DMF NEWS is Published quarterly by the Massachusetts Division of Marine Fisheries to inform and educate its constituents on matters relating to the conservation and sustainable use of the Commonwealth's marine resources

Volume 18 Second Quarter April - June 1998

Table of Contents...

1. Scup Lawsuit: Federal Judge Rules in Favor of DMF
   
2. Right Whale Lawsuit Sent to Supreme Court
   
3. Better Statistics...Better Managment
   
4. Jones River Collaborative Efforts
   
5. 1998 Belding Award given to Bob Pond
   
6. Mass. Marine Fisheries Commission Welcomes Two New Members
   
7. DMF Goes International with the Raised Footrope Trawl
   
8. Underwater Videos Reveal Fish and Net Behaviors
   
9. DMF Releases 1998 Sportfish Guide
   
10. Table of Contents for Rules Update including Public Hearings, Regulatory Updates, Legislative Updates, and Draft Regulations on (1) trap tags and (2) lobster processing
    

Scup Lawsuit: Federal Judge Rules in Favor of DMF

This remedy "in the nick of time" was welcome news to the hundreds of commercial fishermen and dealers who catch and sell scup during spring, summer, and fall in Massachusetts. This lawsuit was supported by Mass. fishermen and dealers whose testimony and records were critical to the state's case.

Scup is a small, silver-colored fish that migrates seasonally each spring to Massachusetts south coastal waters, the northern edge of its range. Scup depart our waters during fall, and they over-winter in deep waters along the edge of the continental shelf. While not as important as the state's bread-and-butter species such as lobster, groundfish, and sea scallops, scup supports a robust inshore fishery by fishermen using weirs, fish pots, hook-and-line, and trawls. Most catches come from Buzzards Bay, south of Cape Cod, and around the islands. For recreational fishermen it is usually the most commonly captured fish.

Massachusetts has led the way in scup conservation by unilaterally regulating its inshore fisheries for years to prevent overfishing, before federal or interstate plans were enacted. Commercial fishermen have been constrained by a minimum size (9") for years. They have been further restricted with limits on the fish-pot fishery, time/area closure for trawlers, and a ban on night-trawling when scup are most vulnerable to capture.

This case represents the first time DMF challenged a federal fisheries management plan in court. Along the coast, Massachusetts has a well-earned reputation as a progressive state willing to take strong conservation measures working in partnership with other states and the federal government. Why did the Commonwealth end up in court? There was no other choice. To understand our reasons for having to turn to the Court, it's necessary to know how scup is being managed by the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission (ASMFC).

According to fisheries scientists, scup are considered overfished. To rebuild the stocks, NMFS implemented a quota-based management plan with direct controls on how much fish could be landed, based on historical patterns of landings. The plan was amended in 1997 and divided the region-wide quota into three seasons: January-April (45%), May-October (summer) (39%), and November-December (16%). This controversial amendment allocated the summer quota to individual states based on NMFS' records of May-October landings from each state during 1983-1992. For the summer season, the Commonwealth was allocated just 15.5% of the quota, while Rhode Island received 60.6%; New York got 17%, and the balance (7%) went to other states.

DMF strongly objected to the allocations arguing that inshore spring-fall fisheries were poorly documented, so any allocation would be systematically flawed. NMFS's data for Massachusetts were grossly inaccurate. The federal "voluntary" data collection system completely overlooked some New Bedford fish dealers who purchased the majority of scup from inshore commercial fishermen. These buyers were never asked by NMFS to provide purchase information for scup or any other species for that matter. NMFS data collection system was focused on more valuable species such as cod, haddock, flounder, and scallops caught by boats landing and selling fish in large ports, e.g. Point Judith (RI), New Bedford, Boston, and Gloucester.

NMFS data collection system simply was not designed to capture these statistics. The system was designed to document large-scale operations such as the winter offshore trawl fishery for scup by large trawlers conducting multi-day trips. These landings are comparatively easy to document in contrast to the inshore fishery that includes hundreds of small-scale vessels fishing with fish-pots or rod and reel. These fishermen often land their catch at town boat ramps or small piers, and transport their catch to small remote fish-houses by truck, out of sight of federal port agents. Massachusetts' scup fishery is an inshore fishery, with well over 90% of scup landings in Massachusetts being caught inshore from May through October.

