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Commercial Fisheries News
Volume 35 Number 10
June 2008
ASMFC says ‘no’ to MA 1/8" v-notch proposal
ALEXANDRIA, VA – The Atlantic States Marine Fisheries Commission’s (ASMFC) American Lobster Management Board has rejected a proposal by the Massachusetts Division of Marine Fisheries (DMF) to change the lobster v-notch definition in the Massachusetts state-waters portion of Area 1 from “zero tolerance” to “a notch or indentation at least as deep as 1/8", with or without setal hairs.”
ASMFC representative and DMF Deputy Director Dan McKiernan presented the commonwealth’s position during the board’s May 5 meeting here.
“The essence of this is not to weaken the current conservation benefits,” McKiernan said. “We believe the 1/8" is very conservative. The vast majority of the lobsters are being protected through two molts.”
Rather, he said, the proposal was developed because of confusion on the waterfront and because enforcement officials were having problems securing convictions in court under zero tolerance.
“It’s very difficult to get successful prosecution of something that’s so difficult to define. We think we can apply more rigorous and more defensible enforcement and ensure better compliance under the 1/8" definition,” McKiernan said.
Capt. John Tulik of the Massachusetts Environmental Police also advocated for a “measurable” v-notch standard.
“Unless we have a physical gauge to put in there that we can show the judge and show the court, it doesn’t eliminate the gray area,” he said.
Three different definitions
McKiernan also explained that the situation in Massachusetts was further complicated by the fact that environmental police needed to enforce three different v-notch definitions:
Zero tolerance for Lobster Conservation and Management Area (LCMA) 1 and the Gulf of Maine Recreational Lobster Area;
1/8" notch or indentation with or without setal hairs for LCMA 2 and, as of July 1, 2008, LCMA 3, plus the Southern New England Recreational Lobster Area; and
1/4" straight-sided without setal hairs for the Outer Cape Cod LCMA and Outer Cape Cod Recreational Lobster Area.
“We’d like to make this a more uniform standard in the state,” said McKiernan. “We think that’s a reasonable request. We don’t think it will compromise the conservation program, and it’s going to improve the situation on the waterfront.”
McKiernan was strongly backed by fellow members of the ASMFC Massachusetts delegation – Commissioner Bill Adler, who is also executive director of the Massachusetts Lobstermen’s Association, and Vito Calomo, a proxy for state Rep. Tony Verga.
Adler emphasized that Massachusetts was submitting the proposal under ASMFC’s conservation equivalency provisions.
“We’re trying to get something that doesn’t draw a subjective interpretation,” Adler said. “This would resolve some of the problems we are having in Massachusetts.”
V-notch study
In support of its position, DMF presented the ASMFC lobster board with results from a study conducted by Bryan DeAgelis of the National Marine Fisheries Service (NMFS) Northeast Fisheries Science Center’s Narragansett Laboratory in Narragansett, RI.
The study concluded that under a 1/8" v-notch definition “regardless of setal hairs,” the majority of notched female lobsters would be protected for two molts, “increasing the likelihood of contributing a second batch of eggs to the population before becoming eligible for harvest.”
The “regardless of setal hairs” part of the definition was considered to be essential. The study found that 84% of notched lobsters had setal hairs after the first molt and only 16% did not.
The study was designed to help analyze results of the North Cape lobster restoration program in Rhode Island, and it looked at several other v-notch related factors.
TC weighs in
The ASMFC Lobster Technical Committee (TC), now chaired by Kim McKown of the New York State Department of Environmental Conservation, reviewed the Massachusetts proposal.
According to McKown, the TC concluded that the change from zero tolerance to 1/8" with or without setal hairs “could result in an increase in fishing mortality” in statistical area 514, which covers Massachusetts Bay and is an area that the 2006 lobster assessment peer review team determined “warranted” further restrictions due to “low levels of recruitment and high levels of fishing mortality.”
But as to how much of an increase in mortality would result in the switch to 1/8", McKown said, “We couldn’t quantify it.”
In its formal report to the board, the TC stated, “A portion of those lobsters that would be protected under the zero tolerance definition would not be protected under the 1/8" definition.”
The TC was upfront in stating that it based its decision on very limited sea-sampling data from the Maine Department of Marine Resources (DMR), which conducted two sea sampling trips in March of this year further offshore than where the majority of the industry fishes in the Gulf of Maine.
