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[Robin Patterson]

Robin Patterson 514 edits since October 3, 2005

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From Fishery Management

From fishfolk mailing list, submitted there by Bill B:

TESTIMONY OF

KEVIN D. FRIEDLAND

DIRECTOR

UMASS/NOAA COOPERATIVE MARINE

EDUCATION AND RESEARCH PROGRAM

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

U.S. DEPARTMENT OF COMMERCE

BEFORE THE

SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

HOUSE RESOURCES COMMITTEE

U.S. HOUSE OF REPRESENTATIVES

Oversight Hearing on Chesapeake Bay Restoration

December 13, 2004


Mr. Chairman and Members of the Committee, I am Kevin Friedland, Director of the UMass NOAA Cooperative Marine Education and Research program (CMER), a cooperative program between the National Oceanic and Atmospheric Administration and the University of Massachusetts. Thank you for inviting me to testify on the ecological role of menhaden in the Chesapeake Bay.

Before I respond to your questions, Mr. Chairman, I would like to provide you with some background information on the Atlantic menhaden. The Atlantic menhaden (Brevoortia tyrannus) is a member of the herring family and is found in coastal and estuarine waters from Nova Scotia to northern Florida. Menhaden undergo a coast-wide (along the coast of the Eastern United States) migration. On their northerly spring migration, the schools stratify by size and age along the coast so that by the summer, younger and smaller fish are found in the Chesapeake Bay and south, while the older, larger fish are distributed to the north. The menhaden return to the shelf waters during fall, forced out of estuaries by cooling temperature conditions they find intolerable.

Most spawning activity occurs during winter off the North Carolina and Virginia coasts. Larvae appear in the Chesapeake Bay in large numbers during May and June, with a smaller influx in November. The larvae are transported to the brackish waters of the Bay, which they use as nursery areas. It is here they transform into the filter-feeding fish much as they appear as adults. By late summer, the juveniles reach a length of 4 inches and leave the nursery area to join the adult population.

Atlantic menhaden play an important ecological role. As adults, menhaden are common in all salinities of the Chesapeake Bay, swimming in large schools close to the water’s surface. Feeding on both phytoplankton and zooplankton, menhaden can reach a length of 15 inches. Menhaden, in turn, serve as prey for many fish and birds species.

Atlantic menhaden also play an important social role in the Chesapeake Bay. The menhaden fishery is one of the most important and productive fisheries on the Atlantic coast, providing fish meal, fish oil, and fish solubles, as well as bait for other fisheries. A majority of catches come from estuaries and nearshore coastal state waters, and are caught with a variety of gear.

Now I would like to address the questions you raised in the letter of invitation.

What is the population status of Atlantic menhaden in the Chesapeake Bay?

While the status of the coast-wide stock of Atlantic menhaden is healthy and is not overfished, the status of menhaden in the Chesapeake Bay is unknown. Recognizing the need to better determine the status of menhaden in the Bay, the Atlantic States Marine Fisheries Commission (ASMFC) is working closely with its state and Federal partners.

On the other hand, recruitment, or the number of new fish added to the population annually, has been poor in recent years. This observation is supported by the data coming from the stock assessment and from fishery independent survey indices on the nursery grounds. The stock assessment estimation of year class strength does not indicate recruitment failure or the absence of sufficient new recruits to sustain the population. However, the regional juvenile abundance indices, although providing a fragmented view of the potential nursery areas for menhaden along the coast, suggest that recruitment may have shifted geographically. These indices suggest the nursery grounds of North Carolina and Virginia have been under-seeded in recent years, whereas there are indications that the nursery grounds in northern estuaries are experiencing higher abundances. There is currently no indication that the population is limited by reproductive capacity.

For the Chesapeake Bay, older larger menhaden are the first to enter the Bay during spring and are also likely to leave as the season progresses. Younger adults are more likely to enter the Chesapeake Bay later in the season, and may spend much of the summer there. The adult portion of the population is at a relatively low level, but as measured by the assessment benchmarks, the stock is still healthy. Juveniles enter the Bay in early spring as larvae, initially feeding on zooplankton and inhabiting transition zones where freshwater intersects with salt water. Their abundance appears to be low compared to historical values, but the survey index of juvenile abundance also suggests that low abundances have occurred before in the Bay, with the population returning to higher levels.

Several factors contribute to the uncertainty about the population status of Atlantic menhaden in the Bay, and like most biological systems, Atlantic menhaden recruitment is complex. Like so many other marine and estuarine dependent species, recruitment for Atlantic menhaden appears to be influenced by climate variation. Recent NOAA studies suggest a relationship between springtime weather patterns and spawning success in the Bay. Species that spawn offshore and have their eggs and larvae transported into the Bay in the late winter and early spring appear to recruit better with an early onset of warm and dry conditions and prevailing southwesterly winds brought on by the weather system known as the Azores-Bermuda High. Conversely, cool and wet spring conditions apparently hamper recruitment levels of menhaden within the Chesapeake Bay.

The scientific community has identified a number of potential bottlenecks for menhaden recruitment including transport of eggs and larvae across the continental shelf from the spawning grounds to the estuaries, predation on juveniles by other species, poor water quality (low oxygen, high water temperature), and disease. These and other factors may be working in concert to shape recruitment patterns.

Recently, the ASMFC charged its Menhaden Management Board (Board) and the Menhaden Technical Committee to review the ecological role of menhaden coastwide and to specifically focus on the population’s status in the Chesapeake Bay. Accordingly, a scientific advisory panel was convened to discuss this topic and report to the ASMFC and its partners on the current state of knowledge about menhaden and the precision with which this knowledge is known. The Board will provide guidance about how to proceed.

The Technical Committee will soon be analyzing a wide range of research and management issues. The first question to be addressed will be whether localized depletion of menhaden stocks in the Chesapeake Bay is occurring or likely to occur under the existing ISFMP. Other issues include assessment of likely causes of low recruitment of menhaden in the Chesapeake Bay; evaluation of ecological reference points and recruitment indices for the Bay; and determining whether the effects of time and space openings or closures and harvest caps can be modeled, measured, or monitored well enough to be considered for management tools. A preliminary report will be submitted to the Management Board by August 2005.

Are menhaden significant consumers of primary productivity in the Bay?

Yes, menhaden are significant consumers of primary productivity in the Bay. Primary production refers collectively to the food in marine ecosystems produced by phytoplankton. Though not explicitly estimated, we know menhaden are significant consumers of primary production due to their large population numbers, filtration efficiency, and total volume filtered by individual fish.

