322 CMR, § 6.43

Current through Register 1533, October 25, 2024

Section 6.43 - Atlantic Menhaden Management

(1)Purpose. The purpose of 322 CMR 6.43 is to comply with the Atlantic States Marine Fisheries Commission's Interstate Fishery Management Plan for Atlantic Menhaden to manage the Atlantic menhaden fishery in a manner that is biologically, economically, socially and ecologically sound, while protecting the resource and those who benefit from it.

(2)Definitions.

Atlantic Menhaden means that species known as Brevoortia tyrannus or commonly referred to as pogy or bunker.

Bait Dealer means any person issued a bait dealer permit in accordance with 322 CMR 7.01(3)(g): Bait Dealer.

Barrel means a standard cylindrical container with a liquid capacity of 55 gallons or a volume of 7.35 cubic feet.

Carrier Vessel means a support vessel that is not equipped to catch Atlantic menhaden and is used or intended to be used to receive Atlantic menhaden caught by another vessel and transports that Atlantic menhaden to port for landing.

Commercial Fisher means any person permitted in accordance with M.G.L. c. 130, § 80 and 322 CMR 7.01(2) to retain, possess, and land Atlantic menhaden for purpose of sale, barter, or exchange or who keeps for personal or family use any Atlantic menhaden taken under the authority of said permit.

Declare means to file an advisory notification with the Massachusetts Register and publish it via the Marine Fisheries electronic mailing list and website.

Director means the Director of the Division of Marine Fisheries.

Division means the Division of Marine Fisheries.

Episodic Events Set Aside means the 1% of the total allowable catch of Atlantic menhaden that is set aside for use by the states of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut and New York when certain conditions exist as established in the Interstate Fishery Management Plan.

Fish Tote means a standard rectangular container measuring 28 inches by 16 inches by 11 inches.

Land means to transfer or attempt to transfer the catch of Atlantic menhaden onto any land, pier, wharf, dock or other artificial structure, or for a fishing vessel with any Atlantic menhaden onboard to tie up to any dock, pier or other artificial structure.

Non-Directed Gear means pound nets, anchored or stake gillnets, trammel nets, drift gillnets, trawls, fishing weirs, fyke nets, and floating fish traps.

Purse Seine means any vertical wall of netting with floats on the top and weights at the bottom that is deployed to surround a school of fish and encloses fish in the netting by drawing together and tightening the bottom of the net.

Quota means the Commonwealth of Massachusetts annual commercial Atlantic menhaden quota adopted by the Atlantic States Marine Fisheries Commission and amended by required paybacks and authorized quota transfers and rollovers.

Small-Scale Directed Gear means cast nets, traps (excluding floating fish traps), pots, haul seines, hook and line, bag nets, hoop nets, hand lines, and bait nets.

Trip means the time period that begins when a vessel departs from any land, pier, wharf, dock or other artificial structure to carry out commercial fishing operations, including the at-sea transfer and transport of fish, and that ends with a return to any land, pier, wharf, dock or other artificial structure.

Trip Limit means the maximum lawful amount of Atlantic menhaden that a commercial fisher may retain, possess, or land within the waters under the jurisdiction of the Commonwealth or sell, barter or exchange or offer for sale barter or exchange. Trip limits apply per trip or calendar day, whichever period of time is longer and are applied to the vessel named on the commercial fishing permit regardless of the number of commercial fishing permits or letters of authorization carried on board the vessel.

(3)Regulated Fishery Permit Endorsement Requirement. It shall be unlawful for any commercial fisher or vessel to retain, possess, or land Atlantic menhaden in excess of 6,000 pounds per trip or per calendar day, whichever period is longer, without a regulated commercial fishery permit endorsement for Atlantic menhaden issued by the Director, in accordance with 322 CMR 7.01(4)(a): Regulated Fishery Permit Endorsement and managed pursuant to 322 CMR 7.06: Limited Entry Permits.

(4)Commercial Fishing during Quota Managed Period.

(a)January 1^st through May 14^th.

1.Gear Restrictions. From January 1^st through May 14^th, commercial fishers may only retain, possess, and land Atlantic menhaden taken by Non-Directed Gear or Small Scale Directed Gear. During this period, it shall be unlawful to retain, possess, or land menhaden taken by purse seine. It shall be prima facie evidence that a commercial fisher is fishing with a purse seine, in violation of 322 CMR 6.43(4)(a)1., if the vessel is rigged for purse seining or a purse seine is onboard the vessel and there are Atlantic menhaden onboard the vessel.

