Individual Infractions Can Affect Entire Sector

by Laurie Schreiber

MYSTIC, Conn. – To what extent should an entire groundfishing sector be made responsible for an individual member’s fishing violations?

The New England Fishery Management Council (NEFMC) debated that topic as an enforcement issue at their April meeting.

NEFMC’s enforcement committee met March 12 to make recommendations concerning sector managers and joint liability of sectors; gear marking requirements across all fisheries; the use of small, seasonal closed areas; and allowing vessels to carry nets with different mesh sizes for different fisheries in the regulated mesh areas.

The committee also considered a proposed list of enforcement priorities for 2013 from the National Oceanic and Atmospheric Administration (NOAA). Among NOAA’s recommendations, the agency proposed adding at-sea monitoring to dockside monitoring as a high priority for the Northeast.

“There is concern that boardings at-sea should increase, especially for non-groundfish species and fisheries,” according to the enforcement committee. “Enforcement at-sea is a high priority for the Coast Guard, and the number of boardings has been consistent for the last 5-6 years.

With respect to dockside monitoring itself, the states’ approach of developing an understanding of the fishermen and their operations may be preferred to the check-off list of questions approach.”

With regard to sector liability, enforcement committee members noted the discussion has provoked considerable anxiety among sector members.

At its September 2012 meeting, NEFMC discussed the role of the sector manager in the handling of violations by a member of the sector.

According to the enforcement committee, “Sector members believe that the sectors will work hard to enforce against violations, through their enforcement committees, of both sector rules and federal regulations. Liability of sector members for violations committed by its individual members is an important element of all sector agreements.”

A violation of federal regulations is the responsibility of the individual, although other members may be jointly liable for certain violations, on a case-by-case basis, according to the committee.

By and large, there are three types of infractions that can result in joint liability: annual catch entitlement (ACE) overages, illegal discards, and misreporting catch.

ACE overages and misreporting are handled within the season by the Northeast Regional Office (NERO) and sector managers, so as to prevent violations. In a few cases, NERO has issued stop fishing orders.

According to the enforcement committee, “Discussion turned to stop fishing orders, and how group type violations, such as ACE overharvest, will be treated in terms of prior violations by all the sector members….OLE [Office of Law Enforcement] said sector manager is responsible for handling rogue vessels, and the other sector members will not be charged. Sector members said that dealers are ordered not to buy from rogue vessels, when they are issued a stop fishing order from their sector, and that is the best way to enforce Stop Fishing Orders.

“The Sector office indicated that both they and the Sector manager, separately, conduct a weekly analysis of VTR’s (vessel trip report), dealer landings reports, etc., against the sector’s ACE. The process proceeds to daily reporting (and analysis) as overharvesting is approached (80 percent), and finally a Stop Fishing Order (100 percent)….

“When a member is ejected from a sector, the manager issues a Stop Fishing Order to the vessel(s) and notifies NMFS. NMFS, in turn, notifies the dealers because the vessel(s) may not continue to fish in the common pool.

“If a vessel is issued a Stop Fishing Order and another sector member witnessed the banned vessel fishing illegally, then that other sector member could be liable to report it. Authorized dealers have a good understanding of boats that do business with them, as it is largely the same boats all the time, and these dealers should know that a boat has a Stop Fishing Order. The problem arises when such a vessel moves to other dealers and/or areas….”

At the NEFMC’s April meeting, NEFMC member David Pierce said the language regarding liability was confusing. “I thought all sector members would be held liable for an individual’s infraction of one of those rules,” Pierce said. “But this suggests individuals within a sector aren’t affected by a violation of another sector member.”

Enforcement committee member Terry Alexander explained the entire sector is liable for ACE overages. Individuals, he said, don’t have quotas; the sector has a quota. So an entire sector must exceed the quota in order for all its individuals to be liable.

However, said NEFMC executive director Tom Nies, in those cases where an entire sector may be held responsible for overages caused by a small number of rogue boats, the violation will not be held against the law-abiding individuals as part of their fishing history.

“This is a sector-type violation,” said Nies. “It wouldn’t show up as we do an individual screening.”

With regard to the enforcement of small, seasonal area closures, the committee said the situation is more difficult than large, straight-lined, permanent closed areas.

“[E]nforcement agents must arrive at the moment in order to establish a violation,” the committee said.

The dimensions of a closed area matter as well, the committee said; a large but narrow closed area is difficult to enforce.

“Fishermen want to know where closed areas are, in order to avoid them, and one that is too small may require a buffer zone around it for this reason,” the committee said. “The combination of small inshore closed areas and small boats increases the likelihood of violations. Small closed areas offshore are difficult to enforce because the response time is longer.”

The committee proposed the development of a minimum size for closed areas.

“Areas that are amenable to enforcement with aircraft are preferable, as opposed to regulated gear areas that require boarding’s at-sea to verify that legal gear is being used,” the committee said.

With regard to marking requirements for lobster trawls and unintentional conflicts with mobile gear, the committee said the intent is to strengthen gear marking between state and federal waters and make it more consistent. The NEFMC agreed to approach lobstermen associations of Maine, Massachusetts and New Hampshire to discuss the matter.

The matter of having different mesh nets on a boat in regulated mesh areas was instigated when the NEFMC received a request to allow shrimp nets onboard while groundfishing.

The NEFMC received an email dated Feb. 11 from fisherman Jim Ford, which says, “For next year, would it be possible to carry our shrimp net while we are groundfishing as long as it is tarped and disconnected and bound with the grate attached?...We need to be able to switch back and forth next year to do multiple fisheries. It is hard for most of us to move nets around at different tides. Please do what you can to accommodate us fishermen that are trying to stay in business doing multiple fisheries.”

NEFMC’s current policy recommends one gear onboard, to prevent switching between multiple fisheries, so gear can be checked at the dock. However, a few fisheries provide exemptions to allow two different mesh sizes onboard, requiring boarding at sea.

The enforcement committee recommended no action on the request.