely three percent coverage in New England since 1994 (50 CFR
8 Part 679.50 2008, NEFMC 2006). Pelagic midwater trawl vessels offthe coast ofOregon and Washington are subject to rigorous monitoring as well- they either carry 100% observer coverage or are required to prove the retention ofall catch for shoreside sampling (NMFS 2007c). Monitoring in the New England herring fishery has improved in recent years, but government budget shortfalls and inadequate regulations have kept observer coverage levels too low to accurately measure the vessels' bycatch.
In fact, on the relatively rare occasions when observers were present, alarming reports of bycatch emerged. For example, after officials from the Maine Department ofMarine Resources looked at just 27 ofthe nearly 800 midwater trips taken in the 1997-1998 fishing season, they reported 2,770 pounds ofbluefin tuna killed by the trawlers (NEFMC 2006). The fact that this bycatch cannot be extrapolated points out the shortcomings of such low levels ofmonitoring, but does not change the fact that it could potentially translate into nearly 100,000 pounds of dead giant tuna every year. Federal observers have documented multiple takes ofpilot whales and white-sided dolphins by midwater trawl gear despite very limited coverage (NEFMC 2006). In 2004, after a temporary pilot program increased monitoring, three midwater vessels were caught trying to land illegal juvenile haddock in unknown but potentially very large amounts, possibly over 30,000 pounds. (NOAA 2004, Richardson 2004). Other reports describe whales that were killed or injured by the gear (Daley 2003). Again, these cases represent only a small fraction ofthe thousands ofmidwater trips that have been taken, which means it is likely that the real impact is far greater.
And, even when midwater trawlers have observers onboard, a regulatory loophole still prevents an accurate accounting ofbycatch. Today, the trawlers are allowed to dump entire nets offish-a practice known as "slippage"-ifthe.crew suspects those nets contain excessive amounts ofjuvenile herring, herring in poor condition, river herring, groundfish, marine mammals, or other unwanted catch (Federal Register 2006, NOAA 2007b, NEFMC 1999, NEFMC 2006). In fact, recent studies on similar fisheries found that "slippage" does take place due to the presence ofbycatch and that furthermore this practice likely results in under-estimation ofthat bycatch, potentially including marine mammals (Pierce 2002, Morizur et al. 1999).
Finally, the midwater fleet persuaded managers to let them fish in areas closed to groundfish vessels for the protection ofrecovering cod, haddock, flounder and other species, by claiming their gear does not catch groundfish,. or catches only negligible amounts (NEMFC 1997, Federal Register 1998). Midwater trawl vessels fishing in these groundfish nurseries have a bycatch threshold ofone percent ofthe total haul (50 CFR Part 648.81). Overall, the vessels are permitted five percent bycatch (50 CFR Part 648.80). However, even ifthe ships justcaptured one percent, which is impossible to verify due to a lack ofoversight and widespread discarding, the harvest is so large the amount potentially translates into more than three million pounds ofgroundfish discards per year. To put the midwater fleet's scale ofoperations in perspective, the entire allowable catch ofhaddock for groundfishermen in the GulfofMaine in 2008 is 2.7 million pounds (Federal Register 2006b) In fact, active groundfishermen are in federal
9 court today challenging the legality ofthe closed area double standard (Earthjustice 2008).
Solution
Beginning n the summer of2007, after fisheries managers responded to the calls of commercial fishermen, saltwater anglers, conservationists and concerned citizens, the inshore GulfofMaine was closed to midwater trawling from June through September. Within months, there were reports ofmore herring, striped bass, bluefin tuna, whales and seabirds than had been seen in the waters for years (Bell 2007). The experience not only illustrates the negative impact midwater trawlers are having on the ecosystem, it also shows that relatively small management steps can restore the ocean's productivity and increase its economic benefits for all ofits users exponentially.
The National Marine Fisheries Service, the Atlantic States Marine Fisheries Commission and the New England Fishery Management Council must build on these gains by adopting the following management actions:
• No midwater trawling in Groundfish Closed Areas. • No midwater.trawling within 50 miles ofshore. • No midwater trawling in areas with high fixed gear interactions.
It A shore-based monitoring system that provides certified offloads, actual weights, and real-time catch monitoring. " 100 percent observer coverage levels. " Onboard sampling ofall catch or maximized retention and shoreside sampling (prohibit at-sea dumping). • Bycatch caps monitored in real-time. " Gather the information necessary to quantify the importance ofherring to the ocean's predators. Incorporate this information into herring fishery regulations.
It Revise harvest targets and limits to ensure Atlantic herring populations are maintained above the fishery's maximum sustainable yield. For example, fishing targets should be set sufficiently below annual catch limits to prevent overages.
It Calculate and explicitly establish a set-aside or allocation ofherring for its predators that considers the increased demands as these populations continue to grow.
It Apply strategies to protect herring and its predators in the places and times when the species are at greatest risk from trawl nets.
A robust herring resource is critical to the health ofNew England's marine ecosystem and the long-term productivity ofits fisheries and coastal economy. The collapse ofthe region's herring resource in the 1970s and then its groundfish stocks in the late 1980s clearly shows what happens when fisheries management puts the interests ofshort-term profits ahead of sustaining the ocean's long-term productivity. We must act now to avoid making the same mistake again. To learn more and get involved, please go to www.herringalliance.org.
10 References
Atlantic Coastal Cooperative Statistics Program 2004. Maine Dept. ofMarine Resources Project Reports. http://www.accsp.org/reportsmaine.htm
Audubon 2005. "Egg Rock Update." Spring Newsletter ofthe Seabird Restoration Program ofthe National Audubon Society. http://www.audubon.org/bird/puffin/nsarchive/ERUpdate_2005.pdf
ASMFC 2003. Atlantic States Marine Fisheries Commission. State-by-State Regulations for Atlantic herring. http://www.asmfc.org/speciesDocuments/herring/statebystateRegs.pdf
Babcock, E.A., E.K. Pikitch, and e.G. Hudson. 2003. "How much observer coverage is enough to adequately estimate bycatch?" http://www. oceana. org/fileadmin/oceana/uploads/dirty_fishing/BabcockPikitchGray2003 FinalReport.pdf
Bell, T. 2007. "Results seen from new herring rules." Blethen Maine Newspapers. Kennebec Journal; Morning Sentinel. 09111/2007. http://kennebecjournal.mainetoday.comlnews/local/4267833.html
Bigelow, H. B., and W. e. Schroeder 2002. Fishes ofthe GulfofMaine, 3rd edition. Bruce B. Collette and Grace Klein-MacPhee, eds. Smithsonian Institution Press. An online version ofthe (1953) edition is available courtesy ofthe GulfofMaine Research Institute: http://www.gma.org/fogm/
Canfield, Clarke 2005. "One U.S. Sardine Plant Left." Seattle Times, 5/7/2005. http://archives.seattletimes.nwsource.comlcgi- bin/texis.cgi/web/vortex/display? slug=sardines07&date=20050507
CFR 2008. Electronic Code ofFederal Regulations Title 50 "Wildlife and Fisheries." idx?sid=d77592d5768f8711ebccc5293d77e06e&c=ecfr&tpl=/ecfrbrowse/Title50/50tab 02.tpl
Daley, B. 2003. Fishing method eyed in mammals' deaths. Boston Globe, 10/4/2003. http://www.eurocbc.org/paictrawls_linked_to_maine_cetacean_deaths_040ct2003page1 301.html
DMR 2006. Department ofMarine Resources. Commercial Fisheries Landings Data Page. http://mainegov-images.informe.org/drnr/commercialfishing/documents/lobster.pdf
Earthjustice 2008. Press Release. "Fishermen Sue to Ban Herring Trawlers From Groundfish Areas." http://www.earthjustice.org/news/press/2008/fishermen-sue-to-ban herring-trawlers-from-groundfish-areas.html
12 Federal Register 1998. Department ofCommerce. National Oceanic and Atmospheric Administration. Fisheries ofthe Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 18. Final Rule. February 17, 1998. Volume 63, Number 31. Page 7727-7731. http://frwebgate.access.gpo.gov/cgi- binlgetdoc.cgi?dbname=1998 register&docid=98-3791-filed.pdf
Federal Register 2006. Department ofCommerce. National Oceanic and Atmospheric Administration. Fisheries ofthe Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 43. Final Rule. August 15,2006. Volume 72, Number 6. Page 46871-46877. http://edocket.access.gpo.gov/2006/pdf/06-6932.pdf
Federal Register 2006b. Department ofCommerce. National Oceanic and Atmospheric Administration. Fisheries ofthe Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 42. Final Rule. October 23,2006. Volume 71, Number 204. Page 62156-62196. http://www.nefmc.org/nemulti/frame/fw42/fw42 final rule.pdf
Federal Register 2007. Federal Register Environment Documents. Fisheries ofthe Northeastern United States; Atlantic herring Fishery; 2007-2009 Specifications. April 10, 2007. Volume 72, Number 68. Rules and Regulations. Page 17807-17813. http://www.epa.gov/fedrgstr/EPA-IMPACT/2007/April/Day-101i6648.htm
Federal Register 2007b. Federal Register Environment Documents. Fisheries ofthe Northeastern United States; Atlantic herring Fishery; Amendment 1. March 12,2007. Volume 72, Number 47. Rules and Regulations. Page 11251-11281. http://www.epa.gov/fedrgstr/EPA-IMPACT/2007/MarchiDay-12/i4163.htm
Federal Register 2007c. Department ofCommerce. National Oceanic and Atmospheric Administration. Fisheries ofthe Northeastern United States; Atlantic herring Fishery; 2007-2009 Specifications. Proposed Specifications. January 10,2007. Volume 72, Number 6. Page 1206-1211. http://edocket.access.gpo.govI2007/pdf/E7-202.pdf
GMA 2007a. GulfofMaine Aquarium. Atlantic herring. "Herring Biology: What is a herring?" http://www.gma.org/herringlbiology/default.asp
GMA 2007b. GulfofMaine Aquarium. Atlantic herring. "Herring Harvest: Midwater Trawling." http://www.gma.org/herringlharvesCand_processing/trawling/default.asp
GMA 2007c. GulfofMaine Aquarium. Atlantic herring. "Herring Processing." http://www.gma.org/herring/harvesCand_processing/processing/default.asp
GMA 2007d GulfofMaine Aquarium. Atlantic herring. "Herring Biology: Ecology" http://www.gma.orglherringlbiology/ecology/default.asp
13 GMA 2007e Gulf ofMaine Aquarium. Atlantic herring. "Herring Harvest: Fixed Gear Fishery- Herring Weirs in the Gulf ofMaine" http://www.gma.orglherring/harvest and processing/weirs/default. asp
GMA 2007f. GulfofMaine Aquarium. Atlantic herring. "Herring Harvest: Purse Seining" http://www.gma.orglherring/harvest and processing/seining/default.asp
Golet, Walter et al. 2007. Decline in condition ofnorthern bluefin tuna (Thunnus thynnus) in the GulfofMaine. NOAA Fish. Bull. 105:390-395 http://fishbull.noaa.gov/l053/go1et.pdf
Herring Alliance 2007. "Herring Alliance releases special report on river herring." October 31, 2007. http://www.herringalliance.org/content/view/32/53/
Morizur 1999. "Incidental catches ofmarine-mammals in pelagic trawl fisheries ofthe northeast Atlantic." Fisheries Research. Volume 41, Issue 3 July, 1999. http://www.sciencedirect.comiscience?_ob=ArticleURL&_udi=B6T6N-3WK3CC4 6&_user=1O&_rdoc=1&_fmt=&_orig=search&_sort=d&view=c&3cct=C000050221&_ version=1&_urIVersion=O&_userid=10&md5=1bb4c23b4e913747e81fu777e1cO 14e9
Neal, Benjamin and Brehme Christopher. 2001. "Eastern GulfofMaine Spawning Area Survey. Project Year 4 Summary: Identifying Spawning Habitat ofClupea harengus in coastal eastern Maine and Grand Manaan New Brunswick." On file at Island Institute: 386 Main Street, Rockland, Maine.
NEFMC 1997. New England Fishery Management Council. Framework Adjustment 18 Northeast Multispecies Fishery Management Plan. July 23, 1997. http://www.nefmc.org/nemulti/frame/Groundfish Framework 18.pdf
NEFMC 1999. New England Fishery Management Council Original Herring FMP. http://nefmc.org/herring/index.html
NEFMC 2001 New England Fishery Management Council Atlantic Herring Stock Assessment and Fishery Evaluation Report for the 2001 Fishing Year http://www.nefmc.org/herring/safe reports/herring SAFEOI.PDF
NEFMC 2003. New England Fishery Management Council. Herring FMP. Final Amendment 1, Appendix V. "The Role ofAtlantic Herring in the Northwest Atlantic Ecosystem." hllQ.;li~fu!£:..QrgL1illC!ir!gQ1ill~h!!:lli
NEFMC 2004. New England Fishery Management Council. Herring PDT/TC Report. May 5, 2004. Holiday Inn, Mansfield, MA. (2003 SAFE Report) http://www.nefmc.org/herring/safcreports/herring_SAFE03.pdf
NEFMC 2006. New England Fishery Management Council. Herring Fishery Management Plan. Final Amendment 1. ill!~~1m~~~[lli!lWl!lQ~ill!ill
14 NEFMC 2006b. Public Comments on Amendment 1 to Herring FMP. On file at New England Fishery Management Council.
NEFMC 2007. Proposed Atlantic herring Specifications for the 2007-2009 Fishing Years (January 1, 2007 - December 31, 2009) including the Environmental Assessment (EA), Regulatory Impact Review (RIR), and Initial Regulatory Flexibility Analysis (IRFA). Prepared by the New England Fishery Management Council in consultation with Atlantic States Marine Fisheries Commission, National Marine Fisheries Service, Mid-Atlantic Fishery Management Council. Date Submitted: November 3,2006. http://www.nefmc.org/herring/FINAL%202007.2009.Specs%20Package%20EA.SUBMI TTED.ll.03.06.pdf
NEFMC 2007b. Atlantic Herring Stock/Fishery Update. Council staffmemorandum available within September 2007 NEFMC meeting discussion materials at http://www.nefmc.org/herring!council mtg docs/HerringCouncilMaterials Sept2007. pdf
NMFS 2006. National Marine Fisheries Service Fisheries Statistics and Economics Division. Exports. Herring. http://www.st.nmfs.gov/pls/webpls/trade_prdct.data_in?qtype=EXP&qmnth=l2&qyear= 2006&qprod_name=HERRING&qoutput=TABLE
NMFS 2007. National Marine Fisheries Service Northeast Regional Office, Quota Monitoring Page. www.nero.noaa.govlro!fso!reports/reportsframe.htm
NMFS 2007b National Marine Fisheries Service Northeast Regional Office U.S. Canada Resource Sharing Monitoring, http://www.nero.noaa.gov/ro/fso/usc.htm
NMFS 2007c A Maximized Retention and Monitoring Program for the Pacific Whiting Shoreside Fishery. Draft Environmental Assessment. May 1,2007 http://www.nwr.noaa.gov!Groundfish-HalibutiGroundfish-Fishery-Management/NEPA Documents/upload!Amend-l0-EA.pdf
NMFS 2008 NERO Fishery Statistics Office (FSO) Herring Compliance & Monitoring. NMFS staffmemorandum available within March 2006 NEFMC Herring Committee meeting discussion materials at http://www.nefmc.org/herring/cte%20mtg%20docs/080326 meeting materials.pdf
NOAA 2004. Fisheries Office for Law Enforcement. October, 26, 2004. Press Release: Three Fishing Vessels Penalized $85,000 for Illegal Catch. http://www.nmfs.noaa.gov/ole/news/news_NED_102604.htm
NOAA 2007a. NOAA Fisheries Office of Science and Technology. Total Commercial Fishery Landings At Major U. S. Ports Summarized By Year And Ranked By Dollar Value. llliJ2Jl.~~~mt~~JNYLmULfQ!!!1J.:!SmillLl£lillliru@!2Q!u~IU1.tml
15 NOAA 2007b. Northeast Fisheries Observer Program. Fisheries Observer Program Manual. NOAA, National Marine Fisheries Service. Northeast Fisheries Science Center. Fisheries Sampling Branch. http://www.nefsc.noaa.gov/femad/fishsamp/fsb/
Orphanides CD, Magnusson GM. 2007. Characterization ofthe Northeast and Mid Atlantic Bottom and Mid-water Trawl Fisheries Based on Vessel Trip Report (VTR) Data. U.S. Dep. Commer., Northeast Fish. Sci. Cent. Ref. Doc. 07-15; 127 p. http://www.nefsc.noaa.gov/nefsc/publications/crd/crd0715/crd0715 .pdf
Overholtz, William. 2006. "Status ofFishery Resources offthe Northeastern US. Atlantic herring." NEFSC - Resource Evaluation and Assessment Division. http://www.nefsc.noaa.gOYIsoslspsyn/pp/herringl
Overholtz, W.1. and 1.S. Lillie 2007. "Consumption impacts by marine mammals, fish, and seabirds on the Gulf ofMaine - Georges Bank Atlantic herring (Clupea harengus) complex during the years 1977-2002." ICES Journal ofMarine Science 64:83-96 http://icesjms.oxfordjournals.org/cgi/reprint/64/1/83.pdf
Pierce, Graham. 2002. Results ofa Short Study on By-catches and Discards in Pelagic Fisheries in Scotland. Aquatic Living Resources 15 (2002) 327-334 http://www.alr-journal.org/articles/alr/pdf/2002/06/alr2066.pdf
Plante, 1. 2007. Herring stakeholders seek action in 2008. Commercial Fisheries News. Volume 35 Number 1 September 2007. h"''''.,.,·u,,,,,uur
Pollock, A. 2008. Where are the River Herring. Cape Cod Chronicle, 4/17/08 http://www.capecodchronicle.com/chatnews/chat0417083.htm
Read, A.1. and Brownstein, c.R. 2003. "Considering other consumers: fisheries, predators, and Atlantic herring in the Gulf ofMaine." Conservation Ecology 7 (l):2. http://www.consecol.org/vo17lissl/art2
Richardson,1. 1997. Trawlers Blamed for Loss ofTraps. Portland Press Herald. September 30, 1997 http://nl.newsbank.com/nl- search/weiArchives?p product=ME&p theme=me&p action=search&p maxdocs=200& s dispstring=TRAWLERS%20BLAMED%20FOR%20LOSS%200F%20TRAPS%20A ND%20date(all)&p field advanced-O=&p text advanced- O=("TRAWLERS%20BLAMED%20FOR%20LOSS%200F%20TRAPS")&p perpage= 10&p sort=YMD date:D&xcal useweights=no
16 Richardson, J. 2003 Trawlers suspected in whale, seal deaths. Portland Press Herald. October 27,2003 http://n1.newsbank.com/nl- search/we/Archives?p product=ME&p theme=me&p action=search&p maxdocs=200& s dispstring=Trawlers%20suspected%20in%20whale,%20seal%2Odeaths%20AND%20d ate(a11)&p field advanced-O=&p text advanced 0=("Trawlers%20suspected%20in%20whale,%20seal%20deaths")&p perpage= 1O&p so rt=YMD date:D&xcal useweights=no
Richardson, J. 2004 Officials back offestimating amount ofdead haddock Portland Press Herald. September 21,2004 http://n1.newsbank.com/nl- search/weiArchives?p product=ME&p theme=me&p action=search&p maxdocs=200& s dispstring=juvenile%20haddock%20AND%20date(2004)&p field date- O=YMD date&p params date-O=date:B,E&p text date-0=2004&p field advanced O=&p text advanced- 0=("juvenile%20haddock")&p perpage=lO&p sort=YMD date:D&xcal useweights=no
TRAC 2006. "Transboundary Resource Assessment Committee Status Report 2006/01. GulfofMaine-Georges Bank Herring Stock Complex." Fisheries and Oceans Canada/N 0 AA !!lllrJ£.~}YJl!ill:.:.illQ.: mpo.gc.ca/science/TRAC/TSRs/TSR 2006 01 E.pdf
17 KELLEY DRYE & WARREN LLP
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June 30, 2008
Via Electronic Mail
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930
Re: Scoping Comments on Herring Amendment 4
Dear Ms. Kurkul:
We are writing to you on behalf ofCape Seafoods, Inc., Lund's Fisheries, Inc., Northern Pelagic Group, LLC, Western Sea Fishing Co., Inc., and the numerous vessels associated with and supplying these businesses. This letter is presented in response to the National Marine Fisheries Service's ("NMFS") call for comments on the elements under consideration in Atlantic Herring Amendment 4. Also, attached is a copy ofa White Paper prepared on behalfofthis same group ofcompanies and vessels. That document amplifies some ofthe concerns and proposals suggested below, and is incorporated by reference as part ofthe record for this scoping process.
