September 29, 2020 — The U.S. Court of Appeals for the Ninth Circuit rejected an appeal from Pacific Choice Seafood Company challenging the National Marine Fisheries Service rule on single-entity quota cap in the non-whiting groundfish fisheries off the West Coast.
The panel affirmed the district court’s summary judgment entered in favor of NMFS rule, limiting the total allowable catch and prohibiting any one entity from controlling more than 2.7 percent of the outstanding quota share.
September 29, 2020 — The following was released by the Responsible Offshore Development Alliance:
48 fishing industry leaders representing fishing organizations from across the country submitted a letter yesterday to the Senate Committee on Energy and Natural Resources recommending improvements to the OFFSHORE Act. These proposed changes would ensure that research and mitigation funds are properly directed and efficiently used, and that federal labor standards are applied consistently to offshore development activities.
The OFFSHORE Act, officially the Opening Federal Financial Sharing to Heighten Opportunities for Renewable Energy Act of 2020, would make several changes to how offshore wind construction is conducted and how research funds are allocated. It would allocate a large portion of offshore wind lease sales to state governments, and allocate some to the National Oceans and Coastal Security Fund for research grants. It would also extend provisions of the Jones Act to require offshore wind developers to use American labor for production activities.
In their letter, the industry leaders called on the Senate to direct OFFSHORE Act funding to the National Marine Fisheries Service (NMFS) to “conduct research, planning and environmental review, and fisheries monitoring.” Fully funding NMFS is “the highest research funding priority for any bill addressing [offshore wind],” they wrote, because NMFS has the expertise to contribute to the development process, but faces potentially severe disruptions to its work and currently lacks the resources to keep pace with new developments. These disruptions include a loss of access for its survey efforts, which rely on low levels of scientific uncertainty to accurately inform stock assessments and sustainable fisheries catch levels. NMFS also has the unique ability to conduct cooperative research, which is key to ensuring inclusivity among fishery and regional stakeholders.
September 28, 2020 — The Western Pacific Regional Fishery Management Council (WPRMFC) has suggested actions to the Trump Administration in order to “promote seafood competitiveness and economic growth and to provide regulatory relief to support economic recovery for the offshore fisheries of Hawai’i, American Samoa, Guam, the Commonwealth of the Northern Mariana Islands and eight Pacific Remote Islands (PRIAs),” according to a WPRFMC press release.
Two parties voted against the proposals: the council member representing the Hawai’i State Department of Land and Natural Resources, as well as the National Marine Fisheries Service (NMFS) Pacific Islands Regional Administrator.
September 28, 2020 — A bill newly introduced in the Senate would establish a federal regulatory system for offshore aquaculture, opening a pathway to large-scale fishing farming in the U.S. exclusive economic zone.
Sponsored by Sens. Roger Wicker (R-Miss.), Brian Schatz (D-Hawaii) and Marco Rubio (R-Fla.), bill S-4723 would clear the way for the Department of Commerce in its drive to create new aquaculture zones – an effort so far stymied by the federal courts.
In its 2-1 decision, the appeals panel found in favor of critics who argued the Magnuson-Stevens Fishery Conservation and Management grants the agency no power to permit fish farming in federal waters.
“If anyone is to expand the 40-year-old Magnuson-Stevens Act to reach aquaculture for the first time, it must be Congress,” according to the court’s opinion.
September 28, 2020 — The following was released by the Western Pacific Regional Fishery Management Council:
Leaders of the nation’s eight Regional Fishery Management Councils concluded their second biannual meeting in 2020 yesterday by videoconference. The Council Coordination Committee (CCC) meeting provides the Councils and heads of the NOAA National Marine Fisheries Service (NMFS, also known as NOAA Fisheries) an opportunity to discuss issues relevant to all of the Councils. Under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), each Council is authorized to develop, monitor and amend fishery management plans for federally managed fisheries in its region. Once approved by the Secretary of Commerce, these plans are implemented by NMFS. The two-day meeting was open to the public and hosted by the Western Pacific Council. Among its recommendations, the CCC addressed President Trump’s Executive Order (EO) 13921 on Promoting American Seafood Competitiveness and Economic Growth, new National Environmental Protection Act (NEPA) measures issued by the White House Council on Environmental Quality (CEQ), and NMFS coordination on a proposed National Seafood Council and on overfishing technical guidance.
