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UMASS/AMHERST

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DEVELOPMENT AND EVOLUTION OF THE SEA HERRING
FISHERY MANAGEMENT PLAN

bv

David E. Pierce

Massachusetts Division of Marine Fisheries

100 Cambridge St.
Boston, MA 02202

Funded by the Ne

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and Fishery Management Council

DEVELOPMENT AND EVOLUTION OF THE SEA HERRING
FISHERY MANAGEMENT PLAN

by

David E. Pierce

Massachusetts Division of Marine Fisheries

100 Cambridge St.
Boston, MA 02202

Funded by the New England Fishery Management Council

Publication #: 13231-107-50-5-83- C.R.

Approved by John J. Manton, State Purchasing Agent

Digitized by the Internet Archive

in 2012 with funding from

Boston Library Consortium Member Libraries

http://archive.org/details/developmentevoluOOpier

Preliminary Management Plan

In preparation for implementation of the Fishery Conser-
vation and Management Act of 1976 on March 1, 1977, the Na-
tional Marine Fisheries Service (NMFS) drafted a Preliminary
Management Plan (PMP) for sea herring to remain in effect un-
til the appropriate Fishery Management Council could write
its own. That Draft PMP, published in September 1976, was
to regulate foreigners, not U.S. fishermen. Under the pro-
visions of the FCMA, herring in excess of U.S. harvesting
and processing capacity had to be allocated to foreign na-
tions through a Governing International Fisheries Agreement
(GIFA) . The PMP contained permit requirements, data re-
porting procedures, fishing restrictions, and total allow-
able catches (quotas) . The Final PMP was published in
January 1977 with no significant changes.

Previous to the FCMA (early 6 0' s on), foreigners en-
joyed a lucrative herring fishery in the Gulf of Maine, on
Georges Bank, off southern New England, and in waters far-
ther to the south. Later, from 197 2-197 6, under the aus-
pices of the International Commission for Northwest Atlantic
Fisheries (ICNAF) , quotas were established to control for-
eign, as well as U.S. catch. For example, in 1975 the total
foreian allocation for Georges Bank and south (5Z/6) (Figure 1)
was 137,4 00 metric tons (MT) in contrast to a U.S. quota of
8,400 MT (6% of total). Historically (1960-1975), U.S.
landings of herring caught in 5Z/6 averaged only 2,000 MT
with peak landings of approximately 4,600 MT. The USSR,
Poland, Federal Republic of Germany, and German Democratic
Republic were the primary nations harvesting this resource
during that time.

Catch quotas were established in the Gulf of Maine (5Y)
in 1972 also. These quotas did not apply to coastal, state
waters fisheries which were excluded from ICNAF management.
Quotas for both the 5Y and 5Z/6 regions from 1972-1976 and
proposed 1977 quotas were:

Actual

Actual

5Y

Catch

5Z/6

Catch

1972

30,000

18,267

150,000

174,000

1973

25,000

4,201

150,000

200,000

1974

25,000

8,809

150,000

148,000

1975

16,000

16,628

150,000

146,000

1976

7,000

17,190

60,000

43,000

1977

(proposed)

7,000

20,000

33,000

1,000

(U.S. only)

In spite of these quotas, stock sizes declined drasti-
cally particularly for 5Z/6 herring. Sindermann (1979) ,
summarizing Anthony and Wareing (197 8) , considered reasons
for this decline to be: 1) excessive fishing mortality;
2) poor management; 3) concentration of fishing effort on

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spawning areas; 4) fishing directly on spawning beds; and 5)
actions taken as a result of inadequate stock assessments
(decreasing order of significance) .

According to Anthony and Wareing (197 8) , the history of
Georges Bank herring management under ICNAF was character-
ized by quotas influenced more by considerations of social
disruptions or short-term economic gains than by conserva-
tion. Managers consistently selected highest catch options
provided by scientists and in some instances accepted quotas
that were one to three times higher than recommended amounts.
Also, scientists stated that to provide for Georges Bank
stock recovery, a fishing mortality of approximately 30% per
year was desireable (percent removal from the stock each
year) assuming average recruitment. However, from 1968-1975
the lowest fishing mortality was judged to be 41% for age
four and older herring with a peak of 74% in 1972. As part
of this high fishing mortality, fishing was also concentrated
on spawning areas and beds and it was thought that this ac-
tivity disrupted and scattered schools thereby hindering the
spawning process, and destroyed subunits of the Georges Bank
stock moving westward from the Northeast Peak to the south-
west portion leaving Nantucket Shoals as the only remaining
spawning area.

Clark and Anderson (1977) stated futher that,

"During the period of regulation under ICNAF, the Gulf
of Maine and Georges Bank spawning stocks have been
reduced to levels (146,000 tons for Georges Bank
and 31,000 tons for the Gulf of Maine) at which low
recruitment is believed to be more probable and re-
cruitment more disastrous to the fishery and stock

Due to low levels of abundance, the ICNAF Assessment
Subcommittee recommended a catch quota of zero for the
Gulf of Maine (5Y) stock and 50,000 tons or less for
the Georges Bank stock (5Z/6) for 1977. The very
strong economic consequences to the USA of a zero
quota for the Gulf of Maine subsequently resulted in
establishment by the Commission of a quota of 7,000
tons (5Y) which would result in an estimated decrease
of about 49% in adult stock biomass (age 4 and older)
from 1977-1978, while the quota for Georges Bank (5Z/6)
stock was set at 33,000 tons which would result in an
increase of about 13% in the adult stock biomass (age 4
and older) from 1977-1978."

ICNAF management (or mismanagement) set the stage for
the NMFS PMP and 1977-1978 Council deliberations and develop-
ment of a Council Sea Herring Plan. The NMFS PMP proposed a
quota of 33,000 MT for 1977 for 5Z/6 with 12,000 MT as the
U.S. share and a quota of 7,000 MT for 5Y with 6,000 MT for the
U.S. Again, no regulations or catch restrictions were pro-

posed for state waters. The 22,000 MT balance from both areas
was available for foreign (including Canadian) harvest. Addi-
tionally, a nine inch total length minimum landing size was
proposed (with a 10% exemption) . It was also stated that
foreign herring fishing might have to be limited to one of
by-catch in foreign mackerel, silver hake, red hake, and
squid fisheries. In 1974, 3,700 MT were taken as by-catch in
those other fisheries, thus a "window" or specific fishing
area for foreign fishing directed towards sea herring was
set. The "window" was to be open from August 15, 1977 -
September 30, 1977.

An important and controversial part of both the Draft
and Final PMP's was estimated U.S. capacity which was judged
to be 18,000 MT. According to NMFS, this figure was opti-
mistic and recognized recent years' increased catches and
interests in the 5Z/6 stock. The latter interest was ex-
pected due to declines in abundance of the 5Y stock. How-
ever, industry from Maine to Rhode Island disagreed with
NMFS's appraisal. At April 19 and 20, 1977 NMFS public
hearings, arranged at the request of the Council and the
State of Maine to re-address U.S. capacity to harvest,
process, and market herring, and foreign allocations and
stock assessments, these disagreements were stated. For
example, according to Barlow (Maine Commercial Fisheries,
May 1977) , Edward MacLeod of Kennebec Fish Corporation and
Lipman Marine (Gloucester) stated that his company could
potentially increase its capacity from 40% to 75%. He also
expected a 100% increase in cutting capacity in 1977.
Charles Stinson of Stinson Canning Company (Maine) stated
that his company had purchased a new plant, and he predicted
a very good market potential. Similar comments were pro-
vided by other testifiers in attempts to have the U.S. esti-
mated capacity increased.

Unfavorable decisions

On June 10, 197 7, the Department of Commerce denied the
U.S. fishery any increase in its quota for the following
reasons: 1) U.S. industry did not have the physical capacity
to harvest the entire 33,000 MT quota for the 5Z/6 stocks;
2) evidence indicated it was economically infeasible for
the U.S. to harvest that amount in a directed fishery during
the remainder of 1977 due to existing and expected ex-vessel
prices of $65 per short ton; and 3) U.S. industry had exerted
only a relatively small amount of effort in the offshore
fishery (5Z/6) in 1977.

A further blow to industry's desires to increase the U.S.
quota was dealt by a July 18, 1977 decision by a U.S. District
Judge on a State of Maine February lawsuit brought against the
government. That lawsuit attempted to prohibit foreign fish-
ing for herring. The decision was in favor of the federal
government which argued that there would be widespread reper-
cussions in foreign affairs if the foreigners were denied

herring, and U.S. fishermen could only utilize approximately
7,000 MT; therefore, the 12,000 MT quota was more than ade-
quate (Spivack, National Fisherman September 1977) . Maine had
argued that foreign fishing would not allow rapid rebuilding
of the stocks which were already judged to be in poor con-
dition in the Georges Bank area, and that foreign fishing was
going to take place (8/15/77-9/30/78) on Georges Bank spawn-
ing areas during the spawning season, and there was growing
evidence of intermixing of 5Y and 5Z/6 stocks thus fishing
in 5Z/6 could impact the resource and fisheries inshore.

Foreign fishing extended

On October 21, 1977, NMFS announced a 30-day extension
to foreign fleets fishing Georges Bank. During the allowable
fishing period of August 15-September 30, less than one
metric ton had been caught. The extension was provided be-
cause according to NMFS, "We anticipate this action, in the
spirit of international cooperation and comity, will provide
the greatest overall benefit to the U.S. with respect to
fishing, fish, and other activities and products pertaining
to food supply" .

Future changes

Interestingly, in September 1977, NMFS announced a re-
duction in allowable foreign harvest of herring for 197 8 as
a proposed change in the PMP. The proposed change was a
drastic decrease from 22,000 MT (5Y and 5Z/6) to 3,200 MT
which included 2,000 MT for the Canadian directed fishing
and only 1,200 MT for other foreign by-catch. U.S. capacity
was increased from 18,000 to 25,800 MT. These changes were made
because optimum yield (OY) was reduced, and the capability of
the U.S. fleet to catch more fish had increased. As stated in.
the Supplement to the PMP:

"...information presented before, during, and after a
public hearing held in Peabody, Massachusetts on April
18 and 19, 1977, along with the development of a Fishery
Management Plan by the New England Fishery Management
Council and other related evidence of technological ad-
vancement and expanded markets indicate that this limi-
tation (i.e., inability to harvest, process, and market
adult herring from the 5Z/6 herring stock) is no longer
as important as previously determined."

Council efforts - a need for rebuildi

ng

At its May 1977 meetings, the Council set objectives to
be the basis for development of a Sea Herring Fishery Manage-
ment Plan. Those objectives were:

1) Fishing on juveniles will continue as is, with the

understanding that this fishery is restricted by
size limit, some controls on access to spawning
grounds, and existing industry capacity.

2) There will be a 10% recovery rate for the stock.

3) Investment in the U.S. herring fishery will be
encouraged.

4) Regulations affecting domestic fishermen will be
minimized as much as possible.

The Council also decided, "For management purposes, and
recognizing that there is controversy among the scientists
regarding this point, it will be assumed that there is one
stock of herring. However, because many scientists still
feel there are two stocks, the Council is requesting the
Scientific and Statistical Committee to come up with a line
creating two areas based on the best scientific evidence
available. "

On August 3, 197 7, the Council amended these objectives
to:

1) To manage the Gulf of Maine and Georges Bank/
Southern New England adult sea herring stocks so
as to achieve individual biomass levels at which
continued and relatively stable annual recruitment
is probable allowing for annual rates of stock in-
creases that are consistent with:

a) the provision that spawning stocks in all areas
are maintained at or above current levels of
abundance; and with

b) reasonable social and economic impacts on the
various industry and consumer user groups in-
cluding those user groups dependent upon the
Gulf of Maine juvenile herring fishery.

2) To manage the Gulf of Maine juvenile herring stock
so as to stabilize and subsequently rebuild the
sardine fishery.

Staff initiatives

Using these objectives for guidance, the Council Staff
prepared a "Report on Biological and Economic Analyses in
Support of Herring FMP Development". The Report, submitted
to the Council at its December, 1977 meetings, assumed a
desired 10% 5Y rebuilding management strategy for 197 8 and
a strategy designed to allow spawning stock (age 4 and
older or age 4+) recovery to the desired size of 100,000
MT (according to scientists) . As a basis for comparison,
the Report evaluated this strategy versus a

"no Plan" strategy. The Staff did not consider a "zero
growth" strategy since as stated by the Staff, "In the near
future it represents merely a postponement of the stock re-
building decision. Extended into the future it would not
be compatible with the Council's objectives for rebuilding
of stocks". This 10% rebuilding strategy and analysis of
its economic impacts were aimed at the 5Y stock. TAC's
for the 5Z/6 stock were expected to ensure relatively high
stock recovery rates without restricting U.S. herring catches.

The Staff's conclusion was that a 10% rebuilding strat-
egy for 1978 was clearly dominate over the "No Plan" strategy.
Benefits to the industry on a long-term basis clearly out-
weighed the costs. The income criteria used to examine cost/
benefits were gross returns to the harvesting sector; value
of processing in the fillet sector; employment in the fillet
processing sector; labor income in the fillet sector; consumer
net benefits, and aggregate impact on regional income. As an
example, with the 10% rebuilding strategy, gross return to
the harvesting sector was expected to increase by $1.3
million while regional income was expected to increase $9.8
million when compared to "no Plan" or action.

An integral part of the 10% rebuilding strategy, with
eventual attainment of the 100,000 MT desired 5Y spawninq
stock size (size for expected continued and relatively stable
recruitment) , was a stipulation that 5Y total allowable cat-
ches (TAC's) of age 3 and older herring (age 3+) for 1978 had
to be 1,000 MT. To reach the 100,000 MT spawning stock size,
this TAC needed to be effective until 1982. Once this stock
size was reached, TAC could be raised to the level (17,000 MT)
considered to be compatible with sustainable surplus produc-
tion (i.e., 17,000 MT could be removed annually with no stock
size decline) .

The Staff's proposal to limit 5Y catches in the adult
fishery (age 3+) to 1,000 MT for five years with obvious econ-
omic consequences caused the Council and Herring Committee at
its December 21, 1977 meeting to request further information
from the Staff. One request was an evaluation of economic im-
pacts associated with delaying the initiation of stock rebuilding.
The other request was for alternate seasonal/area quotas for
1978 than those proposed in the Staff's Report. Previously
considered were a historic distribution of 5Y catch and a six
week closed spawning season; i.e., no fishing from September
1 to October 15.

In a January 10, 1978 addendum to their Report, the
Staff produced other strategies for the Committee's dis-
cussion. Each strategy postponed stock rebuilding one fur-
ther year and each one specified annual TAC's for the adult
herring fishery in 5Y for a 10-year period. The Staff recom-
mended that a strategy of initiation' of 5Y rebuilding in 1979
be accepted with annual 1,000 MT TAC's of age 3+ herring in
5Y (outside Maine waters) from 1979-1983. Considering that

8

the Plan could not be implemented before mid-year, the Staff
acknowledged the impossibility of stock rebuilding in 197 8
due to an unrestricted 5Y winter/spring fishery in 1978.

Regarding seasonal/area TAC's, the Staff suggested two
TAC scenarios conditional upon 5Y catch during the first six
months of 1978. The Staff noted that if 14,000-15,000 MT
were taken in the winter/spring 5Y fishery (December-March
1977/1978), as occurred in 1976/1977, it would be necessary
to close the 5Y adult fishery for the remainder of 1978 with
fall fishing quotas in 5Z/6 only. Otherwise, additional 5Y
catches would lead to 5Y stock depletion. The other TAC
scenario was to transfer a percentage (up to 35%) of any
amount of adult herring representing the difference between
the anticipated 15,000 MT and actual harvest from January-
June, 1978 into the fall 5Y adult fishery.

Assuming Plan implementation in mid-1978, prospects for the
fall 5Y fishery did not appear promising. The fall fishery was
prosecuted primarily by purse seiners during herring return migra-
tions to spawning grounds and during- spawning itself.

Maine juvenile fishery

An important point made in the original Staff Report
was the influence of the Maine juvenile fishery on the adult
fishery analyses. As stated in the Report: "In the past,
the juvenile fishery has principally been conducted using
fixed gear (weirs and stop seines) which tends to provide
yield in relation to abundance (environmentally induced
variations in availability assumed average) , thus producing
a constant rate of fishing mortality. . .Where it is no longer
possible to assume constant fishing mortality on a given
year-class in the juvenile fishery, the validity of the adult
fishery analyses may be impaired..." and "...the ability to
adequately assess the composition, abundance, and growth of
the adult stock under consideration requires that the rate
of fishing mortality in the juvenile fishery may be assumed
constant. Clearly, effective management of the herring
resources requires that no component (adult or juvenile) be
addressed independently of the others." The validity of this
assumed constant fishing mortality became a point of conten-
tion at Committee and Council meetings.

Committee deliberations

Prior to the Council's January 18 and 19, 1978 meetings,,
the Herring Committee met on January 16 to discuss the Staff's
Addendum and to formulate recommendations. However, the
Committee was unable to present a recommendation to the
Council. There were too many unresolved problems relating
to the fishery and user groups. Another meeting with indus-
try advisors was felt necessary before the Committee could
make recommendations. The advisors were of two primary

factions (excluding those representing the juvenile fishery
interests) representing the winter/spring (December-March)
fishery in the Gulf of Maine carried out by inshore pair
trawlers primarily along the Massachusetts shore, and the
summer/fall (August-November) fishery in the Gulf of Maine
pursued by purse seiners on Jeffrey's Ledge.

At another meeting of the Herring Committee on
January 30, 1978, results of the Staff's evaluations, Council
inquiries, and industry advisor input, discussed at previous
December 3 0 and January 16 Committee meetings, led to the
following draft recommendations:

1) 5Y quota (age three and older fish - 3+) of 14,000
MT for 1978 divided equally between fisheries in-
side three miles off the State of Maine and else-
where. It was acknowledged that 14,000 MT would
not provide for rebuilding and would cause further
stock declines.

2) States implement measures to limit catch of sea
herring in cooperation with the Council to the
14, 000 MT level.

3) Establish a 1979 OY to achieve stock size stability
and to consider rebuilding in 198 0. This was recom-
mended because the Committee realized that there
would not be any fishery limitations until at least
mid-1978. The goal of rebuilding in 1978 was
abandoned.

4) 5Z/6 quota of 26,000 MT for a high possibility of
stock rebuilding.

5) No recommendation for a spawning area closure since
the low fall quotas were expected to be taken
before fishing on spawning concentrations could
commence in September and October.

6) 9" minimum size for the adult sea herring fishery.
Note: absence of reference to total or fork length.

Later, these recommendations were revised somewhat (see below)
and submitted to the Council at its February 14 and 15, 197 8
meetings. They could not be acted upon, however, since time
constraints forced the Council to devote all its debate to
that of groundfish which at that time was a central issue.

The most significant change in the draft recommendations
was that no recommendation for a specific quota inside Maine
waters was made - only that it was assumed that appropriate
and complementary quotas would be set by Maine for age 3+
fish harvested in the juvenile fishery. This change was to
prevent the need for other state herring allocations if Maine

10

was to receive one. It was Allen Peterson's position (then
Director of the Massachusetts Division of Marine Fisheries)
that the directed fishery for age 3+ herring should be under
one quota with no separate state allocations. If Maine was
to receive an allocation, Massachusetts was to insist it be
given an allocation also. A quota of 7,000 MT age 3+ was
proposed for waters outside of Maine.

On February 27 prior to March 1 and 2 Council meetings,
the Committee met again to review its draft recommendations
and to recommend seasonal breakdowns of its proposed quotas.
The Committee proposed summer/fall quotas of 3,000-4,000 MT
for 5Y and 12,000-14,000 MT for 5Z/6 with an anticipated 1979
5Y winter/spring quota of approximately 6,000 MT assuming 1979
sea herring stock assessments were similar to 1978 assess-
ments. It proposed an August 1-July 31 fishing year in order
that the "fall quota for the beginning of a fishing year
would reflect the stock assessment for that calendar year
while the remaining seasonal quotas for the balance of the
fishing year would reflect the assessment for the next
calendar year".

The 5Y fishing year quota of approximately 10,000 MT was
considered consistent with a 5Y stock removal of 7,000 MT which
was expected to prevent further stock decline. The logic
for this rested with one of the primary considerations in
setting TAC's. To explain, since one goal of the Herring
Plan was to rebuild 5Y stock, it was therefore necessary to
restrict catches during the time of the year when the 5Y
stock was most available. This time was during the summer/
fall as the 5Y stock proper concentrated on spawning grounds.
At other times of the year, herrinq from other stocks such
as those located off Southwest Nova Scotia and Georges -
Bank intermingled with 5Y stock; e.g., winter/ spring. Hence,
greater amounts of fishing could be tolerated in the winter/
spring since impacts on the 5Y stock itself were lessened. In
other words, the 5Y stock was dispersed.

The Committee opted to select one of the Staff's pre-
vious options not given much attention by the Staff because
it conflicted with the objectives used by "he Staff to guide
their analyses. This strategy was to set 1978-1979 fishing
year quotas to maintain the 5Y stock without further decline
and to consider an "appropriate rebuilding program" for the
1979-1980 fishing year. An annual 10,000 MT 5Y quota with a
seasonal breakdown of 70:30 (winter/spring: summer/fall) was
considered advisable for the 1978-1979 fishing year.

Again, regarding the State of Maine,

"The Committee recognized that the traditional fishery
within the territorial waters of the State of Maine
included an aggregated catch of 6,000-8,000 MT of

11

adults (emphasis added) taken as an incidental catch
(emphasis added) in the juvenile fishery. It was tne
recommendation of the Committee that with catches of
this magnitude a position of non-interference be es-
tablished. It was understood that the State of Maine
would take appropriate action should such adult catch
levels be exceeded significantly. The Committee
recommended that the Council request that those states
which catch adult herring from within their terri-
torial waters cooperate with the Council to ensure
that quotas were not exceeded."

It is here that a major problem developed; viz, the
interpretation of what was a juvenile herring. While the
biological definition was clear (ages 1-3) , the Committee,
Staff, and Council and industry perceptions' apparently were
not the same. The terms juveniles, juvenile fishery, adults,
and adult fishery often were used loosely leading to more
confusion than realized. For example, Committee recommen-
dations presented at March Council meetings (above) indicated
an aggregate traditional catch of 6,000 - 8,000 MT of adults
taken as incidental catch in the juvenile fishery of Maine
waters. Adults are age 4 and older herring - not age 3
and older.

The Committee recommendation was that with catches of
this magnitude, a position of non-interference should be
established. However, in retrospect it appears that differ-
ent Committee members and advisors who had major input had
different views on what the Committee was recommending.
For example, Massachusetts representatives, notably
Allen Peterson, felt that the Committee was recommending
an aggregate catch of 6,000-8,000 MT of age 3+ fish from Maine
territorial waters and that this catch would truly be incidental;
i.e., that Maine fishermen did not direct their,
efforts toward age 3 and older, especially age 3. However,
Maine representatives such as James Warren of the Maine
Sardine Council felt the recommendations referred to 6,000-
8,000 MT of age 4 and older since: 1) adult herring were
ages 4 and older; and, 2) catch of age 3 in the juvenile
fishery was not really incidental but dependent on avail-
ability and abundance of age 2 as well as 3. When age 2 are
not abundant and age 3 are abundant and available, the
juvenile fishery utilizes that age. These points were not
well elucidated back during the early stages of Plan development,
at least in the opinions of some who were involved in the
process. Recommendations were therefore formulated in spite
of a significant misconception.

Additional recommendations were:

1) to make seasonal quotas adjustable with respect

12

to time and area;

2) to recommend high priority for an International
Herring Tagging Program by NMFS ;

3) no foreign fishing until optimum stock levels are
achieved;

4) no minimum size limit (9 inches) for 1978 and
1979 but to continue evaluation of a meaningful
limit for the future;

5) closed spawning areas/seasons for future imple-
mentation; and,

6) all recommendations had to be accepted in their
entirety or returned to the Committee for further
deliberations.

At its March 1 and 2, 1978 meetings, the Council
approved the Committee's recommendations to be used as guide-
lines for development of the Draft Management Plan, and at
later March 22 and 23 meetings it approved additional
Committee recommendations which were:

1. The following statement on stock rebuilding shall
be added to the quotas adopted by the Council on
March 1, 1978.

The Committee recommends that rebuilding of the
Gulf of Maine ("Jeffreys Ledge") herring stock
begin in 1980. The quotas for the 1979/1980
winter/spring and 1980 summer/fall fisheries in
the Gulf of Maine, appropriate for stock rebuild-
ing, shall be set as soon as assessment and re-
cruitment data necessary for reliable estimates
of appropriate quotas are available.

The commitment to rebuild the Gulf of Maine stock
in 198 0 may be re-evaluated and postponed, for one
year, to permit fishing to a maximum harvest com-
patible with current stock assessments if the
current assessment and recruitment data for the
Georges Bank and southern New England stock indi-
cate a stock size that could not support a viable
commercial fishery.

A decision to postpone rebuilding of the Gulf of
Maine stock must be re-assessed after one year,
taking into account all relevant assessment data
on the Gulf of Maine stock and the stocks in areas
other than the Gulf of Maine.

