Regulations Amending the Pacific Fishery Regulations, 1993 (Lights Prohibited): SOR/2019-132

Canada Gazette, Part II, Volume 153, Number 11

Registration

SOR/2019-132 May 10, 2019

FISHERIES ACT

P.C. 2019-481 May 9, 2019

Her Excellency the Governor General in Council, on the recommendation of the Minister of Fisheries and Oceans, pursuant to subsection 43(1) ^{footnote a} of the Fisheries Act ^{footnote b}, makes the annexed Regulations Amending the Pacific Fishery Regulations, 1993 (Lights Prohibited).

Regulations Amending the Pacific Fishery Regulations, 1993 (Lights Prohibited)

Amendment

1 Subsection 8(1) of the Pacific Fishery Regulations, 1993 ^{footnote 1} is replaced by the following:

8 (1) No person shall use torches or artificial lights to attract or repel fish unless they are fishing for shrimp with a trawl net or for squid.

Coming into Force

2 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Executive summary

Issues

The commercial shrimp trawl fishery in the Pacific Region unintentionally harvests non-target fish species during their fishing operations. These bycatch species may include species with conservation concerns such as Eulachon. The bycatch of Eulachon is problematic for Fisheries and Oceans Canada (DFO) with regard to meeting its policy objectives for conservation as well as respecting its obligations towards Indigenous groups regarding food, social, and ceremonial access. Additionally, some shrimp management areas face early commercial closures as a result of reaching bycatch limits, which has negative economic impacts on harvesters, buyers and processors. The commercial shrimp trawl fishery is facing significant new management restrictions and reductions in fishing opportunities due to concerns over Eulachon bycatch. Both the commercial shrimp industry (licence holders), and Indigenous groups want to implement new bycatch reduction approaches into the fishery.

Background

The commercial shrimp trawl fishery in the Pacific Region currently has 237 licence eligibilities. However, over the last two decades, only 40–60 vessels participated in the fishery. The remaining licence holders simply maintain their licence eligibilities without fishing. The fishery is conducted on vessels ranging in size from approximately 15 m to 35 m, and commercial openings occur in most parts of the British Columbia (B.C.) coast under commercial quotas established by DFO. Several shrimp species are harvested, but the primary target species include Pink Shrimp and Sidestripe Shrimp. Vessels use either beam trawl gear, or otter trawl gear on their vessels.

Otter and beam trawl gear are lowered from the vessel and towed near the ocean ground in order to catch shrimp. Otter trawl gear uses two rectangular “doors” or “otter boards” to keep the mouth of the funnel shaped net open while the net is being towed through the water. Beam trawl gear uses a long “beam” or pole to keep the mouth of the net open while moving through the water. The open end of the net captures the target species of shrimp, but can also capture other non-target species of fish (bycatch) into the net. Important species such as Eulachon, Rockfish, and flatfish are unintentionally caught in the shrimp trawl fishing gear. Both DFO and stakeholders, including industry, want to reduce bycatch as much as possible, particularly of Eulachon.

Eulachon is an extremely important species on the British Columbia coast, and DFO is working to reduce all possible bycatch in order to ensure conservation of this vulnerable species. Eulachon is an anadromous smelt that has significant cultural and dietary value to Indigenous groups in British Columbia. There are three distinct populations (or designatable units) of Eulachon on the British Columbia coast: the Nass/Skeena rivers; the Central Pacific Coast; and the Fraser River. In 2011, the Committee on the Status of Endangered Wildlife in Canada (COSEWIC), identified the Central Pacific Coast and Fraser River populations as endangered, and the Nass/Skeena rivers population as special concern.

Existing measures to protect Eulachon by setting bycatch limits have been successful in reducing bycatch. However, Eulachon continues to be caught in fishing gear, leading to early commercial fishing closures of the shrimp trawl fishery, thereby directly affecting the economic prosperity of the 40 to 60 vessels fishing annually. In addition, early closures have a negative impact on the processing and sales sector, as well as Canadian consumers and the Canadian economy.

Objective

The objective of this proposal is to allow the use of artificial lights in fishing gear in the commercial shrimp trawl industry.

Description

The proposal will amend subsection 8(1) of the Pacific Fishery Regulations, 1993 to allow Category S licensed commercial shrimp trawl vessels in the Pacific Region to use artificial lights on their fishing gear as a means to reduce bycatch of Eulachon and other non-target fish species. The use of artificial lights on gear will be voluntary.

