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USD 1.0 Million In Penalties Over Setting On Marine Mammals United States, September 11, 13

Decisions were issued the week of August 19, 2013, in two separate enforcement cases from the Pacific Islands involving U.S. purse seine vessels fishing in violation of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFCIA).

An Administrative Law Judge handed down a decision on August 22, 2013, finding that the owner, operator and fishing master of the American Triumph had conducted six sets on or within one nautical mile of a fish aggregating device (FAD) and had deployed a FAD during the 2009 FAD closure, both of which are violations of the Act, resulting in a fine of USD 562,068.

In the second case, which consolidated five cases against the fishing vessels Ocean Encounter, Ocean Conquest, Sea Honor, Sea Quest and Pacific Ranger, the owners, operators and fishing masters were charged with five counts of setting their purse seine net on whales, which is a violation of the Marine Mammal Protection Act, and ten counts of setting on or within one nautical mile of a FAD and two counts of deploying FADs during the 2009 FAD closure in violation of the WCPFCIA. In its decision issued August 23, the Court found all seventeen counts proven and assessed a civil penalty of USD 953,054.

“These investigations are clear evidence of NOAA honoring its commitments to the international community regarding the preservation of tuna in the Pacific and protecting the survival of marine mammals that roam the oceans,” said Bill Pickering, Special Agent in Charge of the Pacific Islands Division.

These cases stem primarily from decisions of the Western and Central Pacific Fisheries Commission of which the United States is a member. The Commission seeks to ensure the long-term conservation and sustainable use of highly migratory fish stocks in the western and central Pacific Ocean. In December 2008, the Commission adopted a conservation and management measure to conserve bigeye and yellowfin tuna. The measure covered a three-year period – 2009 through 2011 – and, among other things, it established a closed period in each of the three years when purse seine vessels were prohibited from fishing on fish aggregating devices. In 2009, the FAD closure period was from August 1 through September 30. Similar measures have been adopted by the Commission in subsequent years, and in 2013, the FAD closure period runs from July 1 through October 31.

The United States implemented this decision through regulations promulgated under the Western and Central Pacific Fisheries Convention Implementation Act. Under those regulations, it is unlawful for a purse seine vessel to make a fishing set on or within one nautical mile of a FAD or to deploy a FAD during the FAD closure period.

In addition to the violations of the WCPFCIA, the second case involved five counts of violating the Marine Mammal Protection Act (MMPA). The Court’s decision importantly affirms the Agency’s position that intentionally setting a purse seine net on or around a marine mammal violates the MMPA. Respondents had asserted that the MMPA’s commercial fishing incidental take authorization allowed all “takes” of a marine mammal except for an intentional lethal take. A “take” is defined under the MMPA as harassing, hunting, capturing or killing, or attempting to do any of the same, to a marine mammal. The Court explicitly rejected the Respondents’ argument.

The violations were investigated by NOAA’s Office of Law Enforcement and prosecuted by the Enforcement Section of NOAA’s Office of General Counsel. These cases were the result of reports from Forum Fisheries Agency fisheries observers, authorized under the Commission’s Regional Observer Programme, that the vessels are required to carry on board. Observers are tasked with observing and documenting the fishing activities on board the vessel and creating reports of those activities. The reports are used for scientific, management and compliance purposes in the Western and Central Pacific Fisheries Convention Area.