322 Mass. Reg. 6.04

Current through Register 1522, May 24, 2024

Section 6.04 - Atlantic Bluefin Tuna

(1)Preamble. In 1974, the Massachusetts Division of Marine Fisheries promulgated regulations governing the taking, landing and sale of Atlantic bluefin tuna. 322 CMR 6.00 imposed reporting requirements on tuna fishers, limited the size of the total catch permitted in Massachusetts, and limited the number of vessels in the purse seine fishery for Atlantic bluefin tuna to those vessels which operated in that fishery prior to 1964.

In 1975, Congress enacted the Atlantic Tunas Convention Act, 16 U.S.C. 971, et seq., (ATCA). Regulations promulgated pursuant to ATCA established federal reporting requirements, annual catch limits, and an inspection and certification scheme for tuna purse seine vessels (50 CFR Part 285).

Pursuant to 50 CFR 285.8, federal regulations were made applicable within Massachusetts territorial waters. In 1976, Massachusetts deleted all provisions of its 1974 regulations with the exception of the limit on the number of fishing vessels in the purse seine fishery for Atlantic bluefin tuna, and extended a provision to cover those purse seine vessels operating in the fishery prior to 1974.

On June 22, 1979, the United States Department of Commerce, National Oceanic and Atmospheric Administration, National Marine Fisheries Service, (NMFS) published an interpretation of its regulations vis-a-vis the Massachusetts regulations stating that the application of federal regulations in state waters is not intended to prevent the application of state regulations which when concurrently applied do not conflict with federal regulations, and are not inconsistent with conservation and management of Atlantic bluefin tuna under recommendations made by the International Commission for the Conservation of Atlantic Tunas (44 Fed. Reg. 122, 50 CFR 285). This interpretation concluded by stating "No effort has been made in our continuing review of laws and regulations to prevent the concurrent application of regulations such as the Massachusetts limited entry scheme for tuna purse seine vessels." (44 Fed. Reg. at 3639).

As of 2020, the Division of Marine Fisheries no longer issues any regulated fishery permit endorsements authorizing the use of purse seines for bluefin tuna. Accordingly, this activity is now prohibited within the waters under the jurisdiction of the Commonwealth.

(2)Definitions. For the purposes of 322 CMR 6.04, and unless the context requires otherwise, the following words shall have the following meanings:

Director means the Director of the Massachusetts Division of Marine Fisheries, or his or her agents or representatives.

Division means the Massachusetts Division of Marine Fisheries.

Fish For means to harvest, catch, take or encircle, or attempt to harvest, catch, take or encircle any tuna by means of a purse seine.

Tuna means that species of Atlantic bluefin tuna, Thunnus thynnus thynnus, irrespective of size, weight or classification.

(3)Prohibition. It shall be unlawful to fish for tuna by means of any net, including purse seines, within the waters under the jurisdiction of the Commonwealth. Except tuna may be taken in fish traps authorized pursuant to M.G.L. c. 130, § 29 as an incidental catch only. The Director shall have the right to inspect any authorized fish trap if it is determined that the fish trap has been set or is being specifically operated to take and trap tuna, and the Director may modify the trap construction and its operations if deemed appropriate.

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(4)Vessel Registration. Vessels intending to fish for tuna by means of a purse seine must have on board the following authorizations:

(a)Commercial Fisherman Permit. This permit authorizes an individual to fish for tuna for commercial purposes within the territorial waters of the Commonwealth, and shall be issued in the name of the applicant.

(b)Regulated Fishery Permit. This permit authorizes an individual to fish for tuna by means of a purse seine within the territorial waters of the Commonwealth, shall be issued in the name of the applicant and validated for use on board one named purse seine vessel only.

(c)Conditions. Each regulated fishery permit issued may be accompanied by a Statement of Conditions to be determined by the Director relative to the use of that permit. Said conditions may include, but are not limited to:

1. the days or hours in which tuna fishing may be authorized;

2. the areas where tuna fishing may be authorized;

3. the quantity of purse seine gear to be used, and the manner in which it may be used;

4. requirements for accommodating state observers on board any registered purse seine vessel; and

5. reporting requirements for any registered purse seine vessel.

All conditions shall be subject to change by the Director and shall be effective upon written notice to the holder of the regulated fishery permit to which the Statement of Conditions apply.