Atlantic menhaden occupy a unique ecological niche in the food web of the Bay. For a relatively large body size animal they are able to filter extremely small plankton particles. Menhaden ram feed, i.e., they open their mouths and push their gill rakers through the water trapping planktonic organisms. Juvenile menhaden can filter the smallest plankton and are also capable of cropping down large multi-cell phytoplankton and zooplankton.

Menhaden adults in the Bay retain the ability to graze on small phytoplankton, but with lower efficiency than juveniles. New studies of the functional morphology of their gill raker feeding apparatus explain why juvenile fish maintain high filtering efficiency on the small phytoplankton found in the juvenile nursery. As adults, they progressively lose filtering efficiency on the smallest phytoplankton as a tradeoff to be able to filter larger quantities of water. This ensures that the adults can compete with other planktivores in coastal waters.

Menhaden are believed to filter feed during much of the day, so the estimates of the amount of water they filter can quickly become large depending on the size of the resident population in the area. Menhaden exhibit feeding selectivity by modifying their distribution. They are not capable of rejecting individual food particles, so they rely on taste to evaluate the quality of the food they are filtering. They search for productive feeding areas by modifying swimming and turning behavior to find more suitable foods to filter. As a result, menhaden are usually distributed with gradients of phytoplankton.

Not all the material that menhaden ingest is completely digested. As with all animals, menhaden do not convert all foods into growth and the amounts of unused digestive wastes that menhaden eject into their surroundings are unknown. The meaning of these observations is not clear, but they may be significant to the flow of nutrients in the estuaries.

Could changes in the current management regime of the fishery improve water quality?

Yes, changes in the current management regime of the fishery could theoretically improve water quality, but there is uncertainty as to how, since the question of menhaden recruitment and predation level and water quality is complex.

Because menhaden occupy such an important position in the pelagic food web of the Chesapeake Bay, any change in their management or the management of interacting species will likely affect water quality. However, we are not aware of a comprehensive modeling tool to predict changes in water quality metrics that explicitly incorporates adult and juvenile menhaden grazing. Some progress has been made to model juvenile menhaden grazing impacts in the Bay using a bioenergetics approach. These models suggest that juvenile menhaden consume a significant portion of the primary production in the Bay and that when the fish migrate they remove significant amount of nutrients used in their growth from the Bay system. Spatially explicit modeling approaches have also been used to determine if there is a carrying capacity for juveniles in the Bay. The model results suggest there isn’t, but these models could be formulated to ask questions about water quality. The problem of estimating the grazing impact of adult menhaden has been addressed for the Narragansett Bay; however, the ecology of menhaden is different in northern estuaries because the fish tend to be much larger. The model illustrates the feasibility of assessing adult grazing in the Chesapeake Bay. These modeling approaches warrant further development.

Without the benefit of specific modeling advice, we have to rely on qualitative judgments about the impact juvenile and adult fish have on the flow of nutrients in the Bay. Juvenile fish will filter the smallest phytoplankton, especially those associated with eutrophication, and contribute to clearer water column conditions by removing both live and detritus particles. They will also export large quantities of nitrogen and phosphorus used in growth when they migrate in the fall, which will be a net loss of nutrients to these systems represented by those fish that do not return and are harvested elsewhere. These benefits will be most concentrated in the portions of the Bay that serve as the juvenile nursery, which are the salinity transition zones located in the rivers and parts of the upper Bay. Juveniles would not be expected to have a significant effect on the main part of the Bay.

Under the operational assumption that larger populations of menhaden juveniles will contribute to improved water quality, what management measures might increase juvenile abundance? Since there is no directed fishery for juvenile menhaden in the Bay, we can only affect juvenile abundance by improving recruitment or reducing natural mortality on juvenile menhaden. The likelihood of larger recruitments is enhanced by larger spawning stock size, so management measures for the adult stock that increases spawning stock may be beneficial. However, if the recruitment mechanism for menhaden is climate driven, the sacrifices to increase spawning stock may not yield the larger recruitments desired. Reducing the natural mortality on juvenile menhaden will also increase their abundance in the Bay. This could be achieved by better water quality and lower consumption by predators.

Adult menhaden play a different ecological role than the juveniles, thus their anticipated effect on water quality would also be different. The adults more commonly utilize the algal blooms that occur in the Bay main stem and associated water temperature fronts that form between the Bay and its sub-tributaries. They will yield many of the same water quality benefits as previously described for the juveniles, they will clear the water column and incorporate nitrogen and phosphorus as they grow, but they will do so in different parts of the Bay and impact different components of the plankton community. Unlike the juveniles, there is a directed fishery for the adults. Therefore, fishing immediately removes the nutrients used in the growth of menhaden from the system, but reduce their filtering capacity in the system. Finally, the adult population is dependent on successful recruitment, so any management measure that ensures robust spawning stock size would be beneficial.

What is the correct balance between removal and retention of the fish? Is there any benefit in foregoing harvest in that the fish will reappear the following year and reintroduce the nutrients back into the system? Does some level of harvest improve the filtering efficiency of schools by reducing competition? The question of menhaden harvest level and water quality is complex. NOAA recognizes the need to enhance fisheries management plans to explicitly include ecosystem considerations that provides a framework to enhance management performance. These considerations incorporate increased attention to predator-prey relationships, habitats, and understanding the impacts of human activities. Atlantic menhaden is being discussed by multiple partners, including NOAA and ASMFC, in this ecosystem context.

This concludes my testimony, Mr. Chairman. I will be happy to respond to any questions that you or members of the Subcommittee may have.


2005 0513paci [1] The Crown regulates the commercial exploitation of fish species in New Zealand waters under what is known as the quota management system. The Ministry of Fisheries, which administers it, sets the total allowable catch for fish species subject to the system, in the interests of sustainable management of the resource. [2] Under the quota management system, a commercial fisher may take and sell quota species only if it holds a valid fishing permit and a share of the total allowable commercial catch for the relevant species. The fisher’s share is called individual transferable quota. [3] When first issued, quota is purchased from the Ministry, which also charges a fee for issuing a permit. In both cases, the Ministry accepts that it is making a taxable supply for purposes of the Goods and Services Tax Act 1985. The Ministry is a registered person for GST purposes. When it issues a permit or supplies quota, the Ministry accordingly issues tax invoices to a fisher who is registered for GST and requests a tax invoice. [4] When fishing for species for which it holds quota, a fisher frequently catches other quota species for which it does not hold quota. These fish are called by-catch. The Fisheries Act 1996 and its predecessor, the Fisheries Act 1983, both recognise that by-catch is inevitable, and seek to create incentives to minimise it and avoid wastage. That is done by requiring the fisher to land by-catch and allowing it to be processed and sold, but requiring the fisher to buy quota or make a ‘deemed value payment’ to the Ministry. Deemed values are set from time to time for each quota species. The Ministry seeks to set them at a level that makes by-catch unprofitable but creates an incentive, having caught by-catch, to land, process, and sell it. Adverse consequences follow should the fisher not make the deemed value payments, although the consequences differ under the 1983 and 1996 Acts.