2. The Committee recommends the Council adopt a
Resolution that

13

a) foreign fishing for herring shall be pro-
hibited until herring stocks have been re-
built and maintained at MSY for several years,

b) until the domestic fishery has developed the
vessel capability of fishing on Georges and
other offshore areas, and

c) until there is an adequate understanding of
the migrations, and reproductive inter-rela-
tionships between the various stocks inshore
and offshore.

3. The Committee recommends that the fisheries direc-
tors of the appropriate coastal states be requested
to send letters to the Council stating the specific
plans of their states to cooperate with the Council
for effective implementation of the herring manage-
ment plan.

The commitment to rebuild the 5Y stock in 198 0 was not
firm. The Council left itself the option to postpone re-
building if necessary. Also, the Council emphasized its
position that foreign fishing should not be allowed even
after stock rebuilding at least until the U.S. fishery devel-
oped the capacity to take advantage of the offshore stock.
It was felt unreasonable to rebuild the Georges Bank stock
for the benefit of the foreigners. Additionally, foreign
fishing could have "unforeseen damaging effects on other
herring stocks" since the relationship between stocks was
not fully understood.

Draft Plan received

At April 19 and 20, 1978 meetings, the Council received copies
of the Draft Sea Herring Management Plan. Public hearings
were scheduled for May, and barring any unforeseen events,
final regulations were projected for the beginning of October,
1978.

The 5Y and 5Z/6 OY's for 3 year and older herring for
the fishing year July 1, 1978 to June 30, 1979 were set at
8,000 MT and 16,000 MT, respectively. The 8,000 MT TAC was
to be divided equally between winter- spring (December- June)
and summer-fall (July-November) fishing seasons while the
16,000 MT TAC was to be apportioned as 13,500 MT and 2,500 MT
for the summer-fall and winter-spring fishing seasons,
respectively. The latter figure was to be revised after re-
ceipt of updated NMFS stock assessments. There was no recom-
mended quota for foreign fleets, and a no discard rule was
established. The 50:50 ratio between summer-fall and winter-
spring fisheries was adopted for 1978-1979 by the Council in
lieu of the 70:30 ratio to forestall any immediate adverse

14

effects of the 70:30 ratio on purse seiners.

States were requested by the Council to relate their
plans for cooperative management of the sea herring resource.
The Council also considered the territorial waters of Maine
as a distinct management entity, but recommended restrictions
with regard to catch of age 3+ fish in the juvenile fishery. No
serious objections were raised over Maine's exempt status
because it was assumed that the Council's restrictive recom-
mendations were acceptable to Maine. Regarding one state,
Massachusetts, this proviso was critical to the extent of
its cooperation and possible adoption of the Council Plan
for its own territorial seas.

Maine' s olan

As early as January 1, 1977, Maine's Department of Marine
Resources and Maine's herring industry began considerations
of a Plan for management of herring along the Maine coast
during 1978. During the last half of 1977 a draft plan was
developed and brought to Maine's industry for discussion and
improvement. One objective of the Plan was, "to eventually
increase herring abundance to a level that could provide an
average annual catch of twice that of recent years in the
juvenile fishery (ages 1-3) and additional increases in
catches of adult herring". Vinal Look, then Commissioner of
Maine DMR noted,

"Because of New England Regional Fishery Management
Council action which is imminent and to maintain con-
trol over our own inshore fishery, it has been deemed
desirable that the State formulate a plan of action.
Following discussion with the Maine Sardine Council,
we feel that this plan should demonstrate our intent
to conserve our juvenile herring stocks. Further,
this plan should also insure the maintenance of our
own control and management of this fishery."

On April 14, 1978, the DMR Advisory Council was pre-
sented with a proposed Preliminary Management Plan for
herring in Maine waters. The Plan recommended a closure to
fishing for herring age 4 and older (10" and larger) to pro-
tect spawning fish 'to give increased egg protection and
offer a better opportunity for stock recovery". The Maine
coast was to be divided into two sections. The east area
was to close August 27-October 7, 1978 and the west area
from September 10-October 21, 1978. These closures were to
apply to mobile gear only. A possible closure was suggested
for some fixed gear capable of catching spawning fish.

The Plan also proposed a 3,500 MT quota for adult- her-
ring (10" and greater) to be divided among months. The
quota's purpose was to protect Maine's fishery from "excessive

15

effort by either Maine or non-resident fishermen if there
was a sudden jump in either demand or price" (Donnell, Maine
Commercial Fisheries, May 1978) . No quota was recommended
for the juvenile fishery (less than 10"). This proposed
plan was to be brought before Maine's industry to acquire
its sentiments.

At a preliminary meeting with sardine packers before
formal public hearings, Maine DMR acquired views on its pro-
posed plan. Five options were presented ranging from no
plan to catch quotas. The most agreeable measure was the
spawning area closure involving separate east and west coast
closures of different durations (above) although some felt
that closure periods could be shorter and flexible; i.e.,
closure dates could be set by DMR biologists performing
surveys of spawning activity.

Regarding quotas, the proposed Plan suggested as one
option a quota of 30,000 MT for juveniles and adults caught
by the entire Maine fishery. Only once since 1963 had that
figure ever been attained. In 1977- 33,000 MT were caught.
This proposal was criticized by Maine industry representa-
tives who felt markets were expanding and the 3 0,000 MT
would be exceeded again.

Another option was the Council recommendation of 8,000
MT age 3+ (9" and greater) . This suggestion was considered
by industry to be unworkable and "disastrous". The following
excerpt (Donnell, Maine Commercial Fisheries, June 1978),
relates those concerns and the option that was finally
accepted; i.e., 3,500 MT quota of 10" and larger herring
(Note: These views were those of sardine processors, not of
those dependent on adults) .

"The New England Regional Council asked the state to
consider a 6,000-8,000 mt quota on 9" and up. But
Maine is hesitant. Age 1, 2, and 3 are the mainstay
of the Maine sardine industry. These age groups,
especially the 2 and 3 yr. old swim together and are
caught together in Maine's inshore fishery.

Usually by age 4 (10" and up) herring mature and mi-
grate offshore. Some of the early-maturing 3 yr.
olds also move offshore and mix with them. But pre-
sent consensus is that most of the 3 yr. old, 9"
herring aren't sexually mature and do remain inshore.
They mix with the 2 yr. olds and separation is extremely
difficult. It is Maine's argument that any 9" enforce-
ment would be difficult to enforce inshore, although it
is the ideal separating size for adults offshore.

It was the general thought of the group that any limit
on 3 yr. olds "could prove disastrous" to the saru

16

industry. Packer and Regional Council member Charlie
Stinson was worried about Council acceptance of a Maine
plan that threw the 9" in with the juveniles. The
success of Maine's sardine industry is directly related
to the amount of 2 yr. olds, and to a lesser extent the
3 yr. olds. Any quota limits on age 3 could be disas-
trous, especially if there aren't many age 2 around,
such as 1972.

Packers were also concerned with the economics involved
with putting the 9" under a quota. There's more money
and its cheaper to process the 9" into fillets rather
. than pack them as sardines. Currently there is a large
and expanding foreign market for the fillets. The rush
to put all the 9" into fillets, where the money is,
could result in a closure. This would leave the sardine
plants, with their fixed yearly costs, really in deep
financial troubles.

Despite the economic arguments for keeping the 9" and up
quota, some foresaw that leaving them "wide open" could
possibly in the long run - "murder the fishing."

The packers finally voted to give the 3500 mt - 10" and
up quota a whirl. As Moses Pike of Holmes Packing put
it, "We can always change it next year."

Public sentiment

On June 7 and 8, 197 8, the Council was informed of pub-
lic comment heard at its hearings on the Sea Herring Plan.
The Committee had yet to meet to consider comments and com-
plete its final recommendations to the Council. A general
summary from Council members who attended the hearings indi-
cated that the public, was concerned over: 1) size and sea-
sonal breakdown of quotas. For example, Gloucester purse
seiners stated they could not survive with the summer/fall
quota of 4,000 MT. They suggested a "buy back" program to
take purse seiners out of the fishery or help the vessels
convert for participation in the offshore fishery; 2) Canadian
fishing. According to Council member Jacob Dykstra, the
Canadians were taking more fish than the U.S.; hence, the
Canadian fishery could have several times the impact than
the U.S.; 3) 8,000 MT incidental catch of adults in the Maine
juvenile fishery. Some individuals felt that the 8,000 MT
was not really an incidental catch to the directed fishery
for juveniles. They felt that the 8,000 MT would be har-
vested during a directed fishery for adults. A Rhode Island
Representative, Leonard Stasikiuewiz of the Point Judith
Cooperative Fishermen's Association stated, "For 10 years,
R.I. fishermen have caught most of their herring within the
territorial waters of Rhode Island, yet Rhode Island coesn't
get its own quota."

17

The Council voted to give preliminary approval to the
Herring Plan as it went to public hearings but awaited a
final decision on the Plan until its August 9 and 10 meetings
before sending the Plan to the Secretary of Commerce for
approval.

State representatives also related their stances. Allen
Peterson stated his support for the Plan and said that
Massachusetts would abide by it. Jay Cronin of R.I. Depart-
ment of Marine Resources stated that R.I. would act in a
responsible manner but that there would be difficulties with
the 2,500 MT quota for the 5Z/6 area during the December-
June period.

The Herring Committee met on July 5, 1978 to review all
comments heard at the public hearings and to make possible
modifications in the Plan for Council consideration at its
August 9 and 10 meetings. Again, a review of the hearings
showed great concern over the non-quota' ed juvenile fishery
and the so-called incidental catch of 8,000 MT of "adults"
(3 years+, 9"+) in the juvenile fishery. However, this con-
cern was not shared by Maine fishermen and others involved
with the juvenile fishery. For example, many at the Maine
hearings said that management of the juvenile fishery should
be left to Maine and that Maine had done a good job to date
and would continue to do so in the future. James Warren pre-
sented Maine's historic herring management measures in support
of this belief.

Plan revisions

At August 9 and 10, 1978 meetings Council Staff related
revisions in the Atlantic Herring Final Management Plan made
in accordance with comments received from public hearings
and the National Marine Fisheries Service. The revisions
involved possible Canadian allocations, expected domestic
catch and total allowable level of foreign fishing on Georges
Bank/southern New England, and discarding at sea. The Plan
still disallowed any foreign allocation except for a Canadian
allotment which was subject to negotiation (U.S ./Canadian
Treaty) but not expected to exceed 10% of the optimum yield
for the fishery on Georges Bank/ southern New England (5Z/
SA6). One noticeable change was a reduction in the Georges
Bank/southern New England July-November, 1978 quota of 13,500
metric tons to 7,500 metric tons. An expected domestic catch
of approximately 7,500 metric tons, the FCMA provision that
foreigners must be allowed to take that portion of OY
in excess of domestic capacity, and a Council desire to
rebuild the Georges Bank/southern New England spawning stock
to make it more available for domestic fishermen in the
future were responsible for this reduction. Area/season
quotas for age 3+ fish became the following:

18

July-November 19 78 December-June 1979 Total

5Y 4,000 4,000 8,000

5Z/SA6 7,500 2,500 10,000

An amendment to the proposed Plan was also considered.
The State of Rhode Island, originator of the amendment,
sought to readjust the area/season quotas to account for
possible shifts in fishing effort by R.I. boats to the south-
ern New England area during December- June, 1979 in response
to a small December- June, 1979 Gulf of Maine quota (4,000 MT) .
The suggested R.I. area/season quotas were:

July-November 1978 December-June 1979 Total

5Y 4,000 3,100 7,100

5Z/SA6 5,900 5,000 10,900

R.I. feared that the 2,500 MT would be too restrictive for
their fishermen. Allen Peterson did not favor this amend-
ment since those Massachusetts fishermen who historically
fished the Gulf of Maine were already being severely re-
stricted by the 4,000 MT and a further reduction of 900 MT,
as small as it may have seemed, would have been inappropriate.
His feelings were shared by other Council members, particu-
larly those from ports bordering the Gulf of Maine, for the
amendment failed to win approval. However, it was stated
that the Plan was sufficiently flexible to accommodate simi-
lar future adjustments, if warranted.

Increased concern about Maine management

At these August meetings the issue of Maine management
surfaced again. Maine Plan proponents felt that Maine's
herring regulations would prevent expansion of the fishery
in 1978. They felt that the processing capacity of Maine
plants limited juvenile catch, and since the quota of 3,500
MT for adult herring (10" and greater) was the average annual
catch of adults from 1970, adult catches could not increase.

Others were still concerned over the lack of a quota on
juvenile herring and Maine's refusal to have its quota di-
rected towards 9"+ herring as recommended in the Council's
Plan. Vinal Look countered that Maine was being more re-
strictive on its adult fishery by reducing the Council recom-
mended quota of 8,000 (age 3+ , 9"+) to 3,500 (age 4+, 10"+).

Even though the issue of whether Maine's Plan was in
keeping with the Council's intent was not resolved, the
Council voted to approve its own Plan with the Staff's revisions
The vote was needed to get the Plan in place for 1978; other-
wise, there would have been no Plan for the year.

19

In early August, Maine held its public hearings on its
proposed Plan. On August 27, 1978, the first provision of
the Plan became effective; i.e., the six week spawning area
closure from the area east of Mount Desert Rock to Cutler,
Maine. Taking of adult herring over 10" was prohibited until
October 7, 1978. It was expected that the 3,500 MT quota of
10"+ would be taken by September 1 and the fishery would
close, thus, that spawning area closure and the one scheduled
in western Maine from September 10 to October 21 were moot.

An attempt to force the issue

At August 3 0 and 31, 1978 meetings Edward MacLeod attempted
to (by way of a vote) get the Council to request a Secretary
of Commerce hearing, "to obtain information to determine
whether the State of Maine has complied with the intent of
the New England Fishery Management Council in not establishing
an annual quota on juvenile herring, and by classifying 9"
herring in Maine territorial waters as juveniles." The
rationale for his motion was: 1) Since the Council and Maine
seemed to be at odds as to what constituted a good conserva-
tion measure, the Secretary should make the final decision;
and, 2) the Maine juvenile fishery would be a good test case
on how far the Secretary would go with preemption of State
authority. He also disagreed with Maine's contention that
its juvenile herring industry had a limited capacity - the
criteria which indicated that it needed no further restrictions.
He noted that his company was going to be seriously impacted
by the Herring Plan and that everyone engaged in the herring
fishery should share the burden.

Vinal Look opposed any Council action to subject Maine's
Plan to Secretarial review. He also noted that the Maine Plan
had not been in effect long enough to evaluate whether it was
inconsistent with the Council's Plan and that Council members
had not even had a chance to read Maine's Plan which had been
distributed to them that day. Also, and perhaps most importantly,
Mr. MacLeod's employer, Lipman Marine Company was seeking a
restraining order to stop a closure of the adult fishery in
Maine waters while the juvenile fishery continued. In the
opinion of Edward Bradley, then Assistant Attorney General
of Maine, a Council approval of the motion would jeopardize
Maine's defense of its Plan. Mr. MacLeod's motion was tabled.
The Council felt such an action was premature since the
Herring Committee had yet to review Maine's Plan and no action
or inaction by Maine had led to actual demonstrable non-
compliance with the Council Plan. At Council September meetings
the motion was defeated overwhelmingly.

Other issues

sC

On another related issue, Mr. MacLeod requested the
Herring Committee to meet to discuss the advantages and dis-
advantages of trip limits for boats engaged in the herring

0

industry. The Committee met on September 20, 1978 and deter-
mined that trip limits were not an appropriate solution to
the problem of restricting catches particularly when herring
were of poor quality, full of feed, or when herring were
spawning. The fate of these poor quality fish; i.e., re-
duction, had long been a concern of the Committee for it was
felt by most that the primary use of herring should have
been for food purposes. One reason for this attitude was
the high value of herring fillets (over $100 per ton) .

The eventual Committee recommendation presented and
accepted at the September 20 and 21, 1978 Council meetings was
"that NMFS be requested to monitor herring processors and the
vessels engaged in the fishery to determine the disposition
of the fish once landed and that these NMFS reports to the
Council should be every two weeks. If it is determined that
there are substantial re-occurrences of herring going into
reduction, the Committee recommends the Council take appro-
priate action." "Substantial" was suggested to be 7-10% of
the annual allocation going to non- human food purposes.
The appropriate action to be taken was not defined.

On September 28, 1978, the Committee met to review
draft regulations for the Herring Plan. These were modified
and sent back to the Staff for further work. Additionally,
the Committee discussed the second part of the R.I. Amend-
ment which was not previously recommended to the Council.
That amendment was, ".that all herring caught in
Subarea 6 (west of 71°50' Long.) at any time of the year,
shall be deducted from the July-November quota for area
5Z/6." The rationale for this amendment was that it would
provide for substantial increase in catch "without negatively
impacting on the resource or management strategies in other
areas." At November 29 and 30 Council meetings this amend-
ment was accepted and submitted to the Secretary of Commerce
for review during the 6 0 day review period.

Plan implementation

The Council Herring Plan establishing July 1, 1978 -
June 30, 1979 quotas for the Gulf of Maine and Georges Bank/
South was implemented on December 28, 1978, approximately
one month after the end of the summer- fall period which had
been allotted a quota of 4,000 MT of age three and older
herring for 5Y and 7,500 MT for 5Z/6. The remaining quota
period of December 1, 1978 - June 30, 1979 consisted of
4,000 MT (5Y) and 2,500 MT (5Z/6).

The Plan was implemented on an emergency basis (effective
12/28/78) by the Secretary of Commerce to respond to pre-
liminary data from the 1978 summer/fall fishery showing a
significant overage of the 5Y quota. The overage was b00 MT
or 15% and catch of age 3+ in Maine waters was anticipated to
double the expected amount. Additionally, since the winter/

21

spring fishery, which normally began in December or January
could easily harvest the 4,000 MT 5Y quota in two or three
weeks, the December implementation was considered necessary
to prevent a much larger quota overage causing spawning
stock to drop below the critical minimum level of 60,000 MT
(recommended by ICNAF) .

Scientists had recommended that a spawning stock size
(age four and older) of 80,000 - 120,000 MT was needed to
maintain the stock by supporting continued and relatively
stable recruitment. The 5Y quota of 8,000 MT was already
judged to be in excess of catch (1,000 MT) required to allow
a 10% rate of 5Y spawning stock size increase. A catch of
7,000 MT was expected to allow for no increase whatsoever.
Spawning stock size at the beginning of 1978 was judged to
be 67,600 MT.

To review, the Management Plan sought to change the
pattern of U.S. fishing to result in the "greatest overall
benefit from the fishery". This was to be accomplished
by eventually shifting effort away from the summer/fall
purse seine fishery so that the catch ratio between this
fishery and the one pursued in the winter/spring would be
30:70 instead of 50:50. The latter ratio had occurred
in 1976 and 1977. For the first year of the Plan, the
quotas were split 50:50 so as not to immediately impact
the purse seine fishery.

The reason for the shift was that by favoring the
winter/spring fishery, TAC could be increased because fishing
mortality would then be concentrated on mixed herring stocks
(5Y, 5Z/6, Nova Scotian) . In the fall 5Y fishing effort was
concentrated on the 5Y stock. Intermixing was minimal.
Since the goal of the Plan was to rebuild the 5Y stock, the
summer/fall fishery needed to be reduced to allow for that
rebuilding.

Disparities

January and February 197 9 Council meetings dealt with
"disparities between the Maine and Council Herring Plans".
These discrepancies were cited by both William Gordon, then
Regional Director of NMFS , and Edward MacLeod in correspond-
ence to the Council. The Council also addressed another
concern of Mr. MacLeod. He believed that the Council was
on record not wanting to interfere in state waters. He
thought that fish caught in any state's waters were not
going to count against the Council quotas. It was his
understanding that most herring caught in January had been
from Massachusetts waters, thus they should not have been
deducted from the quota.

Regarding the alleged disparities, the Council voted to

22

accept a Committee recommendation to have the Staff "complete
analyses by weight and age of herring, including herring in
and out of the Bay of Fundy, for the past ten years to deter-
mine if management of juvenile herring was necessary." An
additional analysis was requested to investigate the impact
of 1978 catch on the stocks and implications of the 1978 fall
assessment survey.

With respect to herring in other states' waters being
counted against the quota, William Gordon noted the only
adult herring exempt from the Plan were those taken in Maine
waters (with the understanding that Maine would take appro-
priate action should the adult catch exceed 6,000-8,000 MT
by a significant amount). Allen Peterson, emphasized that
the states were working in voluntary cooperation with the
Council in implementing the plan within state waters. (Note:
refer to Plan sections "The Management Unit", "Other Fisher-
ies Impacting Upon Management Unit" , and "Maine Juvenile
Fishery Considerations" - below) .

1.1.2 The Management Unit

The fishery resources addressed by this FMP are the
herring stocks which spawn in and are generally re-
stricted to the waters off the U.S. northeast and mid-
Atlantic coasts out to the limit of the U.S. Fishery
Conservation Zone. The two resource components identi-
fied are the Gulf of Maine and the Georges Bank herring
stocks. A third resource component, the Southwest Nova
Scotia adult herring stock demonstrates some seasonal
migrations into the U.S. Fishery Conservation Zone. As
such, it enters into the analysis required to identify
U.S. management strategies. It is, however, not made
subject to the provisions of this FMP.

In delineating the management units within the total
resource, it is necessary to acknowledge two provisions
of the FCMA. The national standards for fishery conser-
vation and management specify that:

"To the extent practicable, an individual stock of
fish shall be managed as a unit throughout its range,
and interrelated stocks of fish shall be managed as a
unit or in close coordination." (Sec. 301(a)(3)).

The FCMA asserts also that:

"Except as provided in subsection (b) nothing in this
Act shall be construed as extending or diminishing the
jurisdiction or authority of any state within its
boundaries" (Section 306(a)).

The juvenile herring of the Gulf of Maine (fish aged
one to three) are largely confined to areas within 3
miles off the State of Maine coastline. Three year old
herring, however, migrate to a degree and become avail-

23

able to the adult fisheries both inside and outside the
three mile zone. During any given year fish aged 3 and
older belonging to Gulf of Maine stock may become sub-
ject to fishing in waters over which the States of Maine,
New Hampshire, Massachusetts and Rhode Island have man-
agement authority as well as in the U.S. Fishery Conser-
vation Zone outside state boundaries. A similar situ-
ation exists with respect to the Georges Bank herring
stock whereby herring during certain seasonal migration
phases appear in the territorial waters off the States
of Rhode Island, Connecticut and New York.

In order to meet the need for coordinated management
of the herring resources while at the same time recog-
nizing the management authorities of the states, it is
recommended that:

1. the provisions of this FMP through appropriate
institutional arrangements be made applicable to all
herring fisheries from the shore lines of the New
England and Mid-Atlantic States out to the limit of the
U.S. Fishery Conservation Zone with the exception of
the fisheries for juvenile herring in the territorial
waters of the State 'of Maine and that

2. the management provisions be specified based on
the presumption that the State of Maine in the manage-
ment of the fisheries for juvenile herring carefully
considers the bio-economic interaction between the
juvenile and adult components of the Gulf of Maine
herring stock and through appropriate measures (1)
seeks to contribute towards the achievement of manage-
ment objective and (2) conducts the herring fishery
within 3 miles in a manner that does not impede the
achievement of the Council's objective 1.

2.3.1.3. Other Fisheries Impacting Upon Management Unit

Historically the assessments which have been genera-
ted for the Gulf of Maine spawning stock have not ex-
plicitly addressed the juvenile fishery along the
coast of Maine. Rather, in establishing allowable
catches for the 5Y adult fishery (principally through
ICNAF) the analysis has determined year class strengths
recruiting to that fishery at age 3. As a result,
fishing mortality induced in the juvenile fishery has
already been implicitly discounted.

In the past the juvenile fishery has principally
been conducted using fixed gear, which tends to pro-
vide yield in relation to abundance (environmentally
induced variations in availability assumed average) ,
thus producing a constant rate of fishing mortality.

24

Where the fishery is exploited using movable gear (i.e.,
purse seine) , the possibility exists for fishing mor-
tality to increase substantially on a given year class,
particularly when the juvenile herring are relatively
less available to the fixed gear. In the latter case,
the juvenile fishery is able to take increased advan-
tage of a given year class, thus impeding the achieve-
ment of objective 1, to rebuild and sustain at optimum
levels the size of the Gulf of Maine spawning stock.
Where it is no longer possible to assume constant
fishing mortality on a given year class in the juvenile
fishery, the validity of the adult fishery analysis may
be impaired without explicitly considering the activity
in the juvenile fishery. Moreover, in order that the
entire resource may be managed equitably, controls on
fishing mortality by juvenile fishery purse seiners may
be indicated.

2.6.2.4. Maine Juvenile Fishery Considerations

As noted in Section 2.3.1.3.. the ability to assess
the composition, abundance and growth of the adult
spawning stocks requires that the rate of fishing mor-
tality induced on these stocks in the traditional
juvenile fishery be assumed constant. As a practical
matter, harvests of age 3+ fish from within the tradi-
tional juvenile fishery must be known and accounted for
so as not to violate the assumptions of fishing mor-
tality associated with adult fishery area/period TACs
and spawning stock projections. Where age 3+ fish are
retained in the fixed gear of the juvenile fishery,
the assumption of a constant fishing mortality rate
is not unreasonable; that is, catch is proportional to
year class availability and abundance. However, where
the catch of age 3+ fish in the juvenile fishery results
from directed fishing inside State waters, then quotas
on these harvests need to be established consistent
with the area/period TAC analysis for the adult fishery.

