Current through Register 1531, September 27, 2024
(1)
Purpose and
Scope. The purpose of
322
CMR 7.03 is to regulate the number of lobster
traps on a regional and individual basis to prevent over-fishing within each
Lobster Conservation Management Area (LCMA) managed by the Commonwealth through
the ASMFC, and to establish a process to enable the transfer of existing
commercial lobster permits and traps pursuant to M.G.L. c. 130, § 38B, and
St. 1992, c. 369.
The American lobster fishery is the state's most economically
important fishery conducted within the territorial waters. To meet conservation
goals of the interstate plan specific to the nearshore waters around eastern
Cape Cod and Southern New England, the Outer Cape Cod Lobster Conservation
Management Area (OCCLCMA) and Lobster Conservation Management Area 2 (LCMA 2)
were developed, respectively.
322
CMR 7.03 details the effort control plans for
the OCCLCMA and LCMA 2 comprised of trap limit programs and transfer programs
as well as transfer regulations for the remainder of the coastal lobster
fishery conducted in LCMA 1.
The transfer program for the coastal lobster fishery conducted
in LCMA 1 allows permit holders to transfer their permits along with lobster
related business assets under the historical transfer criteria developed for
the coastal lobster fishery. Beginning in 2004, the only permit transfers
allowed between LCMAs are those involving the transfer of a permit to an LCMA
under management of an effort control plan. This will enable commercial fishers
to retain the maximum flexibility in the conduct of their businesses while
ensuring conservation goals of any area-specific effort control plans are not
comprised by increases in traps fished.
(2)
Definitions. For
the purposes of
322
CMR 7.03, the following words shall have the
following meanings.
Actively Fished means landing and
selling at least 1,000 lbs. of lobster or landing and selling lobster on at
least 20 occasions, in a single year.
Allocation Transferee means the holder
of a commercial lobster permit to whom a transfer of trap allocation is
made.
Immediate Family means a spouse,
child, step child, adopted child, sibling, step sibling, adopted sibling,
parent, step parent, adopted parent, grandparent, grandchild.
Owner-operator means the individual
named on the Coastal Lobster Permit must be onboard the vessel listed on the
Coastal Lobster Permit when said vessel is at sea during a commercial fishing
trip or the vessel is fishing for, retaining, possessing, or landing any fish
taken under the authority of the Coastal Lobster Permit. This shall not extend
to the sale of any fish harvested or landed under the authority of the Coastal
Lobster Permit to a primary buyer authorized at
322
CMR 7.07, nor the overland transportation of
any fish harvested or landed under the authority of the Coastal Lobster Permit
for the purposes of sale to a primary buyer authorized at
322
CMR 7.07.
Permit Holder means a holder of a
coastal commercial lobster permit endorsed for either LCMAs 1, 2 or OCC.
Permit Transferee means the person to
whom a commercial lobster permit is transferred who must document that he or
she has at least one year of full-time or equivalent part-time experience in
the commercial lobster trap fishery or two years of full-time or equivalent
part-time experience in other commercial fisheries, according to criteria
developed by the Division.
Transfer Trap Debit means the
area-specific percentage of each allocation transfer transaction retained by
the Division for conservation purposes as defined by the Division and subject
to criteria developed by the Division, and not restricted by the Director under
his authority to condition permits.
(3)
Renewals.
(a) The Director shall renew all existing
Coastal Commercial Lobster Permits in accordance with M.G.L. c.130, § 38B,
and 322 CMR 7.01(2)(a) and
(5)(f), provided that catch reports and
renewal applications are received by February 28th
and the renewal process, including late renewals approved for sufficient cause,
is completed prior to December 31st of any
year.
(b) Coastal Lobster Permit
holders are prohibited from multiple LCMA endorsements, except those commercial
lobster permits held by persons with valid federal authorization for LCMA 3 who
may additionally receive authorization for either LCMA 1, 2 or Outer Cape Cod
or those commercial lobster permit holders not fishing with trap gear who may
additionally receive authorization for LCMA 1, 2, or Outer Cape Cod.
(c) Those authorized for more than one LCMA
as designated on their permits shall observe the most restrictive of different
regulations for the areas declared as established by 322 CMR and the ASMFC
Lobster Management Plan.
(d)
Coastal Lobster Permit holders are prohibited from making changes in area
designations during the annual renewal period except to drop a LCMA or to add a
LCMA under management of an approved effort control plan for which the permit
holder has received a LCMA-specific trap allocation.
(4)
Forfeiture. All
Coastal Lobster Permits which are not renewed in accordance with
322
CMR 7.03 shall be forfeited to the Division.
The Director may transfer, in order, no more than 50% of the forfeited permits
to waiting list applicants.
(5)
Transfer Programs.
(a)
OCC Transfer
Program is administered by the Division. Applications for
transfers shall be provided by the Division, must be signed by the permit
holder and the allocation or permit transferee, and must be notarized prior to
submission to the Division. No applications may be accepted after November
30th for the following fishing year. Commercial
lobster permit holders endorsed for Outer Cape Cod may:
1. transfer their commercial lobster permit
involving the sale or transfer their entire trap allocation;
2. transfer all of their trap allocation to
an allocation transferee; or
3. in
compliance with
322
CMR 7.03(9)(d), transfer
part of their transferable allocation in multiples of ten traps to an
allocation transferee.