(d)Requirements. In order to be eligible for a regulated fishery permit pursuant to 322 CMR 7.01(4)(a): Regulated Fishery an applicant must submit with the application a vessel allocation evidencing that the applicant has been given a tuna purse seine allocation.

(e)Validation. A regulated fishery permit shall be validated in the name of the purse seine vessel named in the vessel allocation. In the event of loss or damage to the vessel, change of vessel name, or replacement of the vessel, the regulated fishery permit shall become void and inoperative. In order to obtain a new regulated fishery permit the individual must make new application pursuant to 322 CMR 7.01: Form, Use and Contents of Permits and have the permit validated in the name of the new vessel.

(f)Signature. Each permit and the Statement of Conditions issued pursuant to 322 CMR 7.01: Form, Use and Contents of Permits shall be signed by the applicant. The signature of the applicant shall constitute notice of 322 CMR 6.04(4)(f) and the Statement of Conditions issued, and shall constitute an express agreement to abide thereby.

(g)Display. All permits and the Statement of Conditions issued pursuant to 322 CMR 7.01: Form, Use and Contents of Permits shall be carried on board the registered purse seine vessel during all aspects of tuna fishing operations, and shall be produced upon demand by any individual authorized to enforce 322 CMR.

(5)Enforcement. Each registered purse seine vessel shall conduct its fishing operations so as not to conflict with or disrupt any pleasure boat, charter boat, party boat, other commercial fishing vessel, or any fixed fishing gear.

If, in the opinion of the Director, the registered purse seine vessel has violated any condition as contained in the Statement of Conditions, or unnecessarily or unduly disrupted the fishing activities of any sport or commercial fisherman, or damaged any fixed fishing gear, the regulated fishery permit of the registered purse seine vessel shall be suspended immediately and surrendered forthwith to the Director. Thereafter, and in an expeditious manner, the Director or a Presiding Officer to be appointed by him shall conduct an adjudicatory proceeding pursuant to M.G.L. c. 30A and 801 CMR 1.01: Formal Rules to determine whether the regulated fishery permit shall be permanently revoked.

(6)Reservation. The Division has determined that:

(a)322 CMR 6.04 is intended to concurrently apply with 50 CFR Part 285, and is consistent with conservation and management of tuna under recommendations made by the International Commission for the Conservation of Atlantic Tunas; and

(b) any Special Acts of the Massachusetts Legislature governing purse seining activities in the territorial waters of Massachusetts are fully applicable and are not superseded or otherwise repealed by operation of law pursuant to M.G.L. c. 130, §§ 17A and 104.

(7)Prohibitions. It shall be unlawful for any person:

(a) to fish for tuna with a purse seine without a valid commercial fisherman permit and a regulated fishery permit issued by the Division;

(b) to fish for tuna with a purse seine prior to September 1^st, of any year;

(c) to violate any conditions as set forth in the Statement of Conditions issued to any person who has received a valid regulated fishery permit;

(d) to fish for tuna with a purse seine during a period of permit suspension or revocation under 322 CMR 6.04(5);

(e) to harass, intimidate, disrupt, obstruct, conflict or interfere with the fishing activity of any other fishing vessel, sport boat, party boat, charter boat or head boat, or damage any fixed fishing gear;

(f) to fish for tuna with a purse seine within Cape Cod Bay, as those waters are set forth in 322 CMR 6.04(3)(d), on any weekend, defined as the 48 hour period beginning on Friday midnight and ending on Sunday midnight, or on any Massachusetts or federal holiday, during the period September 1^st through September 30^th, unless the federal tuna quota in the general category has been reached;

(h) to fish for tuna with a purse seine during the period September 1^st through September 15^th in those waters set forth in 322 CMR 6.04(3)(e) unless the federal tuna quota in the general category has been reached; or

(i) to fish for tuna by means of a purse seine without supplying the Director with a written report of the location(s), time(s), date(s), and catch of each purse seine set upon the completion of each fishing day.

(8)Penalties. Violation of any provision of 322 CMR 6.00 shall be punishable by:

(a) a fine of not less than $10 nor more than $1,000 or

(b) suspension and/or revocation of the commercial fisherman permit and the regulated fishery permit; or

(c) forfeiture of all tuna unlawfully taken or the proceeds thereof; or

(d) forfeiture of all boats, vehicles and apparatus used in violation of 322 CMR 6.00; or