EO 13921 aims to strengthen the American economy, improve the competitiveness of American industry, ensure food security, provide environmentally safe and sustainable seafood, support American workers, remove unnecessary regulatory burdens and ensure coordinated, predictable and transparent Federal actions. At its May 2020 meeting, the CCC released a preliminary joint statement, and, subsequently, each Council provided its own regional recommendations or status in the process of identifying potential changes to regulations, orders, guidance documents and other similar agency actions. The May 2020 CCC letter highlighted the consequences of marine national monuments on the Nation’s fisheries and can be found at www.fisherycouncils.org/ccc-correspondence. Yesterday, the CCC requested that NMFS continue to brief the CCC and the individual Councils on the review and implementation of their recommendations.
EO 13921 also includes actions for more effective permitting related to offshore aquaculture and long-term strategic planning to facilitate aquaculture projects. Taking this into account, the CCC yesterday recommended that its consensus statement on aquaculture be revised and considered for review at the next CCC meeting planned for May 2021.
The CCC also recommended that NMFS coordinate with the Councils to release the aquaculture programmatic environmental impact statement (EIS) for public comment. The EIS assesses the impacts of siting aquaculture facilities. The CCC further recommended that NMFS, prior to identification of Aquaculture Opportunity Areas (AOA), provide the spatially referenced data used to identify the AOAs and that the Councils be included on the AOA implementation teams.
Another initiative to support and increase the value of sustainably managed U.S. fisheries is an industry-led National Seafood Council that the NMFS Marine Fisheries Advisory Committee recently recommended. In regard to this proposal, the CCC requested that NMFS evaluate the NOAA FishWatch criteria for the purpose of serving as an equivalent to third-party certification deeming U.S. fishery products as sustainable. The CCC requested that NMFS report on the utility of FishWatch for this purpose and any possible alternatives by the May 2021 CCC meeting. Information on NOAA FishWatch can be found at www.fishwatch.gov.
Several other recommendations by the CCC focused on improving coordination between the Councils and NMFS.
The CCC moved to create a CCC subcommittee to make recommendations to NMFS in developing guidance on the new NEPA rule announced by CEQ on July 15, 2020. Such guidance could include determining and implementing the functional equivalency provision of the new rule, which would address current duplication in MSA and NEPA requirements. Signed into law in 1970, NEPA requires Federal agencies to consider the environmental effects of proposed major Federal actions significantly affecting the quality of the human environment.
The CCC requested that NMFS circulate draft reports of its National Standard 1 Technical Working Groups through the Councils with sufficient time for the Councils to consult with their Scientific and Statistical Committees and develop a response through their full Councils. The MSA contains 10 National Standards. Standard 1 says conservation and management measures must prevent overfishing while achieving, on a continuing basis, optimum yield from each fishery for the U.S. fishing industry. The issues addressed by the Working Groups were estimating fish population reference points, quota carry-over and phased-in catch limits, and alternative management approaches due to data limitations.
The CCC also requested that the NMFS Office of Sustainable Fisheries form a working group comprised of NMFS and Council staff members to determine alternative approaches to the use of annual catch limits (ACLs) to manage data limited stocks. The 2006 reauthorization of the MSA mandated that overfishing be addressed through enforceable ACLs that cannot exceed scientific recommendations. Alternative approaches identified in the CCC recommendation include those that are based on fishing mortality rates, fish lengths and fishing trip limits, among others.
For more information on the CCC meeting, go to http://www.fisherycouncils.org/ccc-meetings/september-2020-ccc-meeting.
September 28, 2020 — The following was released by the Science Center for Marine Fisheries:
Decades of strict conservation and management have led to a rebound of gray seals in the North Atlantic. Now, research from the Science Center for Marine Fisheries (SCEMFIS) is providing new insights into this population, how local fisheries interact with them, and better options to manage them.
The study, led by Drs. Doug DeMaster, Paula Moreno, Andre Punt, and John Brandon of the Independent Advisory Team for Marine Mammal Assessments, is evaluating how interactions with regional fisheries, specifically the New England sink gillnet and bottom trawl fisheries, affect the gray seal population. Revising estimates for key parameters such as abundance, levels of bycatch, and the proportion of seals crossing between the U.S. and Canada, the study is providing alternative approaches for the National Marine Fisheries Service (NMFS) to estimate Potential Biological Removal (PBR) levels. PBR determines the number of gray seals that can be removed annually by human activities without threatening the conservation status of the stock.
Preliminary results from the study find that calculations made by NMFS to determine the PBR threshold are likely too conservative. Specifically, it finds that NOAA’s estimate of gray seal productivity, a key metric in determining PBR, is too low by approximately 17 percent. It also finds that NOAA is likely being overly conservative in how it classifies at least one fishery, based on productivity, bycatch levels and assumptions regarding transboundary movements of gray seals between the U.S. and Canada.