1. Annual Catch Limits & Accountability Measures
One ofthe issues ofgreatest concern relates to the alternatives for annual catch limits ("ACL") and accountability measures ("AM") in order to conform the herring plan to the new Magnuson-Stevens Act ("MSA") requirements. A detailed review ofthe NMFS's proposed new National Standard 1 guidelines, ostensibly designed to implement these new MSA provisions, reveal a significant over-reach by NMFS that has resulted in advice inconsistent with the clear language ofthe law. These comments briefly explain some ofthe legal inconsistencies with the proposed rule, but also proceed to demonstrate that the current total allowable catch ("TAC") setting process for herring - which is already largely consonant with the reauthorized MSA - can be made consist even with the flawed proposed guidelines.
DCOl/GEHAS/343290.1 KELLEY DRYE & WARREN LLP
Herring Amendment 4 Scoping Comments June 30, 2008 Page 2
The primary concern with the draft ACL rule is that is adds layer upon layer of precautionary intermediary targets, thresholds, and limits that are neither mentioned in, nor authorized by, the MSA. Chiefamong these is the guideline's introduction ofthe extra-statutory concept ofan "annual catch target" ("ACT") - which, as NMFS recommends, is purposefully designed to inhibit a fishery from achieving optimum yield ("OY") even on an annual basis, despite National Standard 1's clearly expressed mandate for the achievement of OY "on a continuing basis." 16 U.S.C. § 1851(a)(l). The essence ofthe problem with the proposed rule is captured in the formulation:
Overfishing Level ("OFL") :::: Acceptable Biological Catch ("ABC") :::: ACL::::ACT (TAC)
Ofthese, only ABCs and ACLs are explicitly mentioned in the MSA. An ACL is to be set "at a level such that overfishing does not occur." 16 U.S.C. § 1853(a)(l5). Consistently, regional councils are constrained not to set ACLs at a level determined by a Science and Statistical Committee ("SSC") to equate to levels ofoverfishing. ld. § 1852(h)(6), (g)(l)(B). An SSC is also directed to make "recommendations for acceptable biological catch." ld. § 1852(g)(1)(B).
These benchmarks are relative to the primary management targets identified in the MSA; specifically, maximum sustainable yield ("MSY") and OY. As mentioned, the overarching objective ofthe Magnuson-Stevens Act is to prevent overfishing and to achieve "the optimum yield from each fishery for the United States fishing industry." ld. § 1851(a)(l). OY "is prescribed as such on the basis ofthe maximum sustainable yield from the fishery, as reduced by any relevant economic, social, or ecological factor." ld. § 1802(33)(B).
The proper relationship among these benchmarks is as follows:
MSY>OFL1
MSY::::OY
OY = ABC =ACL=TAC
Generally speaking, OY, ABC, TAC, and ACL are synonyms, and the management objective is to meet, but not exceed, the full measure ofallocated TAC. 2 However, the proposed guidelines
In a fishery which is not overfished nor subject to overfishing, like Atlantic herring, MSY (or its proxy, FM SY) would generally be equal to OFL. Only in cases where overfishing is occurring or a stock is rebuilding would MSY be greater than OFL.
2 The rare instances where OY for a particular species is purposefully forgone and OY/ABC can be greater than the ACLITAC occur mostly in the North Pacific where the two million metric ton cap prevents allocation ofthe fully measure ofOYIABC for each species. See 50 C.F.R. § 679.20(a)(l)(i).
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Herring Amendment 4 Scoping Comments June 30, 2008 Page 3 essentially force a council to set annual catch limits below acceptable biological catch, and to set annual TACs, in the form ofcatch targets, below each ofthese benchmarks.
None ofthe additional layers ofprecaution in the proposed National Standard I guidelines have any place in the statutory scheme. The touchstone ofthe law, which is key to both preventing overfishing and obtaining the maximum national benefits from a fishery, is the continual achievement of OY. See, e.g., id. § 180I(b)(4). The SSC is tasked to provide an absolute cap in terms ofthe levels ofharvest that equate to overfishing, and an assessment ofany uncertainties or particular concerns with the biological, scientific and/or management aspects of the fishery. Id. § I852(h)(6). Ultimately, however, the Council evaluates this information and makes the determination as to how far below MSY OY should be set when determining the ACL. No further precaution is necessary, and minor breaches ofthe ACL should not be cause for concern so long as OFLs are not reached.
One ofthe primary defects ofthe proposed guidelines, which is directly relevant to the considerations the Council will be.making in adopting ACLs and AMs for Amendment 4, is the concept that management measures should be designed specifically to prevent achievement of the annual catch limit. NMFS is not only proposing to evade the clear MSA command to achieve OY on a continuing basis by recommending that ACLs be established below OY, but the agency further suggests that councils include ACTs as a management target that is a full second step lower. In fact, the proposed rule astonishingly suggests that a fishery management plan contain punitive measures that would be enacted ifthe ACL - not the overfishing level - is exceeded on some routine basis, such as twice in five years. In short, NMFS is proposing that the fishing industry and fishing communities be punished ifthey sporadically achieve OY.
Itis our hope that after consideration ofpublic input, NMFS will produce a final set of guidelines that is consistent with the law. In the interim, we recognize that the Council is in a difficult position given the existence ofproposed guidance that is at odds with the MSA's plain terms. Fortunately, Amendment 4 is in the early stages ofdevelopment, and there is ample time to clarify these issues. Our suggestion, therefore, is to insure that there are alternatives that are consistent with the law as written.
In this regard, the Atlantic herring fishery is already managed by a highly conservative hard TAC. This quota has not been achieved in Areas 2 and 3, and the Council has set optimum yield for herring in Area 1 at a precautionarily low level. There is no need to alter the TAC setting process, other than to incorporate an alternative that introduces the new terminology, such as referring to the TAC as the "ACL" and directing the SSC to provide estimates ofarea-based OFLs and recommendations for ABC. Otherwise, the herring FMP meets the current Magnuson Stevens Act standards, and could be made consistent with even the flawed proposed guidelines by simply setting the TAC, ACL, ABC, and ACT all at the same OY level.
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As a final point on ACLs, estimates ofdiscards should play no role in the setting of ABCs. It is appropriate, however, to calculate, based on observer sampling, the amount of discards in the fishery in measuring the achievement ofACLs. The fact is that the industry works hard to minimize discards, and has an impressive record in this regard.
In terms ofaccountability measures, there should probably be some management response ifOFLs are exceeded in a given year. With improved monitoring, this should not be an issue. Nor should it be an issue outside ofArea 1. Ifthe Council adds an option for some type oflimited access privilege program ("LAPP"), discussed below, it may be appropriate to deduct an individual cooperative, vessel, or sector an equivalent amount ofthe overage from the subsequent year's allocation. Otherwise, ifthe overage is occasional and relatively small, then the response should be to tighten quota monitoring and to account for such overages in the next round ofTAC setting.
We would also stress the importance ofmonitoring all catches in a rigorous and reliable manner as part ofany management system. In order to have accountability and a meaningful management system, the Council and NMFS need to have confidence in the harvest numbers. While additional and more detailed suggestions are made below under the "Monitoring" header, we feel it is important that system ofaccountability include a catch weighing component that is enforceable and reliable, particularly for Area 1.
Therefore, we recommend that all catch be weighed and either separated or reliably sampled at first point oflanding or production in the U.S. Options can include requirements for official weigh stations, approved and tested scales at production facilities, on-board scales (such as flow scales) for vessels that receive transfers at sea, and related sampling protocols sufficient to precisely and accurately characterize the catch. With such systems in place, the monitoring and enforcement ofACLs should be rigorous enough to achieve OY with confidence while avoiding the need to use draconian AMs.
2. Alternative for LAPP for Area 1 Only
As discussed in much greater detail in the attached White Paper, we do not see any value in pursuing a sector proposal > either along the lines considered and rejected in Herring Amendment 1 or ofthe type which is causing so much controversy and confusion in the groundfish fishery - in Amendment 4. However, there may be merit in developing an alternative that allocates fishing privileges in Area lA and allows vessels to fish their allocations ina cooperative manner. This form ofmanagement, as also discussed in more depth in the White Paper, has been successfully utilized for several fisheries in the North Pacific.
Beyond the fact that current working models exist from which to draw upon, this type of system has the advantage ofleveling the playing field among all participants. The lack ofa
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Herring Amendment 4 Scoping Comments June 30,2008 PageS common baseline for determining allocations was one ofthe great inequities ofthe sector proposal previously rejected by the Council, because vessels with identical history could get different allocations. Allocating the fishery all at once eliminates this concern.
Moreover, there is good reason to include such an option in Amendment 4. The implementation ofthe purse-seine only season in Area lA has had a distorting effect on participants. An allocation based on recent participation, dependence, the needs ofprocessors and fishing communities (all factors required to be considered by the newly Reauthorized Magnuson Act), would vest qualified vessels with a secure allocation that could help to either foster investment to switch to purse seine from mid-water gear - should the current prohibition be continued following the results ofongoing research - or help insure that the herring quota is available throughout the fishing year to meet market demands. With that in mind, our recommendation would be to include options for qualification periods that range back to 1993 and run to the end of2006.
Finally, a limited co-op program in Area 1 could be viewed as a test for a different type ofmanagement system in this region that could serve as a model for Areas 2 and 3, as those fisheries develop, as well as, potentially, for the multispecies fishery and others. At the very least, it would be beneficial to include such an alternative for public consideration.
3. Catch Monitoring
To the extent possible, and consistent with the vast majority offisheries managed by the Northeast Region, on-board observers should be government-funded. Observers in the Northeast Region are the most expensive anywhere in the United States. This inordinate cost, combined with the high price offuel and the relatively low margins in the herring fishery, makes industry funded observers simply infeasible. This idea should be removed to the "considered and rejected" section. However, one approach may be to consider an Area lA and lB TAC observer set-aside, as is currently done in the scallop fishery. In conjunction with a LAPP program, this set-aside could be allocated as additional poundage beyond a cooperative's normal allocation. Alternatively, should the Council decide to continue the race-for-fish, another alternative could be to auction the set-aside quota to the high bidder, as the Mid-Atlantic Council does to raise research funds, to cover additional observer costs.
Also, as mentioned above, while the current dockside monitoring program works well, Amendment 4 should include alternatives to expand and improve the program. Given the nature ofthe fishery, dockside sampling can provide accurate information with much greater efficiency compared with at-sea monitoring. At the very least, there should be an alternative to require lOO percent dock-side weighing, with a reasonably equivalent program for herring that is transferred at-sea and exported to Canada via Canadian flag carriers. Ofcourse, at-seaobservers are also a necessary component ofthe monitoring program. However, the levels ofobserver coverage
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Herring Amendment 4 Scoping Comments June 30, 2008 Page 6 should be consistent with those called for in the Standardized Bycatch Reporting Methodology ("SBRM") Omnibus Amendment, for achieving target levels ofprecision and accuracy. There is no reason to depart from the requirements in SBRM for this fishery, which, ifanything, has been monitored at one ofthe highest levels ofany in this region. In fact, our understanding is that to meet these objectives, the herring fishery will not need a vast expansion from current levels.
Finally, beyond the need for better landings and harvest monitoring discussed above, Amendment 4 mustimprove shoreside monitoring and auditing ofdealer reports to help reduce the discrepancy between these and individual vessel reports. This is particularly needed to help resolve the discrepancy with respect to catches coming from the Area 2 portion ofthe.fishery,
4. Management Measures to Address Bycatch (Herring/Mackerel):
National Standard 9 requires the practicable minimization ofbycatch, including regulatory discards. In the case ofthe Area 2 and 3 portions ofthe herring fishery, where TACs have not been achieved, it makes no sense to require mackerel vessels without a limited access herring permit to discard herring when a vessel accidentally runs into a large school.
The Herring Advisory Panel recommended increasing the incidental catch amount to 25 metric tons ofherring for mackerel vessels in Areas 2 and 3 only. There were no votes in opposition. Until such time as herring is fully utilized in these areas, such a measure would insure that full economic use is made ofthe resource and that regulatory discards are practicably minimized.
In addition, Amendment 4 could include an option for a herring TAC set-aside for Areas 2 and 3 that would account for incidental catch in the mackerel fishery to avoid a closure ofthe mackerel fishery. The Council should present a range ofpercentages for this set-aside for public comment, as well as ask for similar consideration from the Mid-Atlantic Council as it moves forward with mackerel limited entry.
Another issue that needs consideration is the current 72-hour call-in system for herring. Current advice is for vessels embarking on a mackerel trip to call in the trip as a herring trip to cover the possibility that the vessel may encounter primarily or solely herring. However, as the mackerel fishery moves to limited access, a similar call-in system for that fishery could put vessel owners in these mixed pelagic fisheries in a bind. Alternatives that could be considered are to allow vessels to call into both fisheries, or create a combined mid-water pelagic call-in code.
As these issues make clear, the long run solution will be to jointly, or at least more closely, manage these two interdependent fisheries. See White Paper at 14-16 (discussing alternatives for joint management). Currently, the Mid-Atlantic Council is working on
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Amendment 11 to the Atlantic Mackerel FMP, a measure the wi1llimit access to that fishery and potentially consider LAPP proposals. This confluence ofrulemakings presents a unique and valuable opportunity to better coordinate management ofthese two interrelated stocks, as encouraged by National Standard 3. An increased bycatch allowance for incidental catch of herring by vessels on mackerel trips, and vice versa, is a good initial step. Over the longer run, a joint LAPP program for the two stocks could resolve the bycatch and discard problem that has the potential to lead to unnecessary waste ofthese underutilized species.
**** We appreciate this opportunity to provide scoping comments on Herring Amendment 4, and look forward to working with NMFS and the Council to develop and explore some bold new approaches to herring management that can serve as model for other Northeast Region fisheries.
Sincerely,
/s/ David E. Frulla Shaun M. Gehan Andrew E. Minkiewicz
Attorneysfor Cape Seafoods, Inc., Lund's Fisheries, Inc., Northern Pelagic Group, LLC, Western Sea Fishing Co., Inc
ATTACHMENT
DCOlIGEHAS/343290, 1 June 27, 2008
Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930
Submitted via email to: [email protected]
Re: Herring Amendment 4 Scoping Comments
Oceana thanks the NEMFC for the opportunity to provide scoping comments for Amendment 4 to the Atlantic Herring Fishery Management Plan. Recognizing that scoping is a critical part of the development of a management action, Oceana requests that the Council carefully consider these comments in the development of management alternatives.
The rapid expansion of the herring trawl fishery over the last ten years has created a range of issues about the effects of trawls on herring and their quality as the forage base for the Gulf of Maine and the effects of large industrial trawlers on the marine habitats of the region. Oceana has had an interest in the management of Atlantic herring for many years and continues to be concerned about bycatch, habitat, and ecosystem impacts of the herring fishery. Oceana encourages the Council to use Amendment 4 to address these issues to improve the long-term management of this fishery. In addition, Amendment 4 must comply with the new statutory requirements in the Magnuson-Stevens Conservation and Management Act including setting scientifically based annual catch limits "at a level such that overfishing does not occur in the fishery including measures to ensure accountability."
Oceana submits the following comments related to the following objectives for the amendment and looks forward to participating in the development of the amendment.
Objective 1: Improve the Long-term Monitoring of Catch (Landings + Discards) in the Herring Fishery
The herring fishery needs a robust at-sea and shoreside observation program to provide accurate and precise information about catch and bycatch in the various modes of the fishery. To accomplish this goal, the Council must use Amendment 4 to develop a new sampling program for the unique modes of the herring fishery, which operates in a manner unlike the other fisheries in the region. The Council should borrow examples of effective monitoring from other regions and nations for treatment of similar large vessel, small pelagic fisheries. Oceana Herring Scoping Comments June 27,2008 Page 2 of 6
A complete monitoring program will minimize a known source of uncertainty in the fishery and allow the Council to set appropriate levels of landings without the need to allocate available catch to discards.
A complete monitoring program should include:
At-sea Observers- The use of at-sea fisheries observers is recognized as the most reliable method of collecting information about catch and bycatch. Although the Standardized Bycatch Reporting Methodology proposed a generalized data collection and reporting program for the fisheries of the region, this sampling protocol was designed for a purpose separate from the needs of Total Allowable Catch (TAC) monitoring and enforcement and is insufficient to monitor Annual Catch Limits (ACL) or provide the basis for any mandated Accountability Measures (AM). The Council should task the Plan Development Team and the Northeast Fisheries Science Center to design a sampling protocol that will provide reliable information about catch and bycatch that can be the basis for ACL monitoring and management.
Electronic Monitoring- The Council received reports commissioned by the Gulf of Maine Research Institute at its April and June 2008 meetings that described the use of electronic monitoring (EM) to effectively monitor groundfish sectors. The reports to the Council indicated that the use of EM could be a useful and cost-effective. addition to a monitoring program. Amendment 4 should consider and research the application of electronic monitoring systems as a part of the overall monitoring program for the various modes of the herring fishery.
