Fisheries Management & Legislative Report

by Tom Fote
(from Jersey Coast Anglers Association June 2017 Newsletter)


Summer Flounder

The never-ending story continues. It has been an interesting couple of months dealing with the summer flounder issue. I have never had so many conference calls and meetings with DEP Commissioner Martin and his staff over this issue. I have never had this number of discussions with a DEP Commissioner on any issue. When the ASMFC voted on an option in February to move us from 18 to 19 inches, there was an outcry from the anglers in New Jersey. Commissioner Martin decided that we needed to find a solution and worked for 2 months to develop a compromise that would keep us at 18 inches. He threatened to have New Jersey go out of compliance on summer flounder if an acceptable compromise was not reached. He went to Washington DC twice and met the with acting Director of NMFS, Sam Rauch, in New Jersey. Sam Rauch actually took time out of his busy schedule to meet with me for two hours while he was in New Jersey. New Jersey also filed an appeal under the direction of Commissioner Martin to ASMFC. This 20-page appeal required a great deal of time and energy from Russ Allen, Tom Baum and much of the staff from the Division of Fish and Wildlife working with Deputy Commissioner Dave Glass and Assistant Commissioner Rich Boornazian.

On May 10, the Summer Flounder, Scup and Black Sea Bass Board met with the Mid-Atlantic Fisheries Management Council to hammer out the regulations for summer flounder, black sea bass and scup. The agenda was scheduled from 1:00 PM until 5:15 PM. Luckily, I packed granola bars because the meeting went until almost 9:00 PM. At 6:30 we were still dealing with black sea bass. After many hours of discussion, ASMFC approved New Jersey’s proposal for 2017 pending a review by the Technical Committee. Those rules are at the end of John Toth’s report on summer flounder. The NJ Marine Fisheries Council had to vote on Wednesday, May 17 to approve these regulations or to veto them. The NJ Marine Fisheries Council voted to support these regulations and Commissioner Martin signed them on Thursday. The Technical Committee review issued some concerns and said they could not, in this short period of time, approve the methodology for our education process even though they said they liked the idea.

The ASMFC Summer Flounder, Black Sea Bass and Scup Board met by conference call on Monday, May 22. They did not approve New Jersey’s regulations for summer flounder for 2017. They will be sending a letter to the Secretary of Commerce asking him to find New Jersey out of compliance. Depending on the decision of the Secretary of Commerce, it may be necessary for the Policy Board to deal with New Jersey’s appeal. Stay tuned.

The bottom line is, there were not good solutions. As Adam Nowalsky and I have both been saying, we need to find a better method for developing regulations to deal with summer flounder. We cannot keep raising size limits and thereby increase recreational discards. When we are killing more fish by hook and release mortality than people are taking home to eat, the system is broken. Unlike striped bass, which most anglers catch and release, summer flounder is a catch and eat fishery. Hopefully, before the 2018 regulations are put in place, we will find a better management system. The biggest hypocrisy here is that we are reducing the catch on both the recreational and commercial side because of lack of recruitment when we know that the 2013 Benchmark Assessment proved there is no relationship between recruitment and spawning stock biomass. We had better recruitment when the spawning stock biomass was 2/3 of what we have now. Just doing something just to prove you are doing something when you know that it has no positive impact is insane.

Black Sea Bass

As bad as the summer flounder regulations are, the black sea bass regulations are even worse. Bad decisions are made when meeting times exceed 6 hours. As you can read in the motions below by the Black Sea Bass Board, at the last minute they decided to reduce the winter season to a 5-fish bag without knowing the economic consequences for the recreational sector. We also have no idea how much these regulations would save on the black sea bass stocks. There was no technical analysis, just a shoot from the hip decision. What I do know is New Jersey took the hardest hit and we will experience serious consequences. The two states pushing the proposal would experience very little negative economic consequences. One state has no winter fishery and the other is only going from a 7-fish to a 5-fish bag limit. In New Jersey, we will go from a 15-fish bag limit to a 5-fish bag limit. We are hoping to revisit this issue at the next board meeting.

