SCS Global Services Report SCS Global Services Report

Atlantic Scup Trawl Fishery MSC Fishery Assessment Report

Announcement Comment Draft Report

Authors Client Group

Dr. Gerard DiNardo, Lead and Principal 1 Lund’s Fisheries, Inc. - Jeff Kaelin

Mr. Glen Sutton, Principal 2 Cape May, New Jersey 08204 U.S.A. Mr. Robert Allain, Principal 3

Dr. Holly Rolls, Project Manager

Seafreeze, Ltd. - James Barbera

North Kingstown, Rhode Island 02852 U.S.A.

August 17th, 2021

2000 Powell Street, Ste. 600, Emeryville, CA 94608 USA +1.510.452.8000 main | +1.510.452.8001 fax www.SCSglobalServices.com

SCS Global Services Report

Table of Contents

1 List of Tables 3

2 List of Figures 5

3 Glossary 8

4 Executive Summary 11

5 Report Details 14 5.1 Authorship and peer review details 14 1.2 Version details 17

6 Unit(s) of Assessment and Certification and results overview 18 6.1 Unit(s) of Assessment (UoA) and Unit(s) of Certification 18 6.2 Assessment results overview 20

7. Traceability and eligibility 21 7.1 Eligibility date 21 7.2 Traceability within the fishery 21 7.3 Eligibility to enter further chains of custody 23

8 Scoring 24 8.1 Summary of Performance Indicator level scores 24 8.2 Principle 1 25 8.3 Principle 2 56 8.4 Principle 3 168

9 Appendices 290 9.1 Assessment information 290 9.3 Peer Review reports 293 9.4 Stakeholder input 294 9.5 Conditions 295 9.6 Client Action Plan 296 9.7 Surveillance 296 9.8 NEFOP dataset 297 9.9 Harmonised fishery assessments 308 9.10 Objection Procedure 317 9.11 Certificate Sharing Mechanism 318

10 References 319

11 Template information and copyright 335

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1 List of Tables Table 1. Unit of Certification(s) and Unit of Assessment(s) ...... 11 Table 2. Fisheries program documents versions ...... 17 Table 3. Unit of Assessment (UoA) ...... 19 Table 4. Unit of Certification (UoC) ...... 19 Table 5. Traceability within the fishery ...... 22 Table 6. Summary of Performance Indicator Scores and Associated Weights Used to Calculate Principle Scores...... 24 Table 7. Scup biological reference points from the 2019 operational stock assessment (source Northeast Fisheries Science Center, 2020)...... 30 Table 8. Commercial Scup Quota Allocations for 2020 by Quota Period (source MAFMC, 2020)...... 32 Table 9. State-by-state quotas for the commercial scup fishery during the summer quota period (May- September) (source MAFMC, 2020)...... 32 Table 10. Statistical areas which accounted for at least 5% of the total commercial scup catch (by weight) in 2018, with associated number of trips (source MAFMC, 2019)...... 35 Table 11. Total Allowable Catch (TAC) and catch data...... 37 Table 12. Summary of prominent species observed in Scup otter trawls, where catch weights are > 0.5 % of the total catch weight (2015 - 2020, NEFOP data)...... 60 Table 13. Main species with individual scoring...... 61 Table 14. Observer coverage estimates using the ratio of VTR landings from SBRM reports to that reported in the NEFOP data...... 63 Table 15. First Target Species recorded in observer trips. (Source NEFOP data) ...... 64 Table 16. Second Target Species of recorded in observer trips. (Source NEFOP data)...... 64 Table 17. Observed catch composition of skate species in the bottom trawl fishery from 2015-2020 (source: NEFOP)...... 73 Table 18. Threatened or endangered species found in the New England/Mid Atlantic area), plus mammals protected under the MMPA (* denotes observed interactions recorded in NEFOP data)...... 81 Table 19. UoA bottom trawl numbers of observed fishery interactions with ETP species between 2015- 2000 (from NEFOP data)...... 81 Table 20. Stock status determination for the coastwide stock and DPSs (recreated from the Commission’s Atlantic Sturgeon Stock Assessment Overview, October 2017; cited from the 2021 Biological Opinion for NMFS 2021)...... 90 Table 21. Ten habitat types identified in the Vulnerability Assessment (From: NEFMC 2011)...... 99 Table 22. Susceptibility and Recovery values. Reproduced from NEFMC 2011b...... 104 Table 23. Feeding guilds and managing bodies (NOAA 2021b)...... 114 Table 24. Ecosystem-scale fishery management objectives in the Mid-Atlantic Bight (NOAA 2021b). ... 116 Table 25. State agencies ...... 188 Table 26. States Dispute Resolution Processes for Commercial Fisheries...... 218 Table 27. Management Changes to Commercial Scup Fishery Management Plan, 1996 - 2020 ...... 219 Table 28. Current Scup Specifications (January 1 - December 31, 2020) ...... 222