Real-time Area-specific Catch Reporting- Monitoring and enforcing ACLs and TACs will require timely information to prevent any ACLs or area-specific TACs from being exceeded. The National Oceanic and Atmospheric Administration Office of Law Enforcement and Fisheries Statistics reported in April 2008 that herring landings are assigned to the management area where the vessel spent the simple majority of its time on a trip. This weakness in reporting could jeopardize the area-specific TAC/Annual Catch Limits for this fishery and subject the fully exploited area 1A fishery to mortality that should be rightfully attributed to other management areas. To ensure that accurate and precise information is available to managers, Amendment 4 should require real-time catch reporting via Vessel Monitoring System (VMS) that is correlated with each herring management area including a requirement for tow-by tow area-specific catch reporting.
Funding of Monitoring Program The Council should encourage economically robust fisheries to fund their monitoring programs. A complete Amendment 4 should include honest and open assessment of the economics of the various modes of the herring fishery and the ability of these modes to provide full or partial funding of a monitoring program similar to the scallop fishery and its TAC set-aside. To date the economics of the fishery have not been adequately documented or discussed in an FMP action. Oceana Herring Scoping Comments June 27, 2008 Page 3 of6
Obiective 2: Implement Annual Catch Limits and Accountability Measures-
The National Marine Fisheries Service has only recently issued a Proposed Rule for implementation of the Annual Catch Limit (ACL) and Accountability Measures (AM) requirements of the Magnuson-Stevens Reauthorization Act. Oceana will be submitting extensive comments to the National Marine Fisheries Service about the proposed rule during the current comment period. Until a Final Rule is promulgated, the Council should use Amendment 4 to build upon the strong hard-TAC managementframework of the herring FMP to fully comply with the new provisions of the Magnuson-Stevens Reauthorization Act.
Annual Catch Limits-
Fish Species- The Council should use Amendment 4 to establish Annual Catch Limits for all species known to be caught (landed and discarded) in the Atlantic herring fishery including those species and stocks managed by the Council, the Mid-Atlantic Council, the Atlantic States Marine Fisheries Commission, and other management authorities. There should be no allowances for de minimis levels of catch or discards and the Council should include limits on the catch of all species known to be caught in the herring fishery.
Furthermore, the Council should include a mechanism in Amendment 4 to add limits for other species caught in the fishery based on documentation in the improved monitoring program for the fishery.
Protected Species- The herring fishery has a known interactionwith a range of marine mammal species. In fact, a single trip in April, 2008 was observed catching six pilot whales. To address this issue, in addition to a complete system of Annual Catch Limits on fish species, the Council should set similar limits on bycatch or incidental catch of protected species that are known to be caught in the herring fishery. The herring trawl fishery is subject to the Atlantic Trawl Take Reduction Team and is considered a category II fishery by the most recent List of Fisheries published under the Marine Mammal Protection Act. Setting limits on protected species bycatch is an affirmative measure that should be a part of Amendment 4.
Setting Annual Catch Limits- To establish a system of Annual Catch Limits for the herring fishery, the Council should build on the hard TAC management that has managed the fishery since its inception. The Council should task the Scientific and Statistical Committee to recommend this system of limits along with the set of area-specific TAC's for the fishery as have been set in the past. These limits should be set with an expected probability of achieving the management goals of the fishery. Oceana Herring Scoping Comments June 27, 2008 Page 4 of 6
For species or stocks outside of the Atlantic Herring Fishery Management Plan, the Council should coordinate with the appropriate management body to include appropriate limits for non-target species in the system of Annual Catch Limits for the herring fishery.
If the Council chooses to develop limits for protected species, these limits should be developed in conjunction with the appropriate Take Reduction Team or NMFS Office of Protected Species.
Consequences for Exceeding a Limit-
Establishing limits on catch and bycatch is meaningless unless there are clear consequences for reaching or exceeding a given limit. To accomplish this task, the Council should include two sets of management alternatives in Amendment 4, In-Season Adjustments/Closures and Inter-annual Correction Measures.
In-Season Adjustments/Closures- As an expansion of the current area-TAC approach currently used in the fishery, each species- or stock-specific ACL should include an associated area-specific closure that will be triggered if and when that limit is approached or met. Very simply, when an ACL is met, the area where that species or stock may be caught would be closed to herring fishing. For non-target species the ACLIAM combination should borrow information from other FMP's and stock assessments to ensure that the AM for the herring fishery is appropriate and effective and cover the appropriate stock areas. The Council should also consider measures to slow fishing at threshold percentages of the over ACL, as is the case with the current area-specific TACs.
Correction Measures- The Council should use also Amendment 4 to develop Accountability Measures to account for, but not plan for, exceeding any Annual Catch Limits for the fishery. These reductions should be automatic and account for biological factors such as foregone growth and reproduction of any overages. Annual reductions to account for overages should be only a last option for the fishery and should be avoided where possible through in-season adjustments and closures.
Failing to mandate the way that Councils account for overages would allow overfishing to continue in fisheries even if fishermen knowingly exceeded an established limit.
Objective 3: To Develop a Sector Allocation Process or Other Limited Access Privilege Program (LAPP) for the Atlantic Herring Fishery
To date there has not been a demonstration of support for dedicated access programs such as LAPPs in the New England herring fishery. Considering the limited resources that the Council has to do its work, the Council should defer research, analysis and development of LAPPs for the herring fishery until industry support for this type of Oceana Herring Scoping Comments June 27,2008 Page 5 of 6
management is demonstrated to the Council at a scale that will satisfy the requirements of the Magnuson-Stevens Reauthorization Act (sec. 303A, (c)(6)(a)). Council resources should not be used to develop management options that have not already been demonstrated to have the support of the industry that the law requires.
Objective 4: To Consider the Health of the Herring Resource and the Important Role of Herring as a Forage Fish and Predator Species Throughout Its Range.
Because herring is an important forage species in the Northeast Region, its conservation and management should receive careful scrutiny to ensure that there are ample herring available as forage for establishing and maintaining the historic abundance of the region's other fish species, sea birds, and marine mammals. A complete Amendment 4 Environmental Impact Statement should include a thorough discussion of the role of herring and the effects of herring fishing gears on herring at different scales. Current stock assessments examine the fishery at a region-wide or management area assessment level. While this assessment approach may be valid for herring as a single species fishery, it is likely to obscure the effects of the fishery on other stocks of fish and protected species that rely on herring as prey species. The Council should develop an analysis of the role of herring as forage at the local, or area, level and the role of herring as Essential Fish Habitat as described in the EFH Final Rule:
(7) Prey species. Loss of prey may be an adverse effect on EFH and managed species because the presence of prey makes waters and substrate function as feeding habitat and the definition of EFH includes waters and substrate necessary to fish for feeding. Therefore, actions that reduce the availability of a major prey species, either through direct harm or capture, or through adverse impacts to the prey species' habitat that are known to cause a reduction in the population of the prey species, may be considered adverse effects on EFH if such actions reduce the quality of EFH. FMPs should list the major prey species for the species in the fishery management unit and discuss the location of prey species' habitat. Adverse effects on prey species and their habitats may result from fishing and non-fishing activities. (EFH Final Rule, 67 Fed. Reg. 2378 January 17, 2002)
As an example of this analysis at meso- or micro- scales, Oceana requests that the Council consider the attached report from the Northeast Fisheries Science Center, The Trophic Ecology ofAtlantic Cod: Insights from Tri-monthly, Localized Scales of Sampling (attached), which indicates that herring are seasonally and locally important to support 'gorge feeding' behavior of cod in locations to the east of Cape Cod.
Also included in this discussion should be an assessment of the effects of herring fishing gears on schooling fish species and consideration of management alternatives to manage fishing gears to maintain discrete forage availability. This assessment should include a full Oceana Herring Scoping Comments June 27,2008 Page 6 of 6 consideration of prohibitions on herring trawling, establishment of time/area gear management areas, and the establishment of permanent forage areas where herring fishing will be prohibited unless it can be demonstrated that the gear and catch do not disrupt feeding of fish and mammals.
Although forage and gear effects could and should be considered in the Omnibus EFH Amendment currently under development, so far the habitat process has given little if any attention to forage species or the effects of fishing gears on forage. Oceana encourages the Council to develop these forage management measures as part of Amendment 4 to ensure robust herring schools as forage for the entire ocean ecosystem.
Oceana thanks you for considering these comments and looks forward to participating in the development of Amendment 4 in the future.
Sincerely,
Gib Brogan Campaign Projects Manager Oceana Wayland, MA The Trophic Ecology of Atlantic Cod: Insights from Tri-monthly, localized Scales of Sampling
FINAL REPORT
August 30,2004
Period of Performance: October 2001 through June 2004
Principal Investigators
Theodore J. Ligenza1, Brian E. Smith2, Frank P. Almeida2, and Jason S. Link2
1134 Pleasant Street South Chatham, MA 02659 508-432-2628
2National Marine Fisheries Service Northeast Fisheries Science Center 166 Water Street Woods Hole, MA 02536 508-495-2000 2
ABSTRACT The effects ofoversfishing, environmental change, fish community dynamics, and other factors that have altered the trophic ecology ofAtlantic cod (Gadus morhua) are generally not well understood. Most ofthe research on cod trophic ecology has been either broad-scale oceanic studies or in vivo laboratory studies. We examined the small-scale variation ofcod feeding based upon tri-monthly stomach sample collections froma nearshore, localized region off Cape Cod, Massachusetts. We had two major objectives for this work: 1) to relate any change in cod diet and amount offood eaten to changes in temperature, spawning, prey abundance, and major weather events, filling the "information gap" between broad-scale and lab studies, and 2) to work cooperatively with the fishing industry to transform previously "anecdotal" information into.quantitative dataavailable for fisheries science and management. Final results suggest that the amount offood eaten by cod is generally stable throughout the year, exceptwhen pelagicforage fish migratethrough the area.• This corresponds to critical periods in the life history of cod. The temporal variation in diet composition remained remarkably consistent each year over the 28-monthsoftheproject, suggesting important feeding periods for cod which correspond to environmental and biological queues. The diet is comprised primarily ofseveral species of forage fish (e.g., Atlantic herring (Clupea harengus), sand lance (Ammodytes sp.), and Atlantic mackerel (Scomber scombrusv, ophiuroids, Cancer crabs, and other small crustaceans. Additionally, these results confirm the preference cod exhibit for prey such as herring, sand lance, and crabs. We infer that cod generally eat local forage fish and benthic macro-invertebrates and then supplement their diet by gorge feeding upon migrating pelagic species.
INTRODUCTION The diet ofAtlantic cod has been well chronicled (reviewed in Palsson 1994, Methven 1999). There have been several broad-scale studies of cod feeding ecology in the U.S. Atlantic and other ecosystems (Langton and B0'WlTIan 1980, Langton 1982, Bowman and Michaels 1984, Vinogradov 1984, Mattson 1990, Palsson 1994, Grunwald and Koester 1994, Hoines and Bergstad 1999, Methven 1999, Link and Almeida 2000, Link and Garrison 2002a, Link and Garrison 2002b). There have also been numerous invivo studies of cod feeding (e.g, dos Santos and Jobling 1991, Bjomsson 1993, Jobling et al. 1994, Grant et al. 1998, Kjesbu et al. 1998, Grant and Brown 1999, Puvanendrum and Brown 1999, Dutil and Lambert 2000, Lambert and Dutil 2000, Purchase and Brown 2001). From these studies we can infer numerous rates, processes, and relationships about cod, cod prey,andoceanographic conditions. There have been however, only a limited number ofstudies conducted on cod feeding at small temporal (month) and spatial (approximately 300 mi2 or 777 krrr') scales. In a sense, there is a gap between the small scale laboratory experiments and the broad scale studies. Data acquired from a localized area two or three times a month over a two-year period would help to fill this gap. The data collected at this scale would provide a new perspective on cod feeding habits with particular respect to short-term and seasonal temperature changes, pre-spawning, spawning,.and post spawning events, migration ofkey prey, cod migration, and intense episodic weather events. It has been hypothesized, but is still unclear, that cod feeding (i.e. diet composition, amount offood eaten, consumption rates, etc.) can alter in response to those factors (e.g. .Konstantinov et al. 1985, Methven and Piatt 1989, Lilly 1991, 1994, Sparholt 1991, Kjesbu 3
1994, Uzars 1994, Burton et al. 1997, Lambert and Dutil 1997, 2000, Swain 1999, Lee and Khan 2000, Linkand Garrison 2002b). The information collected on monthly and local scale cod feeding can have broad implications for fisheries management. It may be that forage fish are most important during the pre-spawning/spawning period and should not be.over-exploited in general or removedat that time to preserve cod spawning. Itmay also be that cod aggregate to feed ona temperature induced increase in benthic invertebrate populations, implying that the habitat where this phenomenon occurs is critical duringthat time. The human element behind the rationale for the proposed research should not be discounted. This project is an opportunityfor fishermen and scientists to do collaborative research that may otherwise not occur. Fishermen are often frustrated when their knowledge is considered "ane.cdotal" and notuseful in aquantitative fisheries management and science context. This project has alreadyprovided a way to help quantify obse.rvational information and as such has been beneficial to both the scientific and fishing communities.
REVIEW OFPREVIOUS WORK The primary source ofdata regarding cod food habits in the northeast U.S. continental shelfecosystem comes from the NMFS, Northeast Fisheries Science Center (NEFSC) broad scale survey from the past forty years(Link and Almeida 2000). These data were collected on bottom trawl surveys from Cape Hatteras, NC to Nova Scotia in depths ofapproxil11ately27to 366 m primarily during the spring and autumn each year. From the research trawl catch, subsamples ofcod have been eviscerated to examine the stomach contents, both prey type and amount, across the time series. These results generallyindicate that cod are opportunistic generalists, feeding on a variety offish and invertebrate prey along a gradient from the pelagia to the benthos. Several other studies have been conducted (Langton and BOwman.1980, Langton 1982, Bowman and Michaels 1984, Vinogradov 1984, Mattson 1990, Palsson 1994'iGrunwald and Koester1994, HoinesandBergstad 1999, Methven 1999) anddocumentthat .cod is an itnportant invertebrate and fish predator in numerous continental shelfecosystems. Cod are;or once.were, the dominant piscivore in many ecosystems. Several models have estimated that the magnitude ofcod predation on other fish and invertebrate populations can be significant (e.g. Andersen and Ursin 1977, Helgason and Gislason 1979, Daan and Sissenwine 1991, Collie and Tsou 1996, Bogstad et al. 1997, Overholtz et al. 2000, Link and Garrison 2002). The degree ofspatio-temporal overlapbetween 1999, Lindholm et al. 1999, Morgan et al. 1999, Puvanendrum and Brown 1999, Dutil and Lambert 2000, Lambert and Dutil 2000, Winger et al. 2000, Purchase and Brown 2001) which generally elucidate behavior, vital rates, and related processes at the scaleofindividual fish. Many of these works have been extended and hence scaled up to conditions that infer processes occurring in the field. Manyof these results are used in key models ofcod biology. Some studies indicate that a more."balanced" diet, specific diet components, or simply more available food will increase cod growth (Brown et al. 1989, Mehl and Sunnana 1991, Lambert and Dutil 1997, Jobling et al. 1994, Clark et al. 1995, Krohn et al. 1997, Dutil and Lambert 2000). Others indicate that spawning ceases or is curtailed ifinadequate food is present (Kjesbu 1994, Burton et al. 1997,Lambert and Dutil 2000). Lambert and Dutil (1997) and Swain (1999) suggestthat combined with overfishing, changes in cod diet are responsible for declines in cod stocks and distribution shifts. However, Lilly (1991, 1994) suggests that changes in cod distribution and inferred differencesin growth rate at locales with different temperatures may not be related to changes in capelin distribution and abundance (and hence, their proportion ofcod diet). Additionally, the growth and mean size ofcod in the northeast U.S. continental shelfecosystem has remained relatively constant across time (Mayo et al. 1998, O'Brien 1999, O'Brien and Munroe 2000), and the severe declines in cod abundance are primarily attributed to intense fishing pressure (Serchuk and Wigley 1992, Serchuk et al. 1994, Murawski et al. 1997, Fogarty and Murawski 1998). Whether food type or amount influences cod spawning,fecundity, juvenile survival, orrecruitment in the northeast U.S. continental shelfecosystem is unknown. Thus, whether changes in cod trophic dynamics have broad implications for cod populations remains a key question. PROJECT OBJECTIVES AND SCIENTIFIC HYPOTHESIS Our principal objective was to study the short-term monthly changes in cod feeding habits at a local scale, hypothesizing that there is no change in cod feeding across a two year timescale ata given locale. The study examined the timing ofexpected shifts in cod diet with respect to seasons, temperature, prey (fish and invertebrate) abundance, spawning, and major weather events. Our goals were to: 1. Examine cod stomachs three times per month for two years in one general area (see Figure 1 for location); 2. Collect basic oceanographic data (e.g. temperature, depth, etc.) at the same sampling intensity and locales; 3. Estimate consumption rates ofcod for this time scale; 4. Determine ifany patterns exist in the diet composition and amount offood eaten by cod; 5. Ifany patterns ofcod feeding exist, attempt to relate such patterns to oceanographic conditions, prey field (obtained from other studies), fish biology (e.g, spawning) or related factors. 5 Thisapproachallowed us to evaluate"anecdotal" observations ina quantitative fashion. For example, fishermen have noted that cod changetheir behavior (schooling,distribution, migration, etc.) in thewinter and are no longer found in shoal waters (16-20 fathoms; 30-37m) wheretheywere once common at this time of year butrather in deeper waters (30-50 fathoms; 55-90m). Fishermenspeculatethat these differences are due to a change in temperature, the loss of population genetic memory as a result of many of the fish simplybeing caught,removal of key seasonal prey (e.g, brittle stars) by stormevents, or other declines in the availability of prey which form. a largepart of the cod diet. For instance,fishermennote thatherring and mackerel are a largepart of the diet ofcod right before and during cod spawning.. Notihg the importance of theseforagefish would bevaluable from boththe perspective of cod fishermenand multi species management considerations. Fishermenalso observe large amounts of sand lance inthe diet of cod in late spring and early summer, and concludethat sand lance allow cod to grow throughthe summer, As.such, fishermen speculatethat sandlance.are animportantseasonal food itemthat allow CQd ''to maintainthernselves"untilschools of herring and mackerel arrive. Associated anecdotesrelating cod distribution or abundanceto cod feeding, and by extensioncod feeding to stormevents,bad "health of the bottom", gear effects on.the ocean bottom,changes in prey availability, and other "habitat" issuescould be further exploredby the study. PARTICIPANTS Theodore J. Ligenza Commercial Fisherman 134PleasantStreet SouthChatham, MA 02659 508-432-2628 FrankP. Almeida Jason S. Link Brian E. Smith DeputyDirector ResearchFisheryBiologist Fishery Biologist NOAA, NMFS,NEFSC NOAA,NMFS,NEFSC NOAA,NMFS, NEFSC 166 WaterStreet 166Water Street 166 Water Street WoodsHole,MA 02543 WoodsHole,MA 02543 WoodsHole, MA 02543 508-495-2233 508-495-2340 508-495-2020 METHODS Fish were collected using hand linesduring routine research days at sea. The depth fished rangedfrorn approximately 50-300ft of water(15-92 m). The generalgear used for sampling included 1501b (68 kg)test line with a 100-lb(45kg) test leader,having a 26 oz (737 g)jigwith approximately4 lures (aka "bugs") spacedat 2:.4 ft(69cm} intervals above thejig. Bait was not usedto 'obtainresearch samples. When fished in 230 ft (70 m) of water or more, and/or sea-state conditions\\iererough electric reels were used. The. vessel used was the. FlY ReinaMarie (USCGDoc. #926302, FederalPermit #221764), owned and operated by Theodore1.Ligenza. The vessel is a 31 ft.BHM, with a draft of3Yz ft'and is.powered witha 225 hp John Deere diesel engine. The boat is equippedwith a color depth sounder, radar, loran, GPS,and VHS.'radio. :r \. 