2.Trip Limit. From January 1^st through May 14^th, the trip limit of Atlantic menhaden for all commercial fishers shall be 6,000 pounds. During this period, all Atlantic menhaden fishing shall occur within the waters under the jurisdiction of the Commonwealth. It shall be unlawful for any commercial fisher to land Atlantic menhaden more than once per calendar day.

Exception. For Atlantic menhaden caught in a permitted fish weir by commercial fishers who have been issued a regulated fishery permit endorsements for Atlantic menhaden, the trip limit shall be 120,000 pounds.

3.Storage Requirement. All Atlantic menhaden shall be brought onboard the vessel, and upon retention, be immediately stored in level filled barrels or fish totes. A level filled fish tote shall be the equivalent of 117 pounds of Atlantic menhaden; a level filled barrel shall be the equivalent of 350 pounds of Atlantic menhaden; and 51-level filled fish totes or 17-level filled barrels of Atlantic menhaden shall be the equivalent of 6,000 pounds of Atlantic menhaden.

(b)May 15^th - Quota. From May 15^th through December 31^st, or until 100% of the annual Atlantic menhaden quota is landed and the fishery is closed, whichever occurs sooner:

1.Limited Entry Fishery. Commercial fishers who have been issued a regulated Atlantic menhaden fishery permit endorsement, in accordance with 322 CMR 6.43(3) and 322 CMR 7.01(4)(a), shall comply with the following:

a. Until DMF determines 50% of the annual commercial Atlantic menhaden quota is landed, the trip limit shall be 120,000 pounds.

b. Once DMF determines 50% of the annual commercial Atlantic menhaden quota is landed, provided this occurs prior to September 1^st, the trip limit shall be 25,000 pounds. If DMF determines at least 50% of the annual commercial Atlantic menhaden quota will remain on September 1^st, then the trip limit shall remain at 120,000 pounds.

c. Once DMF Determines 90% of the annual commercial Atlantic menhaden quota is landed, provided this occurs prior to September 1^st, the trip limit shall be 6,000 pounds. If DMF determines that more than 10% but less than 50% of the annual commercial Atlantic menhaden quota wii remain on September 1^st, then the trip limit shall be 25,000 pounds.

d. If DMF determines that at least 10% of the annual commercial Atlantic menhaden quota remains available on October 14^th, then effective October 15^th the trip limit shall be 360,000 pounds. Commercial permit holders are to notify DMF at least 48-hours prior to landing fish in Massachusetts during this period.

e. It shall be unlawful for any commercial fisher or vessel to land Atlantic menhaden more than once per calendar day.

f.Storage Requirement. Should the 6,000 pound trip limit at 322 CMR 6.43(4)(b)1.c. be in effect, all Atlantic menhaden shall be brought onboard the vessel, and upon retention, be immediately stored in level filled barrels or fish totes. A level filled fish tote shall be the equivalent of 117 pounds of Atlantic menhaden; a level filled barrel shall be the equivalent of 350 pounds of Atlantic menhaden; and 51-level filled fish totes or 17-level filled barrels of Atlantic menhaden shall be the equivalent of 6,000 pounds of Atlantic menhaden.

2.Open Access Fishery Limits. Commercial fishers who have not been issued a regulated Atlantic menhaden fishery permit endorsement, in accordance with 322 CMR 6.43(3) and 322 CMR 7.01(4)(a), may participate in the open access fishery for Atlantic menhaden subject to the following restrictions:

a.Trip Limit. The trip limit for the open access fishery shall be 6,000 pounds. It shall be unlawful for any commercial fisher or vessel to land more than once per calendar day.

b.Storage Requirement. All Atlantic menhaden shall be brought onboard the vessel, and upon retention, be immediately stored in level filled barrels or fish totes. A level filled fish tote shall be the equivalent of 117 pounds of Atlantic menhaden; a level filled barrel shall be the equivalent of 350 pounds of Atlantic menhaden; and 51-level filled fish totes or 17-level filled barrels of Atlantic menhaden shall be the equivalent of 6,000 pounds of Atlantic menhaden.