On April 27, 1998 Chief U.S. District Judge Tauro:

1. voided that portion of the 1997 regulatory amendment establishing a state-by-state allocation of the summer commercial scup fishing quota;
   
2. forbade enforcement of the voided portion of the regulatory amendment, including the calculation and enforcement of "overages;" and
   
3. ordered the Secretary of Commerce to promulgate, in due course, a regulation which sets forth state-by-state quotas in compliance with National Standard #4 of the Magnuson-Stevens Act.
   

The "small-scale" feature of our fisheries is no accident. While Massachusetts has some weirs that are allowed to operate along the Cape's south shore, state regulations have curtailed most large netting operations. Night-time trawling closure and limits on vessel size have precluded most inshore trawling for scup. But the one rule most responsible for the proliferation of these "difficult-to-monitor" fishing operations was the Buzzards Bay net ban enacted by the Mass. Legislature in the late 1800s at the urging of President Grover Cleveland and his fellow anglers concerned about overfishing. Throughout Buzzards Bay, anglers (including commercial anglers) have enjoyed nearly exclusive use of the area for over a century. In the past two decades, we've seen some growth of the fish pot fishery in Buzzards Bay as well as in Vineyard and Nantucket Sounds.

NMFS rationalized the overly restrictive quotas by claiming it used the "best available data" (BAD). But DMF showed the court that NMFS was systematically missing very large amounts of Massachusetts scup landings. In 1997, despite a meager 362,000 lbs. federal quota, we kept our scup fishery open to holders of state permits (until October 13) to obtain the evidence. NMFS tallied Mass. landings at just 671,422 lbs. but our Statistics Program uncovered much more: 1,432,000 lbs. Massachusetts 1996 landings were about 1.35 million lbs. Minimum estimates for 1994 and 1995 were 1.78 and 1.72 million lbs., respectively.

While we agreed the stocks should be rebuilt and agreed with the federal schedule for stock restoration, we opposed the unfair burden placed on the Commonwealth. The plan calls for a reduction in landings by about 72% by 2002. Considering Massachusetts landings totaled at least 1.35 million lbs. in 1996 while our alloted federal summer quota for 1997 was just 362,000 lbs., we argued to the court that we were being required to achieve the year 2002 target in one year - a consequence of incomplete, inaccurate federal records of Massachusetts landings, and a violation of the Magnuson-Stevens Act National Standard 4. The intent of the Council and ASMFC was to minimize the short-term economic burden placed on fishermen by implementing these reductions over a seven-year period. But, for Massachusetts the reality was much different. On the other hand, neighboring Rhode Island received a 1997 summer quota of 1,415,425 lbs., an amount far greater than landings of the previous summer. From May-October, 1996, R.I. landed 1,042,797 lbs. The summer quota for 1997 represented a 26% increase!

We had warned the Council at its meetings and NMFS during comment periods on the Plan Amendment establishing the summer quotas that Massachusetts landings would be slashed inordinately. In DMF's March 5, 1997 letter to NMFS Regional Administrator Dr. Andrew Rosenberg we argued against the Amendment citing the unacceptably low starting point (363,000 lbs.) combined with the 7-year scheduled reduction in landings. Our historic multi-million pound fishery would have been reduced to under 100,000 lbs. in just a few years.

DMF will work with NMFS and other states to devise a better, more equitable management plan. DMF intends to argue for reduced offshore by-catch and discards of juvenile scup in the southern New England/Mid-Atlantic mixed species trawl fishery targeting squid, whiting, butterfish, and scup. This is a major unresolved hurdle that will likely prevent fishermen from ever realizing the benefits of their sacrifices inshore.

By Dr. David E. Pierce and Daniel McKiernan
The Commonwealth's legal case was handled by Attorney General Scott Harshbarger's office.
Contact Assistant Attorney General Daniel J. Hammond for more information at (617)727-2200.
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Right Whale Lawsuit Sent to Supreme Court

The lower court ordered the state to apply to the National Marine Fisheries Service (NMFS) for an Incidental Take Permit and to convene meetings of court-appointed experts to deliver a conservation plan. This mandate was imposed on the Commonwealth despite the fact that the ongoing federal Large Whale Take Reduction Team was working simultaneously and DMF was an active participant.

The court disregarded previous measures taken by Massachusetts which included restrictions on the use of fixed gear in Cape Cod Bay and the establishment of a 500 yard protective zone, ruling that they were not enough. Furthermore, the lower court found it irrelevant that NMFS, the federal agency charged to protect right whales, had confirmed that the Commonwealth's existing measures, at that time, were sufficient to protect right whales and that no additional measures were necessary. Since October 1996, state attorneys and biologists have been in and out of federal court updating the lower court judge about the Commonwealth's activities.