The deemed value payment regime [18] The deemed value payment regime was introduced in 1990. When speaking to the Fisheries Amendment Bill on its second reading, the Minister of Fisheries explained: One of the major changes proposed by the Bill that has also been extended by the select committee relates to the problem of by-catch. That has been one of the greatest problems facing the administration of fisheries. No fisherman can ever guarantee that quota will be held for all fish that end up in the net. In order to conserve fish stocks, strong incentives to fish in such a way as to limit that by-catch need to apply, while recognising that it is a practical reality. The Bill as introduced provided for fishers to keep and process that by-catch, but required the payment of a deemed value to remove the economic incentive to overfish. By-catches are, however, not bad per se. They are bad only if they result in overfishing of the total allowable catch. The Bill recognised that matter on its introduction by providing that fishers could retrospectively acquire quota to cover their overfishing. That has been extended by the select committee to provide for end of year balancing. That will enhance the effectiveness of the Fisheries Act as an economic tool for the conservation of fisheries. (6 March 1990) 505 NZPD 382 The Fisheries Act 1983 [19] The 1983 Act provided that no person could take any quota fish for sale except under the authority of quota: s. 28ZA. It prohibited dumping of any fish of legal size that was subject to the quota management system. Accordingly, by-catch had to be landed. [20] Having landed the fish, the fisher had three options. It could buy or lease quota, or arrange to count it against unused quota of another fisher, provided that was done within 15 days after the end of the month in which the fish were taken. It could surrender the fish to the Crown under s. 105A(1)(c)(ii). Or it could pay the deemed value. [21] Deemed values were set under s. 28ZD, which provided so far as relevant: (1) Subject to section 28ZG of this Act, a commercial fisherman who, on or after the 1st day of October 1990, at a time when the fisherman has a current right to take any species or class of fish subject to a quota management system, takes any fish subject to a quota management system without the authority of or in excess of any amount authorised to be taken under the appropriate quota,— (a) Shall, unless the fisherman has returned the fish to the sea where such a return is required by subsection (2) or subsection (3) of section 28ZB of this Act, include any fish so taken in the returns for the appropriate period required to be made by the fisherman under this Act; and (b) Shall, unless the fisherman— (i) Has returned the fish to the sea in circumstances in which such a return is required by subsection (2) or subsection (3) of section 28ZB of this Act; or (ii) Has notified the taking of the fish to a Registrar and surrendered and disposed of the fish in the manner specified in section 105A(1)(c)(ii) of this Act; or (iii) Has, not later than 15 days after the end of the calendar month in which the fish were taken, bought, leased, or arranged quota in the manner specified in subparagraph (i) or subparagraph (ii) of section 105A(2)(e) of this Act,— pay to the Crown, within 20 days of demand being made by notice in writing given by an employee of the Ministry, the deemed value of the fish assessed by the Director-General in accordance with section 28ZE of this Act. (2) Any amount required to be paid under subsection (1) of this section in respect of the deemed value of any fish shall be payable whether or not the commercial fisherman committed an offence in respect of the fish. [22] Deemed value payments were assessed under s. 28ZE having regard to the market value of the fish, any proceeds or benefit that any person might receive in respect of the fish, the need to eliminate any economic incentive to take, process or sell the fish, and the need to provide an incentive for fishers to land fish taken without authority. [23] As amended in 1995, the 1983 Act further provided that deemed value payments were held by the Crown on trust for the fisher. The payments would be repaid to the extent that the fisher obtained quota, or use of quota. At the end of each year there was an accounting, and the balance of any deemed value payments outstanding ceased to be held on trust: s. 28ZF. [24] It was an offence to possess or sell fish in contravention of the Act. Section 97(1) provided: Every person commits an offence who buys, sells, or has in possession any fish, aquatic life, or seaweed taken in New Zealand fisheries waters in contravention of this Act, or any regulation made or notice given under this Act. [25] But s. 105A provided a defence for a fisher who could prove that it did not intend to take the fish, that they were taken as an inevitable consequence of the lawful taking of other fish, that the fisher had reported the taking in its returns to the Ministry, and that the fisher had surrendered the fish to the Crown, acquired quota, or paid the deemed value of the fish. Deemed value payments were payable under s. 28ZD(2) whether or not an offence had been committed. [26] Under s. 107I, amounts payable to the Crown or the Ministry were deemed to be statutory debts. That term was defined in s. 13A of the Ministry of Agriculture & Fisheries Act 1953 as any “fee, charge, or levy . . .” The Fisheries Act 1996 [27] The 1996 Act took effect from 1 October 2001. Among other things, it was intended to simplify the quota management system by introducing a single generic catching right called annual catch entitlements (‘ACE’). However, it continued the deemed value payment regime. For my purposes, counsel agreed the distinctions between quota and ACE are not material. [28] Under s. 74, no fisher may take certain species without holding a minimum ACE. Fish caught at sea may not be returned or abandoned, with certain exceptions. The Minister must set deemed values under s. 75, which is similar in its effect to the former s. 28ZE. One of the relevant considerations is the need to provide an incentive for commercial fishers to hold sufficient ACE to cover their likely total catches. [29] The Ministry reconciles catches against ACE monthly, and requires payment of interim deemed values if the catch exceeds ACE. Interim deemed values paid are remitted to the extent that subsequent catches are less than ACE. The fisher may meet a demand for payment by paying, or by acquiring ACE. There is no longer an option of surrendering the fish to the Crown. Payments are held in trust pending an annual reconciliation following which any net deemed value payment is no longer held in trust. [30] Under s. 79, the fisher’s permit is automatically suspended where the total amount of deemed values payable exceeds $1,000 and has not been paid within the prescribed time. The consequence is that the fisher may not fish until the permit is reinstated, although it may still trade its ACE. Section 79 provides so far as relevant: (1) If the total amount of deemed values owed by any commercial fisher exceeds $1,000 and has not been satisfied within the time limit specified in section 76(5), the current fishing permit of the commercial fisher and any person included with the commercial fisher under subsection (5), and any permit subsequently issued to the commercial fisher or included person, are, on the expiration of that time limit, to be treated as being suspended until the total amount of all outstanding deemed values owed by the commercial fisher is $1,000 or less. . . . (3) A fishing permit suspended under this section does not authorise any person to take any fish, aquatic life, or seaweed under the authority of that permit, but all other provisions of this Act continue to apply as if the fishing permit had not been suspended.