Currently, subsection 8(1) of the Pacific Fishery Regulations, 1993 prohibits the use of artificial lights in all pacific fisheries except the Squid fishery. The Regulations state the following:

• No person shall use torches or artificial lights in any manner to attract or repel fish other than squid.

Subsection 8(1) will be amended to remove the prohibition for the shrimp trawl industry. The amended Regulations will state the following:

• No person shall use torches or artificial lights to attract or repel fish unless they are fishing for shrimp with a trawl net or for squid.

Regulatory development

Consultation

Many Indigenous groups, commercial industry representatives, shrimp trawl vessel licence holders, and conservation groups have asked DFO to amend these Regulations and allow the voluntary use of lights on commercial shrimp trawl gear to help reduce bycatch of non-target species in the fishery. Consultations with these groups were conducted in the Spring of 2018.

An Oregon-based study identifying the use of LED (artificial) lights as an effective way to reduce bycatch of Eulachon, rockfish and other groundfish was published in 2015 by Hannah et al. (Fisheries Research, 170), and stakeholder groups have now been advocating for this amendment to the Pacific Fishery Regulations, 1993 for several years. Since early 2015, the Department has received letters and in-person feedback from industry organizations, Indigenous groups, environmental organizations, and the provincial government, all requesting that the use of lights be permissible in the shrimp trawl industry.

On April 23, 2018, the Department sent out letters outlining the proposed amendment, along with an offer to discuss this proposal with any group who had questions or wanted to meet. The consultation letter was sent to all coastal Indigenous groups, commercial shrimp trawl licence holder representatives, appointed commercial shrimp processors and buyers on the DFO Shrimp Trawl fishery advisory committee, environmental groups, the Province of British Columbia, First Nation treaty groups, the Sport Fishing Advisory Board, and the BC Seafood Alliance. A notice was also posted on the DFO Pacific Region public consultation website. The amendment is being requested by commercial licence holders in the fishery, and is widely supported.

As a result, letters or emails of support were received from the British Columbia Shrimp Harvesters Association (commercial licence holders); the Province of British Columbia; environmental groups, such as the David Suzuki Foundation, the Central Coast Indigenous Resource Alliance, the Canadian Parks and Wilderness Society, the T. Buck Suzuki Foundation; the Marine Stewardship Council of Canada; the Haisla First Nation; Sea Pact (a group of 10 leading North American seafood companies); and Elizabeth May, the member of Parliament for Saanich-Gulf Islands.

The British Columbia’s Groundfish Research and Conservation Society provided an email indicating that they support this amendment for the shrimp trawl fishery, and recommended the amendment be expanded to include the groundfish trawl fishery, and the Hake fishery. Senior Management in the Pacific Region reviewed this request to expand the scope of the amendment, but concluded the science available only supports the amendment for the shrimp trawl fishery at this time.

Consultations to date indicate that this amendment will be widely supported by all commercial licence holders and processors and buyers, several environmental groups, the Province of British Columbia, and some Indigenous groups.

Modern treaty obligations and Indigenous engagement and consultation

Due to low Eulachon abundance, Indigenous groups in the lower Fraser River have restrictions placed on their annual communal harvest licence for directed Eulachon food, social, ceremonial (FSC) harvest. For example, some lower Fraser River Indigenous communities are now restricted to fewer than 300 lbs per year for the whole community due to the low abundance of Eulachon returns to the Fraser River, and many lower Fraser River Indigenous groups feel that their Eulachon FSC access needs are not being prioritized.

As stated, all coastal indigenous groups in British Columbia were contacted to inform them of this proposal, and to seek comments on the amendment. The Q’ul-lhanumutsun Aquatic Resource Society (QARS), a First Nations fisheries organization contacted DFO with some questions about how the use of the lights worked, and asked for more information on the Oregon research. DFO provided the requested information. No additional formal comments were submitted by these groups.

