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Replies
The reason for sectors is to be able to apportion the quota between different groups and allow for different management strategies such as what has happened with the commercial and recreational sectors.
It looks as though the GC acted illegally and the NMFS as well if they approve AM 40, since only Congress has the power to create new sectors.
Apparently, there will be considerable resources devoted to fighting this in court - I wouldn't be planning your 34 days of trips next year yet.
As 407(d) corroborates, the recreational fishermen who fish on for-hire or private boats are STILL constrained to be regulated inside of the RECREATIONAL sector, Sector Segregation or no Sector Segregation. If Florida extends their state seasons to 365 days, then there is NO federal recreational season for ANYONE, including the folks fishing from charter vessels.
Didn't know it recognized 'for hire' as a separate sector.....only saw (2), Commercial And Recreational.
Does it even acknowledge 'for hire' as a distinct and or separate part of Recreational Sector? The
recreational angler whether on a privately owned or commercially owned charter boat IS the Recreational
sector.
and differing gear and harvest types. In the AM 40 issue, it as the GC contends (1) Sector, Recreational, with as I understand
(2) subsectors, though not specifically defined, but theoretically it would be Recreational Private and Recreational CFH.
UNLIKE Commercial sub-sectors, the Geographic region and Angler/Gear Type is the same, so no distinction exist between
the harvester, and thus no allowance to be managed differently. Back to the MSA and National Standards.
95-354, 99-659, 101-627, 104-297
(13) include a description of the commercial, recreational, and charter fishing sectors which participate in the fishery and, to the extent practicable, quantify trends in landings of the managed fishery resource by the commercial, recreational, and charter fishing sectors; and
(14) to the extent that rebuilding plans or other conservation and management measures which reduce the overall harvest in a fishery are necessary, allocate any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery.
(5) Conservation and management measures shall, where practicable, consider efficiency in the utilization of fishery resources; except that no such measure shall have economic allocation as its sole purpose.
Here is the actual COI rule before the exception was written in:
(7) (A) After the effective date of regulations promulgated under subparagraph (F) of this paragraph, an affected individual required to disclose a financial interest under paragraph (2) shall not vote on a Council decision which would have a significant and predictable effect on such financial interest. A Council decision shall be considered to have a significant and predictable effect on a financial interest if there is a close causal link between the Council decision and an expected and substantially disproportionate benefit to the financial interest of the affected individual relative to the financial interests of other participants in the same gear type or sector of the fishery. An affected individual who may not vote may participate in Council deliberations relating to the decision after notifying the Council of the voting recusal and identifying the financial interest that would be affected.
These Requirements of a FMP include a lot more which the first and most important one of is NOT included in AM 40.
In this case the Sectors were already defined and inherent Harvest rights assigned between the 2 sectors were well established.
So what is the councils take....2 Sectors with 2 Recreational Sub-Sectors....OR...3 Sectors. Did the council
create a NEW Sector, or simply subdivide the recreational Sector into Sub-Sectors.
Each has its problems.
You and others claim AM 40 has no conservation measures I disagree. 30 B is a conservation measure, it insures the federal permitted for hire vessels are compliant with the federal FMP. 30B is an accountability measure to insure the ACL is not exceeded by federal permitted vessels becoming Non compliant with the FMP. That Is a conservation measure. The Headboats have mandatory reporting and the charter are in the process of mandatory reporting another conservation measure.
As states increase their non compliance with the federal FMP,it directly lowers the days the federal for hire sector can fish. As it exists right now it is unfair and inequitable and to insure that they treated fair and equitably a portion of the ACL is going to be given to that sector.
I don't know how the council interpreted sub or different sectors, it's clear in the MSA it recognizes 3 sectors.
Your argument about council members voting for their interests is ridiculous. If a court ruled against ability to vote as council member due to any financial benefit as a opposed to owning 10% of fishery, almost every amendment would be removed.
AM 40 is not 30b and does not even mention it as far I have seen. AM 40 is indeed
primarily a Economic amendment and even the argument from the voting council members
acknowledged such. There was no allocation to even consider when passed and no
accountability spelled out. BTW....The recreational sector is already "Accountable" they
even have a specific term for the measure.........
As to reporting, such as the Headboats......IF, IF, IF, the council and NMFS "Really" wanted such
data, they could have had that at any time under existing permit allowances, as the HB's do.....
without 40. 40 ONLY provides an economic assurance for Charter Business Owners.......at the expense
of the recreational angler.
States that have seasons inconsistent with federal seasons impact recreational anglers fishing on
private boats the same as they do federally permitted charter boats, after all if their fishing the same
waters they have the same seasons....which is fair since regardless of which boat their on, they are
the same recreational anglers holding the rod and catching the fish. State waters have charter boats
also, including many CFA/EDF aligned ones offering Red Snapper trips in state waters. If AM 40 allows
CFH boats in the GOM a month to fish but me on a private boat only a day.....how exactly is that "Fair"?