What Drives Fisheries Management Today

We all know black sea bass and summer flounder are difficult regulations. What drives fisheries managers to make decisions they know will force unnecessary cutbacks? In the mid 90’s, NMFS was sued several times by environmental groups who have deep pockets to fund their lawsuits. After incurring the costs in staff time and paying the plaintiff’s costs, NMFS began to avoid lawsuits by being super precautionary and, literally, giving the environmental groups what they wanted without going to court. They know the recreational community does not have the hundreds of millions of dollars required to fund these types of lawsuits. We need to get back to just managing fisheries so they are sustainable without regard to whether or not there will be a lawsuit. Black sea bass is a good example. We are not 230% of where we should be on the spawning stock biomass and we should be harvesting at a higher quota but NMFS refuses to approve higher catches. The more this happens, the more likely there is to be a movement for change in the Magnusson Stevens Act. Many of the senators and congressmen who represent us have discovered that the economic impact of unnecessary regulations on their citizens is huge. Contact your congressmen and senators and let them know you are not happy.

Letter from DEP Commissioner Robert Martin Regarding the NJ’s Appeal on Summer Flounder
Mr. Douglas E. Grout, Chair Atlantic States Marine Fisheries Commission 1050 N. Highland St, Suite 200 A-N Arlington, Virginia 22201
Dear Mr. Chairman:

I am writing in response to your April 14, 2017 decision to reject, without the opportunity for a hearing, two of the three grounds raised in New Jersey's appeal of the ASMFC's approval of Addendum XXVIII.

We are deeply disappointed that you have refused a hearing on issues so critical to the State of New Jersey and the entire summer flounder fishery. For the reasons stated below, we formally request that you reconsider this decision and afford New Jersey a full and fair opportunity to have its entire appeal heard and decided by the ASFMC Policy Board.

The decision to deny a hearing on New Jersey's arguments based on Criteria 3 and 5 is both regrettable and wrong. New Jersey's arguments on these criteria clearly meet the appeal criteria, raise significant issues regarding the Interstate Fisheries Management Program (ISFMP) Charter and Addendum XXVIII, and should be heard and considered on May I l during the ASFMC meeting.

Failure to even allow for a full hearing of the substantive flaws of Addendum XXVIII is arbitrary and unreasonable. Many of the issues New Jersey raises relate to requirements of the ISFMP Charter that were not followed in drafting and approving Addendum XXVIII. An appeals system that does not provide aggrieved member states with a real opportunity to be heard on substantive violations of the ISFMP Charter provisions is both unfair and improper.

The April 14, 2017 decision to deny a hearing on Criteria 5 attempts to dispose of the issues raised by concluding that all the issues raised by New Jersey were purportedly "foreseen" by the ASMFC, To the extent that the ASMFC foresaw, but disregarded, the issues raised in New Jersey's appeal, it is evident that these issues were either not fully considered or were not understood by the ASMFC. The issues presented by New Jersey are of great importance and deserve nothing less than full deliberation and discussion.

As discussed in New Jersey's appeal, the ISFMP Charter Section 6(a)4 requires that "management measures shall be designed to minimize waste of fishery resources." But the data shows that for the first time in New Jersey's history, the State is being directed towards a policy in which more summer flounder will die as discards than as harvested fish kept by anglers. That result is contrary to the goals of ASFMC - That the ASFMC gave passing consideration to one potential solution a slot limit - does not absolve it of the responsibility to minimize fishery waste. The notion that New Jersey anglers will cause greater mortality through discards than harvest is not only counterproductive to the fundamental goal of managing fisheries, it also defies simple common sense. New Jersey is strongly committed to and is already taking steps to reduce the mortality rate through education, hook choice, and other methods. We will be promoting NOAA's own FishSmart program across the entire fishing community and will be supplementing this excellent program with specifically targeted messages through every outlet available to us. But this is not enough; the ASFMC must craft sensible management measures to prevent such an obvious and unconscionable waste of the summer flounder fishery.

