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Vol. 139, No. 15 — April 9, 2005 Regulations Amending the Atlantic Fishery Regulations, 1985Statutory authority Fisheries Act Sponsoring department Department of Fisheries and Oceans REGULATORY IMPACT (This statement is not part of the Regulations.) Description The Atlantic Fishery Regulations, 1985 (AFR) apply to the Convention Area, the tidal waters of the provinces of New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island and Quebec, the waters of Ungava Bay and a portion of the Hudson Strait. The AFR are made pursuant to the Fisheries Act and control fishing activity for certain commercial and recreational species such as swordfish, shark, bluefin tuna, lobster, snow crab, scallops, herring and mackerel. Fishing activity is controlled by establishing close times, gear restrictions, size limits, fishing quotas and other regulations necessary for the proper management and control of the fisheries and for the conservation and protection of fish. Subsections 49.1(1), 49.1(2) and 50(1) of the AFRs provide a means of closing the entire swordfish and shark fishery during a specified closed time. An amendment is proposed to permit closures by gear type, vessel class and species during the specified closed time. Currently, when there is a requirement to close a particular gear sector, for example the longline swordfish fleet, by a variation order and the order is issued, the entire fleet comprising both gear sectors (longline and harpoon) are closed. Hence although the intent is to leave the harpoon fleet open to fishing, the Department of Fisheries and Oceans (DFO) is not able to meet the intent as the close time established in the Regulations does not distinguish between gear sectors. In the case of the shark fishery, DFO can only close vessels according to their length size. The current Regulations do not allow separate closures for individual species or recreational fishing. The domestic swordfish and shark fishery have undergone significant changes (since 2000 the swordfish fishery progressed from gear sector allocations to harpoon and longline, then to Individual Quota's (IQ) in longline, and there have been changes with gear that is used; the shark fishery has been fished entirely by Canadian vessels since 1995 and is under a rebuilding plan since 2001/2002 when a 75 percent reduction in quota was implemented) in management strategy over the past several years in order to respond and adapt to declining Canadian swordfish quotas and the domestication of the shark fishery throughout the 1990s. The International Commission for the Conservation of Atlantic Tunas (ICCAT) sets the Canadian quota which includes swordfish, while the quota for shark is allocated by the Minister of Fisheries and Oceans. Canada is responsible for adhering to its quota and reporting its landings to ICCAT on an annual basis. The swordfish fishery previously operated on an open competitive basis. In 2000, two separate gear sectors for swordfish were established, notably the harpoon and longline gear sectors. There are over 1 400 swordfish harpoon licences in Atlantic Canada and 77 longline licences, though the latter group has the greater catching capacity and traditionally caught the greater share of the Canadian quota. The quota was divided into shares of 10 percent for the harpoon sector and 90 percent for longline, with each sector operating on a competitive basis within their own fleet allocation. The longline fleet also introduced self-administered trip limits into its Conservation Harvesting Plan at this time to ensure conservation targets were met. In addition, the longline fleet was authorized by DFO to experiment with trolling gear to augment its catches of bigeye tuna and other tuna species under restricted availability of swordfish quota thus adding another dimension to the gear type options and potential management needs. In 2002, a formally approved Individual Quota (IQ) system was introduced to the longline gear sector to provide more flexibility and accountability for both the licence holders and DFO. The harpoon sector continued to operate successfully on a competitive basis within its fleet allocation. The annual quota for porbeagle shark was drastically reduced in 2001 and the number of licence holders participating in the competitive fishery was reduced. Species like the blue shark is caught on a small scale and is usually targeted in the recreational hook and release fishery. Other species of shark, such as shortfin mako, are also caught and retained on a by-catch basis in authorized fisheries. The commercial shark fishery licence holders have voluntarily segregated the existing quota between the offshore and inshore licence holders and have requested DFO to have the ability to manage the fishery on a vessel class basis. Under the present regulatory framework, closures within the swordfish and shark fishery can only be applied by varying the close time, and the closure applies to all fleet sectors and species. The proposed regulatory amendment will provide the flexibility required to close the fishery by gear type and by vessel class (for IQ vessels within the longline, harpoon, and the shark fleets), by species and a separate close time for the recreational shark licence holders to ensure conservation and an orderly conduct of the fishery under the new management structure that has evolved. Gear type should include harpoon, longline, and trolling gear but would also allow for potential new gear such as "green sticks" or other unknown gear types, since the longline fleet is experimenting with gear development in response to the need for by-catch management issues (e.g. reduction of endangered sea turtle by-catch, etc.). Alternatives The status quo is rigid and does not allow the flexibility to improve the management structure. The rigidity creates a situation that inhibits the industry in its efforts to move forward to a cooperative and