The case may establish important legal precedents. At the heart of the issue is the delicate balance between branches of the federal government and the role of the states. In essence, the lower court has ordered Massachusetts to administer a federal statute in a manner in which the federal agency (NMFS) has specifically declined to do. The Commonwealth's brief to the Supreme Court argues that Congress never intended to force states to adopt regulatory measures that the federal government had not adopted or to press states into service of the federal government.

Additionally, the lower court's order requires Massachusetts to ensure that commercial fishermen licensed by DMF do not violate the ESA. So the Commonwealth is now being held liable for ESA violations simply because it issues commercial fishing licenses. Analogies to - and consequences for - other state licenses such as a drivers license or a license to practice law or medicine, are obvious and troublesome.

The case's central issue is whether Massachusetts' state licensing of gillnet and lobster pot fishing in Massachusetts constitutes a "taking" of endangered whales in violation of the Endangered Species Act. Consequently, the Commonwealth has asked the Supreme Court to address three key legal issues:

1. whether state regulatory officials commit a "taking" under the federal Endangered Species Act (ESA) by enacting and enforcing regulations that protect endangered whales in some ways, but do not eliminate all risk that private, state-licensed fishermen might violate the ESA;
   
2. whether, if construed to make state regulators liable, the ESA violates the Tenth Amendment to the United States Constitution and constitutional principles of federalism most recently established by the Court; and
   
3. whether, in a case against state regulatory officials, the proximate cause requirement of the ESA is met by showing that the state sells licenses to private citizens who then on their own may proceed to violate the ESA in contravention of both state and federal law.
   

Regardless of the outcome of the case, the Commonwealth is committed to the recovery of the northern right whale and the protection of all large whales. For example, DMF's research program, conducted this past winter/spring with the Center for Coastal Studies and New England Aquarium was a great success and a model for other agencies and other right whale habitats. (See DMF News 1st Quarter 1998 ) The combination aerial/vessel surveillance program with habitat research gives us the most complete understanding of right whale behavior and biology in Cape Cod Bay.

DMF is a committed partner with the National Marine Fisheries Service to find ways to allow fishing and marine mammals to co-exist. DMF has required fishermen to modify their gear to reduce entanglement risk during the months that right whales are in Cape Cod Bay. Also, DMF's gear experts are collaborating with their federal counterparts and researchers to further reduce entanglement risk. Seasonal gear restrictions in Cape Cod Bay were scheduled to be lifted on May 16. Right whales departed the Bay on schedule during late April, presumably heading for their late spring/summer habitats: Great South Channel (east of Nantucket), Bay of Fundy, and possibly other habitats still unidentified.

By Special Assistant Attorney General David Hoover and Daniel McKiernan
The Commonwealth's appeal is being handled by Attorney General Scott Harshbarger's office.
Contact Assistant Attorneys General Douglas H. Wilkins and Salvatore M. Giorlandino for more information details at (617)727-2200.
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Better Statistics... Better Management

Fisheries management has suffered from too little data, data collection methods that are inconsistent or incompatible, and data that aren't readily accessible to those who want them. Collection methods will be standardized so each state and the federal government will collect data that are compatible and not redundant. Changes are planned for improved commercial and recreational fishery statistics as well as better biological sampling.

The most significant proposal for commercial fishermen is mandatory reporting for each trip. Fishermen would be required to record the results of every fishing trip prior to its completion. This program would resemble that already in place for federal groundfish permit holders, so most trawlermen, gillnetters and longliners will see little change to their current record keeping. The most significant changes will be felt by commercial lobstermen and small-scale fisheries in state waters such as those fishermen using rod and reel, and fish pots. These will change from the current end-of-the-year summary listing catch and effort to a logbook listing daily trip results.

Seafood dealers purchasing fish from commercial fishermen will be required to issue a "trip ticket" listing all species purchased. Currently, federally licensed dealers are required to report all species purchased while many smaller dealers who only hold state permits report to DMF purchases of only certain quota-managed species: e.g, bass, fluke, scup, bluefish.

On the recreational side the current recreational surveys will be enhanced and improved, so anglers will be more apt to encounter an interviewer at the pier, boat ramp, or party boat. All data will be housed in a central facility and available to researchers, fishery managers and members of the public. However all individual data will be kept confidential as is currently done.