3.Use of Carrier Vessels.

a. The use of a carrier vessel is prohibited except with the prior authorization by the Director. Only those commercial fishers who have been issued a regulated Atlantic menhaden fishery permit endorsement may be authorized by the Director to use a carrier vessel. The Director may authorize the use of a named carrier vessel as a condition of the commercial fishing permit, pursuant to M.G.L. c. 130, § 80 and 322 CMR 7.01(6).

b. Authorized commercial fishers may use carrier vessels from May 15^th until the Director declares that 90% of the annual commercial Atlantic menhaden quota is landed and the trip limit for the limited entry fishery is reduced to 6,000 pounds.

c. Once the trip limit for the limited entry fishery is reduced to 6,000 pounds, and the use of carrier vessels shall be prohibited.

d. The use of carrier vessels is prohibited year-round within the inshore restricted waters of Boston Harbor, as defined at 322 CMR 4.02: Use of Nets in Inshore Restricted Waters.

e. It shall be unlawful for any carrier vessel to receive, possess, transport, or land Atlantic menhaden during any day closed to purse seining for Atlantic menhaden.

f. During any calendar day open to purse seining for Atlantic menhaden, it shall be unlawful for a carrier vessel to receive Atlantic menhaden from a commercial fisher in a quantity that exceeds the applicable trip limit at 322 CMR 6.43(4)(b)1.

g. It shall be unlawful for a carrier vessel to possess and transport Atlantic menhaden in a quantity that exceeds the applicable trip limit 322 CMR 6.43(4)(b)(1).

h. It shall be unlawful for a carrier vessel to receive Atlantic menhaden from more than one commercial fisher during any calendar day.

i. It shall be unlawful for a carrier vessel to land Atlantic menhaden during any calendar day if the commercial fishing vessel it is operating with is also landing Atlantic menhaden during that calendar day.

j. It shall be unlawful for a carrier vessel to land Atlantic menhaden more than once per day.

k. A commercial fisher may offload to multiple carrier vessels during the same calendar day provided the applicable trip limit at 322 CMR 6.43(4)(b)1. is not exceeded in the aggregate.

4.Vessel Capacity and Certification. Effective in 2024, prior to the annual commencement of fishing activity any participating vessel named on a commercial fishing permit or authorized carrier vessel capable and authorized to hold more than 6,000 pounds must be inspected by a certified marine surveyor and assessed with regard to its fish storage. The surveyor shall mark the fish hold to demonstrate volumetric capacity at 120,000 pounds and 25,000 pounds of Atlantic menhaden. It shall be prima facie evidence of a violation of the limited entry fishery trip limits established at 322 CMR 6.43(4)(b)1.a. and b. if a vessel holding and transporting Atlantic menhaden is exceeding their marked volumetric capacity at the applicable trip limit.

5.Use of Purse Seines during Quota Managed Period. In addition to complying with all applicable purse seining regulations at 322 CMR 4.06: Use of Mobile Gear, the following shall apply to commercial purse seining for Atlantic menhaden during the quota managed period.

a. Commercial fishers shall be prohibited from using purse seines to fish for Atlantic menhaden Saturdays and Sundays.

b. Commercial fishers shall be prohibited from using purse seines to fish for Atlantic menhaden on Fridays, Saturdays and Sundays during any period of time when the limited entry trip limit is set at 120,000 pounds.

c. Commercial fishers shall not use purse seines that exceed 600 feet (100 fathom) length within the inshore restricted waters described at 322 CMR 4.02.

d. It shall be unlawful for a commercial fisher to use a purse seine that exceeds 450 feet long by 48 feet deep when fishing during a period when purse seines are authorized and the trip limit is at 6,000 pounds of Atlantic menhaden.

e. Effective in 2024, prior to the annual commencement of commercial purse seining activity for Atlantic menhaden, each commercial fisher shall have all nets inspected and certified by the Division as being in conformance with the relevant maximum purse seine net size requirements. Once inspected, DMF will certify the net by affixing a DMF Issued Tag. A certified net may be used throughout the duration of the certified calendar year, provided it is not altered in any manner affecting its overall dimensions. If the net is altered with regards to its overall dimensions, it must be reinspected and recertified prior to use. For the purpose of complying with 322 CMR 6.43(4)(b)5., DMF will accept purse seine inspections and certifications from states with similar programs.

6.Quota Closure. Except as provided at 322 CMR 6.43(5) and (6), it shall be unlawful to catch, retain, possess, land, sell, barter, exchange, or offer for sale, barter, or exchange any Atlantic menhaden once the Director has determined 100% of the annual commercial Atlantic menhaden quota has been landed. The quota closure will be enacted and announced in accordance with the procedure set forth at 322 CMR 6.41(2)(c).

