News  Regulatory Updates and Adjudicatory Proceedings (7/1/19-12/31/19)

During the period of July 1, 2019 through December 31, 2019 the following regulatory changes were enacted by DMF after public hearings and Marine Fishery Advisory Commission approval, or by the Director under his declaratory and emergency authorities. 

The commercial state-waters ocean quahog trip limit was reduced from 26 cages (832 bushels) to 8 cages (256 bushels). This action was taken in response to an industry-based petition. Ocean quahog populations in state-waters are limited and can likely only sustain a relatively low level of fishing activity; reduced trip limits are expected to allow existing populations to be fished over a longer period of time. Additionally, a lower limit may help mitigate against potential gear conflicts with fixed gear fishermen. The revised limit approximates the existing state-waters trip limit for surf clams (200 bushels), which has supported an inshore day-boat fishery. 

The Winter II (October 1–December 31) commercial scup possession and landing limit was set at 27,000 pounds. This matches the federal limit set for this period by NOAA Fisheries and thereby allows vessels fishing offshore to possess and land scup lawfully caught in the federal zone in Massachusetts. 

This regulation codifies the commercial spiny dogfish trip limit at 6,000 pounds. For the past several years, the limit has been set at 6,000 pounds through an annual Declaration of the Director. In 2019, NOAA Fisheries announced the federal spiny dogfish trip limit for the Northern Region would remain at 6,000 pounds through 2021. As this limit is expected to remain in place for the next several years, it has been implemented by regulation.

The Period I (January 1–April 22) commercial summer flounder limit has been made less restrictive by increasing the trip limit from 500 pounds to 1,000 pounds and eliminating the closed fishing period that occurs throughout January. During the early spring of 2019, the coastwide summer flounder quota was significantly increased and the quota is expected to remain at this elevated level through at least 2021. These measures are expected to allow the state to better use the available quota by allowing the offshore wintertime fishery with more opportunities to target summer flounder. 

In-season adjustments were made to the Period II (April 23–December 31) commercial summer flounder limits to facilitate further utilization of the available 2019 commercial quota. For September 21–October 31, Saturday was added as an open commercial fishing day (in addition to Sunday–Thursday). Then during November 1–December 31, the closed commercial fishing days (Friday and Saturday) were lifted and the trip limit was increased to 1,000 pounds for all gear types. Additionally, in late August 2019, DMF initiated a pilot program that allowed trawlers fishing for summer flounder during the summertime and early fall inshore fishery to possess and land two daily limits lawfully caught and retained over consecutive open commercial fishing days provided the first day’s catch was segregated in a sealed container.

Two actions were taken regarding the commercial tautog fishery. First, DMF implemented a commercial tautog tagging program. This program is mandated by the Atlantic States Marine Fisheries Commission through Amendment 1 to the Tautog Fishery Management Plan and requires commercial fishermen tag their tautog before sale. Beginning in 2020, DMF will issue tautog tags directly to commercial fishermen prior to the September 1 start of the commercial fishery. Commercial fishermen will then be required to tag their tautog through the operculum prior to offloading the fish. At the end of the commercial season, commercial fishermen will be required to return all unused tags and submit a tag report on forms provided by DMF. All unused tags are to be returned to DMF within two weeks of notification. Dealers and seafood purveyors will be prohibited from receiving any tautog that do not bear a tag; if fish are whole then the tag must remain affixed to the operculum, but if fish are processed (filleted) then the tab must be removed and remain with the product until all portions are sold. Dealers must liquidate their supply of MA-tagged tautog within two weeks of the end of the state’s commercial fishing season. Dealers are not allowed to acquire any fish with tags from a prior calendar year; any fish retained on January 1 with a tag from a prior year may only be sold to an end consumer and this product must be liquidated by the last day of February. 