The data management task will be formidable. DMF estimates there will be about 9,000 commercial fishermen reporting a total of about 175,000 trips - based on 1996 fishing activities. Half the trips are expected to come from commercial lobstermen. This surely will represent many tall stacks of paper but will be manageable given the current computer technologies.

Contact David McCarron at DMF's Statistics Program (617)727-3958 x105 for more details.
Access the ACCSP home page at www.safmc.gov/ACCSPHM/accsp.html
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Jones River Collaborative Efforts

In February 1998, DMF surveyed the Jones River for any possible additional obstructions to spawning-run fish which may have developed over the winter months of '98. We found that the remaining snag from 1997 had now accumulated a good deal of brush. This blockage would now make it difficult for spawning fish to move upstream. There were also a few smaller limbs elsewhere that needed to be removed from the river. We contacted the Jones River Watershed Association to report the problem. Sara Altherr of the Watershed Association, in turn, contacted Al Hardy at Silver Lake High School in Plymouth, where he teaches an agriculture mechanics/conservation course. After inspecting the Jones River, Mr. Hardy gladly volunteered his class to cut and remove these tree obstacles. His class made a few trips to the river, and the snags were cleared. The river appears to be free of any natural impasses. Mr. Hardy and his students will continue to monitor the Jones River and remove any obstructions as necessary.

Brian Kelly, a fisheries biologist at DMF, subsequently visited the Silver Lake School to extend the thanks of DMF and the Jones River Watershed Association to Mr. Hardy and his students. Brian also presented a talk to the students about the natural history of anadromous finfish species that use the Jones River on their spawning runs. It was an enjoyable experience for all concerned. DMF was especially pleased that three different groups came together to work cooperatively to resolve the problem. It is encouraging to see a high school class make a commitment to lend a helping hand to a river system. DMF would like to take this opportunity to thank Al Hardy, his students, and the Jones River Watershed Association for their efforts in assisting the passage of anadromous fish in the Jones River.

By John Boardman, Power Plant Studies
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Belding Award given to Bob Pond

The Marine Fisheries Commission chose Bob for his tireless efforts on behalf of the restoration of striped bass on the east coast. Bob's past and present affiliations include: founder of Stripers Unlimited, president of The Mass Alliance, secretary of The Association of Surf Anglers, Director of The Mass. Wildlife Federation, Inc. and chairman of The Organized Sportsmen of Mass.

Bob has been and continues to be an advocate for the conservation of striped bass. As Executive Director of Stripers Unlimited, Bob, in promoting the cause of striped bass, is a familiar sight at every sportmen's show and marine symposium, including hearings on striped bass management. Bob will be presented with the Belding Award at the June meeting of Mass Striped Bass at The Viking Club in Braintree.

Prior recipients:
1990 Elizabeth Stromeyer, long-time MFC member and chairman
1991 Lester Smith, Recreational Fishing Advocate, Founder of Coalition to Cease Ocean Dumping
1992 Henry (Hal) Lyman, Publisher Emeritus - Saltwater Sportsman; Recreational Fishing Advocate
1993 Frank Grice, Former DMF Director, NMFS Regional Director, member Offshore Groundfish Task Force
1994 Frank Mirarchi, Commercial fishermen, former MFC Chairman and NE Council member
1995 Jack Crowley, Marine Educator
1996 Henry Souza, Commercial draggerman who worked for by-catch reduction in trawl fisheries

The Division of Marine Fisheries and the Marine Fisheries Commission are seeking nominations for the 1998 Belding Award, and will accept suggestions through September 1998. If there is a citizen of the Commonwealth that you know of who meets the criteria set above, please submit the following: NOMINEE'S NAME, ORGANIZATION, ADDRESS, DAYTIME PHONE, and include the following signed statement, "I would like to nominate the aforementioned for the 1998 Belding Award. I have enclosed a separate sheet outlining the reasons for my selection. My name is.....Address/City/State/Zip, and Phone."

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Mass. Marine Fisheries Commission Welcomes Two New Members

Vito is the Executive Director of the Gloucester Fisheries Commission. He is a member of the Massachusetts Fisheries Recovery Commission, an advisor to the Atlantic States Marine Fisheries Commission's northern shrimp and sea herring sections, an advisor to the New England Fishery Management Council on groundfish and whiting, and Director of Salem State College's Aquaculture Program.