If I fish on a private boat one day and a CFH the next, am I now a different person deserving different
harvest rights to fish the same waters, for the same fish with the same gear?
As to the MSA recognizing 3 sectors, that's not as clear as it seems. Additionally the GOM did not
have 3 sectors and with all recreational anglers being managed as a whole regardless of what type
of boat they fished on, to now suddenly change that requires a lot more than what the council did.
Despite Roy making a statement about Commercial having more than one sector, its still a Commercial
Sector with sub-sectors divided by geographic location, fish type harvested and gear type. Not so with
the recreational sector, especially AM 40 which is dealing with the Same Fish, Same Gear, Same Waters
and SAME ANGLER! The only difference is what kind of boat they happen to be going out on that
particular day. BTW...its not just council voting for their own interest, but Personal Financial Gain.
That's a big difference. Should Council members be allowed to vote themselves a raise for each and
every time they meet together? The 2 CGH owners voted to "Give Themselves a Raise" very clearly.
Your right about having huge ramifications of past amendments, but that could be administratively
dealt with by setting a control date for such action to become effective, much like the NMFS with permits.
I believe a quorum could easily be met by applying the original COI rule for voting council members.
As I have stated its "Ridiculous" to allow a management agency to vote themselves personal financial interest
as the 2 CFH members clearly did. Commercial members, rec members, enviro members, etc would
not have had financial gain so they could have voted without conflict. The current 10% rule is really what
is Ridiculous as it Does NOT create any real safeguard or set any real limits. One member holding 9%
interest in a small fishery with little value is hardly comparable to one with 9% of Alaska Pollock or King
Crab is it? That could easily be millions of dollars on the line based on their vote. The intent of the rule
it to prevent a voting member from voting on a measure that could bring them personal profit depending
on how they vote. That's no different than all other DOC agencies and even council staff. As I also mentioned
there may be another clause in the COI rule that would nullify the AM 40 vote by the 2 CFH owners, and
call to question the entire process.
95-354, 99-659, 101-627, 104-297
(a) REQUIRED PROVISIONS.--Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall--
(1) contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are--
(A) necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery;
(B) described in this subsection or subsection (b), or both; and
(C) consistent with the national standards, the other provisions of this Act, regulations implementing recommendations by international organizations in which the United States participates (including but not limited to closed areas, quotas, and size limits), and any other applicable law;
(2) contain a description of the fishery, including, but not limited to, the number of vessels involved, the type and quantity of fishing gear used, the species of fish involved and their location, the cost likely to be incurred in management, actual and potential revenues from the fishery, any recreational interest in the fishery, and the nature and extent of foreign fishing and Indian treaty fishing rights, if any;
(3) assess and specify the present and probable future condition of, and the maximum sustainable yield and optimum yield from, the fishery, and include a summary of the information utilized in making such specification;
(4) assess and specify-- (A) the capacity and the extent to which fishing vessels of the United States, on an annual basis, will harvest the optimum yield specified under paragraph (3),
(B) the portion of such optimum yield which, on an annual basis, will not be harvested by fishing vessels of the United States and can be made available for foreign fishing, and
(C) the capacity and extent to which United States fish processors, on an annual basis, will process that portion of such optimum yield that will be harvested by fishing vessels of the United States;
(5) specify the pertinent data which shall be submitted to the Secretary with respect to commercial, recreational, and charter fishing in the fishery, including, but not limited to, information regarding the type and quantity of fishing gear used, catch by species in numbers of fish or weight thereof, areas in which fishing was engaged in, time of fishing, number of hauls, and the estimated processing capacity of, and the actual processing capacity utilized by, United States fish processors;
(6) consider and provide for temporary adjustments, after consultation with the Coast Guard and persons utilizing the fishery, regarding access to the fishery for vessels otherwise prevented from harvesting because of weather or other ocean conditions affecting the safe conduct of the fishery; except that the adjustment shall not adversely affect conservation efforts in other fisheries or discriminate among participants in the affected fishery;
(7) describe and identify essential fish habitat for the fishery based on the guidelines established by the Secretary under section 305(b)(1)(A), minimize to the extent practicable adverse effects on such habitat caused by fishing, and identify other actions to encourage the conservation and enhancement of such habitat;
(8) in the case of a fishery management plan that, after January 1, 1991, is submitted to the Secretary for review under section 304(a) (including any plan for which an amendment is submitted to the Secretary for such review) or is prepared by the Secretary, assess and specify the nature and extent of scientific data which is needed for effective implementation of the plan;
(9) include a fishery impact statement for the plan or amendment (in the case of a plan or amendment thereto submitted to or prepared by the Secretary after October 1, 1990) which shall assess, specify, and describe the likely effects, if any, of the conservation and management measures on--
(A) participants in the fisheries and fishing communities affected by the plan or amendment; and
(B) participants in the fisheries conducted in adjacent areas under the authority of another Council, after consultation with such Council and representatives of those participants;
(10) specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished (with an analysis of how the criteria were determined and the relationship of the criteria to the reproductive potential of stocks of fish in that fishery) and, in the case of a fishery which the Council or the Secretary has determined is approaching an overfished condition or is overfished, contain conservation and management measures to prevent overfishing or end overfishing and rebuild the fishery;
(11) establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority--
(A) minimize bycatch; and
(B) minimize the mortality of bycatch which cannot be avoided;
(12) assess the type and amount of fish caught and released alive during recreational fishing under catch and release fishery management programs and the mortality of such fish, and include conservation and management measures that, to the extent practicable, minimize mortality and ensure the extended survival of such fish;
(13) include a description of the commercial, recreational, and charter fishing sectors which participate in the fishery and, to the extent practicable, quantify trends in landings of the managed fishery resource by the commercial, recreational, and charter fishing sectors; and
(14) to the extent that rebuilding plans or other conservation and management measures which reduce the overall harvest in a fishery are necessary, allocate any harvest restrictions or recovery benefits fairly and equitably among the commercial, recreational, and charter fishing sectors in the fishery.
