Chatham, Mass. —

Commercial fishermen have reached an agreement with the National Marine Fisheries Service (NMFS) regarding a change in a final rule for the Atlantic herring fishery issued in November 2009. The rule outlined new protocols that herring midwater trawl ships must follow in order to fish in an ocean area closed to nearly all types of fishing gear to protect groundfish nursery areas southeast of Cape Cod.

Captain Peter Taylor of Chatham, Mass., along with fellow fishermen Bob St. Pierre and Stuart Tolley, filed the suit in December 2009, requesting that the court require NMFS to reconsider a loophole that weakened the new protocols and declare the loophole illegal under the Magnuson-Stevens Act, our nation’s fisheries law.

“Groundfish fishermen have sacrificed a lot over the years to help rebuild these important fish populations,” said Taylor. “Access to groundfish closed areas requires strict oversight so closing this loophole will allow for better data on bycatch and a realistic view of what midwater trawlers are catching out there.”

The new protocols were instituted because the midwater trawl fleet had exceeded its limits for groundfish bycatch in the area, known as Closed Area 1.

The original rule proposed by NMFS was intended to reduce groundfish bycatch and gather more data about the fishing practices and impacts of midwater trawl vessels. The rule required every midwater trawl ship entering Closed Area 1 to have a federal fisheries observer onboard and that its entire catch be brought aboard to be documented by the observer unless specific narrow conditions were met, such as when vessel safety was at risk.

The final rule issued by NMFS, however, contained a surprise loophole that allowed for the dumping of catch before observers could inspect it. This change was never sent out for public comment and contradicts the original rule, which had received overwhelming public support.

“We are pleased that the Fisheries Service has agreed to send the dumping exception out to the public for comment,” said Earthjustice Attorney Roger Fleming, who is representing the plaintiffs in the case. “We are confident that once the Agency hears from New England fishermen, other experts, and the public they will agree that there is no need to include such a gaping loophole and that everything caught in midwater trawl ship nets can — and must — be brought aboard to be documented.”

BACKGROUND

Herring midwater trawlers are industrial fishing ships up to 165 feet long that can hold more than one million pounds of catch. They drag massive nets behind them that are so big that one net is often towed by two vessels in a practice called pair trawling, and the net’s small mesh is capable of catching everything in its path.

Because of the large volume of their catch, midwater trawl ships use fish pumps to bring their catch on board while the net is still under the water. These pumps, however, are fitted with grates that filter out larger animals like groundfish, tuna, and marine mammals from the smaller Atlantic herring, known as “slippage”. Under the loophole created by NMFS’s final rule this “slippage” can be dumped without being brought on board for inspection. This is often the most critical bycatch in need of accurate documentation.

Because the population of groundfish off the coast of New England has been depleted for years, in 1994 nearly all fishing was banned from waters identified as spawning grounds and sanctuaries for cod, haddock and other groundfish. This measure was part of an important part of a plan designed to give groundfish a chance to rebound from overfishing.

While herring midwater trawlers were initially banned from fishing in groundfish spawning grounds, in 1998 federal regulators re-opened these areas to midwater trawlers who claimed their fishing gear would not catch groundfish. Many fishermen believe that these trawlers are significantly contributing to the fragile status of New England’s legendary groundfish populations, and ecological and economic waste in New England’s fisheries.

The New England Fishery Management Council’s herring committee will continue discussions to reform the midwater trawl industry’s monitoring program, including a currently flawed draft definition of allowable “slippage,” on Tuesday and Wednesday, July 27-28, in Portland, Maine.