Likewise, contrary to Section 6(a)(l) of the ISFMP Charter which requires that "management measures shall be designed to, maintain over time, abundant, self-sustaining stocks of coastal fishery resources", Option 5 to Addendum XXVIII is also nonsensical because it promotes the removal of larger breeding females. It ignores the fact that 90 percent of the summer flounder found in the waters off New Jersey' s coast that are at least 19 inches in length are breeding females. Removing from the fishery those fish that are most capable to replenish the fishery does not meet our shared goal of a sustainable fishery.

The April 14, 2017 decision also sidesteps New Jersey's arguments on numerous other issues. It characterizes the unfairness/equity issue under Section 6(a)(7) of the ISFMP Charter as relating to the percent reduction in harvest among the different states. What the ASFMC failed to acknowledge is that the unfairness to New Jersey arose from the impact of forced regionalization, i.e., requiring New Jersey to have the same management measures as New York and Connecticut off the Atlantic Coast.

The regionalization continues unfairly, though Marine Recreational Information Program (MRIP) and National Marine Fisheries Service (NMFS) Trawl Survey data show that summer flounder off the coast of New Jersey are smaller than summer flounder in New York and Connecticut waters. Simply put, maintaining the same size limit will have a greater adverse impact on New Jersey than on either New York or Connecticut, because fishery resources are not being fairly allocated, the negative impact will be greater upon New Jersey than on other states despite a similar target percentage reduction in harvest. This devastating impact was not fully considered or disposed of during the Addendum XXVIII process or in the April 14, 2017 decision. New Jersey's appeal should be heard.

Furthermore, according to Section 6(a) of the ISFMP Charter, fishery management programs and management measures must take social and economic considerations into account. Section 6(b)(l)(v)D requires that fishery management plans review the social and economic characteristics of the fishery. Neither of these sections are enforced here.

The April 14, 2017 decision notes that, as a matter of practice, the ASFMC does not draft full socioeconomic analyses for Fishery Management Plans and does not have the resources to do so. The letter claims that public commenters and the Advisory Panel input noted such concerns and that the concerns were considered. This, however, misses the point; the process leading to the proposal and adoption of Option 5 in Addendum XXVIII included, at best, cursory consideration of the social and economic impact on New Jersey.

The ASFMC's lack of resources does not justify adoption of measures with a devastating impact on a member state's fishing community without a full review of such impacts as required by the ISFMP Charter. At a minimum, New Jersey should be permitted to present its appeal on this issue.

The ASFMC also refused to hear New Jersey's appeal under Criteria 3 regarding application of technical data that the ASFMC itself recognized has serious flaws. The ASFMC's letter of April 5, 2017, pp. 1-2, to the Regional Administrator of the Greater Atlantic Regional Fisheries Office states that the Technical Committee "has expressed concern over the volatility of [MRIP] harvest estimates and the predictability of crafting measures to achieve a specified harvest target at the state or regional level using conventional tools" and must "work almost exclusively with preliminary harvest data when performance is ultimately weighed against the final estimates."

Furthermore, the ASFMC's letter, p. 2, also states that "recreational management utilizes only preliminary MRIP harvest point estimates, without measures of uncertainty, to attempt to predict/constrain future harvest point estimates." Nonetheless, the ASFMC unreasonably continues to maintain that it is appropriate to use MRIP data to establish year-to-year management measures. It is not appropriate to do so, and New Jersey should be heard on this issue.

Finally, New Jersey raised concerns about the increased likelihood that the regulated c unity will not comply with these new more stringent regulations, especially considering unfairness to New Jersey discussed above. MRIP data collection depends, in part, upon t e recreational anglers' trust in the governing bodies. The fact that the ASFMC is unwilling to hear New Jersey's appeal on major issues of concern will further erode the fishing community's trust in the ASFMC.

New Jersey requests the opportunity to be heard on all issues raised in the March 24, 2017 letter. As such, New Jersey respectfully requests that the ISF Policy Board reconsider its response to New Jersey's appeal request letter and accept all the issues for full consideration on May 11, 2017.