The annual catch of herring within the territorial
waters of the State of Maine in recent years has in-
cluded 6,000-8,000 MT of age 3 and older herring. This
represents removals of age 3+ herring within the total
Maine catch of a proportion that is consistent with the
achievement of the Council's objective 1. It is ex-
pected that this recommended level of harvest will be
carefully reviewed by the State of Maine in light of
(1) the current status of herring stocks, and (2) the
manner in which age 3+ fish are harvested, and that
appropriate and complementary quotas will be estab-
lished in State waters. Future assessments leading to
area/period TACs for the adult fishery are expeccad to
consider catches from all relevant fisheres (adult and
juvenile) , and in doing so provide improved biological

25

advice on the harvest of 3+ fish in the traditional
juvenile fishery in relation to the regional utiliza-
tion of sea herring resources.

Differences in opinion

Another controversy arose at the meeting - the issue of what
size herring were being landed during December and January. This
was important since, using 9" as the dividing line between age 3+
and ages 1 and 2 fish, Mr. MacLeod indicated that his own samples
of herring landed at his plant showed that 40-50% of the fish were
less than three years (using size as a guideline) . NMFS samples,
on the other hand, indicated that the percentage was approximately
10-20%. The smaller the percentage age 3+ in landings, the more
fish available to be caught before the quota was reached. Accord-
ing to Mr. Gordon, few fish sampled during December and January
were expected to be less than three years.

Adding to this argument on percent age composition, was
the size guideline used by NMFS to separate age 3 and older
from age 2 and younger fish. NMFS considered all herring
landed under 8" natural total length (TL) (tip of snout to
end of tail) . Mr. MacLeod and others had been under the
impression that 9" fork length (FL) was the standard to be
used. The difference between 8" TL and 9" FL could be as
great as 2" for 9" FL equalled approximately 10" TL. This
"small difference" in interpretation was very significant
during the winter of 1978-1979 since many fish being landed
from December through March were near these sizes, thus
depending on the interpretation, fish counting against the
quota could range from 10-5 0% of actual landings. A strong
1976 year-class ranging from about 8-9" TL was responsible
for this abundance of herring and importance of the size/age
distinction.

NMFS used the 8" TL standard since, according to con-
ventions of fish ageing, all herring observed a "birthday"
on January 1; hence, the 1976 year-class became three years
old on that date. This convention caused many "small" fish
(approximately 8") to be age 3; hence, the need for an 8"
breakoff point to account for these small fish in the
landings. Accurate breakdowns of the age composition timely
enough to be used for quota purposes were not possible since
collection, processing, and ageing of samples was a slow
laborious effort with only a few people devoted to the chore.

This convention caused more industry discontent with the
Council/federal sea herring management approach. Herring
generally spawn in late September-early October and meta-
morphose to become juveniles in the spring of the following
year (approximately 1.5"). Logically, it would seem reason-
able that these fish would be one year old the next September-
October period. While true biologically, the ageing con-

26

vention and assessments using this convention caused a
herring to be arbitrarily assigned as age 1 at the begin-
ning of the calendar year. Thus in January, while biologi-
cally a herring might be only three months old (from date
of spawning) , for assessment purposes it would be one year
old. Many industry representatives said, "How can a January
caught fish (8") be three years old when biologically it is
only two years and three months? If the Council is con-
trolling catch of age 3+ herring, the size delimiter should
be that which fish would measure in October; this is, about
10-11"." Industry confusion was understandable.

The first closure

On March 14, 1979 the first closure occurred in the
Gulf of Maine (excluding Maine waters) . Four thousand met-
ric tons had been caught by the first week of March. Fishing
could continue if catch of herring did not exceed 5% of
weight of fish on board or 20% of weight if the vessel was
fishing for mackerel (Council decision) . Some industry repre-
sentatives complained that size of fish to be counted against
the quota and the measurement guideline for those fish were
misunderstood by the industry. Specifically, a 4,000 MT
quota of age 3+ fish at 9" FL (or approximately 10" TL) would
have provided the adult herring industry with much more
herring than a quota based on 8" TL (or approximately 7" FL) .
Regardless, the fishery was closed.

Massachusetts efforts

On March 13 and 14, 1979 the Massachusetts Division of
Marine Fisheries and its Advisory Commission held public
hearings to present the substance of the Division's proposal
that the Commonwealth adopt the Council Herring Plan and
implement complementary regulations. It was pointed out to
a rather large audience (60 people) of Massachusetts pro-
cessors, fishermen, et al. by Allen Peterson, then Director
of the Division, that the Division was contemplating a State
waters closure when federal waters were closed to herring
fishing.

No one supported the Division's proposal; there was
unanimous opposition. Leonard Stasikiuewicz of the Point
Judith Fishermen's Cooperative raised the issue of size of
fish to be counted against the Council quota. He noted that
the States of Maine and Rhode Island had not adopted the
Council Plan. In Rhode Island, nothing under 10" TL
was counted against the quota. It was also his understanding
that the Council had never intended to count herring under
9" FL against the quota. He and others were totally surprised
by the NMFS decision to discount herring 8" TL and smaller from
the quota when industry had been led to believe from the beginning
that 9" FL was to be the length used to distinguish small from lar

27

herring. He believed that 60 to 65% of the landings was under
9" FL in contrast to approximately 6% under 8" TL which was used
by NMFS and resulted in a closure. He emphasized that the indus-
try had been misled, and consequently, Massachusetts should not
adopt the Council Plan.

Edward MacLeod was also opposed to a Massachusetts adop-
tion of the Council Plan. He stated that Maine was more sym-
pathetic to its fishing industry. Mr. MacLeod was in favor
of adopting the Rhode Island and Maine plan. He stressed
that as a former Council member, he was under the impression
that three year old herring were to correspond to fish 9" FL,
and the use of 8" TL effectively made the 4,000 MT quota of
age 3+ fish more like 2,600 MT. Mr. MacLeod also noted that
the resource was not in dire shape since, according to the
scientists, the 1976 year-class of herring was equal to the
1970 year-class (largest on record) and that a good 1977
year-class was expected. He stated that we were not in an
emergency situation where Massachusetts had to take action
immediately.

Processors were asked how they measured their fish. Mr.
MacLeod responded that the sampling scheme depended on the
type of truck used to transport herring. For straight dump
jobs which held approximately sixteen to eighteen thousand
pounds of herring, one bushel was taken at random, 8 0 pounds
was weighed out and separated according to fish greater than
and less than 9" , and the percentage of herring less than 9"
was applied against the overall weight. For trailer trucks
which held approximately fifty thousand pounds, three
bushels were taken at random. In addition, he stated that
every boat in Gloucester was sampled at his plant; he con-
sidered the NMFS sampling to be inadequate. Two samples
were taken in Gloucester on December 1 and 6 and one sample
on January 10. He reiterated that Council members had in-
tended to use the 9" figure.

Wayne Bassett of Sandwich stated that the percent composi-
tion of fish under 9" FL ranged from 31 to 33% and averaged
45%. He sampled by taking 100 lbs, examining that quantity
for length composition, letting 10,000 lbs go through, then
taking another 100 lbs, etc. He was also convinced that the
Council had gone with 9" FL; 46% of the landings at his plant
were less than 9"FL.

Of interest was that some processors were using the
Council's 9" FL as a mean to designate "small" vs "large"
herring which commanded different prices. James Avila of
Dartmouth stated that in 1978 processors considered every-
thing over 8" FL as large and the fishermen were paid
accordingly. In 197 9 everything over 9" FL was considered
as large; consequently, 95% of his catch had been classified
as small. George Vasconselos of New Bedford noted that he

28

was getting 25% less money and a 50% reduction in catch in
1979 in contrast to 1978.

The Director mentioned the heart of the problem faced by
the Division and the Commission. He stated, "We realize
money is invested today. We have to worry about whether you
can work on that investment over the next few years. Do we
allow you to keep fishing and take the chance that you won't
have an impact on the herring down- the- road, or should we
take action to support the Council, to consider the 4,000 MT
quota sensible and to protect these herring so that the stock
can rebuild? Should we get the short-term dollar and worry
about next year when it comes?" Mr. Peterson concluded that
the Division might not follow the federal action of closure
if the federal action was inappropriate under the plan. All
available data had to be used to determine if the action was
appropriate.

Ultimately, as a result of this industry confusion, the
Division and its Advisory Commission decided not to close the
fishery. It was felt that industry, arguments were valid, and
besides, the winter-spring fishery was winding down so addi-
tional landings were not expected to be heavy.

New recommendations

At March 14 and 15, 19 79 Council meetings, Committee
preliminary recommendations for amending the Herring Plan
were presented. One recommendation was to define adults as
age 3+ herring, which were 9" TL and longer, for the current
fishing year (until June 30, 1979). NMFS was asked to re-
assess landings data using this standard instead of the 8"
TL criteria. These recommendations were approved. NMFS
pointed out, however, that a re-evaluation would still
indicate the need for a closure.

This recommendation was approved by the Council in spite
of Spencer Apollonio's objection. He had preferred to see
the issue brought back to Committee for further discussion. Note
In retrospect, this vote went farther than it should have.
The Council Plan did not regulate adults vs. juveniles -
only age 3+ fish. Hence, it regulated some juveniles (age 3)
and all adults (age 4+) . This age composition made up the
adult fishery. The Council's acceptance of the motion
caused confusion for many because the Plan already defined
adults as age 4+ and juveniles as ages 1-3 but only regulated
catch of age 3 + .

Other recommendations involved major revisions in the
Council Plan. The first was to increase the 5Y OY from
8,000 MT to 30,000 MT for the 1979-1980 fishing year. This
increase was due to a recommended change in the management
unit to include all herring age 3+ taken from territorial
waters of all states. Furthermore, the 5Y area was recommended
to be split into two regions - north and south of Cape Eliza-
beth, Maine - with seasonal suballocations for each region to

29

ensure historical access of user groups (Figure 2) . By taking
this approach, the Committee and the Council could remove the
exemption for catches in Maine waters not counting against
the 5Y seasonal catch allocation.

It was recommended that the 5Y North area be allotted a
10,470 MT annual allocation. Since most fishing for age 3+
in 5Y North occurred in Maine waters this allocation effec-
tively was for the Maine coastal fishery which historically
focused on juvenile (age 1-3) herring and took significant
numbers of adults too. The 5Y South quota was recommended
to be 19,530 MT (30,000 MT - 10,470 MT) for the 1979-1980
fishing year.

The 30,000 MT represented the average U.S. total removal
from 5Y over the past decade and was considered to be consis-
tent with the maximum long-term average yield from the 5Y
stock. This recommended OY originated from results of a
Regional Herring Assessment Working Group which met in early
19 79 to evaluate the condition of and outlook for the 5Y and
Georges Bank spawning stocks.

These recommendations were to go to public hearings in
April. Also, at that time, two other recommendations were . to be
discussed: 1) a two week closure of all fishing in herring
spawning areas on Jeffrey's Ledge and Georges Bank during
October; 2) age 3+ fish to be defined as 8" TL from December
1-June 30 and 9" TL from July 1-November 30 ; and, 3) options
for seasonal OY breakdowns for north and south of Cape Eliza-
beth, Maine. An admittedly optimistic June 30 implementation
date was projected.

Resource status

Mindful of the need to address the entire herring
resource supporting various age 3+ fisheries in the Gulf of
Maine, the Assessment Working Group adopted a pooled approach
to their assessment. The pooled assessment estimated the
combined magnitude of the three spawning stocks contributing
to the FCZ fisheries and estimated relative strengths of
recent year classes.

Results of the assessment indicated that the combined
spawning stocks of Southwestern Nova Scotia, the Gulf of
Maine, ar Georges bank were at their lowest recorded level.
This condition was primarily the result of the 1970 year
class being fished out and succeeding year classes being
below average. Catches of herring from the 1976 year class*
however, had been strong in both 1977 (as age 1) and in 1978
(as age 2) . Evaluation of the importance of the 1976 year
class to the resource indicated that this year class might
approach the strength of the 1970 year class (the largest
year class for which data were available.

30

TOTAL ALLOWAHLF CATCH LEVELS
70*W SE ElgBBgg Agg 3 AnO OLflEftTY
Mkk ANfl PgRtflfl

68#W

Cape
Elizabeth

•

5Y North

July-Nov.'79: 8,850 MT
0ecJ79-Jun.'80: 1,620 MT

— _. — --—.— -—__—._

5Y South

July-Nov.'79:- 9,000 MT
Apr.-Jun.'80: 1,530 MT

ICNAF
4X

Cashes Ledge

Pooled 5Y/South, 5Z/SA6 East of 7T50'
Dec.'79-Mar.'8Q: 12,000 MT

L_

5Z/SA6: 10,000 MT Domestic
2,000 MT Canadian

Jul. -Nov.' 79 (all areas)
Dec.'79-Mar. '80 (West of 7T50')
Apr.-Jun.'80 (all areas)

eX*

ST

0»

C^

V*»

V*

ICNAF 5Zw
(Southern New England)

Nantucket
Shoals

ICNAF 5Ze

#

**■

&

<#*

from Amendment #3 to the Herring FMP - 2/8 0

31

Recent history had shown, however, that year classes
generally did not recruit to the Georges Bank stock with the
strength anticipated from their performance elsewhere. Since
there was no evidence that the 1976 year class would success-
fully recruit to the Georges Bank stock, and in light of the
stock's current depleted condition, the Working Group recom-
mended that allowable 19 79/19 80 harvests should be restricted
to 10,000-15,000 MT.

The 19 76 year class appeared strong in catches from the
Gulf of Maine. The Working Group recommended that given the
anticipated strength of this 1976 year class in the Gulf of
Maine, a total harvest of 30,000 MT of age 3+ herring could
be established for the Gulf of Maine fisheries and still
provide for significant stocK rebuilding. This level of re-
building was expected to restore the Gulf of Maine spawning
stock to the minimum desirable level. The increased spawn-
ing stock level was expected to enhance the probability of
future good year classes as well as provide a buffer to per-
mit continued levels of harvest in spite of occasional poor
year classes. The level of allowable catch suggested for
19 79/19 80 represented the approximate maximum long-term
average .

Public hearings

Three hearings (April 9, 10, and 11) were held from
Maine to Rhode Island to discuss the aforementioned changes
in the Herring Plan. In general, substantial support was
given for the concept of seasonal/area quotas; spawning area
closures were considered desirable, but size and site of the
closed area difficult to determine; and, the 8" TL and 9" TL
seasonal "guidelines" for industry to determine age 3+ com-
position in their catches did not match industry guidelines
for product utilization (typically, 9" minimum FL or approxi-
mately 10" TL were acceptable for filleting with smaller fish
for canning) . Additionally, comments centered on a lack of
a quota for juveniles; that the proposed spawning closure
would occur during the height of the purse seine fishery;
i.e., when that fishery had its greatest catches; and, that
the quota should be based on length; e.g., 9" FL, not age.

Council decisions

At its April 18 and 19, 1979 meeting the Council
approved Committee recommendations based in part on the
public hearing input. The OY's and seasonal/area quotas were
set. Herring age 3+ were defined for industry guidance pur-
poses as 9" TL. Transfers of unused north and south of Cape
Elizabeth quotas between seasons in each area were permitted.
A pooled southern Gulf of Maine and 5Z/SA6 (east 71° 51')
quota for December through March with baseline allocations
of 2,000 MT and 1,000 MT, respectively, was to provide
maximum flexibility in shifting quotas between the

32

two areas according to herring availability. A recommendation
on spawning closures was postponed.

Additionally, at the request of the Maine Sardine
Council, the Council approved a Plan provision stating
"nothing in the Herring FMP should be interpreted to pro-
hibit or discourage the canning of sexually immature herring
as sardines" .

Discussions on herring management at these April
meetings concluded with a motion to request the Secretary
of Commerce to amend the Plan to extend existing 1978/1979
OY's and area/period allocations into the 1979/1980 fishing
year. It was realized that the Plan amendments could not
be reviewed, approved, and implemented before the July 1
beginning of the new fishing year.

At its May 16 and 17, 1979 meetings the Council endorsed
the development of a program of spawning closures for herring
and endorsed the Maine program of herring spawning closures
that existed in 1978. Since any closure of a herring spawn-
ing area would impact other fisheries; e.g., those with bot-
tom tending gear in the area, it was felt advisable for the
Herring Committee to meet with the Groundfish Committee to
develop a workable program. A meeting was scheduled for
July.

Amendment status

June 27 and 28, 1979 meetings dealt with the status of
the Herring Amendment which would increase the OY from 9,000
MT to 30,000 MT in the Gulf of Maine. The National Marine
Fisheries Service did not feel the Amendment could be imple-
mented. The Council requested reasons for the Plan holdup
and William, Gordon stated that eight items had to be ad-
dressed before NMFS could approve the Amendment. According
to Mr. Gordon, the Amendment provisions and reasons for them
had to be better articulated - nothing substantial was wrong
with the Amendment. Edward Spurr, Chairman, of the Herring
Committee chided NMFS and NOAA for not making their criti-
cisms known sooner. The beginning of the new fishing year
was only three days away and new OY's were not in place.

William Gordon summarized the issues which needed to be
addressed before the Amendment could be approved. Those were:
1) a lack of an explanation as to whether the Council was
continuing its action to shift catches of winter/spring and
summer/fall fisheries from 50:50 to 70:30; 2) no explanation
of the OY increase in 5Z/SA6; 3) confusion over the total
OY's and area breakdowns; 4) need to address processing
capacity based on the "Joint Venture Amendment" to the FCMA.

In keeping with the Council's request at its April
meetings, to prevent a lapse of the Herring Plan, NMFS
extended the Plan in its existing form into the next fishing
year.

33

Maine Plan changes

On June 26 Maine's Department of Marine Resources Advisory
Council met to review previous public hearing comments and
recommended changes to the Maine Herring Plan for 19 79.
Vaughn Anthony, then Chief Scientist of Maine's Department
of Marine Resources, stressed that protection of the 19 76
year class while avoiding economic hardships to the industry
formed the basis of the State's 19 79 Plan. The 19 76 year
class was supporting the fishery. It was reiterated that
one real purpose of the Plan was to limit the growth of the
mobile gear fishery which was considered to be, in the
opinions of Spencer Apollonio and Vaughn Anthony, the only
serious threat to overfishing. Fixed gear was not considered
a threat since, even though many more weirs were being built,
canneries could only handle a fixed quantity of fish in a
given amount of time and catches in excess of that capacity
had to be held by fishermen until they could be processed, or
had to be let go.

Maine DMR had proposed at early June hearings the
following:

1) a quota for mobile gear of 8,000 MT 9" and longer TL fish
(10" and longer TL in 19 78) ;

2) a quota for fixed gear of 2,4 70 MT 9" and longer TL fish;

3) all quotas retroactive to January 1 and to extend to
December 31;

4) eastern Maine spawning area closure of August 26 to
October 6 and a western Maine September 2 to October 13
spawning area closure; fixed gear was not included in the
closure .

At its Advisory Council meetings, DMR proposed the
following based on the public hearing comments:

1) mobile gear quota of 8,000 MT 9" and longer TL fish;

2) no fixed gear quota;

3) all mobile gear quotas retroactive to January 1 and to
extend to December 31;

4) an eastern Maine spawning area closure from August 26 to
September 22 and a western Maine spawning area closure
from September 2 to September 29;

5) spawning area closure would not prohibit fishing if
catches were less than 20% spawned fish by volume (10%
in 1978) ;

These provisions were later implemented.

6) remove all mobile gear quotas east of Cross Island after
October 15.

An irksome situation

At August 1 and 2, 1979 Council meetings it was related
that the revised Amendment was submitted to Washington on
July 23. Early October implementation was expected. (Note:
Implementation occurred on March 12, 1980.) Since this im-
plementation date was well into the summer-fall fishing
season, concern was expressed that closures might occur
because new, increased OY ' s would not be in place. After
Robert Hanks, then Deputy Director of NMFS Regional Office,
stated that a closure was a possibility since the 4,000 MT
quota was projected to be exceeded, the Council approved a
motion by Mr. Apollonio to "consider the possibility of a
restraining order on the Secretary of Commerce if the Secre-
tary should impose a closure on the adult herring fishery
when 4,000 MT have been taken". Dr. Hanks did state, how-
ever, that extenuating circumstances (e.g., pending OY in-
crease) would be taken into account before a decision to
close was made.

The Council felt the delay in the Amendment's imple-
mentation (July 1, 1979 original expectation) was due to a
"change in the rules"; i.e., a new Executive Order (12044)
requiring an analysis of all regulations and the Joint
Ventures Amendment to the FCMA requiring an analysis of
domestic processing capacity. These events had taken the
Council away from its schedule for development and imple-
mentation of the Amendment. There was no biological reasons
for a closure, thus a closure would have been unfair to the
industry. (Note: Other deficiencies in the Amendment had
been cited by NMFS. However, some Council members perceived
these deficiencies to be minor and not of the magnitude to
delay this important Amendment's implementation.)

No closure

At September Council meetings the status of the herring
fishery was related. Catch of herring in the Gulf of Maine
from July 1 to August 15, 1979' was already 3,965 metric
tons. Since the Amendment was not yet in place, the 4,000
MT quota for that period was still in effect; therefore, a
closure seemed imminent. However, recognizing the illogic
of closing the fishery down just before implementation of a
significant increase in optimum yield, the Regional Director
of NMFS stated that he had initiated no action to close the
fishery.

Shifting quotas

On another issue, efforts were made by Charles St son
of Stinson Canning Company, to have the Council further amend

35

its Herring Amendment currently being evaluated by NMFS in
Washington. Mr. Stinson stated that catch of adult herring
in the North Gulf of Maine region since July had been poor,
thus much of the soon to be in effect 10,470 MT quota would
be unharvested because, according to him, since August,
adult herring had been unavailable north of Cape Elizabeth.
He sought to have any unharvested portion of the 10,4 70 MT
re-allocated to the South Gulf of Maine region where herring
were available into the winter months.

The Council did not abide by Mr. Stinson' s request for
the following reasons: 1) there was no evidence that the
proposed separation scheme would not work; 2) in the Regional
Director's opinion, the north to south shift would raise
questions over the need for further public input on the issue.
The Amendment stated that quotas could be reallocated into
another seasonal period and not shifted north to south or
vice versa; 3) according to Mr. Peterson, even if the Council
decided to shift the quota, it wouldn't be until at least
late October before the action occurred; 4) If the Council
action triggered a Washington request for more justification,
the Amendment with the increased optimum yield provisions,
might not go into effect until December when the winter-
spring season began and new quotas went into effect; 5)
Any shift in quota would remove tonnage specifically allot-
ted for the Maine inshore fishery, thus if significant by-
catches of age three and older fish in that juvenile fishery
occurred in September and October, there would be a strong
potential for the July through November Gulf of Maine quota
to be exceeded. This issue was referred to the Committee
for consideration in future Plan amendments.

Polish venture

On still another and more controversial issue, James
Warren, Executive Director of the Maine Sardine Council,
related a proposed purchase of 5,000 MT or more of juvenile
herring by a Polish vessel and raised concerns over the im-
pacts of such a purchase on the current Council and State of
Maine herring plans. The Council Plan was sensitive to
increased catches of juveniles beyond traditional harvests. A
substantial increase in catch beyond those levels would have vi-
olated the basic structure of the Council Plan and adversely im-
pacted the adult herring optimum yield. At the state level, Spencer
Apollonio emphasized that a quota on the taking of juvenile herring
would be needed if the Polish venture was successful. The Council
voted to oppose foreign vessel purchases of juvenile herring.

An account of this proposed purchase was provided by
Donnell (Maine Commercial Fisheries, November 1979):

"This year found Maine herring fishermen with
a lot of fish - more than has been seen in recent
years, and far more than Maine processors could
handle. This situation brought several Maine fish-
ermen to the DMR and National Marine Fisheries
Service (NMFS) seeking a chance to sell this
"surplus" to foreigners.

Legal Counsel from both NMFS and the DMR could
see no problems if the vessels docked in Maine and
bought over the side. The Polish apparently were
the most interested in a deal. However, as Poland
is a Communist nation, it takes several weeks to
clear the necessary red tape. So for this year,
it was no dice, although the caper has since been
tagged the "Polish Venture".

The New England Council, although sympathetic
to the fishermen's market problems, have gone on
record as opposing such a venture. The strongest
argument voiced in opposition to the venture is
upsetting the present balanced situation which
doesn't call for juvenile herring quotas. In
drawing up the state plan, the state argued that
the canning capacity of the state's 15 plants can
serve as a quota or a lid on reaping the resource.
The Feds accepted this. Those arguing against
such ventures have pointed out that letting one
foreign vessel in might serve the short term inter-
ests of weir fishermen and stop seiners for this
year's glut, but in the long term it could mean
quota limits imposed.