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Table 29. Dates, allocations, and possession limits for the commercial scup quota periods. Winter period possession limits apply in both state and federal waters. (Source: MAFMC Scup Fishery Information Document - June 2020) ...... 223 Table 30. State-by-state quotas for the commercial scup fishery during the summer quota period (May- September). (Source: MAFMC Scup Fishery Information Document, June 2020) ...... 223 Table 31. Code of Federal Regulations of the Commercial Scup Fishery...... 228 Table 32. NOAA Fisheries’ Northeast Division of the Office of Law Enforcement - MCS Program Outcomes by Reporting Period for 2019 - 2020 (Source: NOAA Reports to MAFMC, summarized by Assessment team) ...... 235 Table 33. USCG 5th District MCS Program Outcomes by Reporting Period for 2020 (Source: USCG Reports to MAFMC, summarized by Assessment team) ...... 237 Table 34. USCG 1st District MCS Program Outcomes by Reporting Period for 2020 (Source: USCG Reports to NEFMC, summarized by Assessment team) ...... 238 Table 35. Penalty Matrix for the Magnuson-Stevens Fishery Conservation and Management Act ...... 240 Table 36. Small-scale fisheries ...... 290 Table 37. Audit Plan: Key Meetings and Locations ...... 290 Table 38. Decision Rule for Calculating Performance Indicator Scores based on Scoring Issues, and for Calculating Performance Indicator Scores in Cases of Multiple Scoring Elements. (Adapted from MSC FCPV2.2 Table 4) ...... 291 Table 39. Summary of Stakeholder Submissions ...... 294 Table 40 Condition X NEW ...... 295 Table 41. Fishery surveillance audit ...... 296 Table 42. Timing of surveillance audit ...... 296 Table 43. Surveillance level rationale ...... 296 Table 44. Catch summary of all species observed in bottom trawls from 2015 to 2020 (NEFOP data). .. 297 Table 45. Fisheries in the MSC System Considered for Harmonization for Principle 2...... 308 Table 46. Harmonisation of PI 2.1.1a for Little Skate ...... 309 Table 47. Harmonisation of PI 2.1.1a for Winter Skate ...... 309 Table 48. Harmonisation of PI 2.1.1a for Spiny Dogfish ...... 310 Table 49. Fisheries in the MSC System Considered for Harmonization...... 313 Table 50. Overlapping fisheries...... 313 Table 51. Alignment of Scores for Harmonization ...... 313 Table 52. Scoring differences ...... 313 Table 53. Rationale for scoring differences ...... 314 Table 54. Fisheries in the MSC System Considered for Harmonization for Principle 3...... 314 Table 55. Fisheries in the MSC System Considered for Harmonization...... 315 Table 56. Overlapping fisheries...... 315 Table 57. Alignment of Scores for Harmonization ...... 316 Table 58. Scoring differences ...... 316 Table 59. Rationale for scoring differences ...... 316