(5)Post Quota Incidental Catch and Small-Scale Fishery. Once the Director determines 100% of the annual commercial Atlantic menhaden quota has been landed and the commercial quota managed fishery is closed, commercial fishing for Atlantic menhaden may continue to occur as part of the incidental catch and small-scale fishery. During the incidental catch and small-scale fishery the following apply:

(a)Gear Restrictions. Commercial fishers may only retain, possess, and land Atlantic menhaden using Non-Directed Gear or Small Scale Directed Gear. During this period, it shall be unlawful to retain, possess, or land Atlantic menhaden taken by purse seine. It shall be prima facie evidence that a commercial fisher is fishing with a purse seine in violation of this section if the vessel is rigged for purse seining or a purse seine is onboard the vessel and Atlantic menhaden are onboard the vessel.

(b)Trip Limit. The trip limit for the post quota incidental catch and small-fishery shall be shall be 6,000 pounds of Atlantic menhaden. During this period, all Atlantic menhaden fishing shall occur within the waters under the jurisdiction of the Commonwealth. It shall be unlawful for any commercial fisher or vessel to land more than once per calendar day.

(c)Storage Requirement. All Atlantic menhaden shall be brought onboard the vessel, and upon retention, be immediately stored in level filled barrels or fish totes. A level filled fish tote shall be the equivalent of 117 pounds of Atlantic menhaden; a level filled barrel shall be the equivalent of 350 pounds of Atlantic menhaden; and 51-level filled fish totes or 17-level filled barrels of menhaden shall be the equivalent of 6,000 pounds of Atlantic menhaden.

(6)Episodic Event Set Aside Fishery.

(a)Annual Process to Participate in the Episodic Event Set Aside Fishery. Once the Director determines 100% of the annual commercial Atlantic menhaden quota has been landed and the commercial quota managed fishery is closed, Massachusetts may apply to the Atlantic States Marine Fisheries Commission to participate in the Episodic Events Set Aside Program, as provided for in the Interstate Fishery Management Plan. If Massachusetts is approved by the Atlantic States Marine Fisheries Commission to participate in the Episodic Events Set Aside Program, the Director shall notify commercial fishers and dealers via the Division's e-mail listserv, posting notice on the agency's website, and filing a legal notice with the Massachusetts Register. Once the Atlantic States Marine Fisheries Commission determines that the Episodic Event Set Aside is exhausted, the closure of the Episodic Event Set Aside Fishery will be enacted and announced in accordance with the process set forth at 322 CMR 6.41(2)(c).

(b)Commercial Fishing Activity during the Episodic Event Set Aside Fishery. The following restrictions shall apply during the Episodic Event Set Aside Fishery:

1. For all commercial fishers, during the Episodic Event Set Aside Fishery, the trip limit shall be 6,000 pounds. It shall be unlawful for any commercial fisher or vessel to land more than once per calendar day.

2. Pursuant to the authority at M.G.L. c. 130, § 80 and 322 CMR 7.01(7), the Director may establish permit conditions as necessary or appropriate for conservation and management. This may include adopting a trip limit in excess of 6,000 pounds of Atlantic menhaden for commercial fishers who have been issued a regulated Atlantic menhaden fishery permit endorsement, provided said trip limit does not exceed 120,000 pounds of Atlantic menhaden.

3. All commercial fishers participating in the Episodic Event Set Aside Fishery shall only harvest menhaden from the waters under the jurisdiction of the Commonwealth and shall only land in Massachusetts ports.

4. All commercial fishers participating in the Episodic Event Set Aside Fishery shall be subject to the daily catch reporting requirements set forth at 322 CMR 6.43(7).

5. It shall be unlawful for a commercial fisher to use a purse seine that exceeds 450 feet long by 48 feet deep.

6.Storage Requirement. All Atlantic menhaden shall be brought onboard the vessel, and upon retention, be immediately stored in level filled barrels or fish totes. A level filled fish tote shall be the equivalent of 117 pounds of Atlantic menhaden; a level filled barrel shall be the equivalent of 350 pounds of Atlantic menhaden; and 51-level filled fish totes or 17-level filled barrels of Atlantic menhaden shall be the equivalent of 6,000 pounds of Atlantic menhaden.

(7)Catch Reporting.

(a)Electronic Catch Reporting. Beginning in 2024, all commercial fishers who have been issued a regulated Atlantic menhaden fishery permit endorsement shall report their catch electronically daily prior to landing through an electronic reporting application approved by the Division.

(b)Bait Dealer Reporting for Quota Monitoring. All commercial fishers who hold a regulated Atlantic menhaden fishery permit endorsement and all commercial fishers participating in the Episodic Event Set Aside Fishery shall obtain a Bait Dealer permit, as defined at 322 CMR 7.01(3): Bait Dealer, and report to the Division of Marine Fisheries their commercial Atlantic menhaden landings in the Commonwealth on a daily basis on forms provided by the Director.