The reaction of the DMR Advisory Council was
the same as the Regional Council's. The Advisory
Council strongly favored the idea of expanded
markets for Maine herring fisermen. But they were
uncomfortable with the idea of opening up the
quota argument on one hand, and they were con-
cerned with the problems that might arise with
setting a precedence on the other. They might be
giving the foreigners a toehold that might not
serve the best long term interests of the fisher-
men and the packers . "

The first summer-fall closure

On October 1, 1979 the adult herring fishery (ages 3+)
was closed in the Gulf of Maine until December 1. As of
August 31, 1979, 9,992 MT had been taken and this exceeded
the 9,000 MT in the yet-to-be-implemented Amendment. In
response to this closure, industry representatives, notably
Edward MacLeod of Gloucester, attempted to get the Council
to recommend a reopening of the fishery after the spawning
period (i.e., sometime in late October and early November1*.

37

His request was made at the October 3 and 4, 1979 Council
meetings. He stipulated that the reopening would be con-
tingent on the opening not placing the resource in
jeopardy. He stressed that the best price for herring would
be in October and until the Canadians re-entered the fishery.
The market for herring was very strong due to an extremely
poor 1979 Canadian fishery. Additionally, according to Mr.
MacLeod, "There were more herring than had been seen in
years" so the resource did not appear to be in jeopardy and
the closure was not justifiable for biological considera-
tions (see newspaper article) .

Mr. Peterson noted that landings of age 3+ in mobile
gear to September 15 (from July 1) were close to 20 , 000 MT ,
and this figure represented an overwhelming improvement over
catches of a few years previous. Considering this improve-
ment in the fishery and the large overage of the Council's
proposed quota and that a large proportion of the 20,000
MT was going into reduction (not for food) , Mr. Peterson felt
that there was no other option for NMFS than to close the
fishery and for it to remain closed. Mr. MacLeod responded
that no more than 4% of landings at his plant went into re-
duction, and the fishery had come back from the threat of
a stock collapse.

Many Council members supported Mr. MacLeod's request
Some felt that even though the great abundance of herring
available to the adult fishery in the Southwest Gulf of
Maine might have been due to a change in ^ish geographic distri'
bution - not increased stock abundance - industry should be
allowed the opportunity to increase its income by catchin^
fish when they were of highest value and readily available.
Others disagreed and considered a re-opening prior to Decem-
ber 1 as creating an open fishery and not a well thought-out
action. On a close vote (5 yea, 6 nay, and 3 abstentions)
a motion to ' open the fishery from November 1 to November
30, 1979 was defeated.

The issue was not dead, however, because Mr. Apollonio
offered another suggestion. He moved;

"That the Council amend the herring management
plan to permit a harvest of 5,000 MT of herring
3 years of age and older in the FCZ of the Gulf of
Maine in the month of November, 1979, taking into
account that 1) the OY of the herring MP was based
upon a pooled assessment of the entire resource in
the Gulf of Maine, 2) that the assessment assumed
a Canadian catch of approximately 66,000 MT in the
Gulf of Maine and Bay of Fundy, and 3) that the
Canadian catch will fall short of the catch assumed
in the assessment by approximately 40,000 MT. In
view of the biological and harvest assumptions

38

Quota cuts herring
haul short

ByBILLCAHILL

Herring seining off Gloucester wai
never better this summer when the
federal government's controversial
quota regulations stopped it on Sept.
30.

A fleet of 15 herring chasers had to
tie up aod more than 100 workers at
JLennebec Pish Corp. went on
unemployment when they could have
bees working. Competitors from
Canada and the Scandinavian
countries got a three-month free reign
in the profitable markets of West
Germany.

To Edward MacLeod, general
manager of the Kennebec plant on the
Community Fish Pier, it was an
example of how the quota system
devastates an industry. MacLeod
points out the need to devise a better,
quicker way of providing flexibility to

"Now it takes 00 to 90 days to get
quotas changed, if you're lucky,"
MacLeod said. This la often too lad to
effect needed change according to
MacLeod.

MacLeod said herring boat skipper*
and crews told him "they had never
seen so much herring out there as
there was this summer. Good, adult
hernng, too; nine or 10 inches, run-
ning about six to eight ounces."

The winter hernng season opens
Doc. 1 with a quota of 9,000 metric
tons, the same M( oare as the summer.

But winter ai«i summer fishing
differ greedy , Ma,*uod uid. "In the
winter sometimes you're lucky if you
can get out one day in six or seven,"
MacLeod said

In the summer, Capt. Joseph
"Cheeks" Curcuru and his 10-man
crow on the Baraegat; Ned Lakemen
and his men on the Kingfisher
regularly steamed out of Gloucester
,. harbor at midnight, were back In at
6 JO or 7 in the monang with trips of
250,000 to 100,000 pounds. Prices
ranged near sue or seven cents a
pound.

"They were out (here in droves
about two hours off," said MacLeod.

In addition to the Gloucester boats,
there were another dozen operating
here, unloading here for hernng
plants all over ,New England.
"Gloucester was the central port for
the industry all over New England
and we even have two plants in
Canada," said MacLeod.

One July Bay,, according to
MacLeod, more than 1.5 million
pounds of herring was landed here.

Much of the herring was shipped out
in 30 tank trucks, iced and brined and
carrying 40,000 uV 50,000 pounds
apiece to plants at 'Portland, Maine,
Sandwich, and elsewhere.

MacLeod said that one day's haul
represented about 8 percent of the
summer quota of 9,000 metric tons.

Late in September, the National
Manne Fishenes Service caught up
with figures, found that quota had
been reached and halted the hernng
fishery

That happened when the ocean was
still brimming with good marketable
adult hernng, MacLeod claims. "And
a lot of that fish uv just going to die if
it's not caught."

Leaving the hernng fishery open
was a logical move, MacLeod said,
but moving the federal bureaucracy
to approve a quota change in time to
benefit the fishermen, the dock
workers and MacLeod's firm, waa
virtually impossible

The herring fishery wilt be
discussed at the Nov 7-0 meeting of
the New England Fishery
Management Council. MacLeod and
others will seek a November quota of
5,000 metnc tons.

MacLeod is not optimistic of ap-
proval.

And even should that come, herring
industry officials are not sure it can
help now. The summer fishery dosed
Sept. 30 when fish were plentiful.

No one knows what has happened to
that huge hernng stock since.

This is . another sore point with
MacLeod.

He claims government hernng
quotas are based "on indecisive, often
skimpy information. MacLeod said,
"No one knows, for example, how
tidal flow, how environment, how
warm water has an effect on the
hernng. Yet an arbitary figure of
9,000 metric tons is established

"It's always up to the fishermen to
prove the quotas are wrong. It should
be up to the government to prove their
quotas are right. The shoe is on the
wrong foot," MacLeod said.

MacLeod said the hernng industry
in Gloucester this summer was a $10
million business "and I'd say the
livelihoods of about 500 people were
involved directly." The industry
could have probably thrived through
November.

MacLeod pouted out an irony.
MacLeod noted if the fishermen and
pouihlv the wharf workers were In
the farming industry, they would be
receiving government subsidies for
not catching, cutting , r— ^'"fl end
shipping the 40-pound cartons of
herring.

Farmers are paid for not growing
surplus crops under certain market
conditions, a kind of quota system in
agriculture devised by the Federal
government, he said.

Fishermen and fish workers are
governed by a quota system, also
imposed by the federal government.

The difference is that fish is not
subsidized, only regulated, MacLeod
points out.

MacLeod said sociological impact
should be considered in any
management quota for a fishery.
"The sociological value to the in-
dustry is important," he said.
"Whether or not they put people out of
work must be considered."

Gloucester Times

10/27/79

39

incorporated in the plan and the status of the
Canadian herring fishery in the Gulf of Maine, it
is clear that the OY may be safely increased by
5,000 MT without an adverse effect on the resource
or on the plan's objectives, or on future harvest
options by either the U.S. or the Canadian fisher-
ies. The additional harvest may provide an eco-
nomic opportunity entirely compatible with the
concept of optimum yield and the plan's objectives."

This motion was accepted by the Council. It was hoped
that the existing proposed Amendment (in the review process)
could be altered to include this decision. However, it
could not be altered since time was too short for review
and implementation before the prescribed December 1 opening.

The Council received a quick response from Terry Leitzell
(then Assistant Administrator for Fisheries) to its request
for a re-opening of the fishery. Mr. Leitzell stated he
was not convinced by available information that a re-opening
would be in the best interest of the fishery. He further stated:

"The Canadians have been unable to catch '
their quota of herring either because: 1) the
total biomass is not as large as estimated, or
2) the herring have moved south and are not
available in Canadian waters. If the first reason
is true, it would be imprudent to reopen the fish-
ery. If the second reason is true, the herring
could move back to Canadian waters and be caught.
I do believe that a future amendment could include
a formula for taking Canadian catches into account
during the season and making adjustments accord-
ingly.

In addition, the management categories esta-
blished for 5Y and 4Y herring under the U.S.
Canada Fishery Resources Agreement do not provide
for management of these stocks as a unit. Although
the treaty has not been ratified, disregard for
that agreement at this time might further exacer-
bate relationships."

Coincident with the publication of these regulations,
the Division of Marine Fisheries closed the fishery in its
Northern Massachusetts Management Area until December 1 when
federal waters were to re-open. This State's closure lagged
14 days beyond the federal closure due to needed compliance
with State administrative procedures.

In announcina this closure to Terry Leitzell, Philip Coates
expressed a primary concern and rendered an opinion on the
impact of any overage of the summer-fall quota. He stated:

40

"Additionally/ I wish to express our concern
over the fate of any summer/fall quota overage.
Allen Peterson stated at the October 3 and 4
Council meetings that the overage would not be
deducted from the winter/spring quota which begins
December 1, but that it would be implicitly ac-
counted for in assessments used for the setting
of the next fishing year's optimum yield. We
trust that your office shares this view. Massa-
chusetts has a significant fishery off its coast
during the winter months, and we do not wish to
see it unfairly penalized through a quota reduction

Incidentally, I am led to believe that the
Gulf of Maine 30,000 MT optimum yield was based
in part on the assumption that the Canadians would
harvest approximately 95,000 MT of herring off
their coast. As reported at the last Council
meeting, however, recent catches have only been
50,000 MT. Apparently, the Canadians are having
difficulty acquiring this catch for one reason or
another. Thus, it is likely when all is said and
done that the overage incurred by our summer/fall
fishery may not have any adverse influence on the
attainment of the Council Herring Plan objective;
i.e., to rebuild the Gulf of Maine spawning stock,
particularly if the increased reported availability
of herring off our coast is partially due to a .
shift in herring abundance from waters off the
Canadian coast to those off Massachusetts. Of
course, the latter statement can never be supported
with scientific evidence, yet it cannot be dis-
proven either."

A flexible OY

November, 19 79 through February, 19 80 Committee and
newly established Working Group meetings were devoted to
means of providing greater flexibility in allocation schemes
and OY determination, and a better way for industry to judge
age composition of landings for its own estimation of rate
of quota attainment. Time was also spent checking on the
status of Amendment #3 to determine when it would finally
be implemented.

Council meetings during this time period involved
little discussion on herring issues - just periodic updates
on Amendment progress and future strategies. One such
strategy was, using 30,000 MT as a baseline OY, toadjust the
OY upwards or downwards in response to various factors. The
feeling was that within any fishing year the Council could
increase or decrease quotas in response to apparent changes

41

in abundance or some other factor without going through a
formal amendment process. For example, the initial setting
of a fishing year OY could be done with the understanding
that perceived abundance, availability to gear, and market
conditions during the fishing year could enable increases
or decreases in OY by a pre-determined percentage (e.g.,
20%) . This percentage could be determined when assessments
were initially performed and could be related to the value
of fishing mortality biologically justifiable after pros-
pects for the coming year were evaluated (e.g. , strengths of
incoming year-classes and previous year catches) . After the
percent factor was justified in a Supplemental Environmental
Impact Statement and accepted by higher authorities, the
Council and/or the Herring O/S Committee would, as part of
the SEIS, direct the Regional Director to increase or de-
crease the quotas by the percentage within the fishing year
in response to an industry request for a higher quota or
some other consideration. An industry request would be
based on the one or all of the aforementioned three criteria;
i.e., abundance, availability, and the market-place. A major
obstacle to this strategy was a determination of some sort
of reliable, timely indicator to demonstrate when "things
were looking good or bad" for the stocks and/or industry.

Another strategy was to use 8" TL as a guideline for
the industry to delineate age 3 and older herring in the
December through June period and 9" TL for the July through
November period. Massachusetts had adopted this Committee
proposed suggestion when it implemented its own herring
regulations .

Amendment #3 implementation

On March 19, 1980 NMFS announced the implementation of
Amendment #3 establishing the North and South Cape Elizabeth
seasonal breakdown of an increased 5Y OY (i.e., 30,000 MT
July 1, 1979 - June 30, 1980). In support of the increased
OY, NMFS stated in its news release:

"The catch levels permitted in the Gulf of
Maine are liberal due to strong 19 76 and 19 77 year
classes of herring. This situation allows for
substantial catches while also increasing the
spawning stock. The population now has the poten-
tial to produce relatively stable recruitment of
young herring to the fishery. However, there is
no evidence of any increase in abundance in the
Georges Bank herring stock.

The Gulf of Maine presently has one of the
few significant herring populations left in the
world and, as such, it is an extremely valuable
resource. A strong world market exists and is
expected to continue for some time. With proper

management of this resource, the U.S. herring
industry can look forward to an extended period
of prosperity. "

Small fish

In the winter-spring fishery of 1979-1980 a high
percentage of landings in the adult fishery were small fish.
This was evident from Massachusetts DMF samples of landings
in Gloucester and Sandwich which indicated approximately 25%
of landings by weight were less than 9" TL. Some individual
catches, however, were reported to be almost 100% small fish.

While the Herring Committee did not take a position on
whether this high amount of small fish in the adult fishery
was appropriate, others did take a stand. The Massachusetts
DMF was petitioned by fishermen and processors out of Glou-
cester to investigate the amount of juvenile herring caught
in Massachusetts territorial waters and landed in Massachu-
setts ports. There was concern that these fish were being
wasted due to their poor condition on landing caused by
method of capture (otter and pair trawls) , the fish being
full of feed, fat contents being too low, and the small
size not being suitable for filleting.

At an April 2, 1980 hearing to address this issue, the
DMF and its Advisory Commission heard testimony. Edward
MacLeod made five recommendations for the Division/Commis-
sion's consideration. They were:

1) An adult herring caught in Massachusetts territorial
waters shall be any herring 10 inches in overall length
or greater. Over length shall be from the tip of the
tail to the tip of the snout.

2) The Director of the Division of Marine Fisheries shall
close the winter herring fishery in Massachusetts terri-
torial waters on a weekly basis at any time when:

a) tests of daily landings by State representatives of
the Division indicate that catch contains 30% or more
juveniles, or

b) fish are "feedy".

3) The Director shall appoint a committee of six commercial
herring fishermen consisting of two representatives from
Rhode Island, two from Maine, and two from Massachusetts
to meet with a committee from the Massachusetts Lobster-
men's Association representing the North Shore and the
South Shore of Massachusetts. This committee shall esta-
blish zones in Massachusetts territorial waters that will
be closed to pair trawlers. Their findings shall be en-
forced no later than December 1, 1980.

43

4) All boats engaged in the herring fishery in Massachusetts
territorial waters shall be licensed.

5) The Director shall be empowered to establish a trip limit
on a daily basis to apply to all boats engaged in the
fishery if he deems it in the best interests of conserva-
tion to invoke such a measure.

Jim Warren, of the Maine Sardine Council, also
commented:

1) Herring should not be for fish meal. He called it a
waste Of a resource with little return to fishermen and
with little contribution to shoreside employment.

2) Fish caught in Massachusetts waters have been used by
Maine canneries. If Maine can use the fish in canneries,
they should be allowed to do so. If Mr. MacLeod's second
recommendation had already been in effect, approximately
3,500 metric tons of fish would not have been available
to the canneries.

3) Provide for a better definition of adult versus juvenile^
herring.

He concluded by saying that Canada had always bought
Maine fish, and recommended that Massachusetts should passs
a law prohibiting reduction of herring. Mr. MacLeod added
Mr. Warren's recommendation to his list.

With one exception, the Division and the Commission did
not pursue any of these recommendations in 1980.

Maine 1980 Plan

During the spring, Maine presented its proposal to its
industry for the 19 80 fishing season. After public hearings
DMR and its Advisory Council decided the following:

1) allow mobile gear fishermen to harvest adult herring (9"
TL+) throughout the year as long as the total herring
with spawn did not exceed 20% of the total volume;

2) during a quota closure of the Maine adult fishery, herring
9" TL and larger could be taken if they comprised 25% or
less of total by volume;

3) 8,000 MT quota for mobile gear of 9" TL and greater
herring;

44

4) -spawning closure for mobile gear from September - December,
1980 (25% tolerance);

5) east of Cape Elizabeth the 8,000 MT of 9"+ was to apply for
mobile gear except that the most eastern portion of Maine wate
was to remain open from October 15 to December 31 regardless c
a quota closure since the area was already closed prior to
October 15.

6) west of Cape Elizabeth, the Council's 5Y South quotas were to
apply with a closure for mobile gear when the Council quotas
were reached. An exception was that a quota transfer from
east to west of Cape Elizabeth could be made during July-Novei
if the quota east of Cape Elizabeth was not taken.

These regulations were promulgated on June 25, 1980.

Regarding the 8,000 MT quota of age 3+ for mobile gear, Maine
determined this figure by subtracting the approximate long-term
average catch of age 3+ in the fixed gear fishery (2,470 MT)
from the Council's fishing year 10,470 MT quota for 5Y North.
The 8,000 MT was to be a calendar year quota for mobile gear
since Maine's coastal herring fishery was primarily from June
to October; there were no seasonal breakdowns. No quota was
set for fixed gear. Maine considered this exemption justifiable
"by the historically constant harvest of fixed gear which cannot
significantly affect the levels of adult herring stock." The
plan stated:

"The fixed gear (stop seines and weirs)
along the Maine coast harvest most of the
juvenile herring and have not increased in
numbers in recent years. Studies
have indicated that. "the exploitation rate
(percentage of the population taken) by
fixed gear has not increased and has
remained fairly stable. This means that as
the abundance has declined so has the catch
This is an unusual situation
which does not occur in most fisheries.
Normally, as abundance declines the catch
remains at a high level or even increases,
particularly in clupeoid fishes that tend to
school more closely as stock abundance de-
creases. This means that the exploitation
rate increases with declining abundance
which poses severe management problems.
Pooled assessment also showed that the
average fishing mortality rate of age 2
herring has been about 0.35 which is not
excessive, considering half of that
mortality comes from the Canadian juvenile

45

fishery. Since the fixed gear do not indi-
cate a trend of increasing effort on the
herring stocks, there is no need to restrict
fishing of fixed gear if the past levels
of effort have been appropriate. Since this
appears to be the case, this plan does not
recommend any restriction to the fixed gear
fishery. Catches of herring by fixed gear,
especially weirs, is largely a function
of abundance and availability, not
effort.

The spawning closures that are recom-
mended should enhance reproductive success
and could significantly improve subsequent
recruitment to the fisheries. It is a
conservation measure that has unknown but
possibly great potential for stock rebuilding
The closure to fishing for adult herring
should have little impact on the juvenile
fisheries since the plan allows the use of
mobile gear for harvesting juvenile herring
should they not be available to the fixed
gear inshore.

The lack of regulation for the juvenile
herring fishery for fish 4 1/2" to 9" in
1980 should not have any adverse effect on
the stocks of adult herring. The exploita-
tation rate on young herring from fixed
gear has been relatively constant since
the early 1950 's. Recruitment to the
adult populations of the Gulf of Maine is
expected to be of the same order of magni-
tude as in recent years provided that unusual
changes in the nature or magnitude of the
fixed gear effort do not occur."

46

Regarding the impact of the Plan, it further states:

"The State of Maine has developed a herring
management plan designed to conserve herring re-
sources without causing unduly adverse social
or economic impact upon Maine's citizens. The
State's plan was influenced by the New England
Regional Fisheries Management Council which
recommended catch restrictions on herring
larger than 9 inches in length. The State will
adopt a yearly quota of 8,000 MT for fish 9
inches and longer taken by mobile gear. This
will permit the fishermen to harvest an amount
of herring which will conserve the spawning
stocks.

The herring is an extremely important
part of the marine ecosystem in the Gulf of
Maine and is a major forage species for ground-
fish and for gamefish species such as tuna.
The conservation and management of herring
along the Maine coast would therefore have
significant biological impact to other marine
species. The objectives of 1) preventing
further expansion of the adult fishery along
the Maine coast until the abundance increases,
2) rebuilding the stocks fished in Maine's
coastal waters at the maximum rate consistent
with the preservation of the Maine herring
industry and 3) helping to rebuild the Gulf
of Maine (5Y) spawning stock to an appro-
priate level (80,000 - 120,000 MT) will
eventually tend to stabilize the processing
industry and permit the retention of the
traditional fishery. This stabilization in
the processing and fishing labor market would
be accompanied by an increased opportunity for
diversification into other herring products.
Some of the more important aspects of this
enhanced supply of fish might include a
stabilization of the lobster bait market,
possible reduction in dependence on imports
of Canadian herring, and some increased
potential for the export of herring by-
products. "

Another joint venture

Herring was not discussed again by the Council until

47

its July 30 - 31, 1980 meetings when a joint venture appli-
cation was reviewed. In order to begin harvest of the
Georges Bank and south quota, American Ocean Side Fisheries
(AOSF) of Gloucester sought a joint-venture with a Polish
company. AOSF presented its application to the Council in
hopes of support. With all joint-ventures, the Council
had to assess potential impacts on FMP's; i.e., would the
joint venture hinder or prevent the attainment of the
Plan's objectives.

AOSF designated four American vessels to supply 3,000
MT of Georges Bank herring to a Polish stern trawler for
$231 a metric ton. The application was for a July 21 -
October, 1980 time period; catches were to be sorted on
board the American vessels; transfer of catch was to occur
by pump; fish were to be frozen on board the Polish vessel
and sold in Poland and other Eastern Bloc countries. If
no fish were found on Georges Bank, the operation was
expected to shift to the Gulf of Maine. The processing
capacity of the Polish trawler was 60 MT per day
(maximum) or 50 days of activity for an allowable take
of 3,000 MT.

The Council first decided to consider the proposal
only if catches were limited to Georges Bank. It was
felt that domestic processing capacity already exceeded
the quota for the Gulf of Maine region. The Council
was reminded by its Staff that both the Georges Bank and
Gulf of Maine quotas were less than the U.S. harvesting
capacity; hence, one of the provisions needed for a
joint-venture were not met; i.e., domestic harvesting
capacity was not greater than the domestic processing
capacity. Representatives of Port Clyde Seafoods, Inc.,
the Maine Sardine Council, and Kennebec Fish reiterated
the Staff's views.

One of the fishermen involved in the proposed joint-
venture stated his case. According to Robert Rose of
Gloucester, he had invested approximately $500,000 to fish
George's Bank herring. He and others did not feel it
profitable for them to go to George's Bank in search of
herring with no assurance that they could find them quick
enough to return to port with a profitable trip of good
condition, marketable herring. By unloading at sea to
the Polish vessel, the needed trip to shore could be omitted
and long search times would not be prohibitive. Additionally,
Mr. Rose said that herring processors had basically
imposed a limited entry scheme for the fishery. He felt
that company owned vessels had an unfair advantage over
privately owned vessels; i.e., processors did not have to
buy and unload herring from privately owned vessels when

48

their own boats were fishing.

After long discussion, the Council voted not to
support the joint-venture application. Ostensibly, the
Council considered it inappropriate to support the
application because domestic processing capacity was
greater than harvesting capacity. However, the vote on
this issue was not unanimous. Five were in favor while
eight were against the application. There was one
abstention.

A closure recommendation

At August 27 and 28, 1980 meetings, the Council was
informed by the Regional Director that he was recommending
a closure of the 5Y North area. From July 1 - August 15
over 11,000 MT of age 3+ herring had been caught. The
Council quota was 8,850 MT. A mid to late September
closure date was estimated. Age 3+ catch in 5Y South,
on the other hand, was approximately 5,700 MT; the quota
was 9,000 MT. No recommendation for a closure was given.

A Maine response

At September 24 and 25 meetings the Regional Director
announced that a closure of the fishery for age 3+ herring
in FCZ waters in the Gulf of Maine south of Cape Elizabeth
would occur October 5. As of August 31 the quota (July
to November 30) was exceeded by approximately 2,000 MT.
The FCZ fishery north of Cape Elizabeth had been closed
since September 21. Both regions were to open on
December 1. In the meantime, Massachusetts and Maine had
to respond in some way to the federal action brought about
by the Council Plan which both States helped develop.

Maine did not intend to deviate from its own manage-
ment plan. It had set an annual quota of 8,000 MT of
herring 9" and larger TL caught in State waters by mobile
gear. Fixed gear catch of herring 9" and larger was not
regulated. Maine believed that the "exploitation rate has
been relatively stable in the fixed gear juvenile fishery
for a long time and at a fairly low level and that as long
as the rate does not increase, there is no immediate need
to limit the juvenile fishery through catch restrictions".
Maine also felt that "enforcement of a 9" size (Council
Plan guideline for an age 3 herring) was difficult in the
juvenile fixed gear fishery. In the mobile gear fishery,
however, the 9" catch size could be used since it generally
corresponded to total catch.