6 Our sampling area encompassed a 300 mi2 (777 knr') region offCape Cod, Massachusetts (Figure 1). Specific fishing locations included Nauset ground SW to Crab Ledge, Southeast to Great Hill grounds, to "The Lemons" and then to "The Mussels", east to "The Inshore Figs" and "The Figs". The particular fishsampling locales were determined within the general area on an ad hoc basis by Mr.Ligenza to ensure the highest probably ofcapturing fish. We note thatjigfishermencannot fish in certain areasdue to potentialgear conflicts. Stomach samples were collected approximately every ten days (two or three times a month) for two years and 4 months, beginning in October of2001 and ending January 2004. At sea, fish were separated into 20 cm size classes, starting at 20 em. Stomachs from five to ten fish were taken from each size class. The preliminary target was approximately 30 fish per trip. While removing each stomach, cod showing signs ofregurgitation(i.e. flaccid or inverted stomach) were discarded.. Collected stomachs were then placed in an individual plastic jar with 95% ethanol. Eachjar received a tag recording date, location where the fish was caught, fish length, sex, and sexual maturity. Upon returning to the dock, the stomach samples were transportedto Marine Research, Inc. (MRI) in Falmouth, MA for processing following standard NEFSC stomach processing protocols. Very briefly,each stomach was emptied, the stomach contents weighed (nearest 0.01 g), the prey separated and identified to the lowest taxon feasible, and any fish prey lengths measured (nearest 1.0 mrn). DATA We completed 94 sampling trips aboard the F/VReina Marie (Table 1) during the project. During these trips, a total of2481 stomachs were sampled with an average ofabout 89 stomachs/month. All stomachs were analyzed and prey identified by MRI and resulting data entered and archived. Table I provides a summary ofthe sampling trips completed, including the number ofcod stomachs excised and preserved for laboratory analysis during each trip and samples collected for other researchers. The data collected during 2001 and 2002 are grouped individually byyear while data collected during 2003 is detailed for each month. The audited data from our project has been incorporated into the Northeast Fisheries Science Center, Food Web Dynamics Program Food Habits Database (http://www.nefsc.noaa.gov/femad/pbio/fwdpIFWDP.htm). RESULTS AND CONCLUSIONS The data were characterized by the presence ofrecurrent temporal feeding patterns occurring across the 28-monthtimescale ofthe project (Figure 2). There was a general increase in mean stomach contentfrom a low ofabout 13.6 g/stomach from October to early December, 2001. After a peak in mid-De.cemberto about 57.5g/stomach, mean content dropped to low levels during mid to late winter (January to March 2002)when stomachs averaged only about 7.7g. In April 2002, there was a second peak followed bya decline. but to an average level of 25.1 g, greater than in the previous late autumn. This apparent seasonality in the total amount of food eaten corresponds to both migrations ofAtlantic. herring and Atlantic mackerel (since the peaks inconsumption in December and April were made up largely ofthese species) (Figure 3). Throughout the second year and the final 4 months ofthe project, this seasonality in the total amount offood consumed by cod was also apparent, revealing similar predation upon Atlantic 7 herring and Atlantic mackerel, although the total amount ofprey consumed by cod appears to be reduced in comparison to the first year. The diet was made up primarily ofbenthic macroinvertebrates (i.e.various crustaceans, and ophiuroids), sand lance, and other small fish (Figures 3 & 4). Cod are opportunistic generalist feeders and appeartoswitch to Atlantic herring, and mackerel whenthese species migrate through the local area. Cod appear to prefer fishwhen available, particularly migratory pelagics, than crabs and other benthos. It is also apparent that cod may prefer a diet offish as they age and mature. In an analysis ofdiet in relation to length, it was notedthat only about 40% ofthe diet ofcod less than 40 em was fish, whereas cod greater than40cm averaged 64% fish in their stomachs (Figure 5). This apparent ontogenetic shift in diet suggests cod less than 40 cm are more dependent upon the benthos (i.e. benthic macroinvertebrates). The annual reproductive cycle ofAtlantic cod also coincides with a relatively key feeding period. When stomach contents were related to maturity stage, aconfinning pattern emerged (Figure 6). Cod whose gonads were developing or ripe and running(spawning) averaged about 17.8 g/stomach and 12.6 g/stomach respectively. However, those that had recently completed their annual spawning activity (their gonads in the spentstage) averaged over twice as much food in their stomachs at 37.6 g. Thisindicates that inthe period immediately after spawning cod tend to feed heavily, but during the portion ofthe cycle leading up to and including spawning, feeding is limited. The timing ofthis post-spawning event (spent stage) begins approximately aroundthe initial migration period ofi\.tlantic herring and.Atlantic mackerel when a relatively larger abundance ofprey is available. Across the secondyear ofsampling (2002 2003), an absence ofherring wasdetected during this initial migration period (Figure 4), although a general increase in mean stomach content still occurred relevant to this post-spawning cycle. We conclude the. seasonal variation in cod feeding habits is con~istent,.recurrent, linked to key bioenergetic processes, and is timed to coincide with a major influx ofenergy to the area. Cod primarily feed on benthic macroinvertebrates during the year, butactively "gorge-feed" upon migratory pelagic fish when available. These temporal feeding patterns are related to prey availability, preyabundance, changes in water temperature, and spawning time. One ofthe most imp0rtantobservations is thatthese patterns remained consistenteachyear?fthe study. Our results are generally similar, butrnore refined in scale, to broad-scale studies surrounding Atlantic cod trophic dynamics in the north Atlantic. The additional value ofour local-scale project offers an image withgreater detail for detecting subtle feeding variation (i.e, ecosystem level changes) throughout the year and suggests critical feeding periods as well as critical prey for Atlantic cod .. This infOrmation could prove beneficial for supporting ecosystem-based approaches to fisheries management. PARTNERSHIPS Thehighquality·and far-reachirlgextent ofthe fisherman-scientist relationship was an important aspect ofour research project. The demanding.nature ofthe.project's field sampling detail could not have been accomplished without strong interests from the fisherman and the scientists involved. As a result, a relationship oftrust was built, allowing for enhanced participation from each party. On many levels, the fisherman and scientists were able to share their own expertise, teaching and learning from one another over the duration ofthe project. There were many lessons learned over the coursejof'the project, including: r 8 1. Fishermen expect, and tend to be, jacks-of-all-trades; scientists tend to be specialists. 2. Fishermen are very observant, however, not all observations are useful nor all questions or hypotheses worth pursuing. Open discussions between participants and an understanding ofall points ofview are critical to making decisions and 'buying into' those decisions. 3. Experiences, observations, and anecdotes do not necessarily mean data. The collection ofdata to support the experiences, observations, and anecdotes is often laborious and complicated. 4. Trust needs to be earned by listening, by considering and including all opinions and ideas, bydemonstrating competency and consistency, and by following through on commitments. 5. Fishermen and scientists both like to tell stories, but we often use different styles and methods. 6. To a fisherman, catch is $$; to a scientist, time is $$. We have found that we needed to devotemore time to the planning and execution ofthe projectthan we expected. OUffishing industry partner was more likely to have his schedule revolve around the project than the scientists. 7. Flexibility is a key to the success ofany cooperative project. 8. Safety is irnportant- period. 9. A day fishing does not necessarily equal a research day. It is importantto consider all aspects ofthe fishery regulations and how they impact not only the fisherman but also the ability ofthe cooperating scientists to carry out the project. 10. Our fishing industry partner is extremely curious and observant, 11. Our fishing industry partner is very enthusiastic about learning and conducting scientific research on fish ecology. 12. Scientists have had difficulty understanding how much pressure fishermen are under to make aliving at their job while complying with often complicated fishery regulations - and - Fishermen often do not understand how complicated and involved doing science can be. 9 COLLABORATION WITH OTHER PROJECTS Table L lists other samples collected for other projects. Whenever possible, we tried to accommodate these requests and were particularly successful with two colleagues. One ofthese resulted in additional research proposals. IMPACTS ON END-USERS See "PARTNERSHIPS" above. PRESENTATIONS Smith, RE., Ligenza, 'Ll., Almeida, F.P. and Link, lS. The use ofAtlantic Cod to sample the benthos at a localized region of Georges Bank. Benthic Ecology Meeting 2003, Mystic-Groton, CT. March 2003. Ligenza, TJ., Smith, RE., Almeida, F.P., and Link, J.S. The Trophic Ecology of Atlantic Cod: Preliminary Insights from Localized Sampling. NEC Annual Participants Meeting. Durham, NH. October 2002. Smith, B.E., Ligenza, TJ., Almeida, F.P. and Link, lS. The Trophic Ecology ofAtlantic Cod: Preliminary Insights from Localized Sampling. Southern New England Chapter, American Fisheries Society, Summer Meeting. Bristol, RI. June 2002. (http://www.nefsc.noaa.gov/femad/pbio/fwdp/BsmithLocCod_files/frame.htm) PUBLISHED REPORTS AND. PAPERS Currently there are two publications in preparation and the project has been the subject of three newsletter articles. The Cape Cod Commercial Hook FisheI'IIlen'sAssociationpublished an article entitled "Collaborative Science In Action on the Reina Marie" in their newsletter "Hooked on Cod". A second article, "What are cod eating?" was published in the NAMA Collaborations, August 2002 issue (this article can be found at: http://www.namanet.org/collaborations.htm). The third article, published in theIsland Institute newsletter, Working Waterfront, was titled "Hook fisherman, scientists study what cod eat" (http://www.workingwaterfront.comlarticle.asp?storyID=20021209). FUTURE RESEARCH After the project began, the question ofhowfeeding affects the reproductive cycle ofcod was raised bythe cooperating fisherman in the study. In orderto study this, we begantocollect female gonad weights and livers tocalculate gonadosomatic and hepatosOlnaticindicesin July 2002.. Theseindices have been found usefulin studyingthe reproductive cycles ofseveral species as indices ofthe physiological tradeoffs between spa\Viling and non-spawning periods. Although this was not an original objectiveofthe project, we will analyze the data to determine whether this is a good index ofcod reproduction and whether changes in cod diet are related to these indices. • !1~ 10 Further expansion into a more complete bioenergetic set of studies is merited. For now, estimates ofcod consumption will be calculated. A closer examination ofhow feeding differences are related to benthic habitat is a possible follow-up study thatcould be conducted. Could we use cod to index benthic communities by determining what was in their diets and relating them to the habitat? Benthic sampling techniques, including underwater video, combined with intense stomach sampling like we are conducting in this study, could assist in characterizing benthic habitat and potentially restricting destructive gear in sensitive habitats. All ofthese issues/ideas have been developed since the project began. The observational expertise ofour cooperating fisherman, combined with the scientific skills and experience ofthe NEFSC cooperating scientists have made this project a much greater learning experience than any ofus expected when the project first began. 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Kjesbu OS (1994) Time of start ofspawning in Atlantic cod (Gadus morhua) females in relation to vitellogenic oocyte diameter, temperature, fish length and condition. 1. Fish. Biol, 45:719-735. 11 Kjesbu os, Witthames PR, Solemdal P, Walker MG (1998) Temporal variations in the fecundity ofArcto Norwegian cod (Gadus morhua) in response to natural changes in food and temperature. J. Sea Res. 40:303-321. Konstantinov KG, Turuk IN, Plekhanova NA (1985) Food links of some fishes and invertebrates on Flemish Cap. NAPO Sci. Coun. Studies 8:39-48. Krohn M, Reidy S, Kerr S (1997}Bioenergetic analysis ofthe effects oftemperature and prey availability on growth and condition ofnorthern cod (Gadus morhua). Can. 1. Fish. Aquat. Sci. 54 (supp!. 1):113-121. Lambert Y, Dutil JD (1997) Condition and energy reserves ofAtlantic cod (Gadus morhua) during the collapse of the northern GulfofSt. Lav,rrencestock. Can. J. Fish. Aquat. Sci. 54:2388-2400. Lambert Y, Dutil JD (2000) Energetic consequences ofreproduction in Atlantic cod (Gadus morhua) in relation to spaVJIling levelofsomaticellergyreserves. Can. 1. Fish. Aquat. Sci. 57:815-825. Langton RW,Bowman RE (1980) Food offifteen northwest Atlantic gadiform fishes. NOAA Tech. Rep. NMFS SSRF-740. Langton R\Vi(1982) Diet overlap between Atlantic cod, Gadus morhua, silver hake, Merluccius bilinearis, and fifteen ()ther Northwest Atlantic finfish. Fish. Bull. 80:745-759. Lee EM, KhanRA (2000) Lengili-'\Veight-age relationships, food, and parasites ofAtlantic cod (Gadus morhua) off coastal Labrador within NAFo.Divisions 2H and2J-3K.Fish. Res. 34:65-72. Lilly GR(1~91)Interannual variabilityj~predation by cod(Gadusmorhua) on capelin (Mallotus villosus) and other prey offsouthern Labradofandnortheastern Newfopn~land. ICES Mar. ScLSYIllP. 193:133-146. Lilly GR (1994}Predation by Atlantic codon capelin on the southern Labrador andnprtheast Newfoundland shelves durilllraperiod ofchanging spatial distributions.ISB~Jvfar. Sci. Symp. 198:600-611. Lilly GR, Parsons DG (1991) Distributional patterns ofthe northern shrimp (Pandalusborealis) in the Northwest Atlantic as inferred fromistomachcontents ofcod (Gadus morhua). ICESCM1991fK:41 15 pp. Lindholm JB, Auster PJ, Kaufman LS (1999) Habitat-mediated survivorship ofjuvenile (O-year) Atlantic cod Gadus morhua. Mar. Eco!. Prog. Ser.180:247-255. Link JS (2004) Using fish stomachs as samplers ofthe benthos: integrating long-term and broad scales. Mar. Eco!. Prog. Ser,269:265-275. Link IS, Garrison LP (2002a) Changes in piscivory associated with fishing induced changes to the fmsfish community on Georges Bank. Fish. Res. 55:71-86. Link JS, Garrison LP (2002b) Trophic ecology ofAtlantic cod Gadus morhua on the northeast US continental shelf. Mar. Eco!. Prog. Ser. 277:109-123. Link JS, Almeida FP (2000) An overview and history ofthe food web dynamics program ofthe Northeast Fisheries Science Center, Woods Hole, Massachusetts. NOAA Tech. Memo. NMFS-NE-159. 60pp. Mattson S (1990) Food and feeding habits offish species over a sublittoral bottom in the northeast Atlantic. 1. Cod (Gadus morhua L.) (Gadidae). Sarsia 75:247-260. Mayo RK, O'Brien L, Wigley SE (1998). Assessment ofthe GulfofMaine Atlantic Cod Stock for 1998. NEFSC CRD98-13. Mehl S, Sunnana K (1991) Changes in growth ofnortheast Arctic cod in relation to food consumption in 1984-1988. ICES Mar. Sci. Symp. 193:109-112. Methven DA (1999) Annotated bibliography ofdemersal fish feeding with emphasis on selected studies from the Scotian Shelfand Grand Banks ofthe northwestern Atlantic. Can. Tech. Rep. Fish. Aquat. Sci. no. 2267, 110 pp. Methven DA, Piatt JF (1989) Seasonal and annual variation in the diet ofAtlantic cod (Gadus morhua) in relation to the abundance ofcapelin (Mallotus villosus) offeastern Newfoundland, Canada. J. Cons. Ciem. 45:223 225. Morgan MJ, Wilson CE, Crim LW (1999) The effect of stress on reproduction in Atlantic cod. 1. Fish Bioi 54:477 488. Murawski SA, Maguire JJ, Mayo RK, Serchuk FM (1997) Groundfish stocks and the fishing industry. In: Boreman J, Nakashima BS, Wilson JA, Kendall RL (eds.) Northwest Atlantic groundfish: perspectives on a fishery collapse. American Fisheries Society, Bethesda, Maryland, USA. O'Brien L (1999) Factors influencing rates ofmaturation in the Georges Bank and GulfofMaine Atlantic Cod stocks. J. Northw. At!. Fish. Sci. 25:179-203. O'Brien L, Munroe N (2000) Assessment ofthe Georges Bank Atlantic Cod stock for 2000. NEFSC CRD-00·17. Overholtz WI, Link JS, Suslowicz LE (2000) The impact and implications offish predation on pelagic fish and squid on the eastern USA shelf. ICES J. Mar. Sci:157:1l47-1159. -c·'! 16 40 -,---__------__-----__-----, 30 § .l!l c Cll C 0 to) .c u 20 III E .sen e III Cll ~ 10 o Developing Ripe & Running Spent Resting Figure 6. Mean Stomach Contents (g) Across the Maturity Stages Patricia Kurkul, Regional Adminstrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930 June 23, 2008 Dear Ms. Kurkul: The Maine Lobstermen's Association (MLA) respectfully submits comments on the Scoping Document for Amendment 4 to the Herring Fishery Management Plan. The MLA represents the interests of more than 1200 lobstermen and industry stakeholders along the Maine coast from Eastport to Kittery. Maine's lobster industry has a strong interest in the herring management plan because we are highly dependent upon a steady and affordable bait supply, particularly during our peak summer and fall fishing season. We believe that the herring resource, and Area 1A in particular, is under tremendous pressure. It is important to implement a fishery management plan for herring that ensures the long-term health and sustainability of the herring resource for the benefit of our fishermen, coastal communities and the well-being of the Gulf of Maine ecosystem. The MLA wholeheartedly supports improved long-term monitoring of landings, bycatch and discards in the herring fishery, and we would like to see 100% observer coverage in midwater trawl portion of the fishery. We recommend that the Council consider supporting actions that accurately monitor all fish harvested and prevent any discard of dead fish that could otherwise be landed. Only through accurate monitoring of the herring fishery can we understand where, when and how much herring is being caught, and only then can the management plan be adapted and improved to ensure the long term sustainability of the resource. The Council should consider a range of options to ensure adequate and long-term monitoring of herring landings, bycatch and discards including an industry-funded observer program and alternatives for third-party contributions to observer coverage. This could be supplemented with video-based electronic monitoring. The MLA also supports the idea of a shore-based monitoring system to certify offloads, actual weights, and provide real-time catch monitoring. The MLA is concerned about the issue of mid-Atlantic mackerel boats discarding incidental catches of herring because they are not permitted to land it. The management plan must be structured so that discard mortality is eliminated to the greatest extent possible and that any fish caught are landed and accounted for. The MLA does not support establishing a sector allocation program at this time. We continue to strongly support the seine only fishery in Area 1A. Establishing a sector allocation program could jeopardize this management measure. We are also concerned that sector allocation could erode some of the traditional markets and relationships between the lobster industry and the herring fleet. The Maine lobster industry and our coastal communities are dependent upon a steady supply of herring for bait in our fishery. Any interruption in this market could have serious negative impacts on the lobster fishery. If sector allocation is to be considered as part of this amendment, the MLA would support fishing history from 2007 being considered because we do not want to see single and paired midwater trawlers regain access to Area 1A. Anecdotal reports from lobstermen and others indicate that this seine only fishery in Area 1A has been tremendously positive for the herring resource and it should not be jeopardized. We are grateful for the opportunity to provide comment on the scope of issues to be considered in Amendment 4 to the herring plan. Thank you for your consideration of our comments. Sincerely, Patrice McCarron Executive Director June 30, 2008 Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930 RE: Herring Amendment 4 Scoping Comments Via email Northwest Atlantic Marine Alliance Dear Ms. Kurkul, PO Box 360 Windham, ME 04062 tel& fax: 207-284-5374 The Northwest Atlantic Marine Alliance (NAMA) wishes to provide comments www.namanet.org relative to the scoping process for Amendment 4 to the Herring FMP. NAMA is committed to supporting local fishing communities in New England and the Northeast in their efforts to revive ailing marine ecosystems and recover healthy BOARD OF TRUSTEES fisheries. We believe in the willingness and ability of community based fishermen, anchored in a history and geography of fishing fertile waters of the Bill Adler Northwest Atlantic, to seek sound scientific information to add to their own Massachusetts Lobstermen's breadth of knowledge of the marine environment and apply it all to plans and Association actions that will recover and sustain a fishery ecosystem that can support Rollie Barnaby themselves and future generations oflocal fishermen. New Hampshire Sea Grant & Cooperative Extension The industrial herring fleet, which was invited into the Gulf of Maine by the Niaz Darry federal government in the early 1990s and has expanded significantly since then, Coordinating Director presents a particularly troublesome challenge to efforts of local fishing Ted Hoskins communities to bring back a healthy ecosystem that supports their traditional Saltwater Network fisheries. These commercial fishermen are being. asked or required time and time again to cut back or cease their normal fishing activities to allow the Kim Libby Midcoast Fishermen's Association resource to recover. It's taking longer than expected and even