Chuck is a member of Mass Striped Bass, founder of the Sea Party Coalition, on the Board of Directors of the Marblehead Surfcasters as well as the legislative liaison for the Plum Island Surfcasters.

The Marine Fisheries Commission is a nine member board, representing recreational and commercial fishing interests (including seafood dealers), from various parts of the Massachusetts coast. The MFC was established by the Legislature in 1961, and its members are "qualified in the field of marine fisheries by training and experience." Commissioners are appointed by the governor to three-year terms, and attend monthly business meetings as well as quarterly public hearings; the fact that these positions are unpaid illustrates the level of committment made by the MFC. Regulatory changes and public proposals are approved or disapproved by a majority vote at the Commission's monthly business meetings.

In addition to its newest appointees, the MFC members are: Tony Tolentino (Chairman), Mark Amorello (Vice-chair), Pat Frontierro (Clerk), Bill Adler, Kemp Maples, Mark Weissman, and Mike deConinck. For more information about the MFC, please contact DMF's Jeanne Shaw at extension 371.

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DMF Goes International with the Raised Footrope Trawl

Flume tank study reveals net behavior and potential for improvements

DMF's gear experts got a crystal clear view of DMF's off-bottom trawl in action in an experimental flume tank in Newfoundland. A better understanding of the net's behavior was needed as well as clear film footage to teach fishermen to deploy the net properly.

DMF's "raised footrope trawl" has already solved some significant by-catch problems by reducing the catch of juvenile flounders and other bottom-dwelling finfish and crustaceans in trawls targeting whiting, dogfish and red hake. However, this work progressed slowly over the past few years as various net configurations were tested. DMF biologists would usually measure the effect of any modification to the net indirectly - by enumerating the species composition when the net's contents were dumped on deck. Whiting catches associated with sculpins, crabs, lobster, and small flounders usually meant the net was "digging" into the substrate while the absence of these species meant the net was fishing properly. This work was tedious, often imprecise, and expensive. Furthermore, filming the net on productive whiting grounds was difficult due to low light levels and poor visibility.

DMF's Conservation Engineering staff traveled in March to St. John's, Newfoundland, to the flume tank facility at Memorial University. Project Leader Arne Carr, Henry Milliken and Dana Morse were joined by Provincetown fisherman Henry Souza, and Chris Glass, a gear and fish behavior expert from Scotland currently working with the Manomet Bird Observatory.

Their objective was to examine the effects of rigging and water speed on a model trawl equipped with a raised footrope, such as is used in the fall experimental fishery for whiting in Provincetown and Gloucester. Fishermen are presently mandated to use the raised footrope trawl because of the bycatch-reducing properties of the net. In addition, the researchers hoped to develop videotape, detailing the effects of changes to the rigging, which would be used as an educational tool to help fishermen fish their nets most efficiently - to maximize the target species with minimal by-catch.

The flume tank at the Fishing Technology Unit of Memorial University is a world-class facility: its working section alone is 70 feet in length and 26 feet wide, and it carries 400,000 gallons of water. It is fully equipped with submersible video and still cameras, and can replicate water speeds scalable to 5 knots. With a movable belt on the bottom of the tank, it can even replicate the movement of a trawl over the seabed.

The investigators spent five days at the facility, varying such things as water speed, flotation, headrope length, sweep length, and arrangement of the "dropper" chains which connect the sweep to the footrope. In addition, the model was modified to fish without a sweep, leaving only the drop chains to keep the net weighted. Some time was spent examining the effects of placing a tube of canvas-like material inside the webbing of the extension of the net; a modification referred to by the group as the "black hole." The black hole is a modification which, if used in conjunction with a large mesh panel ahead of it, may induce cod escapement. Scinetists theorize that the black hole resembles the open mouth of a large predator. [Yikes!]

The results surpassed expectations, and were made all the more valuable by their capture on videotape and photographs. The group was able to see which speeds and methods of rigging maximized the vertical opening of the model, while maintaining the height of the footrope "off-bottom." Generally, increases in headrope length resulted in increased headrope height, while a reduction of headline length caused the net to flatten out, and the footrope to fish closer to the bottom.

The group discovered that it was fairly easy to rig the net to fish without a sweep of any sort. Instead, the right number of drop chains and floats could be used and the net would perform properly "off-bottom." This is an important development since the net would be easier to rig and easier to enforce for Coast Guard and the Environmental Police.