Since as of August 31 approximately 4,500 MT of 9"
and larger herring were caught by mobile gear inside
Maine territorial waters, Maine did not feel it necessary
to prohibit further landings of those size fish. Conse-
quently, the Maine mobile gear fishery was to continue to

49

operate in State waters.

Total Maine landings of age 3+ herring as of August 31
were 13,922 MT (9,199 by fixed gear and 4,723 by mobile
gear) . The summer/fall Council north of Cape Elizabeth
quota was 8,850 MT; hence, an overage of approximately
5,072 MT had occurred. Apparently, slow growing strong
1977 year-class sea herring (age 3 in 1980) were contribu-
ting towards the large fixed gear landings of age 3+
herring (approximately 75% of landings) . Those fish were
smaller than 9" TL, thus suitable for use by the sardine
fishery (and not subject to Maine regulation) . When age 2
herring were not abundant in a given year, small age 3
herring became very important to the sardine industry.

If growth of 1977 year-class herring had been greater,
and age 2 fish had been more abundant, fixed gear catch
of the 3 year olds might not have been so large and Maine
would not have been faced with its difficult management
problem; i.e., catch of age 3 herring could continue to
escalate in the fixed gear fishery thereby raising the
issue of the Maine Plan hindering the effective carrying
out of the Council Plan which regulated age 3+ herring.
Maine had a difficult situation since it was almost
impossible to stop fixed gear catch of age 3 herring without
closing the entire fishery.

Management in Massachusetts was simpler because no
fixed gear fishery existed. It was a question of deter-
mining the quantity of age 3+ herring caught regardless of
size and closing the fishery.

Since a closure of the fishery south of Cape Elizabeth
was to occur on October 5, Massachusetts had to determine
a need to close its waters as well. Public hearings were
scheduled for October 2 7 and 29 in accordance with
necessary guidelines; i.e., 21 day public hearing notice.
An emergency closure in the interim was an option.

Massachusetts actions

On October 9 at a monthly meeting of the Marine
Fisheries Advisory Commission (open to public) the Director
presented his views on a needed Massachusetts response to
the federal closure and sought Commission support for an
emergency closure of the territorial waters sea herring
fishery in the Northern Massachusetts Management Area.
While not needing Commission support, the Director had made
it a matter of policy to do so.

The Director based the' need for an emergency closure
on two points. First, the July 1 - November 30 quota for
the South Gulf of Maine region had as of September 15
already been exceeded by approximately 48%, and a delay

50

in closing Massachusetts waters until sometime after
October 27 and 29 hearings would surely have led to a much
larger overage, perhaps over 100%.

The Director related that a goal of the New England
Council Herring Plan was to rebuild the Gulf of Maine
herring stock, and an intense fishery during the year
when the Gulf of Maine stock was concentrated for spawning
purposes; that is, late summer/fall, combined with catches
in excess of what was judged to be biologically sound,
would likely prevent or at least hinder attainment of that
goal. This was the reason why Council concern over impacts
of large catches in the winter/spring fishery was not as
great as during the summer/fall. During the winter/spring
period, the Gulf of Maine stock was dispersed and believed
to intermix with Nova Scotian and George's Bank herring;
hence, the impact of fishing on the Gulf of Maine stock
was less during this period.

Secondly, the Director stated while it was recognized
that the peak spawning period in the Southwest Gulf of
Maine had probably passed, the inshore fishery was still on
spawning herring. During spawning, fish should be undis-
turbed to enhance chances of increased reproduction and
egg survival. The emergency closure was to relieve some
of the fishing pressure being exerted on spawning herring
since sometime during mid-September.

Several representatives of the herring industry,
Rhode Island and Massachusetts processors, and Massachusetts
fishermen and boat owners appeared at the meeting to present
their views. Three issues were raised in attempts to convince
the Division that an emergency closure should not occur.
First the State of Maine had not closed its fishery in
response to a September 21 North Gulf of Maine closure of
federal waters; hence, a Massachusetts closure would put
other states' fishermen and processors at a disadvantage.
Secondly, according to some present, herring had finished
spawning. Third, it appeared to some that herring were more
abundant at least close to shore, than in the past ten
years; hence, quotas were not reflective of current abundance.

The Commission, at the Director's suggestion, post-
poned its decision to support an emergency closure until
questions raised by those present could be answered and
all pertinent information gathered. On the following day
samples were taken from two Gloucester purse seiners to
see if fish were still spawning. Over 95% of males and
females examined were ripe and spawning. Interestingly
enough, during sampling efforts, fishermen frequently
commented that the fishery should have been closed three
weeks sooner when spawning began. Additional comments
from NMFS port agents documented continued spawning.

51

With regard to industry comments on increased abundance,
a recent assessment (Status of sea herring fisheries off the
Gulf of Maine-Georges Bank region by M.P. Sissenwine and
G.T. Waring, February 1980) was reviewed and evaluated in
terms of recent events in the fishery. According to the
assessment, with catch in the Maine inshore fishery as an
indication of year-class strength, the 1976 and 1977 year-
classes would be strong contributors to the future of the
western Gulf of Maine fishery, but the 1978 year-class would
likely be small. The assessment concluded,

"Available information (biostatistical and
survey) indicates that the Gulf of Maine herring
fishery has begun its recovery from the depressed
state of the late 1970 's and will continue to
rebuild this year as a result of the 1976 and 1977
year-classes unless the catch in 1980 increases
sharply. Given the poor performance of the 1978
year-class in the inshore Maine fishery, these
year-classes (1976 and 1977) may have to sustain
the fishery through at least. 1981."

Scientists predictions were being proven correct. In
1980 in the Gulf of Maine fishery (Jeffreys Ledge,
Massachusetts Bay, Cape Cod Bay, Ipswich Bay, etc.) fish
spawned in 1977 and 1976 made up 90% and 93% of landings
(number of fish) in the February - March winter/spring
pair trawl fishery and 50%, 73%, and 61% in the June-
August purse seine fishery, respectively (data through
August only) . The majority of landings in the purse seine
fishery had beenn from the 1976 year-class (June, 44%;
July, 59%; August, 60%) . Age 3 fish (1977 year-class)
were small, immature, and probably not concentrated on
spawning grounds. From July 1 - September 30, approximately
59% of the catch in the coastal Maine fishery had been of
the 1977 year-class.

Since catches of age 3+ herring in the Gulf of Maine
were in excess of the annual quota of 30,000 Mt (July 1, 1980
through June 30, 1981), prospects for the future could be
dimmed particularly if the 1978 year-class did turn out to
be small and the yet-to-be assessed 1979 year-class was
also of low abundance. Landings of age 3+ herring for the
North Gulf of Maine had been 20,551 MT (July 1 through
September 30) and had been 13,331 MT (July 1 through
September 15) for the South Gulf of Maine bringing the
total to approximately 33,882 MT. Hence, the annual quota
had already been exceeded in only three months of fishing.
Non-tallied October landings and the yet-to-begin winter/
spring pair trawl fishery were to boost the total further.

Considering the apparent accuracy of the predictions
made by assessment scientists, Mr. Coates assumed that

52

quotas were reflective of current abundance and that
continued catch of the Gulf of Maine stock could have an
adverse effect particularly if the "great abundance^ of
herring" close to shore in Massachusetts waters was caused
by a concentration of available herring into a few places
as opposed to abundance everywhere. It was also judged,
after consultation with Council Staff, that even if the
quotas could be increased by 25% (a possible response to
the abundance of the 1977 year-class if the Management
Plan was more flexible) , the quota would still be exceeded.

Finally, while Mr. Coates appreciated fishermen's
concerns over unrestricted catch of age 3 herring, as
well as younger fish, in Maine's juvenile fishery, he could
not keep Massachusetts waters open simply because Maine failed
to close. In his opinion, that would not have been a
responsible action.

According to Mr. Coates, the Division was a voting
member of the Council, took part in the development of
the Council Herring Plan (member of the Herring Oversight
Committee) , and voted to accept the Plan with its quotas
and provision to deduct herring age 3 and older taken from
territorial waters of New England and mid-Atlantic states
from appropriate quotas. The Division could only encourage
other states which voted to accept the Plan with all its
provisions to take similar supportive action.

The Division's eventual decision was to implement an
emergency closure. The Commission concurred with this
decision. The October hearings were still to be held
to provide the Director and Commission with future guidance
on responses to federal closures and to initiate discussions
on the desirability of spawning area closures from the
fishermen's perspective and willingness to abide by them.
Moreover, public comments on a proposal to require special
permits for all mobile gear herring fishermen for
Massachusetts waters were needed.

At both hearings there was little opposition to
maintaining the State waters closure until December 1, Nor
was there much opposition to the concept of spawning area
closures provided they were not implemented just because
fish were full of spawn. Fishermen felt that areas where
fish were concentrated and "dropping their spawn" should
be the only sites for closures. They also stressed that
the timing and areas of spawning were variable from year
to year and noted the unusual occurrence of spawning herring
in Ipswich Bay as an example.

To set the record straight, one fisherman stated that
no one had tried to mislead the Commission at its meeting

53

regarding the absence of spawning fish. On the day of
the meeting, the Ida and Joseph and the Rockaway (two
Gloucester vessels) landed approximately 300,000 lbs.
of herring taken one half mile from Ipswich Bay; not one
fish had spawn. However, the next day fish with spawn
were caught again. It was emphasized that fishermen
had great investments in gear, etc., and consequently,
they wanted to see the herring fishery prosper.

With respect to special permits, there appeared to
be a willingness to abide by the requirement that
permits be obtained.

Georges Bank

While closures had occurred for 5Y North and South
regions, no closure was expected for Georges Bank and South.
Catches of herring on Georges Bank had been nonexistant.
No herring could be found either by fishermen or scien-
tists during surveys. As stated by NEFC scientists Dr.
Michael Sissenwine at September, 198 0 Council meetings,
"Evidence certainly would be that the Gulf of Maine stocks
are in better condition than Georges Bank. Certainly, the
1976 and 1977 year-classes have looked very good from all
the evidence we have had. Historically, when the inshore
coastal fishery has looked good, the Georges Bank stock has
faired well also. A few years ago the 1976 year-class when
it first showed up we were optimistic that tradition would
hold true. To date, there is no evidence that that has
occurred. "

This lack of herring on Georges Bank raised further
questions about stock structure and intermixing and whether
Georges Bank herring could ever rebuild from earlier efforts
of foreign fishermen. It also sparked requests for new
stock assessments to provide the Council with guidance as to
the appropriateness of its 3 0,000 MT Gulf of Maine and
15,000 MT Georges Bank and South OY's for 1981 and beyond.
It was noteworthy that no formal assessment was performed
in 1980 and as a result the size of the strong 1977 year-class
was not factored into the 198 0 OY.

New amendments

At October 2 9 and 30, 198 0 Council meetings, the Chair-
man of the Herring Committee, Edward Spurr, related work on
a new series of amendments to the Herring FMP. These de-
veloping amendments were: 1) real time spawning area closures
in the Gulf of Maine during the fall; 2) a flexible OY sys-
tem to change OY without going through the long amendment
process; 3) a change from age to length as the basis for
assessment and quota purposes.

54

At these meetings Spencer Apollonio was asked by Philip
Coates why he felt Maine's Plan was consistent with that of
the Council. Mr. Coates was concerned that Massachusetts was
taking the role of the "good guys"; i.e., closing the fishery
in Massachusetts water to be consistent with the Plan while
fishing continued unregulated in other state's waters. In
response, Mr. Apollonio stated that Maine's actions were
consistent with the Council intent. He noted that one ob-
jective of the Herring Plan was to stabilize and rebuild the
Maine juvenile fishery, and Maine's actions were not incon-
sistent with this objective. Mr. Apollonio also pointed out
that the Maine juvenile fishery was a fixed gear fishery -
not one directed towards adult fish which the Council was
regulating. He stressed that the fixed-gear fishery was only
taking what was available and that because of the nature of
the fixed gear fishery, fishing mortality rate was constant,
thus the fishery presented no problem to the well-being of
the resource. He also noted that Maine tagging work was
indicating that herring taken in Maine probably originated
from the Bay of Fundy and western shore of Nova Scotia -
not from the Jeffreys Ledge stock which was of concern to
the Council.

Spawning area closure

On November 13, informational meetings were held in
Gloucester, Rockland, and Portland to obtain industry input
on a Council scheme to provide some protection for spawning
herring. The Council was proposing to establish for next
September/October discrete 5' X 5' areas on Jeffreys Ledge,
and areas were to be closed for two weeks if after monitoring
by State and/or Federal personnel and industry guidance,
spawning herring (ripe and running) were present in great
abundance. It was proposed that all groundf ishing (except
by fixed gear) would be excluded from closed areas. Areas
for probable spawning area closures were identified before-
hand after consulting purse seine fishermen from Massachusetts
and Maine. It appeared that of those who attended the meet-
ing, most were skeptical of effective monitoring, enforcement,
and importance or meaningfulness of relatively small closed
areas for short periods of time.

On November 25 the Advisory Subpanel of the Herring
Oversight Committee met to make recommendations to the
Committee on spawning area closure strategies as well as on
the appropriate minimum fish size to be deducted from quotas
(8, 9, or 10 inches?). The Subpanel did not support the
proposed strategy for spawning area closures. Instead, it
was recommended to the Council's Herring Committee that the
entire Gulf of Maine be closed for herring fishing during
October (except for fixed gear). Reasons for this recom-
mendation were similar to concerns expressed at the informa-
tional meetings; that is, the scheme appeared unenforceable,

55

and it did not seem that small areas of closure would have
much impact on successful herring reproduction and egg sur-
vival. The Subpanel also recommended to use 9 inches total
natural length (tip of the snout to the very end of the tail)
as the size of fish which should be deducted from the quota.
While the Subpanel believed that 10 inches would be more in
keeping with industry needs, particularly in the adult fish-
ery, it was acknowledged that no regulation of herring under
10 inches (approximately four years of age) would probably
lead to resource problems by continuing non-regulation of
juvenile catch.

The Herring Oversight Committee met December 2 to discuss
results of the informational- meeting and Advisory Subpanel
recommendations. After a great deal of debate, the Committee
voted to accept the Advisory Subpanel' s recommendation for
the October Gulf of Maine closure. The vote was unanimous
(one abstention). Before the vote, it was emphasized that
the proposal to close the entire Gulf of Maine for all of
October was not discussed at the recent informational meet-
ings, and some of those in attendance would likely object to
the seemingly abrupt change in Council position from limited
spawning area closures prohibiting" mobile gear groundf ishing,
to a wholesale closure with no restriction on groundf ishing.
However, the majority of Committee members felt that while
that may have been true, the original Council scheme was in
fact relatively unenforceable, probably ineffective, and
would cause more problems than it would solve. Additionally,
there would be other opportunity for public input on the
"new" strategy before a final decision was made on the type
of closure next fall.

It was mentioned at the Committee meeting that at least
in Gloucester, purse seiner representatives, while concerned
about the resource on which they were dependent, felt it un-
reasonable for them to stop fishing on spawning herring to
protect unborn fish, when years later these same fish would
be caught by Maine fishermen in a juvenile fishery with no
quota. Recognizing the logic of this statement and the very
large summer/fall catch of herring, the Committee began dis-
cussion to develop more realistic and appropriate objectives
for the Council Herring Plan. In the opinion of many, those
objectives had to address the need to manage juvenile and
adult herring on a unified basis. Independent management of
the adult and juvenile fisheries did not seem sensible.

The Committee also agreed to use 9" and greater herring
(total length) as those fish to be deducted from the quota.
The vote was 4 vs . 3 in favor of this strategy. The Commit-
tee also voted to remove the no-discard provision in the
current Plan - not because it approved of discarding but
because it considered the rule unenforceable. The vote was
6 vs. 1.

56

The New England Council at its December 3 and 4, 19 80
meetings, voted to accept the Committee's recommendation for
spawning area closures. Similar discussion and debate occurred
It was decided that in order to meet the strict timetable set
up to get a spawning area closure system in place for fall of
19 81 the Council had to take a stand and select a preferred
option for an amendment to the Plan.

A controversial decision

At December Council meetings , the Regional Director
stated that the summer/fall 5Y quota of 17,850 MT age 3+ had
been exceeded. Total catch was approximately 35,000 MT. Con-
sequently, he related:

"I am in a dilemma. My particular responsibility
is to implement and administer FMPs . I find in no
way am I able to turn around and justify the kind
of catches in the summer/fall fishery. The total
landings would be projected to. exceed two years of
OYs. No way can I recommend that the fishery con-
tinue. In fact I am making a recommendation to
Washington that the herring fishery be closed for
the remainder of the fishing year. I am making it
with a few caveats. I am not prone to close the
fishery. The closure would probably not be effec-
tive until the end of the month of January due to
paper work and that there be no consideration of
reopening the fishery in the future without some
clearly established actions being taken. The first
is an internal one within NMFS....that I be dele-
gated field authority to close the fishery imme-
diately. I can see very little ability from NMFS
perspective to implement and carry out an FMP un-
less one of the two conditions occur. First we
get a written commitment from the states to the
effect that they will close the fisheries when the
fisheries in the FCZ close or second, that the
Secretary pre-empt states rights and that the
Regional Director be given the authority to manage
the fisheries in those waters. Without cooperation
the herring plan is essentially non-operative and
will be a bankrupt plan. The herring plan is a
good plan and the Council made a lot of hard
decisions when it put the plan together. The fact
is that the plan is not being abided by. I feel
compelled to take this action with considerable
reluctance. If there is no commitment to resolve
these problems, I am committed to closing the
fishery. "

Extensive debate ensued with no one supporting the
Regional Director's position. Arguments against the Regional
Director's recommendation were reflected in a correspondence
between Philip Coates and the Regional Director. Reasons
for opposition were:

57

"1) The New England Council has previously amended its
Sea Herring Management Plan to establish seasonal/
area quotas for the Gulf of Maine region. This
action represented an attempt, in part, to maintain
historic access to fisheries in that region for
various user groups along the New England coast
consistent with National Standard 4 of the FCMA. A
closure of the winter/spring fishery will unjustly
prevent participants such as pair trawlers from har-
vesting historical shares in this economically im-
portant seasonal fishery. It will result in a
severe disruption of the fishery and cause irrepar-
able harm to the commercial herring industry of the
Commonwealth .

2) The Herring Plan contains no provision whereby over-
ages from one seasonal/area quota may be lawfully
deducted from another seasonal/area quota. Pursuant
to Amendment 3 of the Plan, overages are to be eval-
uated by the Council in reassessments of herring
stocks and considered by the Council in future
amendments .

3) The Plan's original intent was to favor the so-
called adult fishery in the winter/spring period
over that in the summer/fall period to take fishing
pressure off and rebuild the Gulf of Maine stock
which is more vulnerable during the summer/fall
period. This has not happened and is attributable
to increased availability and/or abundance of
herring to fishermen in the summer/fall period
brought about by a rapid rebuilding of the Gulf of
Maine stock. A closure of the winter/spring fishery
is not in keeping with original Council intent.

4) Results of this past summer/fall fishery have demon-
strated that independent management of fisheries in
the FCZ and state waters is ineffective in control-
ling resource removals and addressing needs and con-
cerns of the Council, State governments and the
herring industry. This ineffectiveness has prompted
the Council at the Committee level to re-assess the
Plan's objectives and to investigate an alternative
approach to management of juvenile and adult herring,
A closure of the winter/spring fishery at this time
will serve no real purpose but to antagonize Council
and State managers and the industry itself thereby
creating an unproductive environment. At the State
level, and federal as well, it will divert personnel
and time from seeking answers to tough problems in
order to justify or condemn past management actions
or inactions. Surely, no one wishes to waste time
and energy in bureaucratic and legal battles.

58

5) The present system for monitoring herring catches
has proven to be very untimely. In a fishery such
as that for herring where daily landings can be
extremely large, even small delays in monitoring
can be very significant. Until an alternate system
is devised or management strategies are revised to
de-emphasize the need for timeliness, quota overages
will likely continue. The winter/spring fishery
should not be penalized for overages created by
untimely monitoring.

6) The Council is unsure of the condition of the Gulf
of Maine stock at this time and it awaits results
of an upcoming assessment working group meeting to
be held in February. Additionally, a series of
questions have been presented to the Oversight
Committee by the Division regarding the appropriate-
ness of the Gulf of Maine OY in light of recent
events in the fishery. Answers have yet to be pro-
vided. Therefore, action to close the winter/spring
fishery in response to a need to protect the resource
would seem unwise."

Additionally, Spencer Apollonio commented on the recom-
mended closures and defended, once again, his position on
herring management in Maine (see letter) .

More on spawning area closures

On January 12 and 13 the Council again held hearings to
acquire public comment on spawning area closures. As a
result of these hearings, at January 27 and 28, 1981 meetings,
the Council adopted a strategy of an annual closure for all
herring fishing in 5Y South from October 1-21 and that a
prohibition on taking, processing, or landing herring occur
when twenty percent or more of such herring contained ripe
spawn during the same period as the annual closure in any
other area.

An exception was made for herring caught on Georges Bank.
The Council decided to authorize the Regional Director to
issue permits to vessels in order to facilitate the develop-
ment of the herring fishery on Georges Bank.

The spawning area closure was to be submitted to
Washington as a separate Amendment (#4) to facilitate its
implementation before October and the 1981 spawning season.
The flexible OY and size limit to be used for quota and
assessment purposes was to be addressed in a separat = Amend-
ment (#5) .

I \

59

TIUPMONC: Mot • 111 UTI

• TATS Or MAIN!

DEPARTMENT DF MARINE RESOURCE

MARIN C KCCOURCEI UIQRATORY

wear ioothiay ham eon. mainc 04473

•iJrr- ■
J"-
December 31, 1980

Allen E. Peterson, Jr.

Regional Director

National Marine Fisheries Service

Federal Building

14 Elm Street

Gloucester, Massachusetts 01930

Dear Allen:

Your decision to recommend the closure of the winter-spring herring
fishery amply expresses your concern over the substantial catch of 3+
herring in the summer-fall period. Since approximately 60% of the catch
of 3+ herring occurred in Maine waters, we must obviously consider this
problem while developing our herring plan for 1981. I want to assure you
that the state of Maine has no desire to contribute to the collapse of the
stocks. We have too much at stake in the resource.

I have stated in Council session the situation we face in the Maine
herring fishery. I will briefly review this for you. We have had a herring
management plan in place for three years that establishes a quota on the
mobile gear catch. The Council recommended that 10,470 MT of age 3+ herring
be taken north of Cape Elizabeth during a 12 month period. They have further
stated that for the summer-fall period, which is when our fishery occurs, age
3+ can be equated with 9" and larger. Maine's mobile gear quota for the
calendar year was therefore set at 8,000 MT of 9" and larger. The remaining
2,470 MT were set aside to cover the catch of 3+ herring in the fixed gear,
a level we felt was consistent with the long term average. In preparing this
plan we attempted to conform as much as possible to the stated objectives and
allowable catch levels of the Council plan and, indeed, until just recently
we had received no adverse comment from the Council or NMFS on our management.

This year was an unusual one in that an extremely strong year class of
three year olds was followed by a poor year class of two year olds. Although
we expected the 1977 year class to be abundant in the fixed gear catch, we
did not anticipate such large amounts. We intend to carefully examine the
future impact of that catch on other fisheries and if we find our catch was
unduly large with respect to year class size, we will take furrher steps to
limit the fixed gear fishery.

We are now beginning to develop our management plan for 1981. Maine's
herring management plan is rewritten each year to enable us to profit from
our mistakes. Although we do not anticipate a repeat of the problems of
1980, we are looking for ways to ensure that the catch of age 3+ fish in
.Maine's fixed gear fishery is indeed proportional to year class abundance.
We are now negotiating for a small NEFMC contract to cover our computer costs
■In examining this problem of catch by age by gear type in detail. At this
'tine we could profit from input from the Herring Oversight Committee, the
Council and your staff. We are particularly interested in suggestions on how
to divide the 5Y north quota equitably between the fixed and mobile gear
fisheries without causing economic devastation to either group of fishermen.
The original Council plan did not address this problem since the management
of the juvenile fishery was to be left to the state of Maine. Further,
neither the state of Maine nor the Council has yet produced an adequate
economic impact analysis of the consequences of placing a highly restrictive
quota on either gear type.

Obviously, the best time to iron out potential problems in a plan is
at the time it is being drafted and publicly reviewed rather than after it
is implemented. We will welcome the opportunity to discuss mutual problems
with your staff or that of the Council at any time during the course of our
plan development.

Sincerely,

S^JOJlU

IAJ3QT~

Spencer Apollonio

SA:PC

60

NMFS takes further steps

At February 24 and 25, 1981 meetings the Regional
Director related NMFS new stance regarding closing the
herring fishery for the rest of the fishing year (until June
30, 19 81). Washington NMFS rejected the Regional Director's
recommendation for the closure. Reason's for this rejection,
along with new NMFS initiatives, were related in a February
2 3 correspondence from the Regional Director to the Council
Chairman (see letter and Council response) .

