No leased days at sea

Ruling reaction: Feds say no to leased days at sea

By Richard Gaines

Staff Writer



In an action that is projected to have especially harsh impact on Gloucester's fishing fleet, the National Marine Fisheries Service yesterday suspended the program that allowed fishermen to lease days at sea from unused permits.

By itself, the action by NMFS, discussed informally at a groundfish committee meeting in Mansfield and announced at 6:30 p.m. yesterday by e-mail to the Times, will cut fishing by about 50 percent, according to the estimate of industry attorney Stephen Ouellette.

"This could shut down the fishery," he said.
The lease program is "one of the only ways guys are fishing," said state Sen. Bruce Tarr, R-Gloucester.
In Mansfield, NMFS officials also discussed rolling back the allowable daily catch of cod, the primary goal of the Gloucester fleet this time of year, from 800 pounds a day to 500 pounds a day.

Maggie Mooney-Suess, spokeswoman for NMFS, said last evening she had no information on the possible cutback in the daily cod quota.
The decision to suspend leasing of days at sea came in the second full day of regulatory uncertainty about what is the operative law for commercial fishing.
On Monday, a federal judge in Boston, acting on a suit against NMFS by the states of Massachusetts and New Hampshire, suspended the governing regulatory Framework 42 and ordered NMFS to go back and do a better job.

NMFS's news release blamed the ruling, by U.S. District Judge Edward Harrington, for the suspension of the leasing program, which was a central component in Framework 42.
In his opinion, Harrington severely chastised NMFS for lazy efforts that resulted in potentially harsher regulations than are necessary.
"Agencies are ... expected to approach their work carefully and thoroughly," Harrington wrote. "This means taking their time before making decisions affecting society, especially those of great consequence, such as Framework 42."
Members of fishing community and Tarr, who was involved in the crafting of the suit against NMFS, said they saw NMFS' responsive action as escalating the legal and political battle joined via the suit of the states against Framework 42.

"They're trying to put us out of business," said Richard Burgess, who owns four commercial boats.
"The judge slapped the agency around," said Ouellette. "Their only remedy was to suspend the regulations (of Framework 42)."
He accused NMFS of trying to punish the industry for Harrington's ruling.
"NMFS' tendency (is) to be vindictive and turn industry suits into Pyrrhic victories," he said.

Jackie Odell, executive director of the Northeast Seafood Coalition, an industry cooperative and government watchdog, said she feared the action would be a major disruption to the smaller number of fishermen still active.
The leasing program is the lifeline for many fishermen whose permits for days at sea were severely cut back by Framework 42 and would be reduced further, at least another 18 percent, by an interim adjustment NMFS announced just days ago.
As fishermen dropped out, sold their boats and moved on, they sold their permits to a bank based in Gloucester and to each other, creating a sanctioned market for extra fishing time that is governed by NMFS.

The going market for a leased day at sea is about $200. Each mixed groundfish permit under Framework 42 allowed only 28 days at sea. With a day's catch now at 800 pounds of cod and cod fetching a depressed $1.25 a pound, boats could make a little more money from additional fishing time.

With only three months left in the fiscal fishing year, Odell said the timing of the decision to suspend the exchange of days on permits was dire because active fishermen were counting on their ability to buy days in the final weeks of the year.
The announced response to the Harrington ruling suspending Framework 42 said without the framework there was no basis for days-at-sea leasing program.
"Framework 42 is not in effect," said the e-mail from Mooney-Suess, which she described as "our statement." "Because Framework 42 is not in effect the days-at-sea leasing program has expired. The underlying operative regulations are Amendment 13 as modified ... and NMFS is looking into whether we need to republish those regulations."

The e-mail also said NMFS is "looking into" its legal options.
Harrington's ruling did not resolve or speak to the underlying suit which challenged the validity of Framework 42, but it did give NMFS 60 days to consider seriously whether it could have written less draconian rules in October 2006.
He gave no guidance to what rules should govern the fishery during the forced review period.
But fishermen said they would assume Framework 42 was still in effect and fish accordingly.

One of the few ways Framework 42 loosened regulations on fishermen was in upping the cod catch limit from 500 to 800 pounds a day.

NMFS policy makers and legal advisors held marathon meetings without comment Wednesday to craft a legal response to Harrington's ruling, which thrust the fishery into a de facto state of anarchy until last night's brief announcement.

It followed a day of seeming trial balloons at the meeting of the New England Fisheries Management Council's groundfish committee. From that meeting came text message and telephone links to unformed ideas from a number of NMFS officials.
At one point, according to Tarr, an aide to NMFS regional administrator Pat Kurkul announced that an earlier discussion of the suspension of the leasing days-at-sea program by NMFS counsel Gene Martin was premature.

Mooney-Suess said no official statements were made in Mansfield.
Gloucester, more than New Bedford, depends on day trips to areas where days at sea are counted double, but New Bedford, the No. 1 volume port in the United States, has its own looming problems from pending regulations announced earlier this month by NMFS.

New Bedford Mayor Scott Lange said Tuesday he wanted to join the suit or file one of his own. Gloucester Mayor Carolyn Kirk yesterday said the two ports should be united in fighting the increasingly restrictive rules of fishing, imposed under a federal fisheries recovery law.
"Gloucester fishermen are caught in a cross-fire," Kirk said yesterday.


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