The Lower Fraser Fisheries Alliance (LFFA) [a group of First Nations on the Lower Fraser River] have written a letter opposing the amendment on the basis that not enough science has been conducted to conclusively state the lights will benefit the reduction of bycatch. The LFFA also raised concerns about the shrimp trawl fishery in general, and the negative impacts the commercial fishery is having on Indigenous rights; specifically that the amount of Eulachon bycatch is limiting their FSC allocation. DFO wrote a response letter back to the LFFA offering to meet to discuss their concerns, and to further explain the Department’s objectives regarding reducing bycatch in the fishery. No immediate request was made following the initial consultations by the LFFA for further discussion; however, in the months that followed, DFO has provided further updates to the LFFA on this topic and had further discussions in person regarding the objectives of the regulatory amendment. The LFFA would still like to see additional scientific studies conducted by DFO within British Columbia prior to the Department enabling the use of artificial lights.

The Haisla First Nation supports the amendment and the use of lights to reduce bycatch, but would also like to see the use of the lights made mandatory in the fishery, and requested that all shrimp trawl vessels should be required to use the lights.

DFO will continue engaging with Nisga’a, Tla’amin, Tsawwassen, and Maa-nulth treaty partners on policy and program changes as part of the implementation of this regulatory amendment.

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this proposal. The assessment concluded that implementation of this proposal will likely have a positive impact on the rights, interests and/or self-government provisions of treaty partners. This regulatory proposal will contribute towards increasing the population of Eulachon for modern treaty partners and potentially increasing FSC provisions not only for modern treaty partners but for all Indigenous groups.

Instrument choice

The current wording of the Pacific Fishery Regulations, 1993, subsection 8(1) prohibits the use of lights in this fishery. In order for this new bycatch reduction methodology to be utilized in the shrimp trawl fishery, an amendment of the current regulation is required. No other options are available.

Failure to amend the current Regulations will result in the current level of bycatch in the fishery to continue, and will have negative impacts on Indigenous communities and the economic value of the commercial shrimp fishery. This new technology is currently being successfully utilized in other jurisdictions, such as the United States.

Regulatory analysis

Costs and benefits

Costs

This regulatory amendment will allow commercial shrimp trawlers the flexibility to use artificial lights during their harvesting activities. The amendment does not require harvesters to have lights; therefore no mandatory costs will be imposed on industry. There will not be any costs to government as a result of this amendment.

DFO plans to monitor bycatch rates in the fishery before and after the voluntary use of artificial lights as well as feedback from the vessel masters, to determine whether or not the artificial lights are effective in reducing bycatch in the fishery. DFO may consult at a future date regarding mandatory use of the lights. Any discussion on mandatory use of the lights would be considered after review of the information collected following the initial few years of voluntary use in the fishery. If the use of artificial lights becomes mandatory this will be achieved through licence conditions, not an additional regulatory amendment.

The artificial lights cost approximately US$35 each. A vessel would require approximately 5 artificial lights to meet the minimum requirements as outlined in the current U.S. fishery regulations. Thus, costs for an individual vessel to use five artificial lights on their gear will be approximately US$175, or Can$220. There are 40 to 60 commercial shrimp trawl vessels active in the fishery. Should this voluntary measure become mandatory in the future, the total cost to the industry (all 40–60 vessels in total) is anticipated to be approximately Can$9,000 to Can$13,000. Depending on the amount of use, artificial lights may need to be replaced every few years. Note: some vessels in the fishery have already purchased the artificial lights.

Benefits

Published scientific research from Oregon, United States, has demonstrated that use of LED lights (Lindgren Pittman Electralume® LED fishing lights) properly placed on shrimp trawl gear has led to significant reductions in bycatch of non-target species (especially endangered Eulachon). The Oregon study published by Hannah et al. (2015) in Fisheries Research, Volume 170, states that reductions in Eulachon bycatch in the order of 90% were observed compared to non-use of the lights.

The Regulations support the Government of Canada’s efforts to protect a vulnerable species (Eulachon), reduce bycatch of other species of fish, and support the strategic outcome of economically prosperous maritime sectors and fisheries. Reducing the amount of bycatch also increases efficiency of the vessel by reducing time and effort necessary to sort the catch after each tow.

Small business lens

While some shrimp trawl operations are owned by larger processors, the vast majority are run by individual owners, and are considered small businesses. Analysis of the 2015 fishery showed the average value of shrimp landed was $156,000 per vessel. This figure applies to each of the 40–60 active vessels.

While harvesters who choose to use artificial lights as a result of the regulatory amendment will incur costs, they will be voluntary and do not constitute mandatory compliance burden.