NMFS took the position that the Council had to take
actions to resolve the problem of inconsistent regulation of
the territorial sea fisheries. As stated in the Regional
Director's letter, if by March meetings the Council did not
take positive steps to address the problem, NMFS would con-
sider a Secretarial Amendment to the Plan, preemption of
state management authority, or reconsideration of NMFS de-
cision to approve the Plan. According to the Regional
Director, NMFS was ready to hold a Secretarial Hearing to
determine which of those actions to. take and was ready to
suspend the herring regulations pending the hearing outcome.

To react to NMFS position, a working group was esta-
blished to "discuss in greater detail this issue and to
provide guidance to the Oversight Committee which was to
meet prior to the next Council meeting and to bring recom-
mendations back to the Council at that time."

Herring market changes

As of the end of February, the 12,000 MT 5Y quota for
age 3+ herring had not been taken. An estimated 2,185 MT
had only been landed. Reasons for these reduced catches
centered on a lack of an overseas market for filleted herring.

A Council inquiry and states' responses

To respond to NMFS insistence that the Council address
inconsistent herring management in all state waters, the
Council acted on Working Group and Committee recommendations
at its March 24 meeting. The Council voted to send a letter
to each of the states to determine how each state was pre-
pared "to support the effective implementation of the
Atlantic Herring FMP in their respective territorial waters."

NMFS, dissatisfied with this Council approach, decided to
hold Secretarial Hearings anyways. According to the Regional
Director, "Clearly the letter does nothing as far as NMFS is
concerned. "

61

#7 - 2/24/81

UNITED STATES DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

NATIONAL MARINE FISHERIES SERVICE
Northeast Region
Federal Building. 14 Elm Street
Gloucester, MA. 01930

February 23, 1981

cil

etts 01906

Dear Bob,

At the New England Fishery Management Council's December meeting, I advised
the Council of my intention to recommend closure of the Gulf of Maine herring
fiahery because the optimum yield for the fishing year has been exceeded. i
reviewed ray recommendation with Terry Leitzell, Assistant Administrator for
Fisheries, and William Gordon, Director, Office of Resource Conservation and
Management, and we concluded that Section 2.6 of the herring fishery management
plan (FMP) does in fact prevent us from taking the recommended action. Further,
we determined that such an action would not resolve the problem arising from
inconsistent regulation in the territorial sea fishery and could further contribute
to the breakdown of cooperative management of this regional resource. However,
we are still concerned about the excessive harvest levels and are preoared to take
other actions that are available to us to address these apparent inadequacies <->£
the FMP. We are aware that the herring FMP was the first plan prepared by the
Council and its staff and prefer that the Council address the problems.

We believe that the intent and definition of Section 2.6 should be clarified.
Aa presently written, this section coupled with a lack of an effective corresponding
management regime in the territorial sea fishery prevents us from limiting the
harvest to the levels prescribed in the FMP for the various fisheries. Consequently
the plan does not permit compliance with national standard 1. I strongly urge the
Council through whatever means possible to identify solutions to these problems in
order to make herring management effective and equitable as intended.

This is an urgent matter that must be addressed before the end of this fishing
year; therefore, I would like the Council to take some positive actions towards
raaolving the problem by the March meeting. If the Council is unable to do this.
The National Marine Fisheries Service (NMFS) is prepared to take positive action to
address these problems. We will consider a number of options including Secretarial
amendment, preemption of State management authority or reconsideration of our
decision to approve the plan. NMFS is ready to hold a hearing under Section 305(b)
of the Act to determine which of these actions to take and to suspend the herring
regulations under Section 305(b) (B) pending the outcome of the hearing.

I hope that the Council will be able to address this matter in a meaningful
and constructive fashion and I an prepared to assise the Council In every reason-
able way in doing this.

Sincerely yours.

Allen E. Peterson, Jr.
Northeast Regional Office, NMFS

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63

The letter and state responses are indicated here. In
summary, Maine stated it had recently completed its proposed
management plan for the 19 81-1982 season, and Maine's plan
would be "completely consistent" with the Council's. Maine
was proposing to redefine its mobile gear quota as age 3+
rather than 9" and longer, to include circle sets as mobile
gear - not fixed gear - and to close any portion of the fixed
gear fishery which conducted a directed fishery for age 3+.
New Hampshire expressed its intent to hold hearings in August
to establish a management program for herring which would
include spawning closures, gear size restrictions, and a
quota based on the Council's OY. Massachusetts repeated its
record of past support for the Council's Herring Plan and its
intention to continue to consider Massachusetts industry
insights and concerns at public hearings and other states'
responses to future federal waters closures before deciding
whether to close. Rhode Island stated that it "had acted in
a very responsive and responsible manner" . According to that
state, its plan "permitted orderly management of the Rhode
Island sea herring fishery in response to changes in the
Council Plan. "

Secretarial Hearing

On May 22 the Secretarial Hearing was held and the
various states and the Council presented testimony (included
here). The Council's position was that its plan had served
three functions: 1) acted as a framework for effective
conservation and management of the New England U.S. Coast
herring resources 2) reflected a commitment on the part of
both industry and state and federal governments for respon-
sible action in the best long-term interests of all parties;
3) acted as a forum for the constructive process of evolving
regional management policy mediating different regional
perspectives and was responsive to new developments
in the industry. The Council (as a whole) stated it was
generally satisfied with the individual state responses but
that its final position on the various state programs had not
been set especially since the Maine 1981 Plan was still a
draft and New Hampshire had yet to design a plan. The Council
concluded by stating its belief that "the Atlantic Sea Herring
FMP has contributed significantly to effective resource con-
servation and management. Moreover, the FMP reflects an
unprecedented degree of state, federal, and industry coopera-
tion which can be expected to result in a successful long-
term management program." Further correspondence (June 23) is
included here.

Massachusetts began its testimony by expressing its
displeasure with its being included as a state with a lack
of commitment to adhere to management measures of the FMP.
Massachusetts closed its fishery on October 14, only nine
days after the federal closure. It emphasized that it did
not wish to see the Plan suspended and noted that at least

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65

IDENTICAL LETTER SENT TO EACH ST4.TE

April 8, 1981

Mr. Charles E. Barry

Executive Director

New Hampshire Fish & Came Oept.

34 Bridge Street

Concord, NH 03301

Dear Mr. Barry:

The issue of complementary state and federal management regime for
Atlantic Herring has been of continuing concern to the New England Fishery
Management Council. This Council first articulated its position in regard to.
the need for cooperative state regulatory action in section 3.3.4. of the
original herring fishery management plan (FMP), and reiterated that position
in the context of an expanded management unit in section 4.2.2. of Amendement
#3 to the FMP (see attachment).

Consistent with these actions and in furtherance of the promotion of
consistent and effective Implementation of the Atlantic Herring FMP, the
Council adopted the following motion at its March 24, 1981 meeting;

"The Council reaffirms its position with regard to the need for
appropriate state management measures, consistent with the provisions of
the Atlantic Herring FMP, as stated in section 4.2.2. of Amendment #3, and
requests that the states of Maine, New Hampshire, Massachusetts ana Rhooe
Island give evidence to the Council as to how they are prepared to support
the effective Implementation of the Atlantic Herring FMP in their
respective territorial waters."

In response to the above I respectfully request that you inform the
Council of your state's present and planned future management measures for the
Atlantic Herring fishery within the territorial waters. The Council will \then
evaluate your response for consistency in the context of existing management
programs as well as in the recognition of anticipated action to amend the
FMP. As the Council staff is currently engaged in the preparation of support
documents for Amendment #5 to the Atlantic Herring FMP, we would appreciate a
reply by May 15, 1981. Thank you for your cooperation.

Sincerely,

Robert A. Jones
Chairman

EMS/1

66

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67

STATE OF NEW HAMPSHIRE

FISH AND GAME DEPARTMENT

CHARLES E. BARkTECElVLU "^CX
EXECUTIVSTDIRECTOR V"

* APR2719fai .

Boi 2003

34 Bridge Street

Concord N H 03301

(8031 271 M21

S&mtm VB6&,

Apri 1 23, 1981

Mr. Robert A. Jones, Chairman

New England Fishery Management Council

Suntaug Office Park

5 Broadway (Route 1)

Saugus, Massachusetts, 01960

Dear Sir:

The State of New Hampshire is in full agreement with the New
England Regional Fishery Management Council's position on the need
for cooperative state regulatory measures implementing FMP's with-
in the territorial sea. Consistant with this, we are scheduling
marine regulatory proceedings for August of this year to consider
management of the Atlantic herring fishery and other coastal matters.

It is our intention to implement a state herring management
plan at that time, which will include the proposed 21 day October
spawning closure, gear size restrictions and a flexible OY mechan-
isum, based on the OY of the FMP, that will allow us to regulate
the fishery in close cooperation with both state and federal fish-
ery management agencies.

S i ncere ly

Charles E. Barry,
Executive Director

CEB/kcl

68

•hiu» a. coatcb

DimcToa

J.4-WH'// tJatff'tntatf if/a/* (''/}<<* djuilatna

/00 /j"»i/,r({/<7e -j/reet

;Z)fliton, • //fw/ttfie/& 02202

May 6, 1981

\^UMJ mil].
RtCEJVLi

WAY131S

!S*ar com

Mr. Robert A. Jones, Chairman

New England Fishery Management Council

Suntaug Office Park

5 Broadway (Route 1)

Saugus, MA 01906

Dear Bob:

In response to your April 3th letter requesting informa-
tion on Massachusetts' present and future herring management
measures, Massachusetts has demonstrated its record of support
for the Council's Sea Herring Management Plan. Sea herring
regulations (attached) governing the fishery in Massachusetts
territorial waters were implemented on Oc'tober 18, 1979.
These regulations defined State waters management areas, set
incidental catch provisions, and established procedures for
closures which have subsequently been used on two occasions
(October 1979 and 1980) to close the fishery in our Northern
Massachusetts Management Area.

Unlike Council regulations which oblige the Regional
Director to close FCZ fisheries in attempts to keep catch
within area/period quotas, Massachusetts regulations give me
the option to close or keep the fisheries open. I have used
this flexibility to acquire industry insights and concerns at
public hearings and to consider other states' responses to
federal waters' closures. I intend to continue this procedure
with future FCZ closures.

Planned future management measures include those being
considered by the Council; i.e., possible spawning area
closures in territorial waters and adoption of a nine inch
(total length) and larger herring as those to be counted
against the Council .quota. I am receptive to any strategy
that benefits the resource and simplifies management.

As you
about the e
the various
management
I am concer
address sue
of juvenile
herring mar
processing
in maintain

know, Bob, I ha
ffectiveness of

states' abiliti
provisions conta
ned that the pre
h issues as the

harvest, the va
ket and its effe
capacity, and, o
ing an adequate

ve become increasingly concerned
the Herring Management Plan and
es or desires to comply with
ined therein. Furthermore,
sent Plan does not adequately
current and future levels
riability of the world
cts on domestic harvestinq and
f course, the role of herrinq
forage base.

I hope the states' responses to your inquiry, as well
as input from the upcoming Secretarial hearings, begin to
identify the best course for management of herrina in state
as well as federal waters.

Sincerely,

&it

PhiliD G. Coates
Director

!.M I AN I .'.""OV.*-

69

May 28, 1981

Mr. Allen E. Peterson

Regional Director

National Marine Fisheries Service

Federal Bldg. , 14 Elm St.

Gloucester, MA 01930

Dear All*.*:

Attn: Herring Comments

This letter is in response to your request for comments concerning the
effectiveness of state and feJeral herring management regulations. 1 have
enclosed a copy of the R. I. sea herring management plan, which was adopted
by the R. I. Marine Fisheries Council on December 18,. 1979. I have also
enclosed a copy of the statutory powers and responsibility of the R. I.
Marine Fisheries Council.

The present R. 1. plan permits orderly management of the territorial
sea herring fishery in response to changes in the N. E. Council FMP. The
R. I. FMP also permits the R. I. Council the flexibility to limit catches
or immediately close the fishery, if warranted. Although there are several
facets of the R. I. FMP which do not completely agree with the N. E. Council
FMP, the basis for management remains essentially the same. The State- of
Rhode Island was the second coastal state to implement a state FMP in support
of the N. E. Council Plan and, therefore, it is mv opinion that the State has
acted in a very responsive and responsible manner.

It is my opinion that the N. E. Council FMP should continue to regulate
the fishery in the FCZ. I oppose in principle any action which may be initiated
to preempt state statutory authority. The present state-fpderal manapoment
framework, has numerous shortcomings, but should be viewed as a continuii. ; pro-
gram, which is improving on a yearly basis. In addition, I oppose suspension
in whole, or part, of the N. E. Council FMT.

Two areas in particular do warrant additional analysis and discussion.
First, the Regional Director should be delegated the authority to initiate
immediate fishery restrictions, or other modifications to the FMP, based upon
* Council recommendation. Secondly, the implications and merits of a quota on
Juvenal herring should also be evaluated by tin? Northeast Fishery Center.

Thank you very much for the opportunity to comment on the proposals.

Sincerely,

JMC/l)R:dh
Enclosure

.John M".
Chief

Cronan

70

Philip q. Coatcb
omccTo*

400 V)amOrtdae C/Creet
&oi&>n, ^thuac/uiieOi 02202 727-3193

May 21, 1981

Mr. Allen E. Peterson, Jr.
Regional Director
National Marine Fisheries

Service
14 Elm St. , Federal Bldg.
Gloucester, MA 01930

Dear Allen:

We wish to present our views on management of the sea
herring resource in federal and states' waters and to advise
the National Marine Fisheries Service on action it should
take to respond to " inconsistent management of the herring
fishery within state waters".

First, let the record be clear that Massachusetts has
repeatedly demonstrated its support for the Council's Herring
Plan. Massachusetts sea herring regulations, implemented on
October 18, 1979, were designed to assist the Council meet its
goals for sea herring management. Regulations defined Massa-
chusetts Management Areas, set incidental catch provisions,
and established closure procedures which were used on two
occasions to close the fishery in territorial waters north
of Cape Cod shortly after FCZ closures. We do not appreciate
inclusion of Massachusetts within the category of "states with
a lack of commitment to adhere to management measures of the
Herring. FMP" .

Questions you raise are similar to those asked by us on
past occasions. For example, in November, 1980 correspondence,
we asked the Herring Oversight Committee to address the impact of
the Maine juvenile fishery on the Council's Herring Plan; that
is, was catch of age three and older fish in fixed gear propor-
tional to year-class availability and abundance thereby indi-
cating no need for restraint on catch of those age groups in
that fishery, or was it otherwise? We also asked if the 30,000
metric ton Gulf of Maine OY of age three and older herring
was an underestimation of what could be removed from the stock
with some rebuilding. Answers to our questions were not possible
until results of the Herring Assessment Working Group were avail-
able. We understand a report of the Working Group's meetings
will soon be completed, and we hope it provides you and us,
as a state and member of the Herring Oversight Committee,
with guidance for decisions on the best course for manage-
ment of herring.

We do not wish to see the Herring Plan suspended,
"pending implementation of some action to make it better".
This year, abundant 1976 and 1977 year-classes, which make
up the majority of the spawning stock, will be readily avail-
able to mobile gear fisheries from Maine to Massachusetts.
By suspending the Plan, the potential for further large catches
of these year-classes exists. Also, fishing on spawning concen-
trations of herring this fall could be intense, if not for food,
then for reduction. I do not believe we wish to risk depletion
of the Gulf of Maine resource to levels which are now observed
on Georges Bank and in other areas of the world.

You will probably argue that the Council had quotas in 1980,
and they were greatly exceeded; therefore, what is to prevent the
same situation from occurring this year? First, with better
monitoring of the fishery and a willingness on the Regional
Director's part to anticipate quota attainment, more timely
FCZ closures can be implemented. As you know, in 1980, federal
closures lagged far behind landings data. For example, in late
September your office learned that South Cape Elizabeth catch
of age three and older herring was approximately 11,000 metric
tons as of August 31. A closure was scheduled for October 5;
thus, the entire month of September and first week of October

71

were open to fishing even though the quota was already exceeded
by 2,000 metric tons as of the end of August. September's catch
was approximately 4,800 metric tons in the western Gulf of
Maine fishery.

Secondly, New Hampshire has recently stated its intention
to regulate its fishery in close cooperation with other states
and the Council. If their intent is carried out, unrestricted
fishing in New Hampshire territorial waters this late summer
and fall should not occur.

For Massachusetts, we intend to continue our support for
the Council Plan. For example, future management measures
include those being considered by the Council; that is, spawning
area closures and a possible adoption of a year-round nine inch
and larger herring as those to be counted against the Council
quota. Regarding future closures, we intend to continue our
past policy of holding public hearings to listen to industry
viewpoints and concerns and to consider other states' responses
to FCZ closures. We do not rule out emergency closures prior
to hearings, however.

The only unanswered question pertains to control of
catch of age three and older herring in Maine waters. While
we appreciate difficult problems of Maine to regulate its
juvenile fishery any further, Maine should realize the
problem this situation creates for the Council and other
states, especially Massachusetts. From July 1 through
November 30, approximately 19,261 metric tons of age three
and more significantly, 7,154 metric tons of age four and
older herring were reportedly taken in fixed gear of Maine's
coastal fishery for a total of 26,580 metric tons. The
fishing year's North Cape Elizabeth quota was 10,470 metric
tons. Consequently, the 2,470 metric tons set aside by Maine
as an allocation "to cover the usual amounts of age three
and older herring taken in fixed gear" was inadequate for
1980. We are concerned that this situation will repeat in
future years, and it might repeat as early as 1982.

When the FCZ fishery is closed this summer - fall, it is
our intention to close, but if we do, a continuance of our
closure will be contingent upon NMFS capability to prevent
continued fishing and quota overages in other states' waters.
We cannot keep our waters closed when it serves to impact
Massachusetts fishermen and processors inequitably.

In conclusion, we do not feel that NMFS or Massachusetts
concerns will be addressed and resolved by Plan suspension at
this time. It is too early for such a drastic action. We
much prefer that you wait and allow the Council to reconcile
the objectives of its plan, which are being re-examined now,
with those of other states. All plans' objectives must be
compatible; otherwise, there is no sense for the Council to
manage the resource and its fisheries as it currently does.

Sincerely,

Philip G. Coates
Director

72

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74

two causes of the summer-fall fishery overage were being
addressed. First, NMFS had already stated that it was in-
tending to monitor the fishery in a better manner. In
Massachusetts' opinion, because NMFS was unsuccessful in
acquiring up-to-date landings and administratively couldn't
implement a closure when immediately needed, large overages
caused by the summer- fall fishery occured.

For example, in late September NMFS learned that the
5Y South quota of 9,000 MT age 3+ herring was exceeded by
approximately 2,000 MT as of August 31. The earliest possi-
ble closure date was October 5, allowing five weeks of con-
tinued fishing. Approximately 5,000 MT were caught in the
5Y fishery during September alone. Another cause of the
overage was a failure of New Hampshire to close its waters
after FCZ waters were closed. It was expected that New
Hampshire would not repeat its inaction since New Hampshire
had already stated its intent to implement regulations in
support of the Council's Plan for 1981.

Massachusetts considered the third major cause of the
overage to be fixed gear catch of age 3+ in state of Maine
waters. It noted that the 2,470 MT set aside by Maine as
an allocation "to cover the usual amounts of age 3+ herring
taken in fixed gear", was inadequate for 19 80, and it feared
that this allocation could also be inadequate for 1982.

Massachusetts closed its testimony by stating its
intention to close the fishery in 19 81 provided NMFS pre-
vented continued fishing and quota overages in other states'
waters. It would not keep its waters closed when "it served
to impact Massachusetts fishermen and processors inequitably"

Maine reiterated its past positions and believed that
the mobile gear fishery, -not passive fixed gear, was respon-
sible for a large share of the excess catch. The Maine 1981
proposed plan was also expected to address some of the pro-
blems of past years, particularly 19 80. For example, the
"new" practice of circle setting with stop seines, which
contributed significantly to the 1980 age 3+ catch in eastern
Maine and the quota overage, was to be defined as mobile
gear with its catches counting against the Maine quota.
Maine stated its opposition to removal of the FMP and felt
that the Plan was workable and addressed problems that needed
to be addressed. According to Maine, a removal of the Plan
would significantly increase the risk of stock depletion.

Regarding the failure of Maine to set catch quotas for
herring in fixed gear, Maine stated that if the Council
wanted measures to curtail the fixed gear fishery, conse-
quences of those measures needed to be closely examined
through a complete Council economic impact analysis. Maine
concluded its testimony by indicating tnat its past plans
went through the public review process with no adverse criti-
cism from anyone (see testimony) .

75

New Hampshire outlined its proposed future actions
(expressed in an April 1981 letter to the Council Chairman)
within its territorial waters and stated its intention to
follow through with a "commitment that will ensure a coopera-
tive program of obtaining objectives set forth in the Herring
Management Plan". Reasons for a failure to close the New
Hampshire fishery in 19 80 were also given:

"The immediate concern before us today is to ensure
that the existing fishery plan is implemented in
the state waters in order to prevent a reoccurence
of the overages which resulted during the past
summer-fall season. The state of New Hampshire has
not participated in the herring fishery in the
recent years .

Therefore, it is not thought to be of high priority
to develop a herring fisheries management plan for
this state's territorial waters. This was probably
also the posture which prevailed when the Council
Amendment #3 to the Herring Fisheries Management
Plan was written, which excluded New Hampshire and
Connecticut in the following sections of the Plan,
422, appropriate state management measures under
the amended Fisheries Management Plan, 'the states
of Maine, Massachusetts, and Rhode Island are ex-
pected to implement management plans for the sea
herring fishery within their territorial seas
which are both timely and complimentary with the
Atlantic Herring Fisheries Management Plan as
amended herein. '

As most people are well aware, this past year's
fishery showed that New Hampshire was vulnerable
because of this exclusion. Subsequent to the
herring closures in both the FCZ and waters of
Massachusetts, New Hampshire was exploited as an
area to conduct illegal fishery, as well as for
the landing of herring. These events placed the
state in an awkward position with very few options
available to resolve the problem.

A normal course of action to address the conduct of
these fishing activities would have been to sched-
ule a public hearing and promulgate a regulation.
However, the entire process from scheduling a hear-
ing to implementation of a necessary regulation
requires a minimum of 4 2 days. During this
interval, the fishing season would have concluded
and the regulation would not have provided any
meaningful effect.

76

The only other possible action would have been to
declare an emergency situation whereby the Director
of the Fish and Game Department could have promul-
gated a regulation to close the fisheries immedi-
ately under RSA 206 15A, areas closed temporarily
to hunting and fishing. The applicable provision
in this statute states, 'The Director shall have
the power and authority to close any season for
the taking of fish in any area for not over 60 days
for stocking, for conservation purposes, and 90
days to reclaim ponds in any calendar year when in
his opinion such action shall be necessary for the
protection or preservation of the fish in such
area. '

Further, New Hamphire's administrative procedure
statute requires that an emergency regulation shall
not be promulgated solely to avoid the previously
mentioned 42-day time requirements, but that a
genuine emergency requiring immediate agency action
must first exist. In this statute, this emergen :y
is defined as 'an imminent peril to the public
health, safety, or welfare.'

Since there was no evidence presented by anyone
that a failure to invoke emergency powers would
endanger the stock of the fishery, an emergency
situation could not be demonstrated and this course
of action was not initiated. The ultimate decision
was to allow the fishery to continue and concentrate
efforts to develop procedures which would alleviate
these problems in the future."

Another joint venture proposal

At its May 26 and 27, 1981 meetings the Council approved an
August 1 - October 31, 19 81 joint venture for 4,000 MT of
adult Georges Bank herring between U.S. fishing vessels and
a Polish processing vessel. The joint venture was viewed as
a good opportunity to see if any herring were on Georges Bank.
Without a joint venture, and off-loading at sea, incentives
for U.S. vessels to venture out to Georges Bank to search
for herring were few due to high costs of fuel, a depressed
market, and the lack of assurance that herring could be
found. Also, the joint venture was /iewed as an opportunity
for some fishermen to acquire increased income.

Many U.S. processors expressed disapproval of the
Council's action. According to one Maine processor, "Selling
U.S. caught fish to foreign factory vessels not only makes
it more difficult for U.S. processors to open European mar-
kets for their products, but costs thousands of shoreside
workers their jobs." Another processor noted that the joint

77

venture was to occur during the Georges Bank herring spawning
season. Since the Georges Bank stock was already depressed,
he could not understand the logic of allowing fishing on
spawning concentrations.

Council responds to Maine's plan

At May meetings the Council voted to send a letter to
Maine to express approval of Maine's proposed plan which
attempted to address some of the Council's (and NMFS) con-
cerns. The letter urged Maine to keep its proposed plan
intact. Public hearings on the plan were scheduled for June
2 and 7, 1981.