(b)
LCMA 2 Transfer
Program is administered by the Division. Applications for
transfers shall be provided by the Division, must be signed by the permit
holder and the allocation or permit transferee, and must be notarized prior to
submission to the Division. No trap allocation transfer applications may be
accepted after November 30th for the following
fishing year. Commercial lobster permit holders endorsed for LCMA 2 may:
1. transfer their commercial lobster permit
involving the sale or transfer their entire trap allocation;
2. transfer all of their trap allocation to
an allocation transferee; or
3.
transfer part of their transferable allocation in multiples of 10 traps to an
allocation transferee.
(c)
LCMA 1 Transfer
Program enables commercial lobster permit holders endorsed for
LCMA 1 to transfer their permits to a permit transferee, provided the permit
has been actively fished for four of the last five years, as evidenced by valid
catch reports filed with the Division, subject to criteria developed by the
Division, and is not restricted by the Director under his authority to prohibit
transfers. The transfer program is administered by the Division. Applications
for transfers shall be provided by the Division, must be signed by the permit
holder and the transferee, and must be notarized prior to submission to the
Division. Commercial lobster permit holders endorsed for LCMA 1 may transfer
their commercial lobster permit involving the sale or transfer of lobster
related business assets to a permit transferee.
(6)
Restrictions.
(a) Transfers shall involve the sale or
transfer of lobster related business assets.
(b) Permit and allocation transfers may be
denied if any evidence of fraud is found, or the Director determines that the
transfer is not in the best interests of the Commonwealth.
(c) All lobster businesses fishing under the
authority of a coastal lobster permit as defined in
322
CMR 7.01(2)(a) shall be
owner-operated.
(d) Trap Allocation
transfers may be subject to a transfer trap debit of 10% of the total amount of
traps transferred through the trap transfer process.
(e) Any permit holder issued a trap
allocation based in part or whole upon SCUBA history as determined in
322
CMR 6.13: Lobster Trap Limit in the
Coastal Waters of the Commonwealth shall be prohibited from
transferring any part of their trap allocation except when transferring their
commercial lobster permit.
(f) Any
permit holder issued a trap allocation based in part or whole upon SCUBA
history as determined in
322
CMR 6.13: Lobster Trap Limit in the
Coastal Waters of the Commonwealth shall be prohibited from
transferring their trap allocation along with their commercial lobster permit
until the permit has been actively fished for four of the last five years as
evidenced by valid catch reports filed with the Division, subject to criteria
developed by the Division, and not restricted by the Director under his
authority to prohibit transfers. Catch history prior to the issuance of a trap
allocation shall not apply towards fulfilling meeting actively fished
requirements.
(7)
Exceptions.
(a) The
permit holder's actively fished performance criteria for the Coastal Lobster
Transfer programs, established at
322
CMR 7.03(5), may be waived
by the Director in instances of posthumous transfer; a recent disability to the
Coastal Lobster Permit holder; or for persons on active military duty, provided
the permit holder actively fished their permit for four out of the past five
years prior to death, disability, or military duty. In the case of disability,
there must be a signed statement from a physician that verifies the disability
prevented the permit holder from fishing.
(b) The permit holder's actively fished
performance criteria and the permit transferee's experience criteria for
Coastal Lobster Transfer programs may be waived for transfers to immediate
family.
(c) The requirement that
permit holders be owner/operators may be waived through a letter of
authorization issued by the Director that is subject to annual renewal. Letters
of authorization may be issued for use of the permit and associated fishing
operation that includes the gear and vessel owned by the permit holder that was
actively fished prior to the request. Authorizations may be issued for permit
holders on active military service or for immediate family members. For the
recipient of a posthumous transfer, or disabled permit holder, authorizations
may be issued for up to two years, provided the disability prevents the permit
holder from fishing their permit as evidenced by a signed statement from a
physician.
(9)
Prohibitions. It
shall be unlawful:
(a) To loan, lease, or sell
a Coastal Commercial Lobster Permit except under the provisions of
322
CMR 7.03.
(b) To submit false or incomplete forms or
applications according to the provisions of M.G.L. c. 130, §
38B.
(c) For the holder of a
Coastal Commercial Lobster Permit to acquire an additional permit(s) through a
transfer pursuant to
322
CMR 7.03 or from the established waiting list
unless specifically authorized by the Director as a means to mitigate trap
allocation cuts required by the interstate management plan.
(d) for a permit holder to retain a trap
allocation greater than 800 traps after they receive a trap allocation from
another permit holder, unless specifically authorized by the Director as a
means to mitigate trap allocation cuts required by the interstate management
plan;
(e) for allocation transfers
to involve the transfer of traps outside of the specific LCMA for which the
trap allocation is designated;
(f)
to transfer a commercial lobster permit from one LCMA to another LCMA, unless
the permit is transferred to an LCMA under management of an approved effort
control plan for which the permit holder has received an LCMA-specific trap
allocation.