now more closures are being proposed. And yet, the Atlantic herring fishery is permitted to Curt Rice continue with little change in allowable catch and in what type of gear is taking Commercial Fisherman the majority ofthe catch. While many community based fishermen are asked to Neil Savage give up their livelihoods to recover one fishery, others, many ofthem tied to the Aquaculture Education and fiscally and physically mobile international fleet, continue un-hobbled because Research Center the New England Fishery Management Council and NMFS Northeast Regional Geoffrey Smith Office fail to make the connections between one fishery and another. The Nature Conservancy In this context, we wish to make it clear that NAMA strongly believes that any areas closed to groundfish fishing should be closed to all fisheries except those that are known not to interact with or have bycatch ofgroundfish. NOAA's commitment to adopting the principles. of ecosystem based management and the precautionary approach should be paramount in regional management schemes, consistent with broad national and international agreement that ecosystem sustainability and precautionary decision making are two key goals for modern fishery management. With amendments to the Magnusson Act, the US has adopted principles of management that take into account ecological requirements of the fishery system; and the US government has signed onto treaty after treaty that agrees to manage fisheries and other activities with a precautionary approach. While the commitment to these principles is clear, the path of implementation is not. NAMA believes Amendment 4 offers an opportunity for NMFS and the northeast regional Council to establish an implementation path for the Atlantic herring fishery. This would open the door to precautionary ecosystem-based management for all fisheries in the Gulf of Maine and Georges Bank. Not only is this an opportunity, it is imperative that these principles be implemented quickly, because they are the foundation, not the icing, of fisheries management that is ecologically, socially and economically sustainable for generations to come. All too often the concepts in this paragraph are reduced to policy rhetoric. It is time they become tangible, implementable, and measurable. To that end, NAMA recommends that the Amendment 4 to the herring fishery management plan include: • a process for (1) assessing the ecosystem and the full role of Atlantic herring as forage for recovering fisheries populations, endangered species, and other non-fishery species; (2) estimating requirements for herring by all identified predators, especially fisheries species in recovery and endangered species; (3) determining real time distribution offorage utilization; and (4) allowingfor uncertainty and variability in natural herring mortality; • options for herring management that addresses size and distribution ofcatch on a daily basis as well as annually; • provisions for estimating bycatch on the basis of models until a monitoring program to refine these estimates can be implemented. The potential consequences of bycatch likely associated with the midwater trawl fishery are so profound as to warrant immediate action; • provisions for the assessment and mitigation of the impacts of the herring fishery on herring habitat, other fisheries habitat, and endangered species habitat; • prescription for precautionary actions that avoid undesirable consequences while the proposed monitoring is implemented and the results analyzed; • establishment of a program for developing and applying the necessary technology and methodologyfor live fish monitoring toward better adaptive management; and • a precautionary and ecologically sustainable formula for determining annual TACs, and a socially and ecologically responsible and responsive system for allocating portions ofthe TAC. More detailed comments are provided below. Why Amendment 4? While implementation of ecosystem based management and the precautionary approach should have been the first order ofbusiness, Amendments 1,2, and 3 are already taken, and Amendment 4 offers the appropriate context. As stated in the call for scoping comments: "The goals of the amendment are to improve monitoring of catch in the Atlantic herring (herring) fishery and to manage the fishery at long term sustainable levels ...." The best possible scientific information is always desirable in implementing the precautionary approach and ecosystem-based management. So a goal of improved monitoring goes Northwest Atlantic Marine Alliance 0 PO Box360, Windham, ME 04062 -tel andfax: 207·284·5374 owww.namanet.org hand in hand with applying these critical principles. Sustainability has become far more than maintaining high catch levels. Implicit in that goal is maintaining an ecosystem that can support healthy populations of all fishery species in a management area for generations into the future. Thus the goal of managing the fishery at long-term sustainable levels can only be reached through the implementation of precautionary and ecosystem-based management actions. Incorporating Ecosystems and Precaution into Amendment 4 To be ecosystem-based, the management of a single fishery must consider its interactions and impacts upon other species including other fishery species. To be in compliance with the Sustainable Fisheries Act, NMFS must "include management measures in the plan to conserve target and non-target species and habitats, considering the variety ofecological factors affecting fishery populations." A. Fishing for forage Amendment 4 should outline a process for (1) assessing the ecosystem and the full role of Atlantic herring as forage for recovering fisheries populations, endangered species, and other non-fishery species; (2) estimating requirements for herring by all identifiedpredators, especially fisheries species in recovery and endangered species; (3) determining real time distribution offorage utilization; and (4) allowing for uncertainty and variability in natural herring mortality. The species most vulnerable to localized forage depletion are recovering fishery species - e.g. groundfish and pelagic tuna and billfish and endangered or imperiled species - e.g. salmon, sea turtles, several whale species, and sea birds. The availability ofherring for a restricted fishery can be determined only after all ecosystem needs have been accounted for. Equally as critical as an accurate formula for determining the total amount available for fishing is determining the most sustainable mode oftaking those fish in a pattern that does not impact the role ofherring as forage. Generally the most sustainable fishing mode is one that mimics natural predators in the ecosystem. This brings into question scale and efficiency ofthe gear and boats, numbers of boats, and pattern of fishing. Advances in management of forage fisheries are being proposed for krill in the Southern Ocean, where to protect against depletion of forage for numerous important and imperiled species, a mosaic of rotating open and closed areas is proposed to respond to fluctuations in the environment and predator feeding habits - a type of planned inefficiency that should be a critical requirement for fisheries taking forage from the ecosystem. This kind of innovative management would also minimize impacts on genetic diversity of the fished species. We suggest that Amendment 4 consider options for herring management that addresses size and distribution ofcatch on a daily basis as well as annually. B. Bycatch of endangered species and recovering fishery species Amendment 4 should include provisionsfor estimating bycatch on the basis ofmodels until a monitoring program to refine these estimates can be implemented. The potential consequences of bycatch likely associated with the midwater trawl fishery are so profound as to warrant immediate action. The non-target populations at greatest risk of being adversely affected by midwater trawling include numerous imperiled or endangered species of mammals, seabirds and fish, as well as depleted fishery species such as groundfish species and pelagic fish such as Atlantic salmon, which migrates through those very waters that are sieved in large volumes by the midwater trawlers. At-sea survival has been identified as the biggest problem for the recovery ofAtlantic salmon. Northwest AtlanticMarine Alliance 0 PO Box360, Windham, ME 04062 -tel andfax: 207-284-5374 owww.namanet.org The problem with bycatch of depleted populations is that the numbers may seem small, but the smaller and more threatened the natural population is, the greater the impact of the killing of each individual animal. It is not just the loss ofthat animal but the loss of all its potential progeny. The chances ofever being able to accurately monitor the bycatch ofAtlantic salmon is miniscule, and yet the chances of the endangered Maine runs of that species recovering is severely compromised by every adult fish taken from the GulfofMaine and surrounding waters. In the case of groundfish, it is widely recognized that the.midwater trawl fishery has a bycatch of these fish - either juveniles above the bottom waters or adults and juveniles caught when the trawl happens to scrape bottom. Again, whatever the quantity ofbycatch of these fish, it will have a significant effect on the recovery ofthe depleted populations. Furthermore, to close groundfishing to local fishermen whose livelihood is threatened if they cannot fish; and yet to allow the incidental killing of those same fish, thus increasing the time it will take for recovery, is a social injustice beyond comprehension. The Council has not taken the issue ofbycatch seriously. It is essential that Amendment 4 address this vital issue by curtailing and punishing the bycatch of depleted fishery species and endangered species, whatever that requires. C. Habitat considerations Amendment 4 shouldprovide for the assessment and mitigation ofthe impacts ofthe herringfishery on herring habitat, other fisheries habitat, and endangered species habitat. The initial step should be to superimpose all identified Essential Fish Habitats that have been described as overlapping with permitted herring fishing areas. In addition, critical habitat or identified habitat for endangered species should be superimposed on this map. This exercise should be a part of the Environmental Impact Statement (EIS) for Amendment 4. This will assist the eventual coordination of management regimes for various fisheries species whose habitats overlap and affect each other, and NMFS will finally be able to begin true ecosystem based management. D. Precaution means action now The precautionary approach is risk averse and calls for action even in the face of uncertainty due to incomplete scientific information. It is imperative that Amendment 4 prescribe precautionary actions that avoid undesirable consequences while the proposed monitoring is implemented and the results analyzed. There is enough reason to believe that the midwater trawl fishery has a bycatch of groundfish and of pelagic fish like endangered Atlantic salmon. In addition to bycatch, many of these troubled and endangered populations feed on herring and their recovery depends upon sufficient food where and when they need it. The midwater trawl fishery poses potential competition for food, a problem on both short term and long-term scales.. When a tandem tow captures a large percentage of the herring in that place at that time, it deprives predators in the area. Precautionary fisheries management within an ecosystem should always be mindful ofthe weakest fishery population. Precaution applies to the whole ecosystem and the fisheries it supports. So it is important to assess all the fisheries of the ecosystem and the wellbeing of the fishermen. Clearly as things are now, the groundfish fishermen are taking the full brunt of the restrictions required for recovery of fish populations. Since the problem is one of the ecosystem, not just individual species offish, a Northwest AtlanticMarine Alliance· PO Box360, Windham, ME 04062 • tel andfax: 207-284-5374 • www.namanet.org precautionary approach would be to distribute the hardship among all fisheries and thus soften the impact on anyone. Precautionary fisheries management within an ecosystem should always be mindful of the most burdened fishing communities. NMFS should consider this when drafting Amendment 4 and its EIS. Monitoring as part of Amendment 4 More information is always helpful for effective precautionary, ecosystem-based management. NAMA is therefore supportive of requests to improved monitoring of the Atlantic herring fishery and to collect more information about how much is being caught where, what is the bycatch, etc. Nevertheless, this effort must be accompanied by interim management that errs on the side of caution with respect to bycatch and impacts on critical predators. The need for more information is not an excuse for no additional regulation. The community oflocal fishermen's organizations and NGOs has asked that NMFS require observers on 100% ofthe mid-trawl fishery at all times when they are fishing. There seems to be some leniency as to who provides and pays for the observers, since it is recognized that NMFS cannot "afford" to supply observers for the entire fleet fishing under current regulations. NAMA supports the request for 100% observers, but we believe there must be guarantees that they be completely objective and protected so their collection of data is not influenced by stakeholders. There are two ways 100% coverage can be achieved: increasing the number of observers available, or decreasing number of boats fishing at the same time. The latter option may be more realistic, and it would accomplish the goal of precautionary measures to reduce catch and bycatch until more information is available. Another goal of monitoring that should be addressed in Amendment 4 is the development of methodology for real time assessments of living populations. Many have called for real time reporting of actual catch measurements, which is minimal and it is shocking that is not already being done. Counting dead fish is only part ofthe needed information, however. The ability to estimate quantity and distribution of living fish in real time, or close to it, is sometimes used to exploit/deplete fish more efficiently, but it could be used to manage fisheries more effectively. Amendment 4 should establish a program for developing and applying the necessary technology and methodology for live fish monitoring toward better adaptive management. The Question of Allocations Amendment 4 should establish a precautionary and ecologically sustainable formula for determining annual TACs, and a socially and ecologically responsible and responsive system for allocating portions ofthe TAC Required TACs should be based on sound scientific information, consideration of all ecosystem needs, and precaution in estimating uncertainties. Determination of TACs for herring has not followed these criteria, so it is premature to allocate portions of the TAC to any specific groups. Furthermore, basing allocations on catch history is neither precautionary nor ecologically sound. Amendment 4 should improve standards for TACs and establish an ecologically and socially sound system for allocations. For example, the greatest proportion of the TAC should be allocated to the fishing entities that cause the least collateral damage to the ecosystem, not to those that have invested the most in their vessels and been most efficient in capturing herring in the past. Northwest AtlanticMarine Alliance 0 PO Box360, Windham, ME 04062 -tel andfax: 207·284·5374 owww.namanet.org The TACs first must be calculated based on a formula that adequately accounts for ALL the needs ofthe ecosystem and recovering fisheries and endangered and threatened species. If it is determined that a positive TAC should be available for the year, the following should be considered in determining allocations: - What are the lobster bait needs and should they be met solely by herring or are there alternative sources? - After the bait requirements have been met, if there is remaining TAC to be allocated, local fishermen/users/markets should be given priority. - Once the TAC is properly calculated, on what basis should allocations be made? We suggest the following, and there may be others a) ability to meet the lobster bait requirements with the least damage to the ecosystem and the best value to the lobstermen b) gear and operations with 0 or minimal bycatch, c) gear and operations with 0 or minimal habitat damage, d) ability/willingness to operate within the allocation limit, e) the least impact on other forage for the ecosystem, f) the greatest benefit to local fishing communities, g) cost effective operation. - Historic catch should have nothing to do with allocations, as it hardly makes sense to create the potential to repeat a history of overfishing and/or fishing that depletes the ecosystem. CONCLUSION: Supporting Fishing Communities NAMA recommends that the development of Amendment 4 and all other aspects of the herring FMP and amendments be guided by principles of precaution, ecology, and community involvement. Local fishermen and their communities are an integral part of the marine ecosystem, and they posses a body of knowledge about that system that significantly enriches what is known by science. During the recent period of crisis in many fisheries, these communities have developed a self-awareness of their role in the ecosystem and a sense of responsibility toward future generations. of fishermen. It is now critical that they be given a voice in management decisions meant to foster recovery of the fishery ecosystem. Whether sectors, areas, and/or other types of community-focused management are most appropriate for the herring fishery needs to be left flexible until the synergy of all fisheries with overlapping habitats can be fully accommodated, and until the communities themselves can play a prominent role in decision making and in bearing the responsibility for decisions made. We appreciate this opportunity to provide these comments. Please feel free to contact me at QQ:~i@1ffi]1ffi]~QIg or at 301-972-7028 should you have any questions or need further information about NAMA's position. Sincerely, Boyce Thorne Miller Science and Policy Coordinator Northwest AtlanticMarine Alliance· PO Box360, Windham, ME 04062 • tel andfax: 207·284·5374 • www.namanet.org Scoping Comments for Herring Amendment 4 Page 1 of 1 Subject: Scoping Comments for Herring Amendment 4 From: Jeff Kaelin Date: Mon, 30 Jun 2008 16:11:21 -0400 To: [email protected] CC: [email protected], 'Lori Steele' , "'Furlong, Daniel T.'" , "'Seagraves, Richard 1.'" , Terry Stockwell, George Lapointe, "Olympia 1. Snowe" , [email protected], Tom Allen, [email protected] To: Patricia A. Kurkul, Regional Administrator, NMFS Northeast Regional Office Dear Pat, Attached are scoping comments for Herring Amendment 4, submitted on behalf of Ocean Spray Partnership and New England Fish Company. Thank you for your attention to and your consideration of our views. Best regards, JK Jeff Kaelin Resource Associates Sustainable Solutions / Government Relations / Advocacy PO Box 440, 141 Main Street Winterport, ME 04496-0440 207-266-0440 [email protected] http://www.nero.noaa.gov/nero/dropoff/Amendment_4_Scoping_Comments/Comments%2... 7/8/2008 Statement ofJeffKaelin, for Ocean Spray Partnership and New England Fish Company, Concerning the Scoping Document for Amendment 4 to the Atlantic Herring FMP June 2, 2008 Revised/or submission to NMFS as "ScopingComments on Herring Amendment 4" June 30, 2008 Thank you for the opportunity to provide you with our comments on the Amendment 4 scoping document. I am Jeff Kaelin, from Winterport, Maine, and I am writing on behalf of the Ocean Spray Partnership (OSP) and New England Fishing Company (NEFCO). These companies are wholly owned and operated by the Raber family, who live in Maine, and its employees here in Portland. OSP operates the FN Providian, a 113 foot (LOA) vessel that operates primarily as a midwater trawler in the mackerel fishery during the winter and spring and as a trawler/seiner in the herring fishery during the summer and fall. The Providian has been active in the herring fishery and mackerel fisheries since 1998. The vessel's herring landings are sold in the sardine market occasionally and to NEFCO, the family's bait business located on Holyoke Wharf. My involvement in the herring fishery goes back to 1986 when I became the third Executive Director of the Maine Sardine Council, an organization of sardine processing companies in Maine, which was dissolved in 2000. In 1986 there were 11 sardine factories operating in Maine and one remains today. The concentration ofthis industry during this period oftime has more to do with market issues, like increasing demand and prices for herring for lobster bait and reduced domestic demand for canned sardines, than the supply of herring available in the fishery. There was no herring plan in 1986 and during the 1990's Maine's Sardine Industry took the lead in helping to develop a herring plan. Chairman Fran Kulle first articulated that catches in the Gulf of Maine of over 90,000 metric tons at the time were unlikely to be sustainable. The herring industry accepted the imposition ofthe first hard TAC's in the region, with the 1A TAC set at 60,000 metric tons, several years ago, an amount which we believe the best available science continues to support as sustainable today. Before I provide our comments on specific elements of the Scoping Document, I would like to make one or two observations that we believe are relevant to the development of Amendment 4 to the herring FMP. First, we believe strongly that the ASMFC herring section should be part of this amendment process as it has been since the joint development of the two herringFMP's years ago. As theCouncil's herring committee heard when it met on May 22 the Commercial Catch and Portside Bycatch Sampling program, which benefits the sustainable management of the herring fishery, is operated by the State of Maine from Maine through New Jersey. The managing of the Area 1A TAC occurs only through the cooperative efforts of the states of Maine, New Hampshire and Massachusetts. The federal government has along partnership with the states in managing this fishery - it simply does not have the resources to do it alone - and the states should be at the table with the Council throughout the development ofthis amendment. Second, this Council, ASMFC herring managers, and NMFS should become aware of the fact that the midwater trawl fisheries for herring and .mackerel in Europe are presently being certified as sustainable by the Marine Stewardship Council. A few minutes spent on 1 the internet tells us that the Swedish and Dutch fisheries in the North Sea have already been certified and that the Scottish Pelagic Sustainability Group, representing the Scottish pelagic industry has appointed a certification body for the Marine Stewardship Council (MSC) assessment ofthe Scottish fleet's North Sea herring and mackerel fisheries. As you may know, the Governor of the State of Maine has recently appointed a Working Group on Lobster Sustainability and is beginning to work to obtain sustainable fishery certification for Maine's lobster industry from the MSC. We have asked Commissioner Lapointe to consider expanding this process to certify the region's herring fishery, which supplies the region's lobster fishery with more than 70,000 metric tons of herring for lobster bait each year. It seems reasonable that the lobster fishery's bait source is integral to a determination that the lobster fishery should be MSC-certified. We call upon the advocacy groups who have called for another herring amendment, which we continue to believe is unnecessary, to join us in certifying the herring fishery as sustainable, which we continue to believe it is, so that we can end the campaign of disinformation about how this fishery is being managed today, which brings us here tonight. Our comments follow the outline ofthe Scoping Document as follows: Goal- To develop an amendment to the Herring FMP to improve catch monitoring and ensure compliance with the Magnuson-Stevens Reauthorization Act of2006 (MSRA) We continue to believe that this amendment is unnecessary and that the Council should allow Amendment 1, which went into effectjust a year ago, to operate for a period oftime.