2006 0529nzsf W38/06 • Cultural Wellbeing [170] Section 6(e) RMA directs that as a matter of national importance the MDC recognises and provides for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga. Section 7(a) requires the MDC to have particular regard to kaitiakitanga which Te Atiawa documents as: . . . responsibilities and kaupapa, passed down from the tupuna, for tangata whenua to take care of places, natural resources and other taonga in our rohe. It is also to take care of the mauri of those places, resources and taonga. Simply put, kaitiakitanga means that through our relationship with Queen Charlotte Sound, we have a responsibility for, and a need to be responsive to the health of the Sound. This includes providing unencumbered access to resources and the enhancement of those resources. [fn117 Paine EIC 6–7, para 21.] [171] Te Atiawa retain numerous lands along the NTR, especially in Tory Channel — Okukari, Whekenui, Te Awaiti, Te Pangu, Ngaruru, Te Iro and Hitaua. [172] Ninety per cent of the local customary take for kina is estimated to have been taken from the channel in the past and it is also a source of paua, various shellfish and other species of fish. Other than the very significant Moioio Island there are also several other waahi tapu sites along the route. [173] As a result of the disturbance the fast ferries caused to fisheries habitats, to the Tribe’s sources of kaimoana in the subtidal regions along the channel, as well as the destruction of waahi tapu sites along the NTR, Te Atiawa has formed a strong relationship with the MDC in supporting Variation 3 to ensure such an event does not occur again. [174] Mrs Paine, who gave evidence for the MDC, states that the resources of Te Atiawa are still not in the abundance the tribe enjoyed before 1994 but there is nevertheless recovery going on[fn118 Ibid NOE 567.]. (The MDC’s scientific evidence clearly supports this). [175] Te Atiawa rely on the evidence of the experts who appear for the MDC and the Director-General in their support of Variation 3 because it provides for the health of its rohe and the ongoing monitoring of shipping impacts along the NTR. From this we understand it is important for Te Atiawa to experience ongoing restoration of: • kaimoana beds; • a stable beach environment; and in terms of their stated general loss of enjoyment of the area: • a stable general environment along the NTR so that individual iwi feel comfortable in taking the younger members to Tory Channel and Queen Charlotte Sound to introduce them to important aspects of their culture (such as kaitiakitanga) [fn119 Paine EIC 6, para 19; NOE 568.].

(PC31/2004 P050718) 2. In recent years New Zealand’s coastal marine area has come under increasing pressure as a result of the development of marine-based aquaculture. The Marlborough Sounds area in particular is rich in marine life, much of which is capable of being harvested for recreational and commercial purposes. It is also capable of supporting artificially created structures known as marine farms. They are designed to enable fishing operations to be carried out in the coastal marine area more intensively. Some consist of cages in which fish, especially salmon, are grown in captive conditions until they have reached the stage when they can be harvested. Others - the great majority in New Zealand - consist of floating structures for farming mussels. Typically they consist of parallel rope longlines anchored at each end to the sea floor and held up on the surface by floatation buoys, from which culture ropes known as droppers are suspended in the water column. The droppers attract mussels, dredge oysters, scallops and other species of shellfish whose habit is to attach themselves to any stationary object that they can find in the water. The structures are designed to attract them in sufficiently large quantities for harvesting commercially. 3. Marine farms have their value, particularly as their products are an important component in New Zealand’s export trade. But the space which they occupy restricts the ability of others to carry on fishing operations by conventional methods in and close to the boundaries of the same area, as well as inshore of the marine farm. They tend also to modify the marine environment beneath them and close to their boundaries. The process of construction can cause considerable disturbance to the sea floor and to marine life growing or living there. Some forms of marine farming, such as salmon farming, may require the provision of large structures which cast a shadow on the seabed. The substances used to cultivate fish grown in cages and shell and other material falling off droppers used for mussel farming during harvesting alter the quality and characteristics of the water and of the sea bed. The local environment is also affected by the consumption by fish and other aquatic organisms within the marine farm of the nutrients which are to be found in the water column. In small quantities these effects are relatively insignificant. But on a large scale these structures have the potential to have a considerable impact on other fishery resources and on those who use them. Mussel farms in particular can cover a very large area. Those in the Marlborough Sounds area range from less than one hectare to 500 hectares, and there are applications in the pipeline for areas up to 10,000 hectares. From an early stage it was recognised that this was an activity that would have to be regulated. 4. Comprehensive legislation governing the development of marine-based aquaculture in New Zealand was first enacted in the Marine Farming Act 1971. Under the system which it laid down a single permission was required for this activity. It took the form of a lease or licence granted by the then Ministry of Agriculture and Fisheries. In 1991 the legislation was replaced by the Resource Management Act 1991 ("the RMA"). The purpose of that Act, as stated in section 5, was to promote the sustainable management of natural resources. Leases or licences granted by the Ministry were no longer necessary. From the commencement of that Act on 1 October 1991 until 6 July 1993 the establishment of a new marine farm required a new type of resource consent known as a coastal permit granted under section 12 by the local authority. On 7 July 1993 Part 4A of the Fisheries Act 1983 ("the FA 1983") consisting of sections 67I to 67S, inserted by section 6 of the Fisheries Amendment Act 1993, came into force. The establishment of a new marine farm now required two permits. The first was a coastal permit granted by the local authority. The second was a marine farming permit issued by the Director-General, who is the Chief Executive of the Ministry of Fisheries, under Part 4A of the FA 1983. That was the system which was in force at the commencement of this litigation. 5. With effect from 28 November 2001 a moratorium was imposed on aquaculture activities which required a coastal permit from the local authority. The legislation giving effect to it was contained in amendments to the RMA which were made by the Resource Management (Aquaculture Amendment) Act 2002 which came into force on 26 March 2002. But by section 150E(2) of RMA, as amended by the 2002 Act, it was provided that the moratorium did not apply to a coastal permit for aquaculture activities in a coastal marine area that was the subject of a coastal permit immediately before the moratorium. Legislation was then enacted in a series of seven statutes which comprehensively reformed the system for the regulation of aquaculture that was in force prior to the moratorium. These reforms do not apply to applications for coastal permits which had been notified before 28 November 2001 or which had been granted before 26 March 2002: sections 25 and 50 of the Aquaculture Reform (Transitional Provisions) Act 2004. Applications for a marine farming permit by persons such as those whom the appellants represent who hold coastal permits granted to them before 26 March 2002 will continue to be determined under the provisions of the RMA and the FA 1983 which were in force prior to the commencement of the moratorium. 35. … It is a misconception to treat control of the harvesting of aquatic organisms as being simply a matter of allocating these resources among those who wish to compete for them. That is a recipe for disaster, as everyone knows who is concerned about the protection of the environment. The harvesting of resources must go hand in hand with their conservation and their enhancement. Otherwise the resource will be exhausted and there will be nothing left for anyone to take. In recent years New Zealand has been setting an example to the world as to how to deal with these matters which other states would do well to emulate. The legislation under consideration in this case makes it quite plain that conservation of marine aquatic organisms is the responsibility of the Ministry under the Fisheries Acts. It is its task to ensure by the taking of appropriate measures that the resource is available for harvesting and that factors which may have an adverse effect on it are prevented or limited. It would be wholly artificial in this context to draw a line between the use of a marine farming structure and its mere presence in the coastal area. The Court of Appeal was right to hold that when considering an application for a marine farming permit the Director-General may take into account the likely effect of the structures of the proposed marine farm on other fishing activities.