co-management approach. The current Regulations force DFO to close the fishery to the whole set of fleets (all of the swordfish and shark licence holders) once quotas are reached by one of the sectors. DFO is trying to adapt to the changing needs of the industry. DFO has implemented voluntary arrangements with both the shark and swordfish fisheries industry. However, DFO doesn't have the ability to enforce these arrangements. Regarding swordfish (longline and harpoon), both the industry and DFO distinguish between the two gear sectors by fleet quotas. In addition, an IQ system was implemented within the longline fleet. However, DFO is not able to close individual vessels or the longline fleet by variation order without affecting the harpoon fleet. Currently, DFO has to use the administrative system of licence conditions to try to manage the IQ system or the use of marine radio to advise the industry when they are nearing the end of their quotas. This, however, does not close the area but simply advises the industry to cease from fishing. If there is a violation, it is difficult for DFO to either enforce or show the burden of proof. In addition, in areas where by-catch issues in the swordfish longline fishery arise in-season and a temporary area closure is needed, DFO has imposed the use of 100 percent at-sea observer coverage. This prevents fishing in the area. However, when this occurs, it places an administrative burden on DFO as letters must be issued to all 77 licence holders in the longline fishery. The complication becomes evident as consequently, DFO is not able to issue a variation order since it would have also required closure of the harpoon fleet. The harpoon fleet does not have a by-catch issue and it is the intent to allow this fleet to continue to fish. If DFO had the capacity to close the longline swordfish fleet by variation order in the affected area, it would be done through issuing an order. A regulatory basis for effecting targeted closures is paramount to ensure adequate control over the domestic fishery. In turn, this will ensure Canada's ability to meet its international obligations under ICCAT. The regulatory amendment being proposed is the most effective option and one which takes into account changing technologies (addition of trolling gear, and potentially other experimental gear). Benefits and costs The proposed closed time options will bring the Regulations up to date with the domestic development and fleet differentiation that has evolved and thereby optimize conservation and allow sustainable fishing to continue. The addition of species, gear type and vessel class closure options will permit the flexibility and sound legal basis needed in managing each of the recently established fleet sectors while ensuring appropriate conservation of the resource. Due to the nature of the swordfish fisheries and characteristics of each of the fleet sectors, conservation crises can arise very quickly both with targeted and, in the case of the longline sector, by-catch species. Quick, enforceable, and effectively targeted responses are necessary to address these crises when they arise. Presently, if a situation arises in the longline fishery that requires closure, the harpoon fishery will also be closed needlessly, causing financial loss and disruption to that sector (or vice versa). For this reason, both stakeholder groups strongly favour amending the Regulations. The amendment will therefore increase DFO's ability to close a particular fishery without having to consider unwarranted financial hardships on non-targeted segments of the fishery. The amendment will also improve DFO's legal basis for enforcing resource conservation measures in the swordfish and shark fisheries. Further benefits include a significant decrease in administrative costs and workloads within DFO. There are no health and safety risks associated with the proposed amendment. Consultation Formal consultations with industry representatives of the swordfish, shark and other large pelagic fisheries are held annually in two advisory fora known as the Scotia Fundy Large Pelagics Advisory Committee (SFLPAC) and the Atlantic Large Pelagics Advisory Committee (ALPAC). In addition to industry representation, membership on SFLPAC and ALPAC also include provincial fishery representatives, Native representation, special interest groups [Ecology Action Center (EAC)] and is open to observation by the public. Swordfish harpoon licences are distributed throughout the Atlantic Region, though the majority (approximately 65 percent) of licences is concentrated in the Maritimes Region, as are 100 percent of the harpoon landings. Similarly, the swordfish longline licences and landings are based primarily in the Maritimes (70 out of the 77 licences), with the balance of the licences held in the Newfoundland and Labrador Region. Furthermore, all 77 longline licence holders belong to and are represented at SFLPAC and ALPAC by the Nova Scotia Swordfish Association (NSSA). All active swordfish harpoon licences are represented by the Swordfish Harpoon Association or the NAFO 4Vn Division Management Board, both of which have seats on SFLPAC. The majority of the 27 shark licences are based in the Maritimes. The commercial and recreational shark industries are also members of the SFLPAC and ALPAC. Since the majority of swordfish and shark interest rests with the Scotia Fundy Sector, discussion of the need for a regulatory amendment in support of a transition to an IQ fishery by the longline fleet was the focus at the SFLPAC annual meetings of February 7 and 8, 2002, and February 17 and 18, 2003. The broader issue of a transition to IQ fishery by the swordfish longline fishery was discussed at ALPAC. Out of concern for potential concentration of the quota in corporate hands, some opposition was raised by the EAC as well as the Nova Scotia and Newfoundland and Labrador provincial governments to the authorization of an IQ fishery in principle. DFO