WASHINGTON (Saving Seafood) — April 24, 2013– On April 1, 33 Massachusetts state legislators led by Senate Minority Leader Bruce Tarr and Senate President Therese Murray asked Samuel D. Rauch III, the Acting Administrator of Fisheries at the National Oceanic and Atmospheric Administration to allow the fleet reasonable access to stocks while new studies are conducted into the vitality of the Gulf of Maine ecosystem. The lawmakers emphasized to Rauch that a compelling legal case exists for the government to institute a second year of interim catch limits on Gulf of Maine cod, now in line for a 77 percent cut in landings based on a decision by Regional Administrator John Bullard and supported by a legal brief by the general counsel for NOAA that has been withheld from the public.
Three days later, 60 Massachusetts legislators signed a second letter drafted by Gloucester’s delegation, Senate Minority Leader Bruce Tarr and state Rep. Ann-Margaret Ferrante — that featured a detailed legal rebuttal to the position taken by NOAA’s General Counsel.
The response reiterated NOAA's position that they cannot "suspend the implementation of the cod, haddock, and yellowtail flounder catch limits for the 2013 fishing year" arguing that such a decision would be inconsistent with their responsibilities under Magnuson-Stevens Act.
Many legal observers, Members of Congress and elected officials disagree with that interpretation. Saving Seafood requested the legal opinion of the General Counsel under the Freedom of Information Act. The Department found 29 pages of written material constituting the advice, but refused to release any of them under 5 U.S.C. § 552(b)(5), which exempts from disclosure inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency. Saving Seafood continues to ask the agency to explain their legal rationale in the face of such widespread disagreement from numerous legislators and lawyers with qualifications to comment.
This week, Massachusetts Attorney General Martha Coakley asked Massachusetts Governor Deval Patrick to request that President Obama “ask” the National Oceanic and Atmospheric Administration to institute lesser catch reductions than are expected on Gulf of Maine cod and other stocks for the fishing year that begins May 1. Yesterday, Governor Patrick wrote to Acting Commerce Secretary Rebecca Blank asking that she approve and implement the request for interim measures submitted by the New England Fishery Management Council (NEMFC) to NOAA Fisheries in December to allow for a more gradual approach on Gulf of Maine cod and haddock.
Below is the text of the letter from Dan Morris, Deputy Regional Administrator for John K. Bullard, Regional Administrator, in response to the request from 33 Massachusetts state legislators to NOAA Fisheries Acting Administrator Sam Rauch.
UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
NATIONAL MARINE FISHERIES SERVICE
NORTHEAST REGION
55 Great Republic Drive
Gloucester, MA 01930-2276
Senator Bruce Tarr
Massachusetts Senate Minority Leader
State House, Room 308
Boston, MA
APR 18 2013
Dear Senator Tarr:
Thank you for your April 1,2013, letter regarding New England groundfish.
As you indicated, the proposed catch limit reductions for 2013 which were recommended to us by the New England Fishery Management Council are substantial. We have given serious consideration to the many requests for interim measures that would reduce rather than end overfishing in the new tishing year. On the advice of NOAA General Counsel, we have determined that such measures are beyond the scope of what we may legally implement under Magnuson-Stevens Act sections 304(e)(6) and 305(c). Setting aside legal restrictions, I believe it would not be justified or prudent to allow overfishing for another year on Gulf of Maine cod, given its continued declining status. Nor is it appropriate to exercise for Gulf of Maine haddock. I have attached a January 24,2013, letter from Regional Administrator John Bullard to the New England Council that outlines in detail why we are unable to use interim measures to allow continued overfishing in fishing year 2013.
We cannot, as you suggest, suspend the implementation of the cod, haddock, and yellowtail flounder catch limits for the 2013 fishing year. To do so would be inconsistent with our mandated Magnuson-Stevens Act responsibilities.
Higher landings of cod and yellowtail flounder off of Gloucester during March-May are a recurring seasonal pattern associated with spawning aggregations. These peaks have occurred regularly over the past decade or so, but are not good indicators of total abundance. Also, in recent years, these pulses in seasonal landings have been shorter, with lower peaks and lower total landings for the period. Our systematic trawl survey and the fishery independent information provided by our Canadian and state partners, including the Massachusetts Division of Marine Fisheries, continue to show very low recruitment and low biomass for numerous species, including cod and haddock in the Gulf of Maine. We also continue to hear from many fishermen that cod are indeed difficult to find and, when found, the concentrations are low in comparison to recent history.
We are aware of the University of Washington study you cite. We draw your attention to the paper's conclusion that when productivity shifts to a lower rate, catches must be lowered since a stock in a low-production regime cannot support the same yield as when the stock is in a high- production regime. This is also the case if the lower productivity is attributable to lower abundance. In either case, lower catches are called for. The important thing is to detect shifts in abundance early enough to manage catch in order to avoid stock collapse.
We share your concern that the best available scientific information be used in setting catch limits. As you know we have recently completed extensive benchmark stock assessments for Cape Cod yellowtail flounder, and Gulf of Maine haddock, and two for Gulf of Maine cod, all of which produced consistent results. Little would be gained by doing these again at this time.
We continue to identify management flexibility where possible to help mitigate impacts on fishermen and communities. For example, we are proposing to provide carryover of unused quota into the new fishing year, a decrease in minimum fish sizes (designed to allow fishermen to more fully land the fish they catch), and numerous regulatory exemptions to provide more efficient fishing operations. We are also analyzing options for providing access to some groundfish year-round closure areas. We have already implemented or are developing actions to allow better utilization of redfish, monkfish, and dogfish, with the intent of providing additional directed fishery revenue to groundfish fishermen. We are continuing to develop a quota trading mechanism with Canada through the Transboundary Management Guidance Committee that could provide additional yellowtail flounder for the U.S. fishery. We are hopeful that the trade process can be implemented before the end of the 2013 fishing year.
In anticipation of the low 2013 catch limits, Acting Secretary of Commerce Blank declared a fishery disaster in late summer of 20 12. While Congress has not provided disaster funding, this declaration does allow the Small Business Administration to provide low interest, long-term loans to affected parties. The Department of Commerce Economic Development Administration has initiated dialog with many New England coastal communities to begin development of long- term strategies. We have also committed to fully funding the regulatory required elements of at- sea monitoring for the upcoming fishing year.
We will continue to work creatively with the New England Fishery Management Council, and to engage fishing communities, as we work together to preserve both the fishery and the communities dependent on it. If you have any further questions, please contact April Boyd, Assistant Secretary for Legislative and Intergovernmental Affairs, at (202) 482-4981.
Sincerely,
Dan Morris, Deputy Regional Administrator
for John K. Bullard
Regional Administrator
View the request letter from 33 Massachusetts state legislators
Read a story from the Gloucester Daily Times about the letter from the Massachusetts state legislators
Read about Governor Patrick's request to Acting Commerce Secretary Rebecca Blank asking for a more gradual approach on Gulf of Maine cod and haddock