Massachusetts comments on Maine's plan

Massachusetts commented on the Maine 19 81 plan (see
correspondence) . Questions were asked such as whether Maine
even intended to adjust upwards the "allocation" of age 3+
fish to the fixed gear fishery if the catch of those age
groups was expected to be high during the summer/fall. An
upwards adjustment of this allocation would have meant a
reciprocally smaller quota of age 3+ fish for the mobile gear
fishery in Maine waters. It was Massachusetts' opinion that,
to comply with the intent of the Council Plan, Maine had to
go as far as to close its entire mobile gear fishery if
"expected" catch of age 3+ herring in the fixed gear fishery
equalled the 5Y North Council quota. Massachusetts also
asked how Maine would know when "unexpected and excessive
catches of age 3+ herring occurred as a result of a directed
fishery for those age groups by any portion of the fixed
gear fishery...."

Maine' s reply

In July 6 correpondence (included here) , Spencer
Apollonio answered questions posed by Massachusetts. He
stated that, "our mobile gear fishermen will not pay the
price for unexpected overages in the fixed gear catch" ,
and he defended Maine's 2,470 MT expected catch of age 3+
herring in fixed gear. He noted that the 2,470 MT alloca-
tion, "would have been more than adequate in 1969, 1970,
1972, 1973, 1974, 1975 and close to adequate in 1977 and
1978."

An offer was made to Massachusetts that,

"If Massachusetts does not feel that Maine's
response is adequate to justify quotas in Massa-
chusetts waters, then we would be happy to ex-
plore with you, both through the Council and
between ourselves, options for non-quota management.
We feel that a proper balance of non-quota regu-
lations could be achieved that would satisfy the
social and economic needs of the fishermen of
both states, and in turn ensure that the stocks on
which we fish do not collapse...."

78

PMIUP Q. COATCS

oinccToa

400 bamtr«/ge ^street
iorfon, ^Uauac/iaiefo 02202

June

1981 %A

1 ° ' --OI

" w rr.\\rr>v

Mr. Spencer Apollonio

Commissioner
Department of Marine Resources
State House
Augusta, ME 04 330

Dear Spencer:

To this point in time, Maine and Massachusetts interactions
on sea herring management have been primarily addressed during
Council and Committee debate. It's time we addressed our
mutual problems and individual concerns outside of that forum
and I see no better way to begin than to comment on your
proposed Herring Plan.

First, I don't believe any state needsto exactly conform
to any Council Plan particularly if the fishery in that state's
waters presents special problems requiring a different management
approach. This is especially true when the fishery across
the range of the resource is predominately within states'
waters (viz., sea herring). However, since states, as Council
members, have a large role in development of Council Plans
and their management strategies, I feel we are obligated to
support Plans in any way we can particularly if we have not
objected to those Plans during their evolution and final imple-
mentation. In keeping with our approvals of the Council Herring
Plan, Maine and Massachusetts have both taken significant steps
towards providing this support; i.e., your Plan which was initiated
in 1978 and our regulations implemented in October, 1979.

I feel it is necessary to comment on your Plan because
I am concerned over the possibility of a repeat of 1980-like
conditions in the future; i.e., very large overages of the
seasonal-area quotas for age three and older herring due to
continued catch in fixed gear. I'm sure my concern is of no
surprise to you since I or David have expressed it at
Council/Committee meetings and at the recent Secretarial
hearing.

In your Plan you recognize the issue which, in my opinion,
is central to the successful carrying out of the Council's
Plan and the securing of Massachusetts full cooperation. You
state, "Amendment 3 eliminates the exception for catches of
age 3+ herring in Maine territorial waters not counting against
the Gulf of Maine's seasonal catch allocations. This amendment
further states that 'all states are relied upon to enforce
the area/period seasonal allocations by closing directed
herring fisheries in their territorial waters when the
seasonal catch allocations have been taken. The State of
Maine may at its option provide information on expected
harvests of herring age 3 and older in the fixed gear
fishery which may then be deducted from the available catch
allocations. Maine is also expected to comply with a
determination that the sub-allocation for 5Y North has been
taken. by closing state waters to the mobile gear harvest
of herring age three and older. The fixed gear fishery for
juveniles may be allowed to continue to harvest age 3+ herring
if (my emphasis) expected harvests from this fishery have
been previously deducted from the 5Y North sub-allocation'."
You continue, that to meet the Council 5Y North 10,4 70 MT
quota of age 3+ herring, while preserving the traditional
season and nature of the 5Y North fixed gear fishery, 2,470
MT of age 3+ herring is allocated (not a quota) to the fixed
gear fishery to cover usual amounts of these ages caught
by that gear.

79

This is a good attempt on your part to meet the Council
quota. However, since the 2,470 MT has proven to be inadequate
for 1980 and could easily prove inadequate for coming years,
do you intend to adjust this figure according to expected
catches of age 3+ fish in fixed gear based on your assessment
of the stock and the past year's catch of age 2 fish in fixed
gear? In your "Status of the Stocks" you reveal some predictive
capability since you state, "For the 1981 fishing season,
we expect two year old herring (the 1979 year-class) to be
reasonably abundant and available to fixed gear. Three year
old herring (the 1978 year-class) should not be very abundant
in either fixed or mobile gear since this year-class is very
poor both in the Gulf of Maine and in Canadian waters...."

It appears that you are in a position to predict with
some confidence whether catch of age 3 (the contentious age
group) will be relatively high or low in fixed gear catches.
With this prediction you could decrease the mobile gear 8,000
MT quota to accomodate expected increased catches in fixed
gear thereby providing better assurance that the 10,4 70 MT
quota would not be exceeded (excepting the occurrence of
another 1977-like year-class) .

This raises my next question which is, would you ever
be prepared to reduce your mobile gear quota to levels below
5,000 MT, for example, to accomodate an expected higher
fixed gear catch of age 3+ herring? I can understand that
this can be a sensitive political problem since one user
group sacrifices at the expense of another, but it is a
question which must be answered to give me an indication
of how you intend to manage your juvenile and increasingly
important adult fisheries, and in turn, how Massachusetts
should proceed with its management strategies. If by
"preserving the traditional season and nature of the fishery"
you mean never to impact potential catch of age 3+ fish in
fixed gear (particularly age 3) , then 5Y North quotas will
never be meaningful even if based on nine inch and larger
herring.

Note that my foregoing discussion applies to state
regulation of age 3+ herring. I have not addressed the need
to regulate catch of age 2 herring, and I don't intend to
at this time, although I am concerned about future growth of
the sardine industry and potential impacts of increased
juvenile catch on recruitment. While I am sure many Massa-
chusetts herring industry representatives will continue to
protest no regulation of age 2 fish while catch limitations
exist for other fish (the chicken and the egg argument) , the
economic importance and long history of the Maine sardine
industry is clear and attempts to manage that industry beyond
your current philosophies might produce additional problems.
Nevertheless, it would be helpful to me if you could provide
specific reasons for not regulating catch of age 2 fish. I
need this information to apprise the Massachusetts Marine
Fisheries Advisory Commission and the public on your future
juvenile management strategy in order to prevent misunder-
standings.

Regarding your "Contingency Measure", you state in the
plan that the 5Y North fishery is traditionally for age 2
and 3 herring, thus I assume this means a directed fishery
for ages 2 and 3 by fixed gear. How will you know when
"unexpected and excessive catches of age 3+ herring have
occurred as a result of a directed fishery for these age
groups by any portion of the fixed gear fishery...." (in
particular for age 3 fish)? Furthermore, assuming you hold
a public hearing in response to "unexpected and excessive
catches", if you decide to close, how long would it be before
implementation of that closure?

Certainly, the herring resource is important to both the
Maine and Massachusetts fishing industries. It is in both
our best interests to make our intentions clear to each other
to foster cooperative management of the resource between
ourselves and with the Council.

Philip G. Coates
Director

PGC/DP/le

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82

Maine's final 1981 plan

As a result of public hearing comments, Maine's Department
of Marine Resource's Advisory Council decided to:

1) ban fishing for herring by otter trawls, pair trawls,
and midwater trawls north of Cape Elizabeth;

2) close the mobile gear fishery south of Cape Elizabeth
when 5Y South federal waters closed;

3) enact an October 1-21 spawning area closure south of
Cape Elizabeth for mobile gear only (no tolerance) ;

4) set again an 8,000 MT 9" and larger herring quotaca
for mobile gear fishing north of Cape Elizabeth
(exception - if mobile gear catch was 25 percent or
less 9" and larger herring by volume, fishing could
continue during the quota closure) ;

5) enact a September 1 - November 30 spawning area closure
north of Cape Elizabeth for mobile gear only (toler-
ance of 20 percent by volume; i.e., herring with
spawn could be taken if 20 percent or less by volume) .

Maine's Council and the Department of Marine Resources
decided against including the "circle set" method of stop
seining as mobile gear. Circle setting apparently was a
common practice for eastern Maine fishermen in particular,
and enforcement of a closure for circle setting was consid-
ered practically impossible. The New England Council had
hoped circle setting would remain a mobile gear since report-
edly circle setting was responsible for a large share of the
catch of age 3+ herring in the fixed gear fishery.

Maine's Council and the Department of Marine Resources
also decided to retain the 5Y North quota based on size and
not on age. According to Spencer Apollonio, it was likely
that the Regional Council would eventually use the 9" total
length cutoff; therefore, Maine might as well retain its
existing size limit rather than adopting the Council's exist-
ing age limit.

Finally, regarding the emergency closure provision
whereby Mr. Apollonio would hold an emergency public hearing
to consider closing segments of the fixed gear fishery which
directed efforts towards age 3+ herring, the following ac-
count (Donnell, Commercial Fisheries Review, August
1981) provided the Department's viewpoint. Note: The weir
fishery was excluded from the emergency closure.

"There is one item in the 19 81 Maine plan that has
given a scare to many Maine fishermen. The plan
gives the Commissioner the power to hold an emer-
gency public hearing to weigh closing any directed

83

herring fishery that's after "9's-and-up" except
the weir fishery. This would only happen if it
seemed apparent continued fishing could harm the
stock.

This only means if it looks like a big overrun, we
can take a look at it, and we can shut it down if
it's advisable, explained Apollonio. We couldn't
do this last year, he added, when we had 26,000 odd
MT overrun that caused a lot of concern on regional
and federal levels.

Most feel that this highly unusual year won't be
repeated. "It was a biological aberration," said
Apollonio. It was a unique combination of a very
large 3-year old class that practically swarmed
inshore at Little Machias Bay. It's unusually rare
for 3 year olds to hit inshore in such quantity.
The 1978 year class (this year's 3 year olds) is
much smaller, explained Apollonio. But, even so,
we don't expect such a biological aberration to
recur, he added.

But in any event, putting a lid on the mobile gear
activity, and classifying circle-seining as mobile
gear, coupled with the sudden increase in weir
building activity Downeast should put a damper on
any repeat of this Apollonio told the Council. (In
Maine it is unlawful to set any gear within a 2,000
foot radius of a weir • — Ed.)"

The rationale behind Maine's ban on some forms of mobile
gear was as follows (Donnell, Commercial Fisheries
Review, August 1981) :

"Throughout its deliberations, the Council clearly
indicated it strongly favored "encouraging the old
fisheries and discouraging the new. " All agreed
that the top quality sardine herring come from the
weirs and stop seines, which give the opportunity
for the fishermen to hold fish until they clear
themselves of feed. Whereas the "newer" mobile
gear methods don't lend themselves to this. Fur-
thermore, general consensus is that the traditional
passive gear methods do in fact effectively limit
the juvenile as well as the adult catch.

Council member Spencer Fuller faulted the 1981 plan
for its lack of creativity. Fuller felt that lim-
iting purse seine size and encouraging the use of
drift nets was a more practical approach. The
total mobile gear closure is called for to limit
the larger purse seiners, but it inflicts real

84

economic problems on the little fellow, he explained.
Fuller is one of the "small" purse seiners.

"I hate to say it, but the mobile gear fishery is
the most dangerous in the ocean. It's cleaned up
in Europe, and we must keep a lid on it here,"
argued long-time fisherman and Council member
Bernie Johnson from Bailey Island. A little mobile
gear activity in Massachusetts * Ipswich could ef-
fectively keep the herring offshore and out of
Maine's major bays, he explained.

Council's concern with an unrestrained mobile gear
fishery was punctuated by their frequent reference
to the 1980 mobile gear activity in Massachusetts'
Ipswich Bay. Allegedly the larger purse seiners
and other mobile gear really "hammered them" there
last year. Reportedly millions of pounds of herring
were smothered and trashed by all states' vessels."

No 1981 spawning area closure

During June the Council received a response from NMFS
regarding the implementation date of Amendment #4 which
sought to establish an October 1-21 spawning area closure.
The contents of this response was related to the Council at
its June 30- July 1, 19 81 meetings. NMFS stated that unless
the Council declared a resource emergency, the Amendment
could not be implemented for the 19 81 spawning season. Since
a resource emergency did not exist, the Council had no other
choice but to plan for a 1982 spawning area closure.

No time for herring

Council activities during the summer and early fall of
19 81 were primarily devoted to finalizing the Scallop and
Interim Groundfish Plans. Herring was not a major concern
since markets for herring were not strong and catches in Maine
waters by both fixed and mobile gear were predominately age 2
The 1979 year-class (as age 2) was strong and was the preferred
age group for the juvenile fishery. Thus, there were doubts
that the fisheries in 5Y North and South would need
to be closed in 1981. NMFS pointed out, however, that
if a closure was needed, its date of implementation would oe
seven days from the time a decision was made to close. NMFS
did not want to have a repeat of 1980 and the long lag time
between the decision to close and the actual closure itself.

The only Council action related to herring was at
August 25 and 26, 1981 meetings when the Council requested
NMFS to return Amendment #4 as soon as possible so that it
could be labeled a draft and resubmitted. According to the

85

Chairman of the Herring Committee, NMFS had indicated that
it had serious problems with the Amendment and it appeared
the Amendment was going to be rejected.

The Chairman also indicated that the Committee was in
the midst of developing revised management objectives for
the plan. He noted:

"We met yesterday to continue our discussion of
management objectives as directed from the Chair.
The Committee wants more than a restatement but a
new set that would minimize regulations but would
prevent stock collapse. The trend would be to allow
economic factors to cohtrol fishing to a point when
the brakes would have to be put on. Some of the
suggested strategies would be to have a continued
spawning closure and limit the amount of fishing for
reduction. It has been assigned to a working group."

Massachusetts hearings

Just prior to August Council meetings, on August 17,
the Massachusetts Division of Marine Fisheries and its
Advisory Commission announced an August 27 public hearing
to solicit public input concerning a possible closure of the
sea herring fishery within waters of the Division's Northern
Massachusetts Management Area and establishment of an annual
October 1-21 spawning area closure in State waters. Accord-
ing to the news release:

"This year the National Marine Fisheries Service
intends to, well in advance, project when the July
1 through November 30 quota of 9,000 metric tons
of age three and older herring will be reached to
•provide for more timely closures of federal waters.
A federal closure could occur in early September."
Coates continued, "In the last two years the Divi-
sion, with the Commission's approval, closed the
Northern Massachusetts Management Area shortly
after federal closures. It is my intention to
recommend to the Commission that we follow the same
procedure this year. However, a continuance of a
closure would be contingent upon the National
Marine Fisheries Service's capability to prevent
continued fishing and quota overages in other
state's waters. I cannot keep our waters closed
when it serves to impact Massachusetts fishermen
and processors inequitably."

The Division is on record in support of a proposed
New England Fishery Management Council October 1-21
herring spawning area closure in the southern Gulf
of Maine. The Council's annual closure is sched-
uled for implementation in 19 82. Other states

86

either already have or are proposing spawning area
closures for this fall. The Commission wishes to
have public input on whether Massachusetts should
do the same."

At the hearing everyone present wanted to see the fishery
kept open until the middle of October after which herring
usually scattered following spawning and the fishery wound down
by itself. As expressed by Edward MacLeod, General Manager
of Lipman Marine Products and Kennebec Fish Company and chief
spokesman for those in attendance, the herring resource was
in good shape (according to U.S. scientists) and the adult
herring industry in both the U.S. and Canada, in contrast to
1980, was generally in very poor shape due to a lack of
European markets brought about by a resurgence of the North
Sea fishery. Therefore, there was adequate justification for
keeping the fishery open in Massachusetts waters if only on
a limited basis (See Fishery Gazette article) .

To prevent unrestricted catch following a federal water's
closure, Mr. MacLeod suggested that boats could be put on
trip limits (e.g., 100,000 pounds) and fishing could be re-
stricted to weekdays only. This would enable processors and
fishermen to supply their small markets with hopes of main-
taining them for another year. He and George Colley of Sea-
food Packers Co. (Provincetown and Hyannis) stated that a
market existed for whole frozen fish and they didn't want to
lose that market because of a closure. A constant supply of
approximately 100,000 pounds per boat was considered adequate
for them to retain their existing buyers.

Mr. MacLeod noted that processors and fishermen had
showed a great deal of restraint in July by not catching
herring for reduction and that in 19 80 when the Commission/
Division said stop fishing, everyone complied. Now, in
return, he and others were seeking the Commission/Division
forbearance to allow the industry to continue to operate in
state's waters after an expected late September/early October
federal closure.

Regarding a spawning area closure in Massachusetts
waters, no support was given for 1981. Industry reasons for
this lack of support were three-fold. First, a joint venture
with the Polish for herring on Georges Bank had been approved
by the Council and the National Marine Fisheries Service.
This venture was to take place during the spawning season.
If fishing was to occur on Georges Bank during spawning and since
the Georges Bank stock was assessed to be extremely poor,
then why not allow continued fishing on Jeffrey's Ledge dur-
ing spawning when that stock was assessed to be in very good
condition. Secondly, the adult herring industry was in need
of more product to maintain new market opportunities. Schools
of fish were currently dispersed for some reason (perhaps

87

Herring Exports

by Nick Mencher

Lose Race to Foreign

Competition

ALACK OF traditional West
German markets caused by
fresh European and frozen Ca-
nadian herring has knocked the bottom
out of the East Coast herring export
industry.

Processors alone the coast have
stopped purchasing fresh herring from
domestic seiners for freezing and ex-
port to the major European herring
markets in West Germany. In
Gloucester. Kennebec Fish Corp. has
not bought any herring from vessels
since last Uctober. when Gulf of Maine
herring grounds were closed because of
overfishing. Those areas reopened in
November, but with its customary
markets non-existent, Kennebec —
Gloucester's largest hemng processor
— has yet to purchase and freeze any
herring.

Seiners Not Fishing

And the fleet of seiners from Maine.
New .lersey and other northeastern
states which fished out of Gloucester
each year for herring has ail hut disap-
peared this season. Many of the vessels
fishing for the Maine sardine market
are working under quotas set by the
canneries which are receiving an ample
supply from their own boats. While
some of the major Maine canneries have
softened the market decline through
their sardine operations, the lack of
West German herring markets has
meant less employment for shoreside
workers and fewer markets for fisher-
men.

"It's impossible lor us to operate on
the West German market." says Geir
Monsen. manager of Global Seafoods in
Narragan.-ett. Uhode Island. "We
simply can't compete and we haven't
shipped to West Germany in half-a-
year."

Seek Other Foreign Markets

Monsen think.- the situation may im-
prove somewnat as other foreign mar-
kets are sought and found for frozen
herring, but he is not expecting a return
to the level of exports American proces-
sors once enjoyed in the West German
market.

"This is the first time in 11 years this
has occurred to this degree. It's quite a
serious problem and nobody knows how
long it will last." says Edward Mac-
Leod, general manager of Kennebec. If
the foreign market does not improve by
the summer-fall herring season, about
100 shoreside workers and the seiners
which fish for Kennebec will be out of
luck.

Two Gloucester vessels, the 77-foot
Italian Gold and the 80-foot
(jloucexterman. abandoned plans to
enter the pair-trawl herring fishery last
winter and a plan bv Joseph Curcuru to
attempt the difficult winter purse seine
method on the 120-foot Barneqat had to
be scrapped. Some vessels have
switched over to join the already-
crowded groundfish fleet, and some
seiners are planning to fish hard for in-
dustrial species this summer. While
herring prices last summer and fall
were thought by some fishermen to be
unreasonably low. industrial fish this
summer are bound to have an even
lower ex-vessel price.

Canadian Competition

Dealers and exporters who formerly
supplied herring markets in West Ger-
many are now facing stiff competition
for their traditional buyers from low-
priced Canadian frozen herring and
fresh herring caught in European
waters.

The National Marine Fisheries Serv-
ice said recently that West German her-
ring markets are packed with frozen
Canadian herring — including some
4.000 to 5.000 metric tons unsold since
last August — and dealers already hold-
ing frozen herring are hesitant to buy
more.

Canadian House Clearing

"1 think the Canadians are trying to
clear house." says MacLeod of the her-
ring bottleneck. "They're selling at
ridiculously low prices and they're los-
ing money." MacLeod thinks the Ca-
nadian move is intended to clear freezer
space for the summer and fall season

and that the Canadians are ready to sell
the frozen herring at any price. With
freezers already full of hemng in the
United States and world-wide. Amer-
ican processors remain wary of buying
and freezing herring.

Illegal Fishing

Until March of this year, much of the
fresh herring on the West German mar-
ket which lured dealers away from the
American supplies had been caught in
the face of a British closure of the North
Sea herring grounds. Vessels from the
Netherlands. Denmark and France
joined others to fish illegally in the
North Sea and were spurred on by con-
flicting claims over fishing rights in the
area.

Fresh Herring Find
Good Market

Fresh herring from the North Sea
began to taper off recently when the
British government opened the area
under a tight hemng quota and the
Baltic Sea fishery opened. The sources
may have changed, but the flood of
fresh herring on the West German mar-
ket means American processors are left
out in the cold.

According to MacLeod. Eastern
Block fleets are fishing hard for hemng
in the Baltic and are supplying the West
German market with all the fresh fillets
they can use

Those fillets are finding a ready
market. The high fat content and age of
the frozen Canadian herring is keeping
sales of the product slow and West
German buyers are showing a prefer-
ence for the fresh fillets which are
cheaper to process and more attractive
to consumers.

The double punch of fresh herring
from fishing grounds all over Europe
and a decline in the average amount of

herring consumed by Europeans has
pulled the West German market out of
American export reach, says Monsen.

Caught between currency fluctua-
tions that have raised the cost of Amer-
ican herring, the fresh supply in Europe
and available, cheap Canadian hemng,
MacLeod says. "We're not sure we're
even going to open this summer."

Groundfish Picture

For the vessels which geared over to
join the nortnern shnmp fishery this
year and watched as a promising start
slumped to a poor finish, grounafish
was the stalwart this spring and sum-
mer. While Boston and Gloucester
groundfish prices for fishermen were
high this spring. $1,000 a day fuel bills
for large diaggers and a scarcity of
groundfish offshore may mean the her-
ring seiners which switch to groundfish
this season will find the effort difficult.

But the search for new frozen her-
ring markets to replace the shattered
West German outlets may not be much
easier. G

pishing gazette August imi

88

bluefish) . During spawning schools reform; hence, they would
be more available to catch. Third, the State of Maine had
no quota on juveniles, thus why should Massachusetts fisher-
men stop fishing on herring with spawn when these same spawn
when older would be subjected to the Maine juvenile fishery which
was not restricted in terms of total catch.

No closures?

NMFS stated at September 29 and 30, 1981 Council meet-
ings that a closure in the 5Y North area was not projected.
Through mid-September approximately 79 percent of the 8,850
MT quota of age 3+ fish had been landed. Furthermore, in
the 5Y South area landings were even lower (approximately
50 percent of the quota). NMFS stated, "It doesn't appear
that we face problems in the herring fishery this year."
This revelation was good news to everyone, especially Massa-
chusetts Council representatives who did not relish another
State waters fall closure.

Catches increase

On October 8, 19 81, to their surprise, states were
informed by NMFS that 5Y South waters were to close on
October 18, 19 81. Catches had increased towards the end of
September and early October, and total landings were pro-
jected to reach the quota on October 18.

In Massachusetts, the announcement coincidentally coin-
cided with the monthly meeting date of the Division and its
Advisory Commission. At that meeting the Commission was
convinced to close the fishery. The closure was effective
October 18, 1981 in the Northern Massachusetts Management
Area (later revised to October 21) . This State waters
closure closely coincided with the Federal closure and
closures of New Hampshire and Maine territorial waters fish-
eries. The latter closure applied to Maine waters south of
Cape Elizabeth and for mobile gear only. New Hampshire
waters, as well as Maine's 5Y South waters, had already been
closed since October 1 for spawning area protection. New
Hampshire eventually continued its closure beyond October 21
by emergency action. Maine's closure also continued since,
as prescribed in its regulations, the 5Y South area was to
close when FCZ waters closed. New Hampshires spawning area
closure was adopted by its Fish and Game Commission on
September 4, 19 81 and resulted after an August 19 hearing.

The Division of Marine Fisheries and its Advisory
Commission decided that Massachusetts ' closure would be con-
tingent on closures in other state's waters adjoining the
southern Gulf of Maine area. These closures were to occur,
thus all states took actions to support the New England
Fishery Management Council Herring Plan.

89

Massachusetts did not, however, implement an October
1-21 spawning area closure. The Council was not successful
in establishing a spawning area closure in Federal waters in
19 81; consequently, Massachusetts felt a State spawning area
closure would not be effective because it would be unenforce-
able. Also, since the majority of spawning had historically
taken place in offshore waters, a spawning area closure in
Massachusetts waters would have had a minimal impact on the
resource. The primary purpose of a Massachusetts closure
would have been to prevent a potential loophole in a Federal
spawning area closure.