Should the use of artificial lights become mandatory in the future (after consulting with stakeholders) the compliance costs will be approximately Can$200 per vessel at the onset. If, in the future, the use of lights becomes mandatory, the total for the industry would be in the range of $9 000 to $13 000. However, the amount cited could be inflated since it is anticipated that many harvesters will have already adopted the use of artificial lights voluntarily.

“One-for-One” Rule

The amendment will not impose an incremental increase in administrative burden and does not trigger the “One-for-One” Rule.

Regulatory cooperation and alignment

In 2017, the Oregon Department of Fish and Wildlife in partnership with the Pacific States Marine Fisheries Commission conducted additional studies with funding from the Bycatch Reduction Engineering Program (BREP) to determine the most effective use and placement of the artificial lights. As a result, the U.S. commercial shrimp trawl fisheries in Oregon State, Washington State, and California have moved to make the use of these LED lights mandatory in their fisheries as part of their National Marine Fisheries Services Eulachon recovery plans. A summary of the optimal design is outlined in the Oregon Department of Fish and Wildlife Pink Shrimp Review for 2018.

Although no comparable studies have been conducted in Canadian fisheries waters, the offshore habitat and species composition for Oregon and British Columbia is fairly similar, and DFO expects similar results as those in the U.S. studies.

The amendment will remove the prohibition against the use of lights in DFO’s Pacific Region. DFO wishes to make the use of lights voluntary at this time, and to collect information from the British Columbia fishery as the lights are implemented into the commercial fishery during the first few years. Information from the voluntary implementation can be used to determine effectiveness, and whether their use should be made mandatory.

The U.S. shrimp trawl fisheries in the Pacific have developed requirements for how many lights need to be used and the best placement of those lights on the fishing gear. DFO intends to mirror those rules though licence conditions to be consistent with the U.S. regulations and optimize the use of the lights to maximize benefits. However, prior to instituting those criteria in licence conditions, DFO will consult with licence holders during the annual Integrated Fisheries Management Plan (IFMP) planning process. Based on the results of the voluntary implementation in the Pacific Region, advice from stakeholders in the coming years, and results from At-Sea Observer data, DFO will determine if the use of lights should be made mandatory in future years. Results from the initial implementation of the voluntary use of the lights will provide information and data for future decisions.

This amendment will allow Canadian fisheries to be more competitive vis-à-vis fisheries in other jurisdictions, such as the United States.

Strategic environmental assessment

This regulatory proposal fulfills targets and key priorities of the Federal Sustainable Development Strategy. It contributes to the sustainable fisheries target and it helps achieve progress towards the 2020 biodiversity goals and targets for Canada by allowing the use of a technology that reduces bycatch of vulnerable species such as Eulachon.

DFO has considered the potential environmental impacts of this regulatory proposal and is using the available peer-reviewed science to inform it. A published scientific study from Oregon has demonstrated significant reductions in bycatch by using artificial lights on shrimp trawl fishing gear. Reductions were especially significant for the vulnerable Eulachon – with reductions in the order of 90% less bycatch. Some other species of rockfish and groundfish saw bycatch reductions in the order of 50–70%. Subsequent studies have reinforced the efficacy of these lights in reducing bycatch.

In accordance with The Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required (the strategic environmental assessment form can be provided upon request).

Gender-based analysis plus

No gender-based analysis plus (GBA+) impacts have been identified for this regulatory proposal.

This regulatory proposal is aimed at removing a fishing gear prohibition currently in place for the commercial shrimp trawl fishery. The objective is to reduce unintended fish bycatch and help protect vulnerable species.

Implementation, compliance and enforcement, and service standards

The use of artificial lights will be voluntary, with all or almost all commercial vessels expected to voluntarily incorporate the lights into their fishing gear. It is expected that the use of the lights will begin as soon as the regulatory amendment is in force.

Licence conditions may be added to commercial shrimp trawl licences, specifying how the artificial lights are to be utilized, and to ensure that the lights are operated in a manner that maximizes the reduction of bycatch, for licence holders who choose to use artificial lights as a by-catch reducing method.

There are no expected enforcement costs.

Contact

Guy Parker
Fishery Manager
South Coast Area
Pacific Region
3225 Stephenson Point Road
Nanaimo, British Columbia
V9T 1K3
Telephone: 250‑756‑7163
Email: guy.parker@dfo-mpo.gc.ca