DMF Comments on Mid-Atlantic Council's Amendments 8 & 12
(Fluke, Scup, Black Sea Bass, Mackerel, Squid, and Butterfish)

Christopher M. Moore, Ph.D.
Acting Executive Director
Mid-Atlantic Fishery Management Council
Room 2115 Federal Building
300 South New Street
Dover, Delaware 19904-6790

Dear Dr. Moore:

We offer the following comments on Amendment 12 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) and Amendment 8 to the Atlantic Mackerel, Squid, and Butterfish FMP. Our focus is on the extent to which these amendments comply with National Standard 9: "Conservation and management measures shall, to the extent practicable, (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch."

The Council has not satisfied National Standard 9 for either amendment, and the Council is being disingenuous to claim otherwise. Specifically, on page 126 of Amendment 8 the Council simply states that "staff is currently conducting analyses of sea sampling and vessel trip report (VTR) data to characterize the nature and extent of discarding of other species for Atlantic mackerel, Loligo and Illex squid, and butterfish..." The Council admits that analyses are not completed; therefore, the Council has not met the Standard.

Adding to its failure to meet National Standard 9, the Council proposes no remedy to its longstanding "problem for resolution" regarding the mixed species fishery. For example, in the Council's Amendment 5 to the FMP for Atlantic mackerel, squid, and butterfish fisheries (November 1994), the Council admitted:

"Butterfish bycatch discard mortality may be inhibiting sufficient growth such that achievement of maximum sustainable yields are prevented...Sea sampling data for 1989, 1990, and 1991 indicate that as much butterfish (by weight) is discarded as is landed..." [Refer to 17th SAW report of January 1994.]

The Council has not taken any steps to address this problem, and this new amendment offers nothing but staff analyses. There are no proposals to minimize bycatch and mortality of that bycatch.

And then there's scup. Here we have another excellent example of the Council failing to meet National Standard 9. On page 151 of Amendment 12 the Council states:

"...The average discard rate for the 1984 to 1997 period is approximately 33% with a discard rate in the commercial scup fishery in 1997 of approximately 45%. Sea sampling data indicate that the weight of discarded fish may be equivalent to the weight of the landings in some years. Discard rates are higher in years of good recruitment, that is, years when more small fish were available..."

          Number of scup      
          Year      Landings            Discards
          1984      22,011,000          18,237,000
          1985      19,899,000          73,470,000
          1986      17,742,000          15,903,000
          1987      23,768,000          20,478,000
          1988      20,098,000          13,841,000
          1989      14,221,000          23,774,000
          1990      18,427,000          29,141,000
          1991      28,112,000          26,160,000
          1992      20,703,000          75,279,000
          1993      16,149,000          14,119,000
          1994      21,499,000          13,486,000
          1995      14,565,000          52,486,000
          1996        9,576,000           9,383,000
          1997        7,213,000         12,775,000 

"...Although discard estimates are uncertain, the majority of fishing mortality in recent years is clearly attributable to discards, particularly when incoming recruitment is strong."

"...The collection of additional data by NMFS will allow the Council and Commission to respond to discard problems by changes in mesh, threshold and minimum size regulations or by implementing season and area closures in response to changes in fishermen behavior or an increased levels of discards..."

The above Council position suggests to the uninitiated that if a discard problem develops, as identified by NMFS new data, the Council will respond appropriately. We are not convinced that the Council knows how to respond to an already identified major problem. Perhaps the Council is unwilling to respond because the squid fishery has a higher priority than scup and no action to reduce scup discard will be taken if that action will hinder the squid fishery.

We argue that the Council intention for 1999 to lower the threshold requiring fishermen to switch to a 4 1/2" mesh cod end net (200 lbs. from November through April) will not reduce the magnitude of the scup discard problem; therefore, the Council's claim that National Standard 9 is satisfied through changes in the threshold is false. We support our position with recent NMFS sea sampling data. Specifically, on March 27 a vessel targeting squid in 50-70 fathoms southwest of Hudson Canyon in a 1-hr. tow caught 170 lbs. of Loligo squid and discarded 3,500 lbs. of scup. In another tow (almost 3 hrs.) this same vessel targeting squid discarded about 158,000 lbs. (captain's estimate of 1,500 boxes at 100 lbs. per box)! The net's codend and extension was packed with scup causing the net's belly to rip open spilling most of the catch. Of the amount sorted on deck, 200 lbs. of scup were kept and 8,000 lbs. were discarded. No squid were observed.