Second, DMF limited entry into this fishery beginning in 2020. Renewals will be restricted only to those fishermen who held a commercial tautog regulated fishery permit endorsement (“tautog permit”) in 2018 or 2019 and sold at least 120 pounds of tautog in any year during 2010–2016. For 2018 and 2019, DMF issued about 2,000 tautog permits per year (of which about 90% do not report selling any fish). DMF cannot effectively administer the commercial tagging program with up to 2,000 potential harvesters. By limiting entry in this manner, DMF anticipates there will be approximately 200 potential harvesters, which is commensurate with recent activity levels. Tautog permits will be transferable provided the permit was actively fished in four out of the past five years. 
 

This regulation codifies the long-standing prohibition on the bait harvest of horseshoe crabs within the Pleasant Bay complex. This restriction has been implemented by a Declaration of the Director since 2006. Pleasant Bay is a shallow intertidal body of water along eastern Cape Cod. The horseshoe crab population in this area is localized, meaning crabs typically do not leave the embayment. Given these factors, the population is susceptible to being depleted by fishing effort. For this reason, the area has been closed to bait harvest. However, the area remains open to bio-medical harvest. Horseshoe crabs captured for bio-medical purposes are transported for bleeding and once bled are returned to the harvest area with a mark to prevent recapture. Horseshoe crab blood contains limulus amoebocyte lysate, which is extracted and used to detect and quantify bacterial endotoxins on medical devices. 

This regulation codifies the long-standing moratorium on the commercial harvest of northern shrimp. The moratorium was first implemented in 2014 in response to resource depletion driven by the adverse impacts warming water temperature has had on recruitment and spawning stock biomass. In prior years, the moratorium was implemented by an annual Declaration of the Director. Given that the 2018 benchmark stock assessment indicates the stock remains at extremely low levels and it is expected that these conditions will persist or worsen, the moratorium has been codified more formally in regulation. 

During the summer of 2019, state law at G.L. c. 130 §44 was amended to expand allowances for the processing of lobster and the possession of processed lobster parts beyond frozen shell-on lobster tails weighing three ounces or greater (e.g., to shell-on claws). The revised law allows for the in-state possession and sale of these shell-on lobster parts and for seafood dealers to import these shell-on lobster parts for processing and to process whole live lobsters into these shell-on lobster parts. Accordingly, DMF amended its lobster processing regulations at 322 CMR 6.32 to reflect these changes in state law. 

DMF has established a new “Retail Farmer’s Market” permit category for 2020. The retail sale of seafood at farmer’s markets has become more common in recent years. Accordingly, the new permit category will better accommodate the emerging activity and allow for a more streamlined public health inspection. 

Under state law, DMF may sanction commercial and recreational fishing permits for violations of the state’s marine fishery laws and regulations subject to a due process adjudicatory proceeding. These adjudicatory proceedings are held before a magistrate. They may be initiated by the agency, the Environmental Police, or municipal officials (constables) authorized to enforce the marine fishery laws of the Commonwealth.

From July 1, 2019 through December 31, 2019, DMF initiated two adjudicatory proceedings, based on incident reports for violations of the state’s marine fishery laws and regulations. The violations to be adjudicated were related to trap tag violations in the whelk pot fishery and the transfer of a coastal lobster permit. Decisions have not yet been issued in either matter.

Additionally, during this July 1, 2019 through December 31, 2019 period, DMF resolved five ongoing adjudicatory proceedings. This includes three permit revocations and two permit suspensions: 

• A commercial boat permit with limited entry endorsements for conch pots and scup pots was revoked in response to numerous substantial violations of the state’s channeled whelk gauge size.
• A commercial lobster permit was revoked for repeated lobster related violations, including the possession of non-conforming sized lobsters, the possession of v-notched lobsters, and the possession of egg-bearing lobsters.
• A commercial shellfish permit was revoked for removing shellfish from a private aquaculture grant without consent, failure to tag shellfish, and violations of municipal shellfish regulations.
• A commercial shellfish permit was suspended for a period of three years (2019–2021) for the possession and attempted sale of shellfish harvested from shellfish growing area closed due to contamination and failure to tag shellfish.
• A for-hire permit was seasonally suspended (September–December) for two years (2019–2020) for having patrons onboard who were in possession of tautog that violated the recreational tautog possession and minimum size limits.