Under the U.S. Marine Mammal Protection Act (MMPA), bycatch is strictly managed based on PBR levels, and fisheries are often required to adopt burdensome mitigation strategies as a result. Having an accurate estimate of the seal population that is interacting with commercial fisheries, and setting an appropriately precautionary estimate of PBR, is critical not just for seals, but for the fisheries that interact with them.
“With the gray seal population continuing to grow, the fishing industry is increasingly concerned about bycatch and other issues that come from seal interactions,” said Greg DiDomenico, a member of SCEMFIS’ Industry Advisory Board. “The results of this study will provide options for managing gray seals that are both consistent with federal conservation goals and may be helpful in avoiding unnecessarily burdensome regulations on fishermen.”
September 22, 2020 — The Western Pacific Regional Fishery Management Council concluded its 2020 third-quarter meeting recently with actions related to electronic reporting for Hawaii longline fisheries, annual catch limits for grey snapper (uku) for years 2022-2025 and more.
Hawaii longliners and those greater than 50 feet long in the American Samoa longline fleet will have to use electronic logbook reporting by the middle of next year, the Council approved in an amendment to the fishery management plan. Under the amendment, vessel operators must record and submit logbook data within 24 hours after completion of each fishing day using an electronic logbook application certified by the National Marine Fisheries Service. In the event of technology malfunction, vessel operators would be required to submit the logbook data by paper or electronically within 72 hours of the end of each fishing trip. The recommended date for implementing mandatory electronic reporting is by July 1, 2021; the regulatory amendment is pending approval by the Secretary of Commerce.
September 17, 2020 — Should people be able to use rubber bullets and even paintballs to deter Hawaiian monk seals from coming too close to fishing gear and property?
Those are some of the tactics NOAA wants to hear your feedback on.
The National Marine Fisheries service is proposing a rule in the federal registry on “Guidelines for Safely Deterring Marine Mammals.”
The Hawaii Marine Animal Response has already expressed their concerns with the proposals, saying in a social media post, “These proposed deterrence methods could make the existing desired Hawaiian monk seal interaction guidelines confusing for people who live and fish in Hawaii.”
September 11, 2020 — Michael Foy, the U.S. longline captain jailed in the British Virgin Islands since June 11, has seen his trial postponed on Tortola until Oct. 1 as the island goes through another round of covid-19 partial shutdowns, according to Foy’s family.
Foy and his local attorney arrived in court as scheduled Sept. 9 only to be told the hearing was rescheduled, according to his brother Joe Foy.
Responding to urgent requests from his lawyers in Tortola and the U.S., the National Marine Fisheries Service produced 27 pages of documentation from Foy’s vessel monitoring system, with data showing he fished far from BVI waters. They have that evidence in hand for when they do get a court hearing, according to Joe Foy.
Michael Foy’s vessel Rebel Lady was laid to offshore June 8, waiting for customs clearance to enter the port of Road Town as he had done many times before, but Foy was arrested after BVI authorities instructed him to follow a customs vessel into the harbor.
September 10, 2020 — United States District Court Judge James Boasberg in Washington, D.C., handed down his remedy Aug. 19 to the National Marine Fisheries Services, which he ruled last spring had violated the Endangered Species Act in licensing the fisheries in the northeastern U.S.
He gave the NMFS until May 31, 2021, to conduct a new biological opinion on the fishing industry’s impacts on the endangered right whale species and measures to decrease whale deaths caused by the industry, vacating the previous biological opinion.
Earlier this year he found that the NMFS had failed to file an incidental take report in 2014 after discovering the vertical lines used in the fishing industry could be responsible for up to three whale deaths a year, which is more than the species can sustain, according to NMFS’ own calculations.
Center for Biological Diversity, Conservation Law Foundation, Defenders of Wildlife and the Humane Society of the United States, the plaintiffs in the case, requested over 5,000 square miles south of Cape Cod, Massachusetts, where large numbers of whales congregate, be closed to vertical line fishing.
Intervenors in the case argued that closing off that area to fishing would place more nets outside its boundaries, creating a situation where lines are closer together, increasing entanglement risks for whales trying to reach the area considered for fishing closure.
The judge decided against the plaintiffs’ request because there is no legal precedent for such an action, he said in his opinion. He decided it would be too detrimental to the New England fishing industry that is already struggling because of the coronavirus.