- at least until the next TRAC assessment is performed before implementing new management measures affecting the herringfishery. The herringjishery is not overjished and overjishing is not occurring so there is no pressing reason to dejine ACL's and AM's in this fishery, particularly since it is already managed through the use ofhard TAC's. Objectives: 1. To implement measures to improve the long-term monitoring of catch (landings and bycatch) in the herring fishery; 2. To implement Annual Catch Limits (ACLs) and Accountability Measures (AMs) consistent with the MSRA; 3. To implement other management measures as necessary to ensure compliance with the new provisions ofthe MSRA; 4. To develop a sector allocation process or other Limited Access Privilege Program (LAPP) for the Atlantic herring fishery; and 5. In the context ofObjectives 1-4 (above), to consider the health of the herring resource and the important role ofherring as a forage fish and a predator fish throughout its range. The current herringplan already requires consideration ofthe role ofherring as aforage fish, as does the current TRAC assessment process. It is simply unnecessary and it is redundant and needlessly repetitive to create another plan objective (Objective 5) that speaks to the role of 2 herring as a forage fish, which is an issue of common knowledge and not one of scientific concern. CATCH MONITORING PROGRAM Questions to Consider: What specific management measures should the Council consider in this amendment to improve the collection of catch/bycatch information in the Atlantic herring fishery? What specific measures should be considered to improve both at-sea monitoring and shoreside monitoring? The herringfishery is probably the most widely monitoredfishery in the Northeast with existing FMP requirements to utilize a VMS, provide weekly VTR's and IVR 's, call in to NMFS enforcement 6 hours before landing and calling the federal observer program 72 hours before sailing. The NMFS, NEFMC and MAFMC have recently adopted a Standardized Bycatch Reporting Methodology system, which establishes a baseline and target level.of observer coverage for accurately monitoring bycatch across the Northeast Region's federally-managed fisheries. What level ofobserver coverage in the herringfishery does the SBRMprocess tell us is adequate? Existing data should be analyzed to determine if there is, in fact, bycatch mortality in the herring fishery that indicates significant levels of mortality of any species of concern. The relative mortality effects of groundfisb bycatch in the herring fiShery, and from all other fisheries in the region, should be analyzed to determine if there is actually a problem in the herringfishery, or not, before additional measures should be implemented. We do not believe such a problem is evident. In the case ofriver herring populations, which are ofsome concern to advocates ofrestricting our fishery, existing data should be analyzed to determine how bycatch mortality in the herring fishery compares with mortality from other sources including restrictions on habitat, coastal pollution andpredation-from birds, other fish, and marine mammals. This data should also be analyzed to determine ifspecific time and area bycatch events can be isolated, in order to assist harvesters in reducing river herring bycatch in the future, if necessary. River herring are managed by the Atlantic States Marine Fisheries Commission and the NEFMC does not have jurisdiction to manage these species through. the Atlantic Herring FMP. Should management measures be considered in this amendment to improve observer working conditions and data collection by the Northeast Fisheries Science Center Sea Sampling Program? Should changes to.the observer sampling protocol be considered? Specific problems with observer working conditions needto be identified so that industry may make specific accommodations, if necessary. The industry currently has a good working relationship with the Sea Sampling Program, which has already resulted in necessary changes to the observer sampling protocols when operationally important. In addition, ongoing industry involvement with the Atlantic Trawl Gear Take Reduction Team has produced specific 3 recommendations for changes in observer sampling protocols so that the Sea Sampling Program can provide the agency, the industry and the public with more finely-tuned information. The Council shouldprovide time for individual Council members, and members ofthe industry and the public, to become more familiar with the existing protocols before changes should be considered. There is no evidence of an actual problem here, from our perspective. We are strongly opposed to suggestions that the herring fishery shouldpayfor 100% observer coverage to better monitor the fishery. First, we have heard no one with the responsibility of providing independent observer coverage in the herring fishery say there is any need for any thing near 100% observer coverage to adequately monitor any fishery. Second, with risingfuel costs and the low ex-vessel value ofherring ofbetween 10 and 12 cents per pound, the proposal that the herring fishery should pay for its observers makes no economic sense and can only be designed to end the fishery, in our view. The Council should require a thorough economic analysis ofwhat this would mean to the herring fishery before industry-funded observers are further considered. Should electronic monitoring systems, including video-based electronic monitoring, be considered for the Atlantic herring fishery? In the past, individuals associated with the Sea Sampling Program have statedpublicly on more than one occasion that video monitoring ofa high volume fishery, like the herringfishery, does not work and should not be considered since the added expense would not be expected to produce more precise data. Recently, Amy Van Atten 's presentation to the Herring Committee on May 22 concluded that a video camera system mounted at the grate where bycatch is sorted from the catch may assist human observers, on board, in some cases. What would the cost of this technology be and in what cases would the additional information be cost-effective for both the industry andthe observer program? Should full or maximized retention be considered for the herring fishery? If so, how will it be verified? What are the impediments to full retention? Participants in the herringfishery want to.bring the herring/hey catch to shore when possible, not dump it at sea as has been alleged by industry opponents. That this is being alleged to be a widespreadpractice by some participants in this process simply makes no sense. While there are operational constraints to full retention, since catches can sometimes exceed a vessel's capacity to hold all the fish that may be caught, the use ofcarriers in the fishery continues to take place, as it has for decades, so that fish are shared, often between competitors, to avoid wasteful discards ofherring. Occasionally, mechanicalfailures can create a situation when it is safe only to let fish go rather than attempt to bring them on board. Weather conditions may also be a factor in occasionally letting fish go. Requiringfull retention can effect the safe operation ofthe fishery. Current operations in herring trawling and herring seining already equate to 'maximized retention' in the herring fishery. No additional regulation in this area would be appropriate or is necessary. What measures should be considered in this amendment to address observer coverage and protocols for u.S. At-Sea Processing (USAP) vessels? 4 While there are no USAP vessels operating in the herring fishery at this time, NMFS has already clarified for the Council, in a letter sometime last year, that USAP vessels are required to take observers when requested in the same way that harvesting vessels are. Again, the Council, the public and the industry should review existing protocols to determine if there are specific problems with them. Changes can come about without specific measures being adopted through an amendmentprocess. Should the Council consider management measures to Improve the real-time monitoring of TAC's in the herring fishery? Existing industry and agency cooperation has already resulted in discussions that indicate it would be usefulfor herring vessels to report landings following each trip, rather than wait to report weekly. This operational change is under review and can evolve to make TAC monitoring as effective as possible without the need for an additional management measure, although it is unclear to us that the agency has the resources to upgrade its reporting system to utilize daily reporting by herring vessels. Should a shoreside monitoring program be established for this fishery? What modifications should be made to dealer and processor requirements to improve the accuracy and completeness oflandings information? A shoreside monitoring program is already in place in the herring fishery. Federal ACCSP funds are currently being used by the State of Maine's DMR to monitor herring catch and bycatch in the region, from New Jersey through Maine. There is some discussion about another program having already been established, by MADMF, additionally monitoring Massachusetts dealers and processors. As herring fishery participants, organized as the Sustainable Fisheries Coalition, we have asked Congress for federal funds to continue to support the ongoing DMR shoreside monitoring program. operating in the region, which is of benefit to the herring, mackerel and menhaden fisheries. A copy ofthis request has been provided to Council staff. Thepertinentpart ofthe request reads: COMMERCIAL CATCH SAMPLING AND BYCATCH SURVEY OF TWO PELAGIC FISHERIES - Since 2003 the Maine Department of Marine Resources has been conducting a ports ide bycatch monitoring and commercial catch sampling program in the Atlantic herring and Atlantic mackerel fishery from Maine through New Jersey. While this project has been funded by the Atlantic Coastal Cooperative Statistics Program (ACCSP) in the past, future funding is in doubt. Monitoring of the commercial catch and bycatch provides vital data to improve assessments for both species and provides information to assist in biologically-based management decisions. ($115K) Finally, in recent discussions we have had with Maine DMR, regarding this ongoing shoreside monitoring program, it has become evident that this state-managed program does not. have access to the landings notifications thatherring vessels must provide to NMFS enforcement. In other words, while NMFS enforcement agents know where vessels will be landing to take out herring, the shoreside monitoring program does not. Discussions between the agency and the industry should be facilitated, by the Council perhaps, to determine if we can release NMFS from existing confidentiality restrictions so that improvements to the shoreside monitoring program's efficiency can be easily made. 5 What special considerations should be included to address the unique nature of the herring fishery with regards to volume and fish-pump transfer of codend contents? This question seems tofocus on the pair-trawlfishery when codends may be transferred to one of the pair boats not being observed (an observer on one vessel but not on the other). Landings and discards are already required to be reported in these operations. No additional management measures are necessary. It is unique to the herring and mackerel fisheries in the region that the amount offish harvested and landed is estimated through traditional volumetric measurement. Fish holds have traditionally been measured in the herringfishery so that the captain and crew recognize the amount offish on board. Similarly, carriers have traditionally been measured for the same purpose. Most herring moves by tank truck once on shore. The volume ofthese trucks is another known measure. Moving away from the traditional volumetric measurement of herring landings, in favor ofthe use of 'weigh-master' scales (either on board the vessel, at the dock, or both, as calledfor by those who have questioned the validity ofthe current system) would likely add significant costs to the industry - costs that have yet to be articulated and are called for at a time when fuel prices have rapidly become a significant challenge to profitability in the industry - without any significant gains in the precision of existing landings estimates being likely. ANNUAL CATCH LIMITS/ACCOUNTABILITY MEASURES Questions to Consider: What specific management measures should the Council consider in this amendment to address the new MSRA requirements? Do you feel the current fishery specification process, including TAC's divided by management area, is adequate to meet the ACL requirements ofthe MSRA? 'Hard TAC's' have been in place in the herring fishery since the herring plan was implemented in January 2000. These TAC's are already conservatively set with a 49,000 mt buffer between ABC and OYbeing set aside each year. These restrictions, whichare important to ensuring a sustainable herring fishery, should be considered by the Council and NMFS as already meeting the ACL requirements ofthe MSRA. Aside from the ACLs themselves (Hard TACs), what accountability measures should be considered to ensure that the ACLs are not exceeded (for example, pay back provisions in which overages would be reduced from the ACL in the following year)? During the 8 years that the herringplan's hard TAC's have been in place, the Area lAfishery has successfully been closed, before the TAC was exceeded, in each year. With the exception ofthe 2006 catch in Area lB, as we understand it, the TAC has not been reached in the other three management areas. There does not appear to be any basis for establishing any new measures to ensure accountability in monitoring TAC's in the herringfishery since there has yet to be an 'overage' created by excessive fishing in any year to date. A new provision in the plan to ensure that overages be paid back in the next fishing year seems reasonable, however, to 6 assure the public that this would occur if needed. We are similarly interested in the plan allowingfor some amount of 'underage' in area-specific catches to be added to the quotafor thefollowing year ifthe scientific advice is that the stock could sustain additional effort. This exercise could take place during the annual review ofany multi-year specifications. How could the Council better account for the importance of herring as forage for predators in setting ACL's? In terms ofsetting ACL's, how could the Council better incorporate the concepts ofecosystem management as it relates to herring as a forage and as a predator species? The Council need not make any additional provisions for herring as forage when setting ACL's as this important ecosystem need has already being amply considered and estimated by the NEFSC during the 2006 TRAC assessment, when establishing the Allowable Biological Catch (ABC), before the specifications for the herringfishery for the 2007-2009fishing years were approved by the Council and the agency. The recent paper An Ecosystem Approach for Assessment Advice and Biological Reference Points for the GulfofMaine-Georges BankAtlantic Herring Complex, WJOverholtz, L'DJacobson; and JS.Link, North American Journal of Fisheries Management. 28:247-257, American Fisheries Society, 2008, describes revised estimates ofnatural mortality attributed to forage as being only about one-third ofthe herring stock on an annual basis. Commercial fishermen can harvest up to about 15% of the stock annually, while the remaining 50+% ofthe stock remains in the ocean to create the 'surplus productivity' necessary to sustain herring populations, predators and the fishery. While the 2007-2009 specifications establish ABC at 194,000 tnt-the available Optimum Yield (OY)for the fishery is already reduced to 145,000, allowing for uncertainties in survey results and overall population estimates. There is no biological need-for existing herring TAC's to be reduced, when setting an ACL in the fishery to accountforforage concerns, as some environmental advocates have calledfor. The Council should solicit advice from the NEFSC concerning the role of herring as a predator ofother importantfisheries resources under management by the Council, in order to establish an additional impetus for the Council to allow the harvest of herring up to its optimum yield on an annual basis. How should the Council account for discards in the setting and implementation ofACL's? Discards ofherring in the herring fishery have long been considered to be negligible by the Council and NMFS during the annual specification process. There is no information that would indicate that. discards are occurring at a mortality rate that would be of biological concern when setting an A CL in the fishery. MANAGEMENT MEASURES TO ADDRESS BYCATCH (Herring/Mackerel) Questions to Consider: Is the bycatchofherring on non-permitted mackerel vessels a significant concern in the southern New England and Mid-Atlantic areas? Should the Council consider measures to address concerns about potential bycatch of herring by non-limited access vessels participating in the 7 mackerel fishery? If so, what specific management measures should be considered to address concerns about herring bycatch in the mackerel fishery? The owners of vessels in the Mid-Atlantic mackerel fleet, who were unsuccessful in obtaining limited entry herring permits, have asked the Council to reconsider the existing 3 mt (6600 pound) per trip restriction under the open access incidental catch permit since it is inadequate to allow for herring bycatch to be retained, rather than be discarded, in some situations. The specifications for the mackerel fishery for the 2009 fishing year, effective 515108, now provide a 20,000 lblday incidental possession limit ofmackerel in the herring fishery after the directed mackerel fishery were to close. This allowance used to be 10% by weight but was clarified to be 20,000 lbslday with the rationale by the MAFMC and NMFS that the 10% allowance was not enforceable. It is our recommendation that the Council increase the herring bycatch limit, under the open access incidental catch permitfor vessels operating in the mackerelfishery only, to an amount that is consistent with bycatch allowances for vessels participating in the herring fishery, in the mackerel plan. During meetings ofthe Mid-Atlantic Fishery Management Council earlier this month, the Council acted to provide for a 50,000 pound bycatch allowance of Atlantic mackerel in the summer herring fishery ifthe mackerel fishery were to close after June 1. It is clear that both Councils are moving to provide consistency between these two plans, in terms of bycatch allowances that would allow the winter mackerelfishery and summer herringfishery to operate without needlessly discarding significant amounts ofherring or mackerel during normal operations. We support a 25 metric ton bycatch allowance ofherring in the winter and spring mackerelfishery and a 25 metric ton bycatch allowance ofmackerel in the summer andfall herring fishery. This amendment process, and the MAFMC 5MB Amendment 11 process, should be used to make the herring and mackerel plans consistent in order to reduce the potentialfor the regulatory discarding ofthe valuable herring andmackerel resources. QUOTA ALLOCATIONS (GROUP/SECTORJINDIVIDUAL) AND LIMITED ENTRY PRIVILEGE PROGRAMS Should the Council consider an individual or group allocation process in this amendment? Ifso, what kinds ofprograms should be considered? Should a sector allocation process for the herring fishery mirror that which is under consideration for the groundfish fishery? This amendment should provide a blueprint for establishing both sectors andIFQ's in the herring fishery, in order to maximize the options for vessels holding limited access herring permits. Forming sectors in the herringfishery should not necessarily mirror the process being developedfor the groundfishfishery since the fisheries are so different, particularly considering the differences in the number ofpermits andgear types existing in the groundfishfishery. While it is unclear at this time whether a group or individual allocation program would apply to all management areas in the herring fishery, the Council recognizes that significant changes 'in the Area IA fishery occurred during the 2007 fishing year with the implementation of Amendment 1, including a limited access program and a seasonal purse seine/fixed gear only 8 area. Consequently, fishing patterns for many vessels that historically fished in Area 1A have been affected recently, and some vessels lost access to this fishery during the most important time of the year. Because of the impacts of Amendment 1 on some of the major vessels in the fishery, the Council believes that it may not be appropriate to utilize fishing history from Area 1A from the 2007 fishing year forward to establish baselines for the allocation of TAC under a sector or other LAPP. If the Council establishes a group or individual allocation program that requires area-specific landings history to make allocations, the Council is considering a requirement that any allocation ofherring utilizing landings history from Area 1A be based upon a time period ending December 31, 2006. The Council is seeking