This decision of the judge is another slap at the National Marine Fisheries Service, which is in a fierce legal struggle with two states and a broad-based, policy-making council of industry and state officials that advises NMFS and has broken with the agency over regulatory policy. The decision also shadow the move by NMFS charging the Gloucester Seafood Auction with a series of violations that carry penalties of a $335,200 fine and a 120-day shutdown — actions that take away many fishermen’s primary port for selling their catch.
The judge notified NMFS that it could not pretend to have given “prudent and thorough” consideration to making or changing regulatory policy without the “integral” involvement of the New England Fishery Management Council. It is told that Harrington’s ruling came late in the afternoon in response to a NMFS’ filing that renewed its request that the judge end his Jan. 26 suspension of the agency’s regulatory scheme, Framework 42.
Stephen Ouellette, an attorney specializing in fishery law, called Harrington’s latest ruling “refreshing and insightful.” As the judge suspended this new regulation NMFS is preparing to announce an interim rule to govern the fishery and industry for one year beginning May 1, bridging to an entirely different approach to the fishery in May 2010.
Judge Harrington has rejected NMFS’ contention that it had followed an earlier order of his and had given serious consideration to a regulatory approach, known as the “mixed stock exemption,” that might afford the fishing fleet some relief from the Framework 42 approach chosen by NMFS.