subsequently implemented a 5 percent cap on permanent quota transfers for each licence holder to prevent corporate concentration. Industry consultations also took place at the NSSA General Meeting of March 25, 2002, attended by approximately 40 of its members. In addition, several informal meetings subsequently took place with NSSA representatives and DFO to explore interim options for addressing the enforcement needs of the fleet under an IQ program until the required regulatory amendment can be put in place. Similar formal and informal meetings with a shark industry working group were held to develop management options to adapt to the quota reduction in 2001. The working group identified and recommended managing by vessel class a pivotal tool for both the industry and DFO. At the SFLPAC meeting, the ability to vary closures by vessel class was identified and fully supported as being instrumental in completing the swordfish longline industry's successful transition to an IQ system. The NSSA membership is equally in favour of a regulatory amendment that will make this possible. Minutes of the SFLPAC meeting and NSSA meeting, along with an explanatory cover letter from the NSSA, support these statements. The Aboriginal community has been consulted as they are members of the advisory committees and fully support the regulatory amendments. Compliance and enforcement The swordfish and shark fisheries are subject to dockside monitoring, at-sea observer coverage, electronic vessel monitoring system (VMS) and hail requirements to both the at-sea observer program and dockside monitoring program. Compliance with variation orders to close the fishery by gear type or vessel class can be readily monitored through the dockside monitoring hail reports, quota monitoring reports and monitoring control systems such as VMS. Richard (Rick) W. Young, Chief, Regulations, Maritimes Region, Department of Fisheries and Oceans, P.O. Box 1035, 176 Portland Street, Dartmouth, Nova Scotia B2Y 4T3, (902) 426-2473 (telephone), (902) 426-5010 (facsimile); and Andrew A. Aryee, Legislative and Regulatory Affairs, Department of Fisheries and Oceans, Station 14E216, 200 Kent Street, Ottawa, Ontario K1A 0E6, (613) 991-9410 (telephone), (613) 990-2811 (facsimile). Notice is hereby given that the Governor in Council, pursuant to section 43 (see footnote a) of the Fisheries Act, proposes to make the annexed Regulations Amending the Atlantic Fishery Regulations, 1985. Interested persons may make representations with respect to the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Rick Young, Maritimes Region, Fisheries and Oceans Canada, P.O. Box 1035, 176 Portland Street, Dartmouth, Nova Scotia B2Y 4T3 (tel.: (902) 426-2473; fax: (902) 426-5010). The representations should stipulate those parts of the representations that should not be disclosed pursuant to the Access to Information Act and, in particular, pursuant to sections 19 and 20 of that Act, the reason why those parts should not be disclosed and the period during which they should remain undisclosed. The representations should also stipulate those parts of the representations for which there is consent to disclosure pursuant to the Access to Information Act. Ottawa, April 4, 2005 EILEEN BOYD REGULATIONS AMENDING THE ATLANTIC FISHERY REGULATIONS, 1985 AMENDMENTS 1. Subsection 3(4) of the Atlantic Fishery Regulations, 1985 (see footnote 1) is replaced by the following: (4) Subject to subsections 49.3(2) and 91(1), the close times set out in these regulations do not apply with respect to recreational fishing in accordance with subsection 15(1) or (2). 2. Section 49.1 of the Regulations is replaced by the following: 49.1 No person shall fish for shark with any gear other than angling gear, a hand-line or longline gear. 49.2 (1) No person shall, for commercial purposes, fish for a species of shark set out in column I of an item of the table to this subsection in the waters set out in column II from a vessel of a vessel class set out in column III during the close time set out in column IV of the item. TABLE
(2) Any close time set out in column IV of the table to subsection (1) may be varied under subsection 6(1) of the Fishery (General) Regulations with respect to any of the vessel classes referred to in column III. 49.3 (1) No person shall, for commercial purposes, fish for a species of shark set out in column I of an item of the table to this subsection in the waters set out in column II with a type of gear set out in a subitem in column III during the close time set out in that subitem in column IV of the item. TABLE
(2) No person shall, for recreational purposes, fish for a species of shark set out in column I of an item of the table to this subsection in the waters set out in column II with a type of gear set out in a subitem in column III during the close time set out in that subitem in column IV of the item. TABLE
3. Subsection 50(1) of the Regulations is replaced by the following: 50. (1) No person shall fish for swordfish in the waters set out in column I of the item of the table to this subsection from a vessel of a vessel class set out in column II during the close time set out in column III of the item. TABLE
(1.1) The close time set out in column III of the table to subsection (1) may be varied under subsection 6(1) of the Fishery (General) Regulations with respect to any of the vessel classes referred to in column II. (1.2) No person shall fish for swordfish in the waters set out in column I of the item of the table to this subsection with a type of gear set out in a subitem in column II during the close time set out in that subitem in column III of the item. TABLE
4. Item 3.1 of Part III of Schedule I to the Regulations is replaced by the following: PART III PELAGIC FISH
COMING INTO FORCE 5. These Regulations come into force on the day on which they are registered. [15-1-o] S.C. 1991, c. 1, s. 12 SOR/86-21 |
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