Sincerely, Bob Martin Commissioner New Jersey DEP cc: NJ Attorney General Christopher Porrino Samuel D. Rauch Ill, NOAA, Acting Assistant Administrator for Fisheries NJ Congressional Delegation
Tautog Management Board
ASMFC Press Release, May 9, 2017

ASMFC Tautog Board Approves Draft Amendment 1 for Public Comment

Alexandria, VA – The Commission’s Tautog Management Board approved Draft Amendment 1 to the Interstate Fishery Management Plan (FMP) for Tautog for public comment. The Draft Amendment proposes a fundamental change in tautog management, moving away from management on a coastwide basis towards regional management. In addition, Draft Amendment 1 proposes the establishment of a commercial harvest tagging program, as well as new goals and objectives, biological reference points and fishing mortality targets, and a stock rebuilding schedule.

Draft Amendment 1 proposes delineating the stock into four regions due to differences in biology and fishery characteristics, as well as limited coastwide movement.

Table 1: Four‐Region Management Approach

  1. Massachusetts – Rhode Island
  2. Long Island Sound (CT and NY LIS)
  3. New Jersey – New York Bight
  4. Delaware – Maryland – Virginia

Management options by region have been developed in response to the 2016 stock assessment update. Long Island Sound and New Jersey‐New York Bight would be required to take harvest reductions due to the regional overfishing stock status, while Massachusetts‐Rhode Island and Delaware‐Maryland‐Virginia would not have to take harvest reductions, but are proposing regional measures.

A commercial harvest tagging program is being proposed to address an illegal, unreported and undocumented fishery that has persisted for more than a decade. Reports of illegally harvested fish have been documented in cases against fishermen, fish houses, and at retail markets and restaurants. The tagging program, which would accommodate both the live and dead commercial markets, was recommended by the Commission’s Law Enforcement Committee to increase accountability in the fishery and curb illegal harvest. A tautog tag trial was conducted to investigate the impact of the tags on the resource and found no mortality or degradation to fish health.

It is anticipated the majority of states from Massachusetts through Virginia will be conducting public hearings on the Draft Amendment. The details of those hearings will be released in a subsequent press release. The Draft Amendment will be available on the Commission website, (under Public Input) by May 15th. Fishermen and other interested groups are encouraged to provide input on the Draft Amendment either by attending state public hearings or providing written comment. Public comment will be accepted until 5:00 PM (EST) on July 14, 2017 and should be forwarded to Ashton Harp, FMP Coordinator, 1050 N. Highland St, Suite A‐N, Arlington, VA 22201; 703.842.0741 (FAX) or at (Subject line: Draft Amendment 1).

Final action on the Amendment is scheduled to occur in August. For more information, please contact Ashton Harp, Fishery Management Plan Coordinator, at or 703.842.0740.

Atlantic Striped Bass Management Board
ASMFC Press Release, May 9, 2017

ASMFC Atlantic Striped Bass Board Withdraws Draft Addendum V & Maintains Current Measures until Completion of 2018 Benchmark Stock Assessment

Alexandria, VA – The Commission’s Atlantic Striped Bass Management Board chose to not advance Draft Addendum V to Amendment 6 to the Fishery Management Plan (FMP) for Atlantic Striped Bass forward for public comment. Instead, it decided to wait until the release of the results of the 2018 benchmark stock assessment before it considered making changes to the management program.

The Draft Addendum was initiated to consider liberalization of commercial and recreational regulations to bring fishing mortality to the target based on the findings of the 2016 assessment update. The Draft Addendum proposed alternative measures aimed to increase total removals (commercial and recreational) by approximately 10% relative to 2015 to achieve the fishing mortality target in 2017. However, 2016 harvest estimates increased without changing regulations. Additionally, fish from the 2011 year class, which was the largest recruitment event since 2004, will become increasingly available to ocean fisheries in the coming years, possibly resulting in further increases to harvest along the coast. The Board also expressed concern that changing the management program could result in fishing mortality exceeding the target.

In preparation for the 2018 stock assessment, the Board approved the Terms of Reference for the assessment, which will explore new biological reference points for management use.