2006 0611m-an (9) New Zealand has a carefully constructed system of fisheries management. Quotas are assessed as to fish species and allocated with respect to defined quota areas called quota management areas. Each such area is managed by an adaptive management programme run by the Ministry. The management programme is subject to strict research and management requirements. This allows a flexible management of the fishing resource by limiting the total allowable catch quantities for different fish species. The […] group of companies owns quota for the fish species orange roughy. This is in the quota management area called the orange roughy quota area 1 (ORH1) which extends northwards from west of Wellington around the top of the North Island to Cape Runaway in the east. Catch limits are assessed and then fixed at a given tonnage. (10) Orange roughy live a long life, sometimes for a century. They mature late, at about 27 years, and do nor reproduce in the numbers seen in most other species. They tend to gather together and feed near underwater hills or seamounts. … This geographical congregation makes them relatively easy to catch and exploit, and heightens the risk to their species. (11) An essential part of the management of the fishing resource is the accurate reporting of catch and effort information. This is strictly administered and enables the Ministry to research the size of species stocks, where they are, and how sustainable the fishing resource is in a given quota area. (12) Fishers are required by law to provide catch and effort information. The Master of a commercial fishing boat must complete these returns on a tow by tow basis. The returns are called Trawl Catch Effort and Processing Returns. (13) While at sea all fishing boats must carry and continuously operate what is known as an automatic location communicator (ALC). This requirement is part of the Vessel Monitoring System (VMS).

MOF v Harvey Fishing Ltd 2006 0127 [20] One of the difficulties posed in reaching that conclusion is that both Honorary Fishery Officer Goodin and Fishery Officer Harley were impressive witnesses, whereas the Harvey brothers were the opposite. But it is necessary to keep in mind that the sort of skills involved in the work of the latter do not always find easy expression in the formal atmosphere of a Courtroom. That said, the proposition that neither Harvey took any significant interest in what was being caught and its relationship to market demand and prices is so inherently improbable as to be ridiculous. Quota is valuable. If it is used for fish of a size which, for that species, does not fetch a good price then, unless fishing is hard, it can be far more profitable for the fisherman (illegally) to discard that catch and target more profitable populations. The quota management systems contains major disincentives to an “anything and everything” approach to trawling or any other fishing method. Modem electronic devices permit species and size targeting to an extent unavailable to earlier generations of fisherfolk.

1Dec 2004 Maruha [13] The case involves an aspect of the Quota Management System (“the QMS”), the Statutory Scheme under which New Zealand’s commercial fisheries are managed. Fundamental to the operation of the QMS is the accurate reporting by fishers of catches and their greenweight. The QMS provides for total allowable catch limits. Such limits are based upon the greenweight of the fish caught, i.e. the weight when caught of the whole unprocessed fish. [14] Where fish are processed at sea on a fishing vessel, as in this case, a mechanism is provided by the Fisheries (Conversion Factors) Notice 2000 (“the Notice”) for the conversion of the weight of the processed fish as landed back to the greenweight. [15] Depending upon the state processed fish are in when landed, a particular conversion factor is applied to the weight of the processed fish in order to enable the original greenweight to be calculated. The weight thus calculated is a deemed greenweight. [16] The material part of clause 4 of the Notice provides: “(1) The conversion factors specified in Parts 1 and 2 of the Schedule in relation to any specified species or classes or fish are the conversion factors for those species or classes of fish, and are to be used to convert the weight of fish in the defined state to greenweight (e.g. 1 tonne of alfonsino fillets is equivalent to 2.3 tomes greenweight alfonsino). (2) Where any fish is processed to more than 1 defined state but less than another defined state, the numerically larger of the conversion factors specified in respect of those defined states is to be applied in respect of that fish.” The phrase “in the defined state” in clause 4 refers to the various states set out in clause 3 of the Notice. [17] The definition in clause 3 which is central to this case is as follows: “skin-on untrimmed fillets means — (a) in relation to hoki, the state in which the flesh, with the skin still attached, is removed from either side of the body of the fish from immediately behind the pectoral fin, with the bellyflap intact, and the tail cut where the depth of the body of the fish is 60 mm or less.” [18] The conversion factor for UTF hoki, as set out in Part 2 of the Schedule to the Notice, is 2.15. The example which Mr Poore mentioned in his opening demonstrates the use of this conversion factor. UTF hoki fillets weighing a total of 1,000 kilograms are the product of 2,150 kilograms of whole unprocessed hoki, i.e. the deemed greenweight of the hoki.