(1) contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are--
(A) necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery;
Remember when considering, basic Permit rules allow for any claimed data collection and AM's already exist in
the entire Recreational Sector.
Henry AM 40 is a AMENDMENT to a FMP,I believe its need and purpose fits into the conservation and management plan.
Even if you don't,where does it say that an amendment within a FMP needs to have conservation and management measures in it?
(a) REQUIRED PROVISIONS.--Any fishery management plan which is prepared by any Council, or by the Secretary, with respect to any fishery, shall--
(1) contain the conservation and management measures, applicable to foreign fishing and fishing by vessels of the United States, which are--
(A) necessary and appropriate for the conservation and management of the fishery to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery;
you are quoting sections of Magnuson that identify recreational, commercial, and for-hire sectors. That is all well and good, but 407(d), specific for red snapper, trumps those other sections: it clearly establishes a recreational quota (which shall include for-hire), and a commercial quota, and when the quota for either sector is met, that sector will close.
Amendment 40 does not create a for-hire sector; it creates 2 sub-quotas for the recreational sector, just like certain commercial sectors have sub-quotas for different areas. When the recreational quota (private plus for-hire) is met or projected to be met, the recreational sector (in its entirety) will close.
Amendment 40 did nothing but create two sub-quotas, based on the historical averages between the two sub-sectors. It takes nothing away, nor gives anything to, a sub-sector that they didn't have before. Yes, private dominates now, whereas charter dominated in years past. And the Council discussion record is clear that the allocation chosen is a compromise of years to have a balance between those two disparate percentages.
My posts are my opinion only.
Be thankful we're not getting all the government we're paying for. Will Rogers
EDF and their protégé captains don't need to read Florida Sportsman to know we are going to challenge this. They already have a basis for a legal defense, portions of which are contained here.
"Well Gary, the easiest way to look tall is to stand in a room full of short people." - Curtis Bostick
"All these forums, with barely any activity, are like a neglected old cemetery that no one visits anymore."- anonymouse
I ask, as with all the political pressure on the Agency because of this action, there is potential it could be sent back to the Council. Unlikely, but possible.
Secondly, with the forthcoming suit against 40 by CCA/RFA etc, what type of timeline would a final decision be on? Some suits against the government drag on for years. If this one were to go 3+ years, the sunset provision would kick in and NMFS/Council could settle and rewrite the Amendment to avoid a new suit. But I'm not an attorney, though I slept at a Holiday Inn
No, the NMFS is not required to sign off on anything the Council does - just look at what happened when the GC voted to rescind 30B - Roy and Co. didn't want that to happen so it didn't.
You make some good points here.
Question: If there is a private rec sector, and a charter sector, then who are they talking about here? Are they only talking about the boat owners in the private rec sector, or are they talking about ALL recreational fishermen that are fishing on those boats, including the owners?
If there is a charter sector, are they only talking about the boat/permit owners in the charter sector, or are they talking about ALL recreational fishermen that are fishing on those boats, including the owners?
you said I made a misleading statement in a previous post. I'll suggest this is very misleading.
The Council asked for a rescind of 30B and then a judge said "no" to any action that didn't better curtail recreational harvest to its catch levels. And the Council withdrew their request. Roy and Co. had nothing to do with whether the Council's request was approved or not.
It's not misleading to say that the NMFS is not required to do what the Council wants - the GC is just an advisory body - the NMFS can do as it pleases with or without GC approval.
