Unless the context indicates otherwise in 322 CMR 11.00, the following words shall have the following meanings:
(1) Director means the Director of the Massachusetts Division of Marine Fisheries, 100 Cambridge Street, Boston, MA 02202.
(2) Fishery Conservation Zone means the zone established by section 101 of the Magnuson Fishery Conservation and Management Act of 1976, P.L. 94-265; 16 U.S.C. § 1811.
(3) Fishery Management Plan means any plan developed by a Regional Fishery Management Council in accordance with and pursuant to 16 U.S.C. § 1853.
(4) Internal waters of Massachusetts means all waters within the boundaries of the Commonwealth except those seaward of the baseline from which the territorial sea is measured.
(5) Non-permitted species means those species which must be returned to the sea or to United States fishing vessels.
(6) Over-the-side sale means the act of transferring any fish authorized to be transferred from a United States fishing vessel to a foreign processing vessel.
(7) Prohibited species means those species which must immediately be returned to the water and are commonly called striped bass, shad, smelt, lobster, coho salmon, and Atlantic salmon.
(8) Processed and fish processing means the application of preservative means and/or methods to the flesh of fish to maintain quality and prevent deterioration and includes but is not limited to:
(a) transportation, transferring, storage, or possession of unprocessed fish;
(b) preparation for preservation; or
(c) cooking, canning, smoking, salting, drying, freezing, icing, refrigeration, vacuum packing, gas, microwave preservation, or other preservation means.
A foreign fishing vessel may engage in fish processing within internal waters of Massachusetts if:
(1) the foreign nation under which it is flagged is a party to a governing international fishery agreement or treaty described in 16 U.S.C. §§ 1821 and 1822 during the time the vessel will engage in fish processing in internal waters of Massachusetts;
(2) the owner or operator of the foreign fishing vessel or a person authorized to represent the owner or operator applies to the Director for a permit; the Governor approves the issuance of a permit; and a permit is issued for the vessel to engage in fish processing in internal waters of Massachusetts;
(3) no fish harvested from the Fishery Conservation Zone are part of the operation unless a federal joint venture permit has been obtained from the National Marine Fisheries Service;
(4) a dealer permit has been issued by the Director for each foreign processing vessel, and a commercial fisherman permit has been issued by the Director for all fishing vessels involved in the over-the-side sale;
(5) commitments, requirements or other obligations of past internal waters processing in any state and joint ventures in federal waters have been complied with;
(6) all other state permits, conditions and other requirements have been complied with; and
(7) all catches associated with the over-the-side sale will be reported to the Director.
The Governor may not approve the issuance of a permit by the Director if it is determined that:
(1) U.S. fish processors within Massachusetts have adequate capacity and will utilize such capacity, to process all of the United States harvested fish from the fishery concerned that are landed in Massachusetts. In making this determination, the governor may consider:
(a) the availability of harvesting vessels in Massachusetts and the capability of such vessels to harvest the species in the fishery concerned;
(b) the availability of the labor force, the adequacy of processing machinery, freezers, and cold storage facilities of Massachusetts fish processors, and the processors' ability, intent, and plans to process the particular species;
(c) the geographical proximity of the over-the-side sale harvest locations to the facilities of Massachusetts processors;
(d) the processors' claims as to their capacity versus their actual processing performance in any given year; and
(e) potential for processors to compete in foreign markets including but not limited to the existence of trade barriers and the abundance of a competing product in other parts of the world.
(2) fishing operations associated with the permit are expected to cause gear conflicts or interfere with other inshore fishing operations;
(3) non-permitted species will not be returned to United States fishing vessels or to the sea, or prohibited species will not be returned to the sea;
(4) the optimum yield or acceptable biological catch of a Fishery Management Plan would be exceeded; or
(5) fishing operations associated with the permit might have a deleterious effect on the forage base as determined by biological data, catch data and traditional fishing practices.
A permit application to engage in fish processing in the internal waters of Massachusetts shall be submitted at least 90 days prior to the requested date of the beginning of the over-the-side sale on forms to be supplied by the Director and shall state:
(1) foreign processing vessel description and identification information;
(2) the names and descriptions of the vessels from which the applicant expects to purchase fish;
(3) the species and quantity of fish proposed to be processed and the processing methods to be used;
(4) the date for which permission is sought;
(5) the specific locations in internal waters proposed for fish processing;
(6) the existence of a governing international fisheries agreement or treaty as described in 16 U.S.C. §§ 1821 and 1822;
(7) the ability to comply with all applicable laws and regulations of the United States and the Commonwealth of Massachusetts and any permit requirements and conditions; and
(8) the intended sales market for the product.
The Director may specify times and areas of operations, species and quantities to be processed, and any other conditions of operation determined to be necessary and appropriate including but not limited to:
(1) consent by all vessel masters, including the foreign processing vessel, to take on board an observer assigned by the Director;
(2) assisting in the transfer of the observer to and from the fishing vessels and/or the foreign processing vessel; and
(3) reimbursement for the cost of the observer's presence.
The Director may terminate the harvesting, over-the-side sale or the foreign processing activity at any time upon written notification if he determines that:
(1) foreign processing and associated fishing activities are causing user group conflicts or interfering with inshore fishing operations;
(2) prohibited species are not being returned to the sea;
(3) non-permitted species are not being returned to the sea or to United States fishing vessels by the foreign processing vessel;
(4) catches of prohibited species are excessive as determined by the Director based on observer data, catch data, and other relevant biological information;
(5) any permit condition has not been complied with;
(6) the over-the-side sale does not strictly adhere to application specifications; or
(7) an emergency action is necessary to protect the public health, welfare or safety.
M.G.L. c. 130, §§ 2, 17A, 80 and 104.
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