The Division and its Advisory Commission recognized
desires of many in the herring industry to continue fishing
throughout October until schools dispersed to deeper off-
shore waters. The lack of herring early in the fishing
season and economic concerns of fishermen and processors
were made clear at the August hearing. However, as stated
in a news release, "If the Council's Herring Plan is to
continue to exist, it must be supported by the states which
have been intimately involved with its development and
evolution. A failure on the part of Massachusetts to close
this season would likely be interpreted by the Federal govern-
ment as just one more action by a state to ignore the plan."

Explanations given

The Regional Director at October 20 and 21, 1981 Council
meetings explained the "sudden" 5Y South closure. According
to him,

"I think everybody is aware that we had a closure
in the herring fishery in 5Y South effective Octo-
ber 18. That probably was a surprise to most
people, because at the last Council meeting we
indicated that we didn't see any problems, and that
was very much the case at that time. But at the
end of September we had some very high catches
occur. For the Gulf of Maine 5Y North and the age
3+ fish during the reporting period, which was
through September, there was 1,5 37 tons caught.
The total so far for the fishing year in the 5Y
North area of the age 3+ is 8,224. That's versus
a quota of 8,850. It is pretty close to the quota.
Generally, the fishery is pretty much slowed down,
however, there is a possibility for some further
fishing activity east of Cutler area (eastern
Maine) on the adults, and we may potentially face
a closure there. Our figures for all ages at this
point in time in 5Y North are 30,29 3. During the
period through the end of September there were
6,360 tons caught in 5Y South versus the 9,000
quota. That is age 3+. During the first nine

90

days of October we had better than an additional
2,000 tons caught. We then did some projections
on the catch rates at that time; and it gave us an
indication that we would reach the quota, so we
moved to close the fishery. The best figures we
have at this point, which are still somewhat tenta-
tive, would show that as of October 16 we had 8,799
tons caught. The fisheries are being closed in all
the state waters. The totals for both areas were
14,584 of adults and 36,723 of all ages. In George's
Bank and Southern New England we have had 26 tons."

Again regarding the increase in landings, the Regional
Director stated,

"It is pure speculation, but we heard that one of
the biggest reasons for the increase was some orders
for spawn herring; and the fish finally showed up
and became available and were caught in pretty good
numbers in a very short period of time. I've also
heard comments that some of them were going to
reduction. We have never been terribly successful
at getting good figures on that in the past. There
seems to be some reluctance. I might add that once
we talked about the closure, it became a little
harder to get the current figures out of the dealers
as well. "

Negative feedback

Massachusetts industry was not silent on the closure
in Massachusetts territorial waters. The Division received
a letter from Edward MacLeod (writing at the request of all
parties affected by the closure) to protest the closure
which, at the time of his letter, was pending. He stated
that the Advisory Commission made a serious error in not
fulfilling the industry request to close the fishery two
weeks after the Federal closure. He related orders which
he would not be able to fill and impacts on fishermen, employ-
ees, other companies, and suppliers in Gloucester. Mr.
MacLeod noted the hypocrisy of a plan which claimed to
manage the fishery when in fact catches of age 2- and 3-
year-olds in fixed gear were not controlled, and he demanded
that events of 1981 not be repeated during the summer of
1982.

In response to Mr. MacLeod's, et al. arguments , the Division
cited four reasons why it and the Commission decided to close
the fishery in spite of industry protests.

Those reasons were:

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92

1) Public hearing input - At the hearing industry
emphasized the need to keep the fishery open until
October 15 if federal waters closed on October 1J
Federal waters did not close until October 18. At
the hearing there was no request to keep the fishery
open until the end of October or two weeks after a
federal closure whenever that might have occurred,
only two weeks after a possible October 1 federal
closure.

2) Keeping a commitment - At the Secretary of
Commerce hearing held in May the Division stated
its intention to recommend a State waters closure
when federal waters closed. The Division felt it
necessary to carry out that commitment. Also, at
the Secretarial hearing the Division mentioned it
would not keep the fishery closed if catches of
age three and older herring in other states ' waters
were above Council recommended levels . It intended
to live up to that commitment too. As much as
possible, the Division was keeping track of catches
of age three and older fish in Maine waters taken
by fixed and mobile gear. If that catch exceeded
the Council 5Y North quota of 10,470 MT, the Divi-
sion intended to open the fishery before December
1. As of the end of September, in both fixed and
mobile gear, approximately 8,224 MT of age three
and older herring were taken in 5Y North.

3) Interstate cooperation - In 19 80 Massachusetts
processors and fishermen expressed great concern
that fishing was allowed to continue in New Hamp-
shire waters after the federal closure, yet Massa-
chusetts waters closed. The Division and its
Commission shared those views. Since then, at the
urging of NMFS and Massachusetts, New Hampshire
agreed to close its waters when the 5Y South quota
was taken. Those waters were closed in October.
Additionally, New Hampshire implemented a spawning
area closure from October 1-21. Those were signi-
ficant actions to prevent a repeat of unrestricted
1980 fishing in New Hampshire waters and offloading
in New Hampshire ports.

If Massachusetts had not closed its fishery, New
Hampshire certainly would have had second thoughts
about closing its waters. With both Massachusetts
and New Hampshire waters open, it was likely that
a significant overage of the 9,000 MT 5Y South,
July - November quota of age three and older herring
would have occurred. In the Division's opinion,
failures to close would have been further indica-
tions to NMFS that states were not serious about
complying with the Council Plan that states had a
major role in developing.

93

4) NMFS reaction - NMFS recommended options for
the Secretary of Commerce (or NMFS) to react to
problems with the Herring Plan created by "incon-
sistent management of the herring resource (age 3
or older) within the waters under the jurisdiction
of the States of Maine, New Hampshire, and Massa-
chusetts." Among those series of options was one
to rescind all or parts of the Plan. Failure of
first Massachusetts and then New Hampshire to close
would have provided NMFS with the "final straw"
prompting it to rescind the Plan or take some other
drastic action. The Division felt it was too early
to give up on the Plan.

The Division also indicated that,

"Next summer/ fall there is a strong likelihood that
catch of age three and older herring in Maine fixed
gear will be very large, perhaps similar to catch
in 1980; that is, 26,604 MT. The 1979 year-class
looks to be strong and in 19 32 it will continue to
be caught in the fixed gear fishery as age 3 fish.
If age 2 fish are not abundant and age 3 fish be-
come available to the fixed gear (do not remain
offshore), catches could again be very significant.
In this case, it would be unreasonable to expect
Massachusetts to shut its fishery down totally when
the 9,000 MT of age 3 and older herring is taken."

NMFS Criticizes Amendment #4

On October 27, 19 81 the Council received NMFS informal
comments on the Draft Environmental Assessment and Amendment
#4 to the Herring Plan (see letter) . Several deficiencies
were noted, and a complete rewrite was indicated. Some
deficiencies were:

1) Failure of the Amendment to present a clear,
concise statement of the problem and to develop
sufficient justification for implementation of a
closure. Without stronger justification the
Amendment could be viewed as an extra regulatory
burden on fishermen;

2) If the Gulf of Maine spawning stock had rebuilt
significantly without a spawning protection program,
why was one necessary for the future;

3) The herring fishery would probably continue to
be closed through the quota management system prior
to the spawning closure period; therefore, why get
involved with a spawning area closure;

94

UNITED STATES DEPARTMENT OF COMMERCE
National Oceanic and Atmeapharic Administration

NATIONAL MARINE FISHERIES SERVICE

14 Elm Street-Federal Building
Gloucester, MA 01930

^October 26,

0CT27^b1

y

Mr. Douglas Marshall, Executive Director '»■

New England Fishery Management Council .^j ; ' •.; V •.

Suntaug Office Park

Saugus, Massachusetts 01906

Dear Doug:

This letter advises you of the completion of the National Marine Fisheries
Service review of the Council's draft Environmental Assessment and Amendment
No. 4 to the Atlantic herring fishery management plan. Our informal comments
are enclosed.

Our review of the document revealed it is deficient in several repects. Our
specific comments (enclosed) Include a number ot critical Issues, but not
substantive issues and editorial comments. Because the draft needs
considerable work., we anticipate a major rewrite of the entire document,
rendering substantive issues and editorial comments obsolete.

I recommend the Council submit a revised draft package prior to the final
documents. This Is necessary because of the substantial rewrite that will
probably occur. The draft package should Include the draft amendment.
Environmental Assessment, Regulatory Impact Review, and draft regulatory
language.

Since the Council wants to have the amendment In place by October 1, 1982, tne
draft package should be submJf-^d by mid-December. According to a rough
schedule of events, cne mid-December submission will result in a late
September implementation date. If the draft package is in good shape, NMFS
could finish its review by the end of January and get formal comments to the
Council on the first of February. During February and March, the Council
could address these comments, revise the documents, and submit the final
documents by the beginning of April. The 60-day Secretarial review period
would occur during April and May. Assuming the Amendment is approved,
proposed regulations will be reviewed by the Department of Commerce and the
Office of Management and Budget, as required by E.O. 12291, during June, with
publication in the Federal Register by the end of June. After a 45-day public
review period, a similar process would be required for the final regulations,
beginning In mid-August. By the end of September, final regulations could be
published In the Federal Register. The major problem we will encounter is the
30-day cooling-off period required prior to implementation of these
regulations by the Administrative Procedures Act. For "good cause," this can
be waived. Since the time frame Is so tight, we will work on having the
coollng-off period waived in order to Implement the Amendment In a timely
manner.

My staff is available to assist the Council in getting the document in shape
within the Indicated time frame. If you have any questions, or need further
clarification of our comments, please contact Barbara Claflln, the herring
plan coordinator, or Carol Kilbride.

Sincerely,

A

Allen E. Peterson, Jr.
Regional Director

Enclosure

95

4) The Amendment lacked a detailed discussion on
expected benefits to the resource and industry
resulting from the spawning area closure;

5) There was doubt as to whether a full range of
reasonable alternatives were considered in the
decision-making process;

6) There was no discussion on jurisdiction problems
that would arise if inconsistent management measures
in state and federal waters continued to exist.

Due to the need to get the Amendment in place by October
1, 1982 for the spawning season, NMFS indicated that the new
rewrite had to be submitted by mid-December for a late
September implementation date. Unfortunately, as of mid-
January, the rewrite was not finished for reasons explained
below.

NMFS final recommendations

In December the Council received another letter from
NMFS. Findings of the Secretarial Hearing held in May were
related. According to William Gordon, Assistant Administra-
tor for Fisheries, based on the findings of the Regional
Director, "Since a majority of catches come from state waters,
and since the several coastal states have not been sufficiently
cooperative in extending the management measures of the FMP
to their waters, the ability of the Secretary of Commerce to
implement the FMP effectively and equitably is severely con-
strained." To permit effective management, Mr. Gordon stated
that four NMFS concerns had to be addressed. They were:

1) The scope of coverage of the FMP management
unit of age 3+ herring within Maine state waters
had to be clarified;

2) The Council needed to clarify the level of
state cooperation which it anticipated for that
portion of the management unit under state juris-
diction;

3) The rigidity of the fixed quota management
system under the FMP had to be examined;

4) The term "overage" had to be defined in order
that there be a clear understanding, by all parties,
of what the Council believed was an acceptable
level of catch above and beyond the established OY
for the fishery.

96

Mr. Gordon noted that these concerns needed to be
addressed through a Plan Amendment by July 1, 19 82 else a
Secretarial Amendment or withdrawal of Secretarial approval
of parts of the FMP would occur.

He stated that "In either case, the result would be a
plan that manages herring only in the FCZ , where the Secretary
can effectively enforce management measures. Such a plan will
protect the stock in the FCZ and serve as a mechanism to
address international (U.S. /Canadian) herring issues. If this
course of action is pursued by the Secretary, NMFS will be
directed to work with the concerned states to develop a
rational management program for the Gulf of Maine herring
fisheries through the State/Federal Fisheries Management
Program. "

Developing an approach

On January 12, 1982 the Herring Committee met to
develop an approach to address NMFS concerns. It was decided
that advisors be assembled (by way of an Industry Advisory
Subpanel) to list industry problems and concerns which the
Council could address. These were to be used by the Commit-
tee to construct plan objectives which would be responsible
to industry needs. Concern for the resource was still to be
important, but economics was to play more of a role in deter-
mining how the plan with its objectives was to evolve.

The above approach and results of an Industry Subpanel
meeting were provided at January 26 and 27, 1982 Council
meetings. According to Edward Spur:

"We have identified a list of issues and problems
that are seen. I think that the various compo-
nents of the industry want some sort of management,
some sort of constraint, and some level on the
catch. We are just beginning down the road of
careful examination of the Herring Plan and what
we want to do with it. At the February meeting
we will be asking the Council some fundamental
questions about herring management and what we
want".

A new direction

At February 24 and 25, 1982 meetings, Edward Spur
summarized the recent evolution of the Herring Plan and
related a Committee proposal made at a February 18 meeting.
He stated:

"We have gone through three amendments on the her-
ring plan. In the last amendment we changed the
quota system and extended the management unit. We

97

inserted a provision stating that the overages from
one fishing period couldn't be deducted from the
following ones. Amendments 4 and 5 were in pro-
gress. During the course of examination of the
plan, it was pointed out that the objectives in the
original plan were no longer applicable to what
we are doing. We began examination of the objec-
tives. It was during this examination that the
problem occurred in the fall of 1980 where the OYs
were exceeded because of the inclusion in the man-
agement unit of Maine waters and Section 4.2.2. of
the Plan that didn't allow the Regional Director
to make changes within the fishing year. The Re-
gional Director initiated a Secretarial review of
the plan. We have received a letter from Mr.
Gordon with the findings of the Secretary. After
lengthy Committee discussion on how to respond to
herring management in general, we are making the
assumption that the Council wants to be in the
herring management business for social and eco-
nomic reasons. I move:

"that the Council prepare an amendment or
a new plan addressing the management of
all herring stocks wherever found within
the jurisdiction of the United States,
with separate management programs for
Georges Bank on the one hand, and the
Gulf of Maine and other more inshore
areas on the other. On Georges Bank the
management program would contain a vari-
able quota procedure, which would result
in a zero quota except for scientific
purposes given current stock sizes. For
the other areas, which are the Gulf of
Maine and Southern New England, the
federal management program would be sup-
port of the States, giving the Regional
Director authority to adopt regulations
in support of State regulations. The
Council would, however, remain an active
proponent of sound management policy in
these areas . "

We were intending to make a further recommendation
that the states be encouraged to begin discussion
on the development of interstate management plans,
but the states have already agreed to do this.
The meeting will be on March 12 and is hosted by
Mr. Coates for the four concerned states."

The Council approved the Committee's proposal. However,
while the Regional Director considered the motion to be a

98

"positive direction", he stressed that the problems of the
existing Plan still remained and needed to be addressed.
He noted the July 1 deadline given by the Assistant Admini-
strator.

In reply, Edward Spurr stated:

"The Committee recognizes that this would not be
responsive to the July 1 deadline. A response to
the Secretarial review has been discussed at the
past two meetings. The Committee doesn't have a
recommendation, but there is a consensus that the
best thing that could happen would be a withdrawal
of the implementing regulations except for Georges
Bank. If we are going in a new direction, let's
get started on it."

Continued concern by the Regional Director prompted Mr.
Spurr to schedule another Committee meeting to develop speci-
fic recommendations for the interim period before implementa-
tion of the management regime described by the Committee pro-
posal subsequently accepted by the Council.

Maine's retort

The letter from William Gordon which expressed four
NMFS concerns noted, "Maine's Plan is inconsistent with the
FMP because all age 3+ herring taken by fixed gear, and any
age 3+ herring less than 9 inches taken by mobile gear, are
not subject to the quota." This statement prompted Spencer
Apollonio to defend his state ' s herring management program
(see letter). He specifically pointed out that "Maine's
management has not impeded the Council in achieving its
objectives", and he defended his interpretation of Section
4.2.2 of the Sea Herring Plan Amendment #3, "Appropriate
State Management Measures under the Amended FMP."

It had become apparent that a critical section of the
Herring Plan had been interpreted in different ways. More
discussion on this Section 4.2.2 and state responsibilities
occurred in later correspondence between the Regional Direc-
tor and the Council, and the Regional Director and Maine (see
March 22, April 5, and April 8 correspondence). Clearly these
differing interpretations and the Council's inability or un-
willingness to clarify its own intent (requested by NMFS)
were contributing to the demise of the Herring Plan.

State Directors meet

On March 12, 19 82 the State Directors from Maine to
Rhode Island met to discuss Sea Herring Management ; i.e.,

99

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100

UNITED STATES DEPARTMENT OF COMMERCE
National Ocaanic and Atmoapharic Administration

NATIONAL MARINE FISHERIES SERVICE
14 Elm Street-Federal Building
Gloucester, MA 01930

March 22, 1982

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Mr. Douglas G. Marshall, Executive Director
New EYigland Fishery Management Council
Suntaug Office Park, 5 Broadway
Saugus, MA 01906

Dear Doug:

MAR 2 4 1532

Attached is a copy of my letter to Spencer Apollonio reaffirming the
National Marine Fisheries Service's interpretation of Section 4.2.2 of
the Fishery Management Plan for the Atlantic Herring Fishery of the
Northwest Atlantic (FMP) . The letter was prepared because I feel that
past herring management problems have been due, in part, to different
interpretations of Section 4.2.2. Furthermore, Maine believes it has
not received sufficient guidance on how to interpret and apply Section
4.2.2 of the herring FMP.

I am requesting the Council to respond in writing to Spencer with its
interpretation of Section 4.2.2. I believe this is an opportune time
for us to do this, especially since Maine is in the process of preparing
its 1982 herring plan. I hope you will be able to give Spencer your
interpretation as soon as possible.

Thank you for your assistance in clarifying this section of the FMP for
the State of Maine.

Sincerely,

Allen E. Peterson, Jr.
Regional Director

Attachment

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104

the appropriateness of the FMP, applicability of the MFCMA
to sea herring, and mechanisms for state management. It was
recognized that, "the harvest of herring, both adult and
juvenile, occurred predominantly within state's territorial
seas and each state had regulatory authority to respond to
resource problems within a meaningful time frame as opposed
to the unwieldy and burdensome time constraints imposed by
the FCMA."

The states tentatively decided to develop a separate
interstate management structure for sea herring and felt
that one option for this structure could be provided by Amend-
ment #1 to the Atlantic States Marine Fisheries Commission
compact. In the interim; i.e., until this interstate manage-
ment regime could be formulated, the states "tentatively
agreed" that Maine and New Hampshire should continue their
existing management programs and Massachusetts should begin
procedures to evaluate the need and desirability of a Massa-
chusetts spawning area closure from October 1-21 so as to
provide a unified state action from Maine to Massachusetts.

The states also requested that the Council,

"initiate a complimentary management program through
amendment to the existing FMP for Atlantic Herring.
This amendment should include a flexible OY for
Georges Bank adjusted to zero considering present
stock size and there should be no TALFF either for
Georges Bank or the Gulf of Maine regardless of
stock size considering the importance of herring
in the food chain of other important fishes. The
OYs in the current FMP should be removed as they
are neither reflective of the status of the stocks
nor the associated fisheries."

Disagreement

At March 30-31 Council meetings it was apparent that
some Council members did not remember (or at least did not
agree with) the Council decision made at February 24 and 25,
19 82 meetings: i.e., for the Gulf of Maine and southern New
England "the federal management program would be to support
states, giving the Regional Director authority to adopt regu-
lations in support of state regulations". This decision was
in support of sea herring management in the Gulf of Maine
and southern New England waters by the states.

A motion was made by Robin Peters that, "the Council
commend the State Directors for getting together to discuss
cooperative herring management, but that the Council states
its belief that the appropriate forum for resolving questions
of cooperative herring management is the Council and not
ASMFC". This motion originated from her concern that cooper-
ative state agreements might result in a herring management
regime not up to the FCMA standards. She was concerned that

105

the Council would somehow be left out of the herring manage-
ment discussions if states opted to use the Amendment #1
process. After being assured that the Council would not be
bypassed, she withdrew her motion. It was apparent that with
all states as Council members, the Council would be kept in-
formed on state management policies and strategies.

The meeting ended with Edward Spurr noting that his
Committee would endeavor to provide procedure for states to
follow in their attempts to cooperatively manage sea herring
- a procedure acceptable to the Council.

A Regional Office decision

At June 15-17, 19 82 Council meetings Edward Spurr re-
lated a May 2 8 Committee decision that the Council "recommend
to NMFS that the appropriate response to Secretary of Commerce
review of the Herring Plan be suspension of quotas in all
areas except Georges Bank." Mr. Spurr had led off Council
discussion on this issue by again relating his understanding
of the Committee's charge and a possible tact for keeping
development of state herring management strategies within
the Council forum. He stated,

"The Committee was instructed to prepare formal
comments for Secretarial review, and there was
concern of how development of amendments to the
existing plan should proceed. The Committee
recommendation was that the Herring Plan Amendment
be prepared by State Directors and be implemented
in state waters. The Council Plan would consist
of delegation of non-discretionary authority to
the Regional Director so he could parallel regula-
tions within the FCZ . Two members could not make
the meeting but we came up with a recommendation
that, through some mechanism, the bylaws defining
composition of Committees be suspended so that the
Chair could be directed to compose the Herring
Oversight Committee of State Directors. As far as
action to be taken on July 1 in response to Secre-
tarial review, the Herring Oversight Committee
recommends that there be no quotas in the Gulf of
Maine. "

In response to the Committee's recommendation that the
Gulf of Maine quota be suspended, Allen Peterson noted that
there might not be any Plan to amend. He stated that the
Regional Office had recommended Secretarial withdrawal of
Plan approval and repeal of implementing regulations. He
noted that the Georges Bank stock would still be protected
from impacts of foreign fishing since herring was a prohibited
species under foreign fishing regulations.

106

No Council members commented on this revelation -
perhaps because the Regional Office recommendation was
expected. The Committee was directed to develop
a response to the Regional Office recommendation to Wash-
ington NMFS.

The Committee recommendation of a change in its own
structure to include only State Directors met with great
Council resistance. A motion by Mr. Spurr that,

"the rules on Committee composition and the
discretionary authority of the Chair to compose
these Committees be suspended and the Chair be
directed to designate as the Herring Oversight
Committee the State Representatives from the
five states who will continue to develop a herring
plan for final approval of the Council"

was withdrawn. Allen Peterson had been the most outspoken
opponent of this recommended change, and he concluded that
the appropriate mechanism for Plan development was the ASMFC.
Proponents of the recommendation had felt that the proposed
change in Committee structure would facilitate and expedite
interstate management of herring. Plan development through
ASMFC was expected to take a much longer period of time. Since
many of the "prime players" in Council Herring Plan develop-
ment were already State Directors and the future FCZ regula-
tions were expected to reflect those set for state waters,
the sense of going to ASMFC instead of creating a Committee
of State Directors which would benefit from Council Staff
assistance and keep all discussions in the Council forum,
was questioned.

ASMFC

The Council obtained an estimate of cost for ASMFC
development of a sea herring plan. This estimate and ASMFC
agreement to undertake this project were obtained at a July
20 meeting of the North Atlantic Section (Maine to Connecti-
cut) of ASMFC. This estimate was revealed at July 2 7 and 28,
1982 meetings, and the Council directed the Committee and
Staff to continue its negotiations with ASMFC to investigate
alternate means for funding a contract with the Commission.

Final nail in the coffin

In August, NMFS published an Environmental Assessment
and Regulatory Impact Review for withdrawal of Secretarial
approval of the Sea Herring Management Plan. The Assessment
noted:

107

1) state failures to ensure effectiveness of the Plan's
management measures (quotas) ;

2) lack of state cooperation resulting in a failure of
the Plan to achieve National Standards 1 (to achieve
OY) and 3 (to manage the fishery as a unit) ;

3) failure of the Council to clarify and amend various
portions of the FMP by July 1, 1982;

4) likelihood that quotas would be exceeded in 198 2;

5) significant improvement in the condition of the herring
resource since 1977;

6) faulty assumptions made in approving the FMP and amend-
ments;

7) possible violation of National Standard 6 - that conser-
vation and management measures must take into account
and allow for variation among and contingencies in
fisheries, fishery resources, and catches;

8) harvest levels being controlled by resource availability
and market demand - not FMP quotas;

9) the action to withdraw FMP approval and to repeal the
regulations being the least costly alternative available
for resolving management problems experienced under the
FMP .

Of importance, the Assessment indicated that each state with
herring plans or regulations would continue to regulate their
fisheries and that each state could control vessels permitted
by each state wherever they fished even if in the FCZ . Based on
this premise the Assessment concluded that, "Since the herring
fishery will not be completely unregulated, and since FMP quotas
have not effectively limited herring fishing anyway, eliminating
the FMP should not adversely affect the resource."

NMFS indicated in the Assessment that federal regulation
of Gulf of Maine and Georges Bank sea herring would be eliminated
until the Council prepared a new Plan which would have to be
approved and implemented by the Secretary of Commerce.