[22] Several defences are advanced on behalf of the defendants. First, the validity of the Notice is challenged. Secondly, it is contended that the defendants used the correct conversion factor. Central to this defence is the assertion that the Chiyo Maru fillets complied with the UTF definition in the Notice. It is the defendants’ case that no more than a minimal amount of bellyflap was removed by the filleting machine on the Chiyo Maru and that in all respects the fillets complied with normal and accepted practice within the fishing industry in relation to the production of UTF hoki. Thirdly, the defendants assert that they are entitled to rely upon the statutory defence set out in s 241 of the Act. This requires the defendants to prove, in the circumstances of this case, that any contravention of the Act was due to some cause beyond the control of the defendants and that they took reasonable precautions and exercised due diligence to avoid such contravention. [23] In relation to the second defence set out above the defendants challenge the reliability of the evidence given by the informant’s witnesses, in particular Dr Graeme Bremner and Dr Benjamin Victor. Their evidence of the visual, or qualitative, inspection of a random sample of the Chiyo Maru fillets is seriously questioned by the defendants as is the approach and methodology they adopted in relation to their quantitative assessment of the fillets. Based upon the evidence of Dr Victor and Dr Bremner the informant alleges that all but a very small percentage of the Chiyo Maru fillets had been trimmed beyond a UTF state. It is essentially the findings of Dr Victor and Dr Bremner, coupled with their visual inspection of the fillets, which provides the foundation for the allegation that the wrong conversion factor was used by the defendants resulting in an under-recording of the greenweight of the catch. [24] In particular, it is alleged that the bellyflap of all but a few of the fillets had been substantially trimmed taking the bulk of the fillets beyond the UTF state At the core of this allegation are the words “. . .with the bellyflap intact” in the definition set out in para [17] above. [25] As mentioned above the allegation that false statements were made in the relevant returns relies primarily upon the evidence of Dr Bremner, a Fisheries Analyst employed by the Ministry of Fisheries, and Dr Victor who, amongst the other positions he holds, is the Director of a medical laboratory in California. Dr Bremner has been a Fishery Officer for 8 years. Prior to this he had been employed by the Ministry of Agriculture and Fisheries as a fisheries management scientist He has a PhD from Otago University in Mathematical Ecology and a Bachelor of Science degree in Zoology. Dr Victor has a PhD in Ichtyology and an MD. He is certified in Anatomic and Clinical Pathology and holds a Physician’s and Surgeon’s Certificate from the Medical Board of California. He is also Director of Health of a consulting company and is the Chief Executive of two American organisations, the Ocean Science Foundation and Fish and Seafood Forensics International.

[38] Following their visual inspection, Dr Victor and Dr Bremner considered it necessary to quantify the amount of trimming they had seen. Dr Victor mentioned in his evidence that this was not a simple procedure and that it required comparisons with a control sample of whole fish in order to make measurements and estimates of weight trimmed from the Chiyo Maru fillets. The whole control sample fish were those which Dr Bremner had obtained from the other fishing vessels. Dr Victor acknowledged that the most difficult problem in examining processed fillets is that, from their appearance, it is not easy to estimate the original size of the processed fish and therefore the “true” fillet size. He noted that a trimmed fillet from a large fish can be similar to a complete fillet from a small fish. [39] In seeking to overcome this difficulty Dr Victor and Dr Bremner decided to utilise what they contend is a standard reference point from which a measure can be made correlating with original fish size. Standard anatomical features had been removed in the filleting process and could not therefore be relied upon. Drs Bremner and Victor therefore focussed upon the myomeres, the muscle bundles in the flesh of a fish which flake away during cooking. [40] The evidence was that the myomeres in the hoki fillets relied upon for this process were clearly visible through the skin on the outer side of the fillets. The fillets were laid, skin side up, on a flat surface through which a light was shining upwards. In particular, the myoseptae separating the myomeres were said to be clearly visible. There was evidence that there are two sets of myomeres i.e. a dorsal and a ventral set, divided by the lateral midline which runs along the flank of a hoki. The dorsal or upper myomeres meet at an angle at the hypaxial line, a line found approximately midway between the midline and the dorsal line of a fish. The myomeres are arranged as a series of V-shaped muscle blocks with the apex of the V pointing back towards the tail. The angle becomes progressively less acute towards the head of the fish and the use of myomere width as a proxy measure (to use Dr Victor’s phrase) of fish length is based upon the proposition that there is only one myoseptum where the two limbs of the V-shape meet at 90 degrees. This apex, which Dr Bremner calls the 90 degree apex, was used by him and by Dr Victor as their reference point with the distance along the hypaxial line between the 90 degree apex and the next myoseptum being called the 90 degree myomere width or, to use Dr Bremner’s term, the MW90. [41] The methodology used by Drs Bremner and Victor proceeds on the basis that, despite fish growth, the number of myomeres remains constant while the distant between adjacent myoseptae increases. It is acknowledged by Dr Bremner that the position of the 90 degree apex will move further towards the tail as the fish grows larger. However, he contends that the MW90 can be used as an index of fish size because, despite growth, the number of myomeres remains fixed. [42] The whole control fish were carefully hand filleted by Dr Bremner using a filleting knife. There was some reference in the evidence to the use by him of a scalpel. Dr Bremner made the tail cut perpendicular to the lateral line where the depth of the body of the fish was 60 mm. The anterior, or head cut, was made with the knife pivoting on the insertion of the pectoral fin and passing immediately behind the insertion of the pelvic fins. The ventral cut was made along the ventral midline as close as possible to the side of the anal fin. The dorsal cut was made as close as possible to the dorsal midline, avoiding the dorsal fin. Several measurements of the fillets, as set out in Dr Bremner’s final report, were then made including the distance along the lateral line from a perpendicular drawn through the 90 degree apex to the anterior margin of the fillet (L90A) and the distance from the same perpendicular to the tail cut (L90P). Other measurements namely, the distance from the hypaxial line at the 90 degree apex to the dorsal margin of the fillet (D90D) and the distance from the same point to the ventral margin (D90V) were also made. Dr Bremner’s evidence was that total fillet depth at the 90 degree apex could then be computed i.e: the sum of D90D and D90V and also total fillet length, being the sum of L90A and L90P. [58] Turning then to Dr MacDonald’s evidence. Having regard to his extensive experience in the seafood industry; his academic credentials and, in particular, his research and practical work in respect of the processing of hoki, I am quite satisfied that Dr MacDonald is able to authoritatively comment upon the reliance placed by Dr Bremner and Dr Victor upon myomere width as a means of estimating how long and wide a UTF hoki fillet should be and how much it should weigh. I am satisfied that Dr MacDonald knows as much as any scientist about hoki as a species and about the processing and post-catch, and post-processing, handling of hoki. There is no doubt in my mind that Dr MacDonald knows more about hoki as a species than Dr Victor. In collaboration with others Dr MacDonald has written a number of papers on hoki and its processing. Dr Victor had not previously had occasion to study the species. [81] These aspects of the evidence alone suggest that the definition is problematical. It is unfortunate, in my view, that the word “bellyflap” itself is not defined in the Notice. It seems to me that, before one can decide whether a bellyflap is intact, it is necessary to know precisely what the bellyflap is i.e. where it extends from and to. Dr MacDonald’s evidence was that bellyflap is not a precise scientific term but rather is an industry term descriptive of the area of a carcass encompassing the gut of the fish. This evidence was not seriously challenged. [82] It seems to me that the term bellyflap could and should have been precisely defined in the Notice. I can see no real reason why a definition of bellyflap similar to that contained in other Regulations made under the Act, such as the Fisheries (Commercial Fishing) Regulations 2001, was not considered appropriate for the UTF definition. hi those Regulations the tail, for example, of a spiny rock lobster and how it is to be measured is defined with a precision which I consider would have been possible and desirable in relation to the bellyflap of a hoki. It seems that Dr Bremner for one would appreciate a similarly precise definition of this part of the anatomy of a hoki. [83] Because it is unnecessary for me to reach a decision in respect of the defendants’ collateral challenge to the Notice I propose to say no more than that the UTF definition strikes me as giving rise to significant uncertainty. The drafter of the Notice must obviously have had in contemplation that UTF hoki is produced on fishing vessels by machines such as the Baader 192. It is, in my view, therefore necessary for the definition to be certain and workable. [84] Having regard to the evidence of Dr Victor, Dr Bremner, Mr Southen, Mr Reid and Dr MacDonald it is clear that, whilst a hand filleter may well be able to do so, a Baader machine, however well set, cannot produce fillets cut precisely along the ventral and dorsal lines and in such a manner as to leave the pelvic fins in place. Without the pelvic fins some of the bellyflap is missing, as Dr Victor sensibly acknowledged. It thus becomes a matter of assessing what degree of trimming, and/or fin removal, renders a bellyflap less than intact. Inevitably such an assessment will involve a subjective element. This, in my view, is unsatisfactory particularly given the informant’s apparent preference for a literal interpretation of the definition.