This work is seen as an important tool to help fishermen understand how their gear is fishing, and to improve DMF's ability to communicate with fishermen about the raised footrope trawl. Additionally, the link with Memorial University will be a continuing asset, given their capability and experience for any future gear tests.

Personnel from the Canadian Department of Fisheries and Oceans(DFO) viewed the net and the testing with interest. They have a new shrimp fishery north of Newfoundland that has a flatfish bycatch problem. As a result of viewing the gear in the flume tank and discussions with DMF staff, DFO intends to test this gear in that fishery.

Individuals interested in learning more about the results of this project are encouraged to contact members of DMF 's Conservation Engineering Project: Arne Carr, Henry Milliken or Dana Morse, at the DMF Office in Pocasset, (508)563-1779.

by Dana Morse
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Underwater Videos Reveal Fish and Net Behaviors

The new system is equipped with a "hard wire"- a cable which runs from the net-mounted camera back to the vessel. Although the system is limited to fishing in relatively shallow depths (180 feet or less, presently, it does provide observers with a clear picture of what is happening as it happens. As the name suggests, the camera itself can "pan" (look side to side) and "tilt" (look up and down). This capability allows the researchers to look in virtually any direction, providing a vastly more comprehensive view. With other less sophisticated systems, once the camera is placed on the net, it can only point in one direction, and it is difficult to predict exactly where the camera will be pointing, once the net is in the water. In this respect, the pan and tilt unit makes expensive fieldwork much more efficient.

The three days spent aboard the Christopher Andrew resulted in some of the clearest footage ever seen by the group. Two different net types were used, and the camera was placed on several different locations: just behind the headrope, inside the wing end, inside the extension piece, and outside the extension. Visibility was a major factor in the success of the trials, and in many cases approached 30 feet. The movement of the trawl over various bottom types was of particular interest, as were the actions of the fish species in the different parts of the net. Project members anticipate many future uses for this equipment, and are extremely pleased with the field testing thus far. For more information regarding this project, contact Henry Milliken, Dana Morse, or Project Leader Arne Carr, at 508-563-1779.

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DMF releases '98 Sportfish Guide

DMF's Sport Fish Program has produced a new and improved version of its popular "Massachusetts Saltwater Sport Fishing Guide." As in previous years, the guide contains current information on launching sites, tackle shops, charter and party boats, fish profiles, and fishing tournaments to assist you in enjoying our spectacular array of fishing opportunities from shore or by boat. The guide is arranged geographically starting from Salisbury (N.H. border) following the coastline south and west to the towns of Swansea, Somerset and Seekonk along Narragansett Bay. Then the guide takes you east to Cape Cod and the Islands. Look for the coastal map centerfold for orientation.

A copy can be obtained at most bait and tackle shops , or one of our offices: Boston, Pocasset, Gloucester, or Martha's Vineyard. Also you may write to DMF at 100 Cambridge St. Boston, 02202. The phone number is 617-727-3193.

by Karen Rypka (Pocasset), Guide Editor
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DMF NEWS

EDITORS: Dan McKiernan & David Pierce
GRAPHICS: David Gabriel

DMF receives state and federal funds to conduct research, management and development of the Commonwealth's marine fishery resources. Information in this publication in alternative formats is available.

Philip G. Coates, Director, DMF
John C. Phillips, Comm'nr DFWELE
Trudy Coxe, Secretary, EOEA
Argeo Paul Celucci, Governor

Comments and suggestions for the newsletter are welcome. Please contact the Editors at (617) 727-3193, or write to DMF, 100 Cambridge St., Boston, MA 02202.

Publication #17020-12-7000 5/98-$2250

Division of Marine Fisheries
100 Cambridge Street
Boston, Massachusetts 02202

Division of Marine Fisheries

Rules UPDATE

Public Hearings / Regulations / Legislation

Volume 8 Number 2

Table of Contents for Rules Update....

1. Notices of Public Hearings
   
2. Draft Regulations for Trap Tags, and Lobster Processing
   
3. Regulatory Update
   
4. Legislative Update
   

Notice of Public Hearings

Notice of Public Hearings Scheduled for May 21, 27 and 28, 1998

The following items are proposed regulation changes for the upcoming fishing seasons and are presented for public comment. After public hearings, the Commission and DMF will consider all oral and written comments through May 29, and votes on these proposals will be taken at the June 4 business meeting of the Commission. If no changes are approved, current regulations will remain in effect.