The implication of this discard is very significant. A DMF preliminary analysis of the loss to stock biomass at age 3 of this 158,000 lbs. discard indicates that this amount of scup would have produced about 348,000 lbs. of 3-year old scup with a natural mortality of 0.20 per year and no fishing mortality at ages 0-2. Note that the Council set a 1997 summer quota of 362,000 lbs. for Massachusetts in 1997. This amount was discarded in just these two tows (4 hours) targeting squid this past March. Our calculation assumes the catch was primarily of age 1 fish based on length frequency data from the nearby tow with the 3,500 lbs. of discard. The average size of discard was about 7" with a range of 5 1/2" to 9."

In light of the above discard information and DMF's analysis of its impact, we argue that the Council has not satisfied National Standard 9 for scup, hence Amendment 12. Furthermore, we find the following Council conclusion (p. 153) regarding National Standard 9 to be a "reach" and quite confusing:

"The commercial and recreational management measures in this FMP represent the most effective tool for managing...The use of these measures are necessary to satisfy National Standard 1...By maximizing the number of fish released alive, the Council has also satisfied National Standard 9 by minimizing bycatch mortality to the extent practicable. Even though...scup...discards occur as a consequence of some of the management measures currently being used to manage the fisheries, the conservation benefits derived from preventing overfishing and maintaining optimum yield on a continuing basis outweighs potential losses due to discarding associated with the implementation of these management measures. Therefore, National Standard 9 is satisfied."

"The Council has included no measures (emphasis added) in this FMP at this time to specifically address the mixed trawl fishery problem, although the Council considered the implications of the mixed trawl fishery when developing the proposed measures. The Council is working to develop a mixed trawl fishery management strategy and the framework measures put in place through this FMP could be used to implement the measures developed through this process."

You have a non sequitur in your above reasoning "The commercial and recreational...Therefore National Standard 9 is satisfied." It does not follow that conservation benefits from preventing overfishing outweigh potential losses due to discarding. Discarding will continue to cause overfishing. We continue to insist that until scup discard is reduced significantly in the Mid-Atlantic/southern New England mixed species fishery, overfishing will not be prevented, optimum yield will not be maintained on a continuing basis, and there will be little conservation benefit. Consequently, potential losses due to discarding will not be outweighed. National Standard 9 is not satisfied.

For another important reason it's critical for the Council to significantly reduce discards. As noted above, the Council proposes to use the maximum value of the spring bottom trawl survey index based on a 3-year moving average (2.77 kg/tow) as a biomass threshold. This is the proxy for Bmsy. Unless discarding during the winter fishery from November through the period just prior to the spring survey is reduced, the Council runs what would seem to be a high risk of never achieving this 2.77 value, only seen once since 1969 (1978). Only seen once in about 30 years! Does the Council really believe an index of 2.77 (as a 3-year moving average) will ever occur when whatever recruitment is produced in any given year (and as ages 1 & 2) potentially will be heavily discarded before the survey net hits the bottom? By the way, what is 1/2Bmsy? Is it an index of 1.38? If so, an index this high has only occurred 3 times since 1969 (in 1976, 1977, and 1978). Furthermore, the index was 0.06 in 1997. What are the implications of 0.06 relative to 2.77, or 1.38?

Of note, the Overfishing Review Panel's Final Report (June 17, 1998) stated:

"...Mixed-stock fishery management can now allow a stock to fall below its minimum stock size threshold...The panel, however, considers allowing stocks to fall below the panel's minimum biomass thresholds to be very risky. These thresholds were based on maximum rebuilding potentials or at 1/4Bmsy, a level that the panel believes would risk poor recruitment and penial stock collapse..."

Finally, we end with a comment about essential fish habitat. Both Amendments have left out Massachusetts waters as essential fish habitat for squid, summer flounder, scup, and black sea bass. Eggs and larvae of squid, scup, and black sea bass are found in these waters (i.e., Nantucket and Vineyard Sounds). Juveniles and adults of these species and summer flounder are also found in these waters. Juvenile and adult butterfish are found there as well. We assume the Amendments missed these areas because data documenting EFH were based on NMFS bottom trawl surveys and ichthyoplankton surveys done in federal waters only. Please correct this omission. If you need assistance let us know.

In conclusion, we appreciate that the Council working with ASMFC has worked hard to meet the deadline for submission of these two amendment to meet the new Sustainable Fisheries Act requirements. Nevertheless, considering the importance of discard elsewhere and its impact on Massachusetts inshore fisheries, we must object to the Amendments and their cavalier treatment of National Standard 9. Our specific concern about scup conservation and effective, equitable management of the scup fishery already has been manifested through our successful lawsuit against NMFS and the Secretary of Commerce. We now await the Council's response to our comments and questions and for a NMFS equally critical review of these Amendments.

cc.
Mass. Marine Fisheries Commission
James Gilford
Paul Howard
Jack Dunnigan
Mid-Atlantic Council members
Patricia Kurkul