Goodshp v MAF, 19/12/06

PART V — NON-ITQ AND SCAMPI POLICY A MAF STRUCTURE [296] A brief description of the structure of MAF at the relevant time is desirable. MAF was responsible for both Agriculture and Fisheries. This remained the case until the Ministry of Fisheries was created as a separate Ministry, as from 1 July 1995, by the Ministry of Agriculture and Fisheries (Restructuring) Act 1995. MAF Fisheries was a division of the Ministry, headed by the Group Director, who reported to the Director-General. Mr Craig was Group Director from the time of MAFFish’s establishment as a group within MAF, until 1993. His deputy throughout that period was Dr Allen. Reporting to Dr Allen were a number of senior managers, including Mr Shallard, the director of operations, and three regional managers. Each of the regional managers was responsible for a regional office, based in Auckland (Mr Walshe), Nelson (Mr Brierley) and Dunedin (Mr Brown). [297] Legal advice was generally obtained from MAF Legal Services, a part of MAF Corporate Services, headed by Mr Fergusson, who reported directly to the Director-General. In addition, Central Office had its own Regional Solicitor, Mr Sullivan, who joined MAF in 1989. [298] Each of the regional offices was responsible for the administration of a number of the 10 fisheries management areas into which the waters of New Zealand and its EEZ are divided. [299] MAFFish adopted, under Mr Craig, the decentralised regional structure which I have briefly described. He said that when he joined MAF in 1985 he was struck by its highly centralised organisational structure and the concentration of decision-making in a few head office hands. He formed the view that people in head office were largely isolated from the fishers with whom they dealt. His own experience led him to prefer a less centralised approach, and he directed Dr Allen to review the organisational structure. He recommended a move to a more decentralised structure, and this was adopted. [300] One outcome of the move to decentralisation was the establishment of a Senior Fisheries Management Committee (SFMC), comprised of senior managers from head office and the regions, middle managers from head office and (as required) the regions, and at times experts in specific fields from head office and the regions. [301] These changes in organisational structure coincided with a change in control within the public service generally, under which individual departments were given a greater degree of autonomy, and controls by the State Services Commission and Treasury were reduced. [302] A further fundamental change which was occurring at this time was to the system of fisheries management. Two major changes occurred: first, the introduction of the QMS to regulate most significant commercial fisheries, and, second, the replacement of the previous system of controlling specific fisheries by fisheries notices issued by MAF, by a system of control by regulation. B INTRODUCTION OF THE QUOTA MANAGEMENT SYSTEM [303] The scheme of the Fisheries Amendment Act 1986 was to provide for the introduction of a system for the management of fishing stocks by the allocation of property rights to fishers. The essential features of that were described in evidence by Professor Sharp. He was called by the plaintiffs to provide evidence as to the structure of rights in and of the fisheries management practices prior to the introduction of the quota management system in 1986, the system of property rights associated with that system, and the evolution of those rights since that time. He noted that prior to 1986 fisheries management in New Zealand was based, to varying degrees, on regulations aimed at limiting access to fisheries: a system of input controls. The QMS introduced in 1986 is based on output controls, namely setting an allowable harvest and allowing rights to that harvest to be traded. The 1986 reform created new rights in the form of individual transferable quota rights. Professor Sharp noted that the founding objectives of the QMS were described by the Minister of Fisheries in 1997 as including the following objectives: (a) To rebuild in-shore fisheries where required and to ensure that catches were limited to levels which could be sustained over the long term; (b) To ensure that catches were harvested efficiently with maximum benefit to the industry and to New Zealand; (c) To allocate catch entitlement equitably based on individual permit-holders’ commitment to the fishery; (d) To integrate management of in-shore and off-shore fisheries; (e) To develop a management system that could be applied both nationally and regionally; and (f) To enhance the recreational fisheries. [304] As he noted, Government decided initially to allocate quota harvesting rights in the deepwater fishery using a formula that accounted for historical performance and investment. A significant aspect of the deepwater policy was to allow companies the freedom to choose how to harvest their entitlement. Under the Fisheries Amendment Act 1986, individual fishers exercised ITQ rights when harvesting fish, those rights in aggregate being constrained by a total allowable commercial catch set annually by the Minister of Fisheries. A permit was necessary to harvest commercially fish controlled by the QMS. Fish stocks outside the QMS were managed by a system of non-transferable permits and administrative allocations. A permit was a necessary requirement to catch fish, both before and after the introduction of the QMS. A permit enabled a fisher to generate a catch history which became the basis for establishing ITQ rights to harvest. Professor Sharp describes the fishing permit and the ITQ rights as combining under the new regime to form a key element in the enduring bundle of property rights of the QMS. [305] Dr Allen, who occupied senior management positions within MAF throughout the period of the introduction of the QMS, described some of the management issues which required resolution during the transition to the new system. He observed that there were some significant difficulties in the decade of change in fisheries management between the mid 1980s and the mid 1990s. He said that in that time New Zealand introduced a world class management system in the QMS. His description of the system as “world class” was accepted by all witnesses who expressed views on the system. He noted that, in trying to effect a fundamental, and to some extent experimental, change in the management of the whole of New Zealand fisheries, difficulties and inconsistencies are likely to occur. He expressed the view that with hindsight the transition from its initial conception to the current management system had been a considerable success, and one which has achieved significant benefits to New Zealand. He described how by the mid to late 1970s the world was beginning to see the unmistakable consequences of unrestricted expansion of fishing effort, an example of which was the over-exploitation of the cod fishery in the North Sea. He noted that the management of commercial fisheries in New Zealand at that time was relatively simple and based upon the notion of a permit to fish, by which Government was able to control the activity by means of permit conditions. Sustainability was dealt with in a reactive way, in that, if unrestrained fishing was giving rise to sustainability concerns, input controls could be imposed to reduce fishing effort in the fishery. When the QMS was