Based on the ruling in the Guindon vs. Pritzker case, the Council withdrew their the amendment they had submitted to NMFS.
From the April 2014 Council minutes:
Motion: To withdraw the framework action that rescinds the Amendment 30B permit provision.
Motion carried by roll call vote.
NMFS can only disapprove something if its in violation of law.
From Magnuson:
(3) The Secretary shall approve, disapprove, or partially approve a plan or amendment within 30 days of the end of the comment period under paragraph (1) by written notice to the Council. A notice of disapproval or partial approval shall specify—
(A) the applicable law with which the plan or amendment is inconsistent;
We've been told by council and council reps many times that the Council make "Recommendations"
in their decisions but the NMFS has the final call BEFORE going to DOC. On both levels above the council
I also have been led to understand that their is an authority to amend or omit what is sent forth or
even deny whether legal or illegal.
But....Here are a few more DOC level considerations that impact whether it moves on:
(2) In undertaking the review required under paragraph (1), the Secretary shall—
(A) take into account the information, views, and comments received from interested persons;
Or if the DOC acts on its own:
(1) The Secretary may prepare a fishery management plan, with respect to any fishery, or any amendment to any such plan, in accordance with the national standards, the other provisions of this chapter, and any other applicable law, if—
(A) the appropriate Council fails to develop and submit to the Secretary, after a reasonable period of time, a fishery management plan for such fishery, or any necessary amendment to such a plan, if such fishery requires conservation and management;
(B) the Secretary disapproves or partially disapproves any such plan or amendment, or disapproves a revised plan or amendment, and the Council involved fails to submit a revised or further revised plan or amendment; or
(C) the Secretary is given authority to prepare such plan or amendment under this section.
"Omit or Amend" comes above the council and not include just legally inconsistent reasons.
The only place I see "omit or amend" is in your statement of your understanding of the system. All the text you quoted in bold from Magnuson does not use those words; just "disapprove" or "partially disapprove".
[edit]Oh, I guess you could think "omit" equals "partially approve". If NMFS partially approved some Council action, then the rulemakings would omit was was disapproved. But, whatever was disapproved would have to violate applicable law; its not as the discretion of the Secretary or NMFS.[/edit]
Mr. Hilton,
[edit]I'm not "saying" anything. Simply reporting the results of deliberations by the Council. [/edit]
You can read the April 2014 Council minutes to see the deliberations leading up to that motion.
What in the hell are the commercial fat cats doing sticking their big noses in OUR fishery anyways? (Yeah, I know, it's about expanding their ownership of our Public Trust Resources into the recreational fisheries, but I had to ask anyway).
Well, not sure if an answer to you is "yes" or "no". The lawsuit was more about the recreational seasons and the overruns; not reallocation; that's why they stuck their nose into "your" fishery. I'm so glad I had a couple of fishery policy classes back in the day, because it helped me (almost) understand this.
See, as I get it, the commercial guys sued because the Council wouldn't establish accountability measures for the recreational sector to keep them within their quota, and NMFS accepted the Council's poor judgement, instead of saying "no, you need to do more". Thus, the recreational sector overran its quota annually. Couple of folks here have noted state-water catches didn't cause the overruns, but when the federal seasons were set, and then states then changed their regulations afterward, that blew the federal estimates out of the water. Which led to overruns.
Anyway, the overruns led to re-calculations of a new allowable catch, which was less than what it would have been the next year without an overrun. So, because the quotas were not increasing as they should, the commercial guys were losing out on fish that they were being screwed out of. So, they sued.
At least with a quick google search, I can't find a "free" copy of the lawsuit itself for you to read, but a summary is here:
http://westcoastfisheriesconsultants.wordpress.com/2014/04/01/guindon-et-al-v-pritzker-a-challenge-to-nmfs-actions-in-managing-the-gulf-of-mexico-red-snapper-fishery/
The judge's ruling can be found here: https://www.courtlistener.com/opinion/2658343/guindon-v-pritzker/
Now, the bigger questions are: (1) why did the Council continually not take action to restrict recreational harvest to its quota?; (2) why did NMFS let them do it?; and (3) why did certain states change their tunes and change their seasons, which impacted fishermen in other states unfairly?
To answer your other questions, again, it relates back to the data, or lack of trust in its validity that prompted most of those actions.
The Gulf Council and the National Marine Fisheries Service had allowed the recreational sector to exceed their quotas in 5 of the 6 previous years… and nothing was done to stop it.
The lack of accountability measures and the ignoring of science was appalling to the Court.
Thanks to this ruling, NMFS and the Gulf Council are now forced to properly manage the recreational fishery by requiring accountability and exploring better management alternatives than just shortened seasons.
as anything but accountability. I see nothing in that letter about reallocation. Am I missing something?