Sea sampling results
A total of 746 trap hauls were documented during the two sea sampled trips from which the data were compiled for the TC. The trips were carried out in statistical areas 511 and 512, and a total of 740 lobsters were measured. Of those, 77% were females.
V-notched lobsters observed in the catch were broken down into one of three categories: manmade notches, natural mutilation, or missing flipper.
Within the catch, 194 lobsters were v-notched, and of those, 19% – or 37 of them – had v-notches of less than 1/8".
The TC reported, “When further broken down, 19% of all manmade v-notches and 35% of mutilations had v-notches less than 1/8".”
The TC concluded, “This observation is based on limited sea-sampling data from Maine DMR that demonstrated up to 19% of v-notch lobsters would be retained under the 1/8" definition that are now discarded under the current zero tolerance definition.”
McKown said the TC further wanted to note that the bigger the initial v-notch, the longer the lobster would be protected. As a result, she said the TC recommended that all states with v-notch definitions adopt regulations that specify the depth of the initial notch.
Maine reacts
The Maine delegation to ASMFC – DMR Commissioner George Lapointe, lobsterman Pat White, and state Sen. Dennis Damon – were all quick to respond.
Swayed by the sea sampling results showing that 19% of the lobsters had notches of less than 1/8" and would have been kept instead of thrown back as would have been the case under zero tolerance, White said, “19% is a fairly large percentage in my mind to protect biologically.”
Lapointe argued that altering the definition wouldn’t solve Massachusetts’ enforcement problems because officials need to use discretion on all enforcement matters.
“It strikes me you’re trading one enforcement problem for another,” Lapointe said. “Whether it’s zero tolerance, 1/8", or 1/4", there’s going to be an enforcement discretion issue regardless of what the standard is.”
Damon recounted the early days he spent on the water with his dad 55 years ago learning the fundamental rules of lobstering and the conservation ethic behind the minimum gauge, maximum gauge, and “punched” lobsters, as v-notched lobsters were commonly called.
“If there was any damage to the flipper, then you repunched it to take that issue away from the people who came next,” said Damon. “Then you go home that night knowing you did what you could to protect that resource. There ought to be no question that if that flipper is mutilated, whether it’s a v-notch or not, it ought to go back over.”
Renotch if necessary
ASMFC Lobster Advisory Panel Chairman Bob Baines said the panel did not discuss this v-notch proposal during its March 27 meeting.
But on a personal note, Baines spoke to the issue of Massachusetts’ argument that zero tolerance was difficult to enforce.
“I look at lobsters every day and I have to make that judgment,” he said.
And if a notch is in question, Baines said he renotches it.
“I renotch anywhere from 10 to 30 lobsters a day,” he said. “If we lower the standard, then we will be taking more lobsters out of the resource, and that goes against everything we’re doing here. You would be doing a great disservice to the industry if you lower the standard.”
Most restrictive rule
Despite all of these arguments on both sides, many board members seemed most swayed by a revelation that surfaced at the very end of the long debate, and it pertained to the interstate lobster plan’s “most restrictive rule” provision.
According to the plan, lobstermen must follow the “most restrictive rule” that applies to them, which means if Massachusetts adopted the 1/8" v-notch definition for state waters within LCMA 1, then any lobsterman holding a federal lobster permit – even if he lands in Massachusetts within the shoreline boundary of LCMA 1 – would be bound by the more restrictive zero tolerance rule that would continue to apply in the federal waters portion of LCMA 1 off Massachusetts.
“So you would have more of a problem,” said New Hampshire Commissioner Ritchie White to the Massachusetts delegation.
Rep. Dennis Abbott of New Hampshire, who had one of the last words on the matter, said, “I think it’s very important for us to apply the strictest standard in this time of diminished resource.”
The motion to allow Massachusetts to adopt a 1/8" v-notch definition – with or without setal hairs – for the state portions waters of LCMA 1 instead of zero tolerance failed in a two-to-five vote with four abstentions.
Massachusetts and Connecticut voted yes. Maine, New Hampshire, Rhode Island, New York, and NMFS voted no. New Jersey, North Carolina, Delaware, and Maryland abstained. Virginia was absent.
Janice M. Plante
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