For more information, please contact Max Appelman, Fishery Management Plan Coordinator, at or 703‐842‐0740.

Coastal Sharks Management Board
ASMFC Press Release, May 10, 2017

Meeting Summary

The Coastal Sharks Management Board met to review the final rule to implement Amendment 5b to the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP). Amendment 5b implements a range of federal management measures to prevent overfishing and rebuild overfished dusky sharks. These measures are based on the 2016 dusky shark stock assessment update that determined dusky sharks are overfished and experiencing overfishing. Currently the Amendment 5b measures only apply to federally permitted fishermen. HMS requests the Board (and state agencies) consider complementary management as follows:

After reviewing the Advisory Panel comments on the recreational measures, the Board requested the Law Enforcement Committee (LEC) and Technical Committee (TC) review the proposed measures. Staff will coordinate the LEC and TC meetings, as well as poll the states to see if there are state‐specific measures in place that address best practices for shore and pier fishing and/or require circle hooks when fishing for sharks. At the August meeting the Board will review the information requested above and consider modifications to the interstate FMP.

For more information, please contact Ashton Harp, Fishery Management Plan Coordinator, at or 703.842.0740.

ASMFC Presents Annual Awards of Excellence
ASMFC Press Release, May 9, 2017

Alexandria, VA ‐ The Atlantic States Marine Fisheries Commission presented Mr. Robert Glenn, Dr. Amy Schueller and Lieutenant Conservation Officer Zane Batten with its Annual Awards of Excellence for their outstanding contributions to science and law enforcement along the Atlantic coast. “Every year a great many people contribute to the success of fisheries management along the Atlantic coast. The Commission’s Annual Awards of Excellence recognize outstanding efforts by professionals who have made a difference in the way AAE Recipients from left: Lt. C.O. Zane Batten, Dr. Amy Schueller and Robert Glenn we manage and conserve our fisheries,” said ASMFC Chair Douglas Grout of the New Hampshire Fish and Game Department. “This evening, we honor several exceptional individuals for their contributions to the management and conservation of Atlantic coast fisheries.”

Law Enforcement Contributions

Lieutenant Conservation Officer Zane Batten with the New Jersey Division of Fish and Wildlife, Bureau of Law Enforcement

Lieutenant Conservation Officer Zane Batten has been with the New Jersey Division of Fish and Wildlife, Bureau of Law Enforcement for nearly 25 years. First as a volunteer Deputy Conservation Officer, next as a Lt. C.O. for the Special Investigations Unit, where he served for five years and lastly as District supervisor. Lt. Batten is being recognized for his efforts on behalf of the Special Investigation Unit, where he worked on several cases of magnitude that resulted in both domestic and international charges. Two cases in particular exemplify Lt. Batten’s perseverance, self‐sacrifice and dedication to resource conservation.

In the first case, Lt. Batten was instrumental in identifying fishermen involved in the illegal commercialization of elvers. As he worked to document the activities of the fishermen, Lt. Batten was also able to gain the trust of a number of large buyers who were knowingly purchasing illegally harvested eels for export overseas. Spanning three years, the investigation uncovered a multi‐million dollar black market in elvers and exposed the identities of numerous fishermen and buyers, from Florida to Maine, that were involved in the black market. The charging and prosecution of those involved is still pending.

During another case, Lt. Batten coordinated a joint investigation with the Pennsylvania Game Commission involving the illegal commercialization of striped bass from Delaware Bay. The investigation, which spanned two years, identified an organized ring of 8 commercial fishermen illegally selling striped bass to a seafood store. Both criminal and civil charges were filed, with the maximum fine for all charges filed in excess of $3.4 million.

Named New Jersey's Conservation Officer of the Year in 2014, Lt. Batten is widely respected by his fellow officers and colleagues. His commitment to ensuring our fisheries management regulations are being upheld is notable and worth recognition.

