In her response to the court order, National Marine Fisheries Service (NMFS) Northeast Regional Administrator Pat Kurkul said the order resulted in massive confusion for the fishery. She said her office was “deluged with calls and inquiries from fishermen as to whether their leased days-at-sea (DAS) are still valid, whether they will be reallocated DAS that have already been used under the differential DAS provisions, whether they are subject to declaration requirements established by Framework 42, and numerous other questions concerning how they are to know what rules apply to them.” The framework action was largely reinstated last week, except for provisions relating to the Gulf of Maine 2:1 days-at-sea counting system, which will remain suspended until March 28, and an additional 30 days for fishermen to submit DAS leases for this fishing year. Those provisions were the focus of the lawsuit filed by the Commonwealth of Massachusetts and the State of New Hampshire against the U.S. Department of Commerce. Framework 42 was enacted in 2006 to prevent overfishing of certain cod and flounder stocks. Massachusetts and New Hampshire, objecting to Frame- work 42's restriction on fishermen’s government-allotted DAS, claimed the action was arbitrary and capricious. Framework 42 subtracts two hours from a given DAS allotment for each hour a fisherman fishes in the inshore portion of the Gulf of Maine. The states said the framework fails to comply with the Magnuson-Stevens Act requirement under National Standard I to achieve optimum yield while also preventing overfishing, and with the requirement under National Standard II that the action be based on the best scientific information available. The states’ claim pertaining to NS1 related to the so-called “mixed-stock exception.” The mixed-stock exception allows for overfishing of one stock in a multispecies fishery in order to permit harvest of another species at its optimum level. In their petition, the states said that Commerce, through the National Marine Fisheries Service, did not “seriously consider and analyze” the mixed-stock exception in promulgating Framework 42. The general idea behind mixed-stock fishing is that harvesting one species of a mixed-stock complex at its optimum level may result in the overfishing of another stock component in the complex. However, according to NMFS guidelines, NEFMC may decide to permit this type of overfishing if certain conditions are satisfied: it is demonstrated that such action will result in long-term net benefits to the nation; is demonstrated that mitigating measures have been considered and that a similar level of long-term net benefits cannot be achieved by modifying fleet behavior, gear selection/configuration, or other technical characteristic in a manner such that no overfishing would occur; and the resulting rate or level of fishing mortality will not cause any species or evolutionarily significant unit thereof to require protection under the Endangered Species Act. U.S. District Court Judge Edward Harrington’s original January 26 order temporarily suspended Framework 42 and directed Commerce to consider and analyze the mixed stock exception within 60 days of the order, by March 27. Harrington dismissed the states’ claim regarding best scientific information. On February 10, NEFMC received an analysis of the mixed-stock exception from NMFS, whose report concluded that the exception could not be applied in the groundfishery. NMFS said the exception, which is only a guideline, is superseded by the statutory requirements of the MSA, the federal law which requires overfished stocks to be rebuilt within statutory timeframes. After some impassioned discussion, and with a split vote of 11-6, NEFMC asked NMFS to reconsider its position. NEFMC said that Congress intended that optimum yield should pertain to the fishery as a whole, and not to individual stocks; and that one stock should not dictate severe constraints on the fishery as a whole while that stock is being rebuilt. David Pierce said Congress did not intend to eliminate entirely the practice of allowing a mixed fishery to continue. “I continue to believe that sacrificing a very large amount of yield from the fishery as a whole for the benefit of one stock is not in the best interest of the nation,” Pierce said. Significant losses of fishing opportunity occurred in Frame- work 42 and will continue in the interim rule, he said. That situation would be compounded by NMFS’ conclusion, which, he said, will end up closing the entire southern New England area to fishing. Council member and fisherman David Goethel agreed: “If we use this rationale, we’ll never get off single-species management. We will never move to ecosystem-based management, because we will continue to manage to whatever is the weakest stock. And no matter how economically or biologically unimportant that stock is, it will not only drive the bus in groundfish, it may drive the bus in any fishery in which it pops up.” Single-species management, said Goethel, was useful when stocks were severely depleted. Once stocks rebuild, he said, they start to interact with each other, making the exception a useful tool. “We must have the mixed-stock exception to deal with minor stocks that chronically underperform in rebuilding, or we will deny the public of huge amounts of sustainably caught seafood,” Goethel said. Kurkul disagreed, saying that NMFS is bound by the timelines and rebuilding requirements set in law by Congress. Any ambiguity about Congressional intent regarding rebuilding was cleared up in the 2007 reauthorization of the MSA, which specified that overfishing must be ended immediately. NEFMC scientist Sally McGee said the council is attempting to selectively interpret the intent behind the MSA. “We’re trying to lower the bar,” she said. Pierce objected. “I am not lowering the bar for anything,” he said. “I will not lower the bar regarding conservation. However, I will not raise the bar for the fishing industry to the point where boats fail. These are very difficult economic times, and the interim action we’ve requested the service to implement is significant and tough, but it doesn’t put the industry in the southern New England area out of business.” |