introduced, Dr Allen noted that a policy decision was made to allocate initial quota on the basis of demonstrated effort and dependence. The catch returns of fishers were the primary method of establishing the entitlement to an initial allocation of quota, with mechanisms by way of review and appeal to address hardship arising from the use of that primary method. An initial group of species was introduced to the QMS and remaining species continued to be controlled by permits and other regulatory controls. It was signalled by Government that further introductions were likely to be made in the future. The legislation provided a general process for translating catch history into quota, so that fishers were aware of the value of an established catch history. After the introduction of that initial group of species, many fishers began to turn their attention to other, previously unexploited, non-QMS fisheries. The ability of MAF to respond to pressures on those other fisheries was constrained by an inability to add such species to the quota management system. That inability arose from the granting of an injunction preventing the introduction of further species, as a result of litigation based on an assertion of an unresolved claim under the Treaty of Waitangi to a share of all commercial fisheries in New Zealand. MAF attempted to deal with the pressure on non-QMS fisheries by using the other regulatory mechanisms available under the legislation, including policies in relation to the granting of permits, moratoria, and regulations. Subsequently, after the resolution of the Maori claims and the enactment of legislation to give effect to that view, in the Fisheries Amendment Act 1992, the additional control mechanisms inherent in the QMS became available for further species. [306] Against that background, it is necessary to examine the development of policy, in the relevant period from 1986, with regard to the management of non-ITQ species in general, and scampi in particular. C NON-ITQ SPECIES POLICY DEVELOPMENT 1. Head Office Guidelines and Directions [307] The introduction of ITQ from 1 October 1986 required a change of approach in relation to the granting of permits to fish under the Act. A particular issue was the management of non-ITQ species. The regional structure of fisheries management meant that each of the three regions needed to develop a policy. In the early stages, it was envisaged that the regional policies would be reflected in fisheries management plans to be developed by each region. The use of those plans as a management tool was soon abandoned. Mr Shallard described the changes to the permitting processes as moving through several stages. In the first stage, permit conditions were widely used as a means of controlling fishing effort. Regional staff developed specific conditions and there was a relatively wide discretion to create permit conditions relating to area, species and method. Within the national policy for categories of species, the choice of which species went into which category was made at a regional level. That stage was an outcome of the initial attempt to regulate the increasing effort in non-ITQ fisheries at regional level, to limit the effort in fisheries to acceptable levels so as not to allow over-exploitation. The second stage, where attempts were made to move a number of restrictions previously imposed as permit conditions to regulations, was developed to regularise controls so as to enhance consistency, and to simplify the permitting process. The choice of specific regulatory controls was a regional responsibility and the quota management regulations were area specific. This move was accompanied by a restriction on the types of conditions that could be placed on permits. When there was a need to condition permits specifically, this could be done by seeking approval of particular proposed conditions at head office level. The third stage was when fisheries were closed by means of a s 65 Gazette notice. That power was exercised at head office level and such closures were generally national in effect. Exemptions were also granted at head office level. The mechanism was seen as a means of preventing expansion of effort, in fisheries where sustainable catch levels were not known, until a longer term management option was available. The fourth stage was where s 65 notices were replaced by species specific and area specific regulatory prohibitions. A factor in the adoption of this approach was the inability to introduce new species into the QMS, as a result of the Maori fisheries litigation. Mr Shallard referred in this context to his memorandum of 17 May 1989, which asked the regions to develop draft regulations to replace the s 65 moratorium (which applied to a number of species, not including scampi at that stage) in case the Maori fisheries issue was not resolved by the end of that fishing year (as it was not). Mr Shallard described the relevant processes applicable to permits for scampi fishing, within that general trend, as being that in 1988/89 no s 65 notice was in place and that regional policies allowed for either s 63 or s 64 permits, or a combination of both, to be issued, depending on the particular region. For 1989/90, the same situation prevailed, but in addition commercial regulations set particular area and method controls, independent of permit conditions, but permit conditions could be used to override the minimum mesh size. For 1990/91, the s 65 notice was in place from 1 October 1990; exemptions could be granted, at a head office level. By 1991/92, regulations had been developed which put scampi in the “prohibited unless authorised” category. [308] With that general overview, I now consider the steps taken by head office in relation to permitting processes. Instructions as to permitting procedures under the new regime were given from head office to the regions on 25 August 1986. A circular entitled “Renewal of fishing permits and/or fishing vessel registration for 1986/87 fishing year” said: “1.1 With the introduction of Individual Transferable Quotas (ITQ’s) from 1 October 1986 some changes in processing applications for fishing permits/vessel registration are necessary. This instruction attempts to identify the areas of change and offer guidelines on procedure. Local controlling officers are expected to setup their own systems within these. . . . 2. LEGISLATIVE CHANGES 2.1 The Fisheries Amendment Act 1986 provides for some significant changes with regard to eligibility for fishing permits and fishing vessel registration. These include: • A fishing vessel can only be registered by a ‘commercial fisherman’. A ‘commercial fisherman’ is now defined as a person who has a fishing permit. • A person is entitled to a fishing permit whether or not they have the right to take fish under a guaranteed minimum individual transferable quota or an individual transferable quota. • A permit holder (‘commercial fisherman’) no longer has to be reliant on fishing activities for a significant part of their income. • Vessels can now be registered by MAF without having to meet the requirements of the Shipping and Seamen Act 1952 as they relate to manning and survey requirements. • The holder (owner) of an ITQ does not necessarily have to take out a fishing permit unless he intends to fish against his quota. • More than one fishing permit can be issued in respect of the same vessel at any one time.”

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