public comment on this proposed end date for allocations based on Area 1A history. What are the pros/cons of using an allocation time period for history from Area 1A that ends on December 31, 2006? Should other baseline time periods be considered to determine group or individual allocations in Area 1A and/or in other management areas? If so, which ones would you recommend? The baselines usedfor any allocation program developed for the herringfishery should mirror those used to develop limited access privileges established by Amendment 1 to the herring FMP. Should group or individual allocation programs be structured by management area or for the herring fishery as a whole? Similarly, should group or individual allocation programs be considered for all herring management areas or just the areas where the TAC is consistently fully utilized (Area 1A)? Should initial allocations be based solely on fishing history/landings for the management area in question, or for all management areas? (i.e., should an Area 1A allocation be based only on Area 1A landings or landings from all management areas?) If group or individual allocation programs are developed for all management areas, how should the program address and allocate un-utilized TAC in Areas 2 & 3? At this time, we support the concept ofseparate allocations by management areas, based upon the history of catches in each area, but recognize that our thinking may change as the specifics ofthese programs are developed during the amendmentprocess. The MRSA states that the New England Council may not submit an amendment that creates an IFQ program unless the system has been approved by more than 2/3 of those voting in a referendum amongeligible permit holders. Does the herring industry support consideration ofan IFQ program in this amendment? Do you think that a referendum vote would likely receive 2/3 support among eligible permit holders? While it may be difficult to gain a 2/3 vote ofpermit holders (crew members will also have a vote, tbd, according to the recentproposed rule by NMFS) we ask that developing the basis for an IFQ be part ofthis amendment process. Specifically, we are opposed to any proposal that the industry pay any amount of management costs, including observer and other monitoring costs, unless a vessel's permit is to eventually include an IFQ or a similarform ofLAPP. The 9 MSRA requires the Council to "develop a methodology and the means to identify and assess the management, data collection and analysis, and enforcement programs that are directly related to and in support of the(LAPP) program" and "provide ...for a program offees paid by limited access privilege holders that will cover the costs ofmanagement, data collection and analysis, and enforcement activities" (MSA § 303A). At MSA § 304, the law states that "such fee shall not exceed 3 percent ofthe ex-vessel value offish harvested under any such program". In our view, the consideration of how to develop an IFQ program for the herring fishery through this amendment process, will be the only way for the Council to be in a position to assess what may be equitable, or affordable, for the herring industry to pay for observers or any other aspects ofthe costs of managing the herringfishery in the future. How should bycatch be accounted for in a group or individual allocation program? It is premature for us to comment on this level ofdetail at this time. Should the FMP include safeguards that prevent too much consolidation? Why or why not? If so, what type oflimits would be appropriate? The qualification for any sector quota or LAPP should be based solely upon a vessel's catch history. We reject any assertion that "too much consolidation ", either regional or otherwise, should be of concern to fishery managers. The purpose ofproviding limited LAP's, as we understand it, is to encourage the fishery to operate as a business, based upon the history of effort and investment by each participant, and mitigate unreasonable and unnecessary restrictions on the operation ofthe fishery. Hard TAC's in the fishery will continue to protect the herring resource on a sustainable basis. What reporting and monitoring requirements (for landings and discards) should accompany group or individual allocation programs? We do not see the needfor any changes in reporting or monitoring requirements for LAPP's, beyond those already requiredfor allparticipants in the limited entryfishery operating today. Would the use of a group or individual allocation program change the makeup of the herring fishery? How would it impact fishing communities? It is generally our view that an IFQ supports a fishing business by providing the company with something, although on a limited basis, that a bank may take as collateral in making loans to support the business. The creation of a rights-based system in the herring fishery will allow the fishery to take advantage ofmarket opportunities and maximize the public's return from the herring resource. Fishing communities would benefitfrom the stability in thefishery that a rights-based management system wouldprovide, in our view. 10 "Seeping Comments on Herring Amendment 4" June 30, 2008 Respectively submitted for, Ocean Spray Partnership, New England Fish Company PO Box 2666, South Portland, ME 04106 tTt#~ir Resource Associates, PO Box 440, Winterport, ME 04496-0440 207-266-0440 Cc: Paul J. Howard, NEFMC Lori Steele, NEFMC Dan Furlong, MAFMC Rich Seagraves, MAFMC George Lapointe, MEDMR Terry Stockwell, MEDMR Maine Congressional Delegation 11 SMALL PELAGIC GROUP 415 Turnpike Drive Camden, Maine 04803 207-837-3537 June 29, 2008 Patricia Kurkul, Regional Administrator National Marine Fisheries Service One Blackburn Drive Gloucester, MA 01930 via email: [email protected]. RE: Herring Amendment 4 Scoping Comments Dear Ms Kurkul: On behalfof the Small Pelagic Group ("Group"), I am providing our comments on scoping for Amendment 4 to the Atlantic Herring Fishery Management Plan (FMP). The Small Pelagic Group is comprised ofvessels that are owned by family businesses with long-term, historical participation in the herring fishery utilizing both purse seines and midwater trawls. These vessels, which operate throughout all areas ofthe fishery, are home ported in Rockland and Vinalhaven, Maine; and Gloucester, Massachusetts. In response to the issues raised in the Scoping document, we offer the following comments: Monitoring: As measures to monitor and account for fisheries landing in the region become a greater priority for the Council and the Agency, there is a need to accommodate variations in current and historical practices in our fisheries, as each present individual challenges. In the herring fishery product is delivered to shore by vessels that pump fish directly into shoreside plants, trucks headed for plants and local bait operations and a significant amount offish is delivered to offshore Maine islands communities that have a primary reliance upon fisheries for their economic base. Catch monitoring There is a significant need to improve the catch monitoring program in the herring fishery. Asa "hard" TACfishery, it is imperative to have accurate accounting measures to ensure that catch is within biological parameters while allowing the industry to maximize optimum yield in the fishery. Our experience in2007 has proven the current system to be inadequate to achieve these goals. Herring Amendment 4 Scoping Comments June 29, 2008 Page 2 of6 We recommend that the New England Fishery Management Council (Council) develop measures that consider a "real-time" accounting system for catch and total allowable catch (TAC) monitoring. Currently, vessels are required to call in their catch on a weekly basis to the interactive voice response (IVR) system and submit monthly vessel trip reports (VTR). Herring carrier vessels are required to report activity through the monthly VTR system and dealer reports are submitted on a weekly basis. However, all ofthese reports have proven difficult to align as issues with double counting and inaccurate reporting has occurred. Amendment 4 provides the Council and the Agency an opportunity to review these concerns and implement measures that are adequate to monitor catch on a trip by trip basis. In addition to the measures above, a typical Category A herring vessel needs to have a limited access herring permit, a letter ofauthorization (LOA) to operate with purse seine gear, an LOA to operate with midwater trawl gear and an LOA to transfer fish at sea. Vessels are required to call into the observer program 72 prior to leaving the dock, must notify enforcement 6 hours prior to landing their catch and all herring vessels are required to have an operational vessel monitoring system (VMS). These requirements were developed over time through different actions. Should the Council and the Agency continue to deem these requirements necessary to monitor the fishery then every attempt should be made to streamline the process to reduce the burden to fishery participants. Bycatch Monitoring Bycatch monitoring in the herring fishery is on par, or greater than, other monitoring programs in the region. However, some have called for increased efforts. The Council should consider measures that result in a statistically valid accounting ofbycatch in the fishery that does not incur increased costs to the participants. We do not support an industry funded observer program for the herring fishery. The NMFS observer program in the northeast is prohibitively expensive. In the recently developed Amendment 10 to the Mackerel, Squid and Butterfish FMP measures under consideration include an industry funded observer program at a daily cost of$775. While industry costs for similar programs in other regions ofthe country (for fisheries thathave much higher returns than most in our region) are approximately 60% less, averaging about $325 per day. We cannot fathom this disparity. Ifoutside interests continueto argue for increased observer coverage, then the Council should consider third party contributions to attain this data. The herring industry has incurred tremendous costs with the implementation of Amendment 1 in 2007. In addition, increased fuel costs (that appear here to stay) present a tremendous challenge for all participants in fisheries today. Instead ofbankrupting the herring fishery with additional expenses, the Council and the Agency should consider partnering with the states to expand their shoreside bycatch monitoring programs. These programs have proven to be an excellent means to estimate species composition for a high volume fishery and are extremely cost efficient. The combined efforts ofour current observer program with a shoreside program are adequate to statistically quantify bycatch 2 Herring Amendment 4 Scoping Comments June 29, 2008 Page 3 of6 in this fishery. We highly recommend that the Council engage the Atlantic States Marine Fisheries Commission (Commission) in the development ofthis action to coordinate complementary management plans. Retention The Council has debated full retention in the herring fishery on a number ofoccasions and rejected recommendations ofthese measures for this fishery as it raises serious issues ofsafety and compliance. The incentive for vessels to retain catch is very simple retained catch is retained dollars and fishermen fish for dollars. Most herring vessels use submersible pumps to bring catch aboard and are tanked for safety and stability in delivering product. This creates different variables when bringing fish aboard that include deliverable product and vessel safety. Poor fishing practices that do not include maximizing catch are frowned upon within the industry and should be discouraged. However, creating regulations that compromise vessel safety and the ability ofcrews to be compliant should not be considered in this amendment. The decision to put fish aboard should remain with the captain and his assessment ofthe best interests ofthe safety ofhis crew and vessel in various sea conditions. Annual Catch Limits and Accountability Measures We support the statement in the Scoping Document that reports that the herring FMP "has already laid the foundation for complying with the ACL and AM requirements of the MSRA." The current specification setting process is exactlywhat was envisioned by Congress in meeting these requirements. Annual catch limits are established for the fishery and these limits are accountable as the NMFS closes areas ofthe fishery when attained. In recent times we have seen some sub-area TACs exceeded (Note: OY has never been exceeded). However, these overages have not been biologically significant and can be corrected by a better accounting system. There is a need to provide the agency with the tools to accurately monitor the TAC to reduce management uncertainty and alleviate any need for additional accountability measures in this FMP. Forage At the Council meeting ofJune 3, 2008, Dr. William Overholtz ofthe Northeast Science Center spoke ofhis work on an ecosystem approach to herring and its role as forage. Dr. Overholtz stated that the question is: Can we have a fishery and allow for sufficient prey in the ecosystem at the same time? His work concludes that yes we can. The role ofherring as forage is embedded throughout the current specification setting process. Natural mortality is accounted for in the current stock assessment and further consideration for the role ofherring as forage is considered when setting optimum yield (OY) for the fishery. The Council specifically stated concern for forage in its justification for reducing the 2008 MSY by 29,000 mt to establish an OY for the fishery of 145,000 mt. It is not necessary for the Council to take any additional actions to fully consider herring as an important prey species. 3 Herring Amendment 4 Scoping Comments June 29, 2008 Page 4 of6 Accounting for herring as forage is a science process that should not be influenced by political pressures or campaigns. The Northeast Science Center has done considerable work in this area and this work continues. A new TRAC stock assessment for herring is scheduled for 2009 at which time all relevant scientific information for the stock will be on the table. Measures to Address Bycatch of Herring in the Mackerel Fishery Vessels that are fishing for mackerel that did not qualify for a limited access herring permit have identified a need for a herring bycatch allowance for that fishery. There is a need for both the mackerel and herring FMPs to be consistent in measures to address bycatch in these fisheries. We suggest that the Council coordinate their actions to address bycatch ofherring in the mackerel fishery with the MAFMC. Quota Allocations and Limited Access Privilege Programs Our Group strongly supports the development ofa market-based management approach for the herring fishery. Currently there is significant excess capacity in some areas ofthe fishery. Excess harvesting capacity exacerbates certain undesirable management outcomes, including an increased race for fish, poor economic performance, less viable fishing communities, poor at-sea safety, and a regulatory process that is complicated, contentious and costly. The new limited access program for the herring fishery did not decrease excess harvesting capacity in the fishery and effort controls have not proven cost-effective or a method ofreducing excessharvesting capacity. The basic problem with this limited access program is its failure to address a common underlying management problem oftoo many boats and not enough fish. Market-Based Approaches Our Group supports the development ofsector allocations in the herring fishery. As the region develops sector in various fisheries some processes should be streamlined to be consistent across all fisheries. However, some measures will need to be fishery specific and there is a need to allow this flexibility under individual FMPs. A sector allocation process for a single species fishery does not face the same challenges as a mixed, multispecies fishery. An ITQ system is.an ideal market-based approach for the herring fishery. However, the development ofthis type ofplan would be lengthy and controversial. For these reasons, we do not support the development ofthis management approach at this time. Area Based Allocations Allocations should be history andarea based to account for the differences in the geographic distribution ofthe resource and the dependency ofthe participants in the fishery. Clearly Area 1 is fully utilized and is need ofa new management regime. Also, there should be some analysis done for how sector allocations could benefit the Area 2 fishery as the current IVR system reports 70% ofthe TAC has been taken in 2008. The 4 Herring Amendment 4 Scoping Comments June 29, 2008 Page 5 of6 Area 3 fishery remains elusive for the industry and it would appear inappropriate to establish a baseline for allocation in this amendment for this area. However, the amendment can establish many aspects of a program that could benefit a sector allocation process in Area 3 at some time in the future. Allocation of Species It is not necessary to allocate every species that crosses the deck of a vessel for a successful sector allocation program. Certainly this is not the approach taken in other regions with similar programs. While the herring fishery is probably easier than many in identification ofall species a vessel may encounter, it creates an unnecessary complex process to develop and implement. Allocations should be limited to directed species, herring, and any other limiting species, such as haddock. Other species should be treated as they currently are now under the northeast region fishery regulations. Occasional interactions with other species, such as dogfish and mackerel, do however need to be accounted for under the new mandates ofthe MSRA. The herring FMPsets-aside 5% of each area TAC for bycatch ofherring in other fisheries and other plans will need to develop accounting methods as well to implement ACLs for each fishery. Consolidation and Sector Thresholds The Scoping document asks the following questions: What are the appropriate limits on consolidation? What is too small a number for a sector and what is too large? These questions are very difficult to answer without some analysis that indicates recent levels of catch by vessel. While this information may not be available down to the individual vessel level, it is necessary to be able to compare a high and low participation level by a certain number ofentities to make any appropriate recommendations. Without this information the only sure recommendation to make is that a vessel threshold of 1 should be too few to.form a sector and a requirement ofall vessels in the fishery, is too many. Reporting and Monitoring The Council and the Agency have placed a high level ofimportance on the need for accurate reporting and monitoring requirements for sector allocations. There has been discussion ofweighrnasters, offload monitoring, electronic monitoring, increased levels ofobserver coverage, and third party accounting programs. However, there are no region wide mechanisms in place at this time to achieve these goals. We do not have an affordable observer program and no Sea State program is waiting to assist us. There is an obvious need for a transition period for the implementation ofeffective reporting and monitoring programs in our region. This situation is not specific to the northeast region and the Agency will need to support these initiatives nationwide to assist in the implementation ofmarket-based managementprograms. The industry, the Council and the Agency will need to work together in the development ofefficient systems that can provide reasonable accounting systems that will still allow for delivery ofaffordable seafood products to American consumers and user groups. 5 Herring Amendment 4 Scoping Comments June 29, 2008 Page 6 of6 Community Impacts Numerous communities in the northeast are dependent upon reliable supplies ofherring for their economic viability. Many are small coastal communities that are severely impacted when access to local supplies of lobster bait or sardines become limited. During the recent period in which the Council promoted the expansion of the herring fishery these communities have experienced increased costs and decreased access for herring products. The management goals established in the plan include maintaining the viability ofthese communities - this goal has not been accomplished. A rational sector allocation program could provide stability to those in the fishery and stability to those communities that are highly dependent on access to the fish in the market. Capacity in the Gulf of Maine Fishery As long-term landings data reflect, the GulfofMaine (GOM) is the most consistent, productive area ofthe herring fishery. Amendment 1 to the herring FMP introduced a limited access program for all areas ofthe fishery in 2007. However, the program institutionalized overcapacity in the GOM and as ofApril 28, 2008, the NMFS permitted 38 Category A vessels eligible to fish in the area. The impacts ofAmendment 1 have reactivated latent effort and further increased capacity as vessels bought permits from small vessels and placed them on vessels with far greater catching capacity. While all 38 permits may not be active in the GOM fishery, many will fish the area at some time during the year. 1 The reality is that the available TAC in the GOM cannot support this level ofeffort in the short or long term, and given the current characteristics ofthe fleet, the GOM fishery supports only 8-10 dedicated, economically viable Category A vessels. Currently the herring fishery is under hard, area-based TACs and the fishery closes when these are attained. The inshore GOM has closed prior to years end in every year since the implementation ofthe plan in 2000. In addition, effort controls of"days out ofthe fishery" are implemented through the states FMP under the Atlantic States Marine Fishery Commission (Commission). Under management since 2000 by the Council and the Commission, the GOM herring fishery has gone from a year round fishery to an estimated 5 month fishery that currently limits landing fish to 3 days a week. The herring FMP continues to state an objective to: Provide for the orderly development ofthe herring fishery in inshore and offshore areas, taking into account the viability ofcurrent and historical participants in the fishery. There has been nothing orderly aboutthe management ofthe inshore fishery or consideration ofthe viability ofhistorical participants under this management plan. In conclusion we would.like to thank the Council and the Agency for the opportunity to comment on the development ofthis amendment and we look forward to continuing to work with you on this effort. Sincerely yours, Mary Beth Tooley 1 Amendment 1 also included a midwater trawl gear exclusion from June l-September 31 that resulted in a decrease in capacity for June 1 - September 31 in 2007. However, these measures were not intended for capacity reduction and are likely to be temporary as vessels adjust to the new management regime. 