ASMFC Summer Flounder Management Board to Consider NJ Conservation Equivalency Proposal for 2017 Summer Flounder Recreational Fishery

Alexandria, VA – The Commission’s Summer Flounder, Scup and Black Sea Bass Management Board has accepted a request by the State of New Jersey to consider a proposal for conservationally-equivalent management measures for the 2017 recreational summer flounder fishery. The action responds to New Jersey’s concern about the lack of availability of large fish (19” or greater) in state waters. In February 2017, the Board approved Addendum XXVIII to the Summer Flounder, Scup and Black Sea Bass Fishery Management Plan, maintaining regional management for the 2017 recreational summer flounder fishery and requiring all states (with the exception of North Carolina) to implement a one‐inch increase in size limit and a reduced possession limit. These measures are required in order to stay within the 2017 recreational harvest limit. New Jersey has contended a one‐inch increase in size will have significant economic impacts to its recreational and for‐hire industries, since 19” fish have reduced availability in its waters. The next step in the process is for the Technical Committee to review New Jersey’s proposal, which is anticipated to occur next week. The Board will then meet via conference call to receive the Technical Committee’s review and consider action on the proposal. If the proposal is accepted by the Board, New Jersey will have until May 21st to implement the approved measures. If conservationally-equivalent measures are not approved, New Jersey will need to implement the following measures by May 21st or the Commission will move forward with a non‐compliance finding regarding New Jersey’s failure to implement Addendum XXVIII’s required management measures.

For more information, please contact Kirby Rootes‐Murdy, Senior Fishery Management Plan Coordinator, at krootes‐ or 703.842.0740.

Meeting Summary

The Summer Flounder, Scup, and Black Sea Bass Management Board and Mid‐Atlantic Fishery Management Council (Council) received an update on the Summer Flounder Comprehensive Amendment and consider the priority issues to be addressed under commercial management strategies; review updated recreational harvest estimates for black sea bass; consider management action for the recreational black sea bass fishery in 2018; and begin discussions on alternatives for recreational summer flounder management moving forward.

Regarding the Comprehensive Amendment, staff presented initial analysis and management alternatives for the following issues: 1) permits and latent effort; 2) commercial allocation 3) landings flexibility; 4) safe harbor; 5) commercial data collection and monitoring; and 6) discards. Staff worked through the Fishery Management Action Team (FMAT) and working groups to draft alternatives for each issue, drawing from comments received during the amendment scoping process. In developing draft management alternatives, staff highlighted challenges in further refining draft alternative language and continuing analysis on issues 4‐6 without specific guidance from the Board and Council. After considering the information provided, the Board and Council moved to drop issue areas 4‐6 from the Draft Amendment. Staff will convene the FMAT and working groups in summer 2017 to continue development draft alternatives ahead of the Board and Council’s joint meeting in August. The Board continues to struggle with using recreational harvest estimates generated by Marine Recreational Information Program (MRIP) to set annual harvest specifications. The Board tasked the Technical Committee with exploring methods to better evaluate volatility in harvest estimates generated from MRIP.

The Board also initiated two draft addenda specific to black sea bass recreational management in 2018. The first will explore options for recreational management that include regional allocations, uniform regional regulations, and alternatives to the current north/south regional delineation. A draft addendum will be presented to the Board later this year. The second addendum, to be pursued with the Council, will consider allowing an experimental wave 1 (January/February) recreational fishery starting in 2018. This addendum was initiated in response to a tabled motion from the joint Board/Council meeting in February 2017 regarding an experimental black sea bass fishery that would be administered under an exempted fishing permit (EFP) program through NOAA Fisheries. The Board and Council moved to change the option of an experimental fishery through an EFP to one operating under a Letter of Authorization (LOA) program that NOAA Fisheries’ Greater Atlantic Regional Office (GARFO) would administer. The Draft Addendum will be presented to the Board for its consideration and approval for public comment in August.

Last, the Board began discussions on how to improve management of the summer flounder recreational fishery in future years. A recreational working group will convene this summer to consider alternatives to the current management framework and report recommendations to the Board later this year.

For more information, please contact Kirby Rootes‐Murdy, Senior Fishery Management Plan Coordinator, at krootes‐ or 703.842.0740.

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