The Commonwealth of Massachusetts

Division of Marine Fisheries

100 Cambridge Street

Boston, Massachusetts 02202

September 14, 1999

Dear Pat:

We offer the following comments on the Spiny Dogfish FMP proposed regulations. You already have our August 22 comments on the Plan itself.

NMFS states: "The quotas in the FMP were developed with the assumption that current levels of discard mortality would continue at the recent average rate of 9.8 million lbs. (4,445 mt) per year." You must reconcile this assumption with the NMFS statement: "…This is expected to result in annual quotas ranging from 2,901,254 lbs. (1,316 mt) to 3,198,875 lbs. (1,451 mt) during those 4 years." These quotas for the "rebuilding years" were derived from a NEFSC "Computation of Yield in Projection Model" with assumed continued discards of about 176,320,000 lbs. (80,000 mt) per year! Due to this assumption, based on assumed discards in 1997, allowable landings during the "rebuilding years" were cut by 80%!

Therefore, it’s disingenuous to assume an average discard of 9.8 million lbs. when future quotas are based on discards almost 20 times higher. We repeat our August comment that the Councils and NMFS must reconcile this critically important plan assumption with National Standard 9. The Plan has no strategy to reduce this huge amount of discard attributable to bycatch and discard of dogfish in other fisheries. If NMFS chooses to assume relatively low levels of discards (9.8 million lbs.), the model should be run again and quotas recalculated.

We suspect DMF staff will be on the Monitoring Committee. We already have a member of our staff on the Technical Committee. We object to our representative having to deal the fool’s errand of recommending "other measures to assure that the target F specified in the FMP for the fishing year is not exceeded." Nothing is being done to reduce discard in other fisheries. The Plan only prohibits a directed fishery. This is just a "feels & looks-good" strategy with a 100% probability of not controlling fishing mortality to meet targets. Of course, they’ll be some effect on mortality, but that effect will be negated by discards increasing in other fisheries as dogfish adult female biomass increases.

The Commonwealth objects to a federal regulation requiring permit holders to comply with federal law when fishing in state waters. Section 306(a) of the Magnuson Act quite clearly maintains the integrity of state fishery laws within state waters. Application of federal fishery laws within state waters may only occur with a formal preemption proceeding, on the record, as set forth in section 306.

Our objection in this instance is based on the fishery regulations that the Commonwealth will consider in state waters for the dogfish fishery. This proposed federal regulation would prevent the application of state law within state waters.

NMFS cannot do indirectly under the guise of permit blackmail that which it has no authority to do directly. The proposed regulation clearly diminishes the jurisdiction and authority of the Commonwealth within our coastal waters in violation of section 306.

NMFS must be more straightforward with its assessment of the impacts of the rebuilding schedule and the extremely low TALs on the dogfish industry. NMFS quotes processors as indicating that their ability to process dogfish in a cost-effective manner is dependent on volume. To suggest the low TALs may (emphasis added) cause processors to cease processing spiny dogfish and [may] cause established U.S-based markets for this species to collapse, is to downplay the significance of this federal action. After all, NMFS does admit: "Given low TALs, the harvesting, processing, and support industries are not likely to see cumulative nominal benefits for at least 15 years (emphasis added)." NMFS also states: "While the short and intermediate effects of the FMP are negative for those involved in the fishery, the long-term effects are likely to be positive. Fifteen years or more does not translate into "short and intermediate effects."

Furthermore, it is misleading to conclude: "The proposed action will rebuild the adult spawning stock biomass in a relatively short period of time and, then allow for a sustainable fishery in future years." Uncontrolled discards in other fisheries will prevent this rebuilding. Also, the definition of a "sustainable fishery" (tonnage) should be provided. At what tonnage is the fishery sustainable and for how long?

What defines "fishing for spiny dogfish?" Quotas are expected to "range from about 2.9-3.2 million lbs. each year during the four years after the exit fishery. Closures likely will occur very quickly each period. This assumes markets still exist. The Plan noted how all markets might be lost due to very low quotas.

With dogfish abundance being very high, fishermen not targeting dogfish will catch large amounts. The regulations should not hold fishermen accountable for large catches of dogfish in nets or on board unless "processed" in some manner.

We look forward to developing complementary state regulations for dogfish fisheries in state waters through an ASMFC fishery management plan. As you know, ASMFC has given dogfish a high priority, a surprisingly higher priority than for coastal sharks. We hope that ASMFC options will not be foreclosed due to the Councils’ Plan that disregards discards in other fisheries as the major cause of dogfish fishing mortality and that unrealistically hopes to achieve a fishing mortality of 0.03 from May 2001 through November 2005.

Sincerely yours,

Philip G. Coates,
Director

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Mass. Marine Fisheries Commission
Thomas Hill
James Gilford
Senator Edward Kennedy
Senator John Kerry
Jack Dunnigan