6 New England Fishery Management Council 50 WATER STREET I NEWBURYPORT, MASSACHUSETTS 01950 I PHONE 978 465 0492 I FAX 9784653116 John Pappalardo, Chairman I Paul J. Howard, Executive Director Herring Amendment 4 Written Scoping Comments sent via mail and fax to NEFMC Executive Director Paul Howard,Executive Director New England Fisheries Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 April 26, 2008 Dear Captain Howard and Regional Administrator Kurkul, I'm writing today because I am a Massachusetts citizen and a River Herring advocate. I am extremely concerned about the health of river herring. As you know populations are in decline up and down the coast. Although a new management plan is being developed in state waters, the federal government needs to take action. Currently, midwater trawlers are operating without proper monitoring and insufficient observer coverage levels. The National Oceanic and Atmospheric Administration lack the most basic information on this fishery, taking educated guesses at best about what is caught and landed. Everything reported is an estimate and this needs to change in order to determine how much river herring is being caught and killed by this fishery. Monitoring of the herring and mackerel fleets need to be increased to 100%. With this information we will be able to determine if and when the fleets are catching river herring and how they can avoid them. Signed, f"..-t ~. ~;r~ ~~[Ll Cc: John Pappalardo, NEFMC; David Pierce, NEFMC/MA DMF /e Paul Howard Executive Director New England Fishery Management Council 50 Water Street, Mill 2 r;--. Newburyport, MA 01950 '}{ollffr.rfFtnil Patricia Kurkul f[lJ JU'N It!ifI Regional Administrator 172008 l!:JjjiU Northeast Region, NOAA Fisheries N~W .I .' ENGLAI'J'l·, . { One Blackburn Drive MANAGeR' . ,L FISdE,r::::V I c:!\Ii~f\rr C"O .' . Gloucester, MA 01930 .I UNCIL I ~-J May 2008 Dear Mr. Paul Howard and Ms. Patricia Kurkul, This letter is in regards to the Sea Herring Scoping Document published for Amendment 4. The increase in large industrial size ships fishing for bait fish in in-shore waters needs to end. The scoping document should be discussing ending mid-water trawling for herring and mackerel. There are other ways to harvest herring at levels sufficient to sustain 'the lobster and sardine industry that are less destructive. Increasing weir fishing in American waters and converting boats to purse seining will be a benefit for all fisheries and marine mammals. We should take Canada as an example. There was a push in Canada to allow mid-water trawling for herring in their waters. Their government decided that mid-water trawling was not in the best interest of all fisheries and declined to incorporate mid-water trawling into the fisheries management plan. I encourage the NEFMC to ban mid-water trawling and mid-water pair trawling in New England waters. Signed, Cc: The Honorable Deval Patrick, Bill Hogarth, NMFS; John Pappalardo, NEFMC; Daniel Furlong, MAFMC; W. Peter Jensen, MAFMC Page 1 of2 Joan O'Leary -~------+;::::;:::::F,Z~=f?=;=;ti=f?=~ From: Lori Steele o Sent: Friday, June 06, 2008 10:18 AM To: Joan O'Leary JUN 062008 Subject: FW: [Fwd: [Fwd: [Fwd: herring seoping]]] NEW ENGLAND FISHERY MANAGEMENT COUNCIL Herring Amendment 4 Seoping Comments - forwarded from NMFS Lori L. Steele, Fishery Analyst New England Fishery Management Council 50 Water Street, Mill #2 Newburyport, MA 01950 (978) 465-0492 fax (978) 465-3116 www.nefmc.org [email protected] My name is Gary Libby a member of the Midcoast Fisherman's Association. I'm very concerned about the amendment 4 herring document as written which has a provision for forming sectors. As a ground fisherman in area 1 the bycatch in the midwater trawl fishery is a very grave concern, the way I understand sectors is, if the mid water trawl fleet has a sector it could write sector rules to use any gear in any area. If this is allowed my prime concerns are that the potential bycatch of ground fish in this area will be very damaging to the rebuilding of the gulf of Maine ground fish stocks. I also think that the control date is unnecessary because of the small amount of participants in the midwater trawl fishery. It has been suggested the midwater trawl fishery is historical. Considering that this fishery has only been used since the mid 1990's suggest otherwise. If any herring fishery should be considered historical it would be the small purse seine fleet which is both the traditional and historical method of herring fisheries going back generations. Purse seining should be able to provide enough fish to be able to supply the lobster industry with bait. In addition, purse seining is the more ecological method of taking herring, if there are bycatch in a purse seine it is easily released alive, unlike midwater trawl fisheries bycatch which is dumped dead into the water. The only way midwater trawlers should be allowed to continue is with 100% observer coverage and on both boats in the case of pair trawling, and by no means should they be allowed to form sectors where they write the rules to use any gear in any areas including closed areas to groundfishing. The accountability measures are taken care of with the TAC which was put in place in amendment 1, and option 5 could be blended with amendment 1 which should ensure accountability measures. The idea of expanding the option of a relative healthy fishery makes more sense to me with the use of the real historical gear which is purse seine and weirs. Thank you in advance for your consideration. Gary Libby, commercial fisherman 6/6/2008 Paul Howard, Executive Director New England Fisheries Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 rIOT ~ -7~;'~ (~-'~~~7r,'\1 !I- \ 1/ ! II 11/11 i,i II i Uu . JU.N 17 Z. OOB 101 h.me I, 2008 I Ni= \.V i=1~1(~1' .A "1[" ~,.~, "-0" 1 Dear Mr. Howard, ....~~ L.... ~,•...,~, _r-\I',. .J (-10fiCf\. Y I LjMANAGEMEj'n COUNCIL I ----.--,~~--.--~-_____J As a fisherman in New England, I am appalled that the Midwater Trawl fleet can, in this day and age, be so poorly managed. How does this fleet slip through the cracks when everyone else is required to work within tight regulations? I agree that these regulations can be burdensome. But I also agree that without these regulations, I would be out of a job. To have these Midwater Trawlers fishing with such low observer coverage in closed areas, where vital fish stocks are being rebuilt, is unbelievable. These boats catch so much sea herring - a fish that is important to feed all other stocks in New England. Without sea herring, cod will not rebuild, tuna will not return, and my business will fail. Thousands of fishermen are affected by the actions of a few fishermen in the midwater trawl fleet. This is unjust and should not be allowed when so much work has been done to manage New England fisheries properly. These boats should be closed down and not allowed to fish unless they agree to fish under the regulations everyone else has. Thanks, ~4~~ LDV~iA 6 ,r,:./hdPj~ Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 Ma)' 14, 2008 Dear Mr. Howard and Ms. Kurkul, Groundfish stocks have been overfished for years and the Council has been working very hard to rebuild these stocks for future generations. As a groundfisherman, I thank you for your hard work. However, I'm very concerned that the midwater trawlers are allowed to continue fis,hing in these groundfish closed areas when they are catching groundfish. This fleet is slipping past your regulations at a time when groundfish are in severe trouble. From looking throuqh the data you have collected on this fleet, they do catch groundfish - and a lot of it! I hear that they claim they don't catch a lot of groundfish, but they caught tens of thousands of pounds of haddock in just a few trips one season. It's unreasonable that these boats should be able to fish in these areas. Please continue your hard work to rebuild these stocks by banni 19 the midwater trawlers from these closed areas. Thank~~~1r Lo Vv{ /I 6rvY7d~j.e. Pn)vr n ufo vJY1 \ (V\.A ~ ~ n~ ~ ~\\ Paul Howard, Executive Director New England Fishery Management Council \~li JUN 17 Z008 50 Water Street, Mill 2 Newburyport, MA 01950 NEW ENGLAND Fi~HERY I MANAGEMENT COUNCIL J \__""""""...",,,.-"_c.''''~" ,. . June 1,2008 Dear Mr. Howard, I am a lobsterman fishing in New England and wanted to submit my comments on the Sea Herring fishery Scoping Document for Amendment 4. I need sea herring as bait for my business. It seems against logical reason that I would then be against the sea herring fishery, as they catch and sell sea herring at rather cheap prices. But the midwater trawlers went too far when they joked about destroying hundreds ofthousands ofdollars worth oflobster pots a while ago. In addition, I do in fact care about other fisheries in New England, as many ofmy friends are . groundfishermen, tuna fishermen, striped bass fisherman and the list goes on. All other fishermen are adversely affected by the actions ofthe Midwater trawlers. The midwater trawlers catch everything, discard just as much, and don't have the observers to count what was caught. They don't care to manage the fish stocks but other responsible fishermen do. As a lobsterman, I am worried that once again lobster pots will be destroyed by the midwater trawlers and another era oflobstermen will be forced out ofthe business. The midwater trawlers must be pushed further offshore than 3 miles. They are huge boats! They can travel so much farther than our small boats can, yet they are allowed so close to shore. They destroy our lobster pots, catch huge amounts offorage fish thereby pushing tuna and groundfish far away in search offood, and discard thousands ofpounds of striped bass dead. This fleet must be pushed offshore to 50 miles, where they will have less adverse effect on the thousands ofsmaller fishermen that fish New England waters. For such a small number ofmidwater trawl fishermen to impact thousands ofother fishermen in New England is unjust and must be fixed. Signed, \ Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries Nf£W l:;NGL,t,HD PiSHERY MANAGal/1ENT COUNCIL One Blackburn Drive Gloucester, MA 01930-2298 May 25,2008 Dear Mr. Paul Howard and Ms. Patricia Kurkul, I am concerned that river herring populations are not returning and I hear that you are accepting comments on the sea herring midwater trawl fleet. I work on restoring river herring runs and have heard a lot about the midwater trawl fleet as a reason for the decline in river herring. I didn't realize anyone was still allowed to catch river herring while the moratoriums have been in place. But from looking through your data and speaking with fishermen from around my area, I've found that the midwater trawlers actually catch hundreds ofthousands ofpounds ofriver herring. How can these ships continue to catch river herring when no one else can? They should be banned from catching river herring and be included in the different moratoriums that all other fishermen follow. Ifthis means they can no longer fish, so be it. River herring are too important a forage fish for every other living thing in the ecosystem to allow these few fishermen to destroy their populations. Fishermen and conservationists alike are calling for the midwater trawlers to stop catching river herring. Please listen to us. Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 June 1,2008 Dear Mr. Howard and Ms. Kurkul, The observer program for the midwater trawl fleet is and ad hoc program that is making a mockery of FW 43 and all observer programs. How they continue to fish, when they have less than 5% observer coverage, baffles me. As a management agency, I would be embarrassed that everyone knows this fleet is managed so terribly. You must stop these boats from ruining a great program. Observer coverage for these huge boats should be at-least 100%. Sincerely, .fl;'tf---~ 6eo rIC rc (YJ /tJ/S;e1l / tJ 4tAtnsv %f !LJJ ILJ. f4f7l¥J.4t tJd6J/ ~~~~_.~""~"-~.,--"--_..~-~~-~"l Paul Howard, Executive Director New England Fishery Management Coun i~ ~ J~N ~ 7~Z:8~ ~, 50 Water Street, Mill 2 Newburyport, MA 01950 NEW ENGlj-i,ND PiSHERY Ii Patricia Kurkul, Regional Administrator MANAGEMENT COUr~C!L _ 1...-__; ""_"._"~~ • Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 June 1,2008 Dear Mr. Howard and Ms. Kurkul, The observer program for the midwater trawl fleet is and ad hoc program that is making a mockery of FW 43 and all observer programs. How they continue to fish, when they have less than 5% observer coverage, baffles me. As a management agency, I would be embarrassed that everyone knows this fleet is managed so terribly. You must stop these boats from ruining a great program. Observer coverage for these huge boats should be at least 100%. Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 May 10, 2008 Dear Mr. Howard and Ms. Kurkul, I hope my comments below on the sea herring scoping document for the midwater trawl fleet convinces you to do something to improve the management ofthis fleet. The midwater trawlers are a dirty fishery that cares little about the Council's work to improve the management ofthe New England fisheries. They mock the improvements that have been done to increase observer coverage. They have so little observer coverage on their boats - they may as well have none at all. To have only 5% coverage on such huge boats means we don't know how this fleet is affecting all other fisheries - we can't possibly know how they are affecting all the fish stocks in New England. To add insult to injury, there are only 38 boats in this fleet and each boat only has 5 or 6 fishermen on board. Yet they run reckless through our waters, catching everything, discarding tons ofit, and hurting the thousands ofother fishermen who make a living by fishing in New England. These boats need to be monitored like everyone else is they need 50% observer coverage. Please make these boats responsible for their actions. -c. fJu TJ~ A (r- Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 Patricia Kurkul, Regional Administrator Northeast Region, NOAA Fisheries One Blackburn Drive Gloucester, MA 01930-2298 May 10, 2008 Dear Mr. Howard and Ms. Kurkul, I hope my comments below on the sea herring scoping document for the midwater trawl fleet convinces you to do something to improve the management ofthis fleet. The midwater trawlers are a dirty fishery that cares little about the Council's work to improve the management ofthe New England fisheries. They mock the improvements that have been done to increase observer coverage. They have so little observer coverage on their boats - they may as well have none at all. To have only 5% coverage on such huge boats means we don't know how this fleet is affecting all other fisheries - we can't possibly know how they are affecting all the fish stocks in New England. To add insult to injury, there are only 38 boats in this fleet and each boat only has 5 or 6 fishermen on board. Yet they run reckless through our waters, catching everything, discarding tons ofit, and hurting the thousands ofother fishermen who make a living by fishing in New England. These boats need to be monitored like everyone else is - they need 50% observer coverage. Please make these boats responsible for their actions. Thanks, Paul Howard, Executive Director Patricia Kurkul, Regional New England Fishery Management Administrator Council North ~' ,:,"~f'11~M.~rries 50 Water Street, Mill 2 One B ~rrPOOve Wi Is Ill) Newburyport, MA 01950 Gloucs $lrr, MA 01930-229~J!1 I JUN 302008 L:JI j April 2008 J~.'" I Ih_.\V" C:',' l;N,:;LAi\ID- FiSHERY;J L~l~t~~~~~~~~~C;L. Dear Captain Howard and Regional Administrator Kurkul, I would like to comment on the scoping document for herring amendment 4. As a commercial fisherman out of Martha's Vineyard, I am very concerned with a couple serious problems in the Mid-water trawl fishery. From the data we do have on this fishery, they are not only wasteful, discarding hundreds of thousands of pounds of dead fish that they .don't want, but we don't even know exactly how much they are catching since the observer levels on these boats are so low at 5% this year. My little boat, which has a much smaller impact on the ecosystem and other fisheries, has higher observer coverage than they do! We need 100% observer coverage on these boats. My fishing business depends on forage fish like sea herring and mackerel being out in the ocean. When these huge vessels are catching millions of pounds of sea herring every day right on the 3-mile marker, there are no forage fish left and so I am forced to go out further and further from shore in my much smaller boat in order to make a living. It's dangerous for me and unfair that these huge vessels should be allowed so close to the shore when they are able to stay out for longer periods of time further offshore. They must be restricted from fishing within 50 miles of shore. These mid-water trawlers shouldn't be allowed to run reckless through our oceans as they are doing new. I want to thank the Council for taking on this issue and seriously hope thatyour time is spent well which means implementing a management plan that increases observer coverage to 100% and imposes a buffer zone of 50 miles offshore. Thank you for your time, 5 COittw: 4J~ j Cc: John Pappalardo, NEFMC 7>.0. 8ey '--!q I c2 -t 'gCtL-.s ~ II\. 72. d. C fA ~ l i/f;t ~}-c.. I/f/l. Ci- 0 2- ~ C7- / s: Paul Howard, Executive Director Patricia Kurkul, Regional New England Fishery Management Administrator Council ~-;=.~jr'~"T'TlFffiiWrtheast Region, NOAA Fisheries 50 Water Street Mill2)i ~ \j lJ U ,y C,} I~~e Blackburn Drive Newburyport, MA 0 IWlP JUN ~ g~g~8 l~lrucester, MA 01930-2298 April 2008 l.~~~,,-~ Dear Captain Howard and Regional Administrator Kurkul, I would like to comment on the scoping document for herring amendment 4. As a commercial fisherman out of Martha's Vineyard, I am very concerned with a couple serious problems in the Mid-water trawl fishery. From the data we do have on this fishery, they are not only wasteful,discarding hundreds of thousands of pounds of dead fish that they don't want, but we don't even know exactly how much they are catching since the observer levels on these boats are so low at 5% this year. My little boat, which has a much smaller impact on the ecosystem and other fisheries, has higher observer coverage than they do! We need 100% observer coverage on these boats. My fishing business depends on forage fish like sea herring and mackerel being out in the ocean. When these huge vessels are catching millions of pounds of sea herring every day right on the 3-mile marker, there are. no forage fish left and so I. am forced togo out further and further from shore in my much smaller boat in order to make a living. It's dangerous for me and unfair that these huge vessels should be allowed so close to the shore when they are able to stay out for longer periods of time further offshore. They must be restricted from fishing within 50 miles of shore. These mid-water trawlers shouldn't be allowed to run reckless through our . oceans as they are doing now. I want to thank the Council for taking on this issue and seriously hope that your time is spent well which means implementing a management plan that increases observer coverage to 100% and imposes a buffer zone of 50 miles offshore. Thack you :Opf~ Cc: John Pappalardo, NEFMC Paul Howard, Executive Director New England Fisheries Management Council 50 Water Street, Mill 2 MAY p.P 1 Z008 Newburyport, MA 01950 April 26, 2008 To Whom It May Concern: I am a citizen of Massachusetts and am writing in regards to the recent Sea Herring Scoping Document published in regards to Amendment 4. There has been quite a bit of media regarding the herring fishery and being an active recreational fisherman have decided that it is time for meto speak out. I am not a huge fan of overburdening fishermen with rules and regulations, but there is a point when certain actions need to be taken to protect our fisheries. The New England Fisheries Management Council needs to incorporate needs of other fish stocks (predation and grazing) into management plans. Whales, striped bass, bluefish, dolphins, birds, tuna, cod and humans all eat herring. They have high energy content and therefore contribute to the growth of other populations. With out herring, other bait fish would be eaten a greater rate and this would through off the entire ecosystem. Sincerely, ~~Jv~ MLVl-/"Tux\<:. BQuC \t\ Cc: Bill Hogarth, NMFS; John Pappalardo, NEFMC Paul Howard, Executive Director New England Fishery Management Council 50 Water Street, Mill 2 Newburyport, MA 01950 D. . ill~· .~. ·~W ~ .... rn1n I ~ Ii!. III JUN 17 2008 8' May 2008 NEW ENGLAND F'J,SHERY rv1ANAGEMENT COUNCIL .-~~~~~,~~~~~- Dear Mr. Paul Howard, Recent declines of river herring are linked to many issues including predation, spawning habitat degradation and offshore fishing. Scientists have been unable to determine what is the underlying reason for the decline although from my experience, the offshore fishery definitely plays a role. Improvements in accessing spawning habitat and water quality have been ongoing over the last decade at least. Increased pressure by striped bass could be a possibility, but studies show that striped bass eat more crustaceans than herring. The data published in the Memorandum for the September 2007 New England Fishery Management Council meeting show 5 observed mid-water trawl trips catching over 100,000 pounds of river herring. 100,000 pounds translates into nearly 300,000 fish. That is equivalent to 3 midsized herring runs vanishing due to ocean fishing. This isn't right especially since river herring have been determined to be a 'species of concern.' River herring live the majority of their lives in the ocean. There is enough data to state that closing down inshore waters to midwater trawling would help river herring populations. I encourage the New England Fishery Management Council to impose a 50 mile buffer zone up and down the east coast to decrease the catch of river herring and protect other fish (menhaden, striped bass, bluefish) that have the potential to be caught in mid-water trawl nets. Cc: The Honorable Deval Patrick, Bill Hogarth, NMFS; John Pappalardo, NEFMC; Daniel Furlong, MAFMC; W. Peter Jensen, MAFMC New England Fishery Management Council 50 WATER STREET I NEWBURYPORT, MASSACHUSETTS 01950 I PHONE 978 465 0492 I FAX 978 465 3116 John Pappalardo, Chairman I Paul J. Howard, Executive Director Herring Amendment 4 Scoping Comments Received by NEFMC via Email Please note - To save paper copies we have included samples of duplicate emails received. If you would like to view all emails received by both the Council and NMFS please call our office and request a CD.