(1) Petition from the Massachusetts Inshore Commercial Fishermen's Association for changes to the summer/fall fluke (summer flounder) fishery. (Note during April 23 through July 5, the 24-hour possession limit will be 100 lbs.)

Two changes are proposed for this upcoming summer/fall season:

1. Establish no-fishing days for commercial fluke fishermen. This proposal would prohibit commercial fishing for fluke or possession of fluke by commercial fishermen in Massachusetts on weekends (Saturdays and Sundays) during the summer/fall season beginning July 6 until the annual quota is reached. Also, sale of fluke by any fishermen to wholesale dealers would be prohibited on weekends during this period.
   
2. Increase Daily Possession Limit from 300 lbs. to 400 lbs. beginning July 6.

1. Establishing fluke "hook" and "mobile gear" commercial permit categories;
   
2. Placing a moratorium on additional "hook" permits; and
   
3. Limiting hook fishermen to a daily possession limit of 25 lbs. per day.
   

(3) DMF proposal to require all commercial fishermen licensed by DMF to accommodate sea samplers for the purpose of observing and acquiring information about fishing operations and sampling catches for biological information. Currently only the holders of Coastal Access Permits (trawlers and other mobile gear fishing in Massachusetts waters) are required to accommodate sea samplers, and this proposal would extend that permit condition to all gear types and license types whether the operation was conducted in state or federal waters.

(4) DMF seeks comments on specific proposals regarding the wholesale processing and possession of frozen shell-on lobster tails by permitted dealers. See draft regulations on following page. These regulations were drafted because last November Governor Cellucci signed S. 1013 that allowed DMF to promulgate regulations permitting processing of this product for distribution and sale outside the Commonwealth.

(5) DMF seeks comments on final proposals that require commercial fishermen to purchase and attach trap tags to lobster, fish and conch pots. These proposals are designed to improve compliance and the enforceability of trap limits. See draft regulations on following page.

(6) DMF seeks comments on two recently enacted emergency actions to strengthen regulations that prohibit the taking of juvenile eels (elvers):

1. Minimum Size. It shall be unlawful for any person to fish for, take, or have in possession American eels measuring less than 4 inches total length (elvers) unless authorized by a special permit issued by the Director.
   
2. Prohibited Fishing Gear. During the period February 15 through June 15, inclusive, it shall be unlawful for any person, while in or on the waters of or upon the banks of streams or rivers within the coastal waters, to possess or have under his/her control any device with mesh or openings measuring less than 1/8 inch, including, but not limited to dip nets, set nets, and traps adapted for the taking of elvers, or to leave any such gear in said areas during the closed season.

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Draft Regulations

Draft regulations regarding trap tags and lobster processing to be discussed at upcoming May 21-28 public hearings:

6.30: Trap Tags
(1) Lobster Pots.
(a) After October 1, 1998, it shall be unlawful for any commercial lobster trap to be fished in any waters under the jurisdiction of the Commonwealth unless a valid state lobster trap tag is permanently attached to its bridge or central cross-member. After March 1, 2000, it shall be unlawful for any recreational lobster trap to be fished in any waters under the jurisdiction of the Commonwealth unless a valid state lobster trap tag is attached.
(b) Official 1999 commercial tags shall be purchased by permit holders after July 1, 1998, directly from a manufacturer selected by the Division according to established competitive bidding procedures. The 1999 tags will be valid from October 1, 1998, to February 28, 2000. Beginning in 1999, and every year thereafter, new tags for the following year will be available after December 1, and must be purchased and installed in the traps before March 1 of each successive year.
(c) In any year, the maximum number of tags authorized for direct purchase by each permit holder shall be the trap limit set by 322 CMR 6.13 plus an additional 10% to cover trap loss. Permit holders may purchase as many tags as needed up to the maximum. The maximum order for 1998-1999 shall be 880 per permit holder. Under no circumstance shall the number of traps fished at any given time exceed the established trap limit.
(d) In the event of trap or tag losses over and above the maximum limit established by 322 CMR 6.30(1)(c), replacement tags shall be issued to the permit holder by the Division according to the following procedure:

1. Gear loss shall be reported to the Division and the Division of Environmental Law Enforcement on an official form, signed by the permit holder under the pains and penalties of perjury;
   
2. The form is reviewed by both Divisions and a decision is reached on the number of replacement tags to be issued, if any;
   
3. If a decision cannot be reached, a hearing will be scheduled in a Division office to examine evidence and reach a conclusion on the validity of the claim.
   

1. It shall be unlawful to set or fish a lobster trap in waters under the jurisdiction of the Commonwealth or have a lobster trap in possession or under control while on said waters unless said trap is tagged with an official Massachusetts lobster trap tag valid for the current year.
   
2. It shall be a violation of this regulation to file a false claim of trap or tag loss for purposes of obtaining additional tags.
   
3. It shall be a violation of this regulation to alter or deface a tag, or tamper with the tag(s) of another permit holder.
   
4. Administrative penalty. A person found guilty of violating this section by a court of law or pursuant to an adjudicatory hearing shall have his or her permit suspended and shall be required to remove all gear from waters underthe jurisdiction of the Commonwealth for a specified period of time.
   

6.31: Lobster Processing
The processing and possession by wholesale dealers of frozen shell-on lobster tails for distribution outside Massachusetts under M.G.L. c. 130, ¤ 44, is subject to the following restrictions:
(a) Licensed wholesale dealers shall apply to the Director for a special permit to possess, process, store and ship frozen shell-on lobster tails after receiving a satisfactory inspection by the Department of Public Health and completing a satisfactory HACCP plan covering this activity.
(b) By approving the HACCP plan and issuing a special permit, both agencies acknowledge that the facility named on the permit has achieved a level of sanitary control equivalent to a USDC Type 1 facility.
(c) All lobsters at the approved facility shall meet the minimum size requirement established by M.G.L. 130 $ 44.
(d) All processing, freezing, packaging and labeling shall take place within the approved facility at the address appearing on the permit.
(e) All packages of frozen lobster tails shall include a description of the product and the license number of the facility in which they are processed.
(f) After packaging and labeling is completed, frozen product may be stored off-site provided accurate records of disposition and inventory are kept and are available for inspection by Environmental Police and Division of Food and Drugs Seafood Inspectors.
(g) Following separation of tails for freezing the remaining portions of each lobster shall be processed at the same facility in an acceptable manner which is addressed in the approved HACCP plan.
(h) Prohibitions

1. It shall be unlawful for any person or business to possess shell-on lobstertails unless authorized by a special permit issued by the Division and the Department of Public Health.
   
2. It shall be unlawful for any person to offer shell-on lobster tails or other shell-on body parts of a mutilated lobster for sale within the Commonwealth. A lobster shall be considered mutilated if it has been altered in any way that affects its measurement.
   
3. It shall be a violation of this section to possess any lobster below the minimum legal size in the process area or freezers.

Regulatory UPDATE

No Changes to Striped Bass Management. The Commission voted against any changes to the recreational or commercial rules for 1998. Changes to the recreational bag limit were proposed as well as changes to the commercial size limit and implementation of a bag limit for commercial fishermen.
For 1998, the following regulations apply and are similar to those from 1997:
(a) Recreational fishery: Minimum size limit of 28," possession limit of one (1) fish, no closed season.
(b) Commercial fishery: Minimum size of 34," no possession limit, season opens July 6, 1998, commercial quota not to exceed 750,000 lbs. and the usual schedule of 3-weeks open/1-week closed fishing periods.

Summer Flounder commercial season delayed. The Commission approved a delay (opening date moved from June 17 to July 6) for the summer/fall season when the trip limit increases from 100 to 300 lbs. At the upcoming public hearings in May, however, DMF will accept comments on a petition to increase the possession limit to 400 lbs. as well as to adopt no-fishing days (weekends). Final decisions on this petition will be made at the June 4 Marine Fisheries Commission meeting. During April 23 - July 5 the fluke possession limit will be 100 lbs.
Summer flounder recreational size limit increased from 14" to 15" and the bag limit was dropped from 10 to 8 fish, consistent with the interstate plan.

Black sea bass fishery management

Scup fishery management

Commercial cod trip limits were adopted to complement federal rules concerning Gulf ofMaine cod. Any vessel fishing in state waters in Cape Cod Bay or waters north to the N.H. border (north of 42 degrees latitude) are limited to 1,000 lbs.

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Legislative UPDATE

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UPDATE is published quarterly to publicize regulatory matters affecting marine fisheries.
Director: Philip G. Coates, DMF
Commissioner: John C. Phillips, DFWELE
Secretary: Trudy Coxe, EOEA
Governor: Argeo Paul Celucci
Editor: Daniel J. McKiernan, DMF / Art Dir.: David G. Gabriel, DFWELE