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2 List of Figures Figure 1. Scup spawning stock biomass and Recruitment, 1984-2018. The horizontal dashed line is the biomass target from the from the 2019 operational stock assessment (source Northeast Fisheries Science Center, 2019)...... 27 Figure 2. Estimates of scup spawning stock biomass (SSB) and fully-recruited fishing mortality (F, peak at age 3) relative to the updated 2019 biological reference points. Filled circle with 90% confidence intervals shows the assessment point estimates. The open circle shows the retrospectively adjusted estimates. (source Northeast Fisheries Science Center 2020)...... 29 Figure 3. Total fishery catch and fishing mortality rate (F) for fully selected age 3 scup, 1984-2018. The horizontal dashed line is the fishing mortality reference point from the from the 2019 operational stock assessment. Overfishing is occurring when the fishing mortality rate exceeds this threshold (source Northeast Fisheries Science Center, 2019)...... 30 Figure 4. The Scup Gear Restricted Areas (source MAFMC, 2020)...... 33 Figure 5. Scup discard rate in the scup trawl fishery from 1981 to 2018. Blue line represents the discard rate associated with the commercial fishery; the orange line represents the discard rate associated with the recreational fishery (data source MAFMC, 2020)...... 33 Figure 6. Commercial and recreational scup landings, Maine - North Carolina, 1981-2019. Recreational landings are based on the new MRIP numbers (source www.mafmc.org › Scup_info_doc_2020)...... 35 Figure 7. Proportion of scup catch by statistical area in 2018. Statistical areas marked “confidential” are associated with fewer than three vessels and/or dealers (source MAFMC, 2019)...... 36 Figure 8. Illustration of the tiered approach towards establishing the over fishing limit (OFL), acceptable biological catch (ABC), annual catch limit (ACL), and annual catch target (ACT). (source www.fisheries.noaa.gov)...... 41 Figure 9. The Council’s risk policy on overfishing (source MAFMC, 2020)...... 41 Figure 10. Flowchart for determining scup catch and landing limits (source MAFMC, 2020)...... 42 Figure 11. Historical retrospective of the 2008 (Data Poor Stocks; NEFSC 2009), 2015 (SAW 60; NEFSC 2015), 2017 (MAFMC SSC Update; unpublished) and 2019 (Operational Assessment) stock assessments of scup. The heavy solid lines are the 2019 Operational Assessment estimates that include the ‘New’ MRIP recreational catch (source NEFSC 2020)...... 53 Figure 12. Diagram of a bottom otter trawl...... 56 Figure 13. Percentage of observed VTR landings for 36 selected fleets. Taken from the SBRM 3-year Review Report-2021 (NOAA 2021)...... 63 Figure 14. Spiny dogfish indices of female SSB, SSB Target (BMSY proxy), and SSB Threshold from 1991 to 2018. Available online: species – Atlantic States Marine Fisheries Commission (asmfc.org)...... 69 Figure 15. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Spiny Dogfish (from Wigley & Tholke 2020)...... 69 Figure 16. NEFSC survey biomass indices (kg/tow). Thin lines with symbols are annual indices, thick lines are 3-year moving averages, and the thin horizontal lines are the biomass thresholds and targets developed through 2007/2008 with consistent strata sets (From NEFMC 2020)...... 74

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Figure 17. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Spiny Dogfish (from Wigley & Tholke 2020)...... 75 Figure 18. Summer flounder spawning stock biomass (SSB; solid line) and recruitment at age 0 (R; vertical bars) by calendar year through 2017. The horizontal dashed line is the 2018 SAW-66 target biomass reference point proxy. The horizontal solid line is the 2018 SAW-66 threshold biomass reference point proxy (NEFSC 2019)...... 76 Figure 19. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Fluke (from Wigley & Tholke 2020)...... 77 Figure 20. Distribution of major sediment types throughout the NES LME (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries-science-center)...... 98 Figure 21. Bathymetry of the NES LME and adjacent offshore waters with the names of major features. (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries- science-center)...... 102 Figure 22. Edge of the continental shelf showing canyon systems off the Northeastern United States. (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries- science-center)...... 103 Figure 23. Mean susceptibility (% damaged) and recovery (time in years) of biological and geological features from otter trawls impacts; hatched verticals error bars are ±1 SE, (taken from Grabowski et al., 2014). Shaded bars represent high energy environments while open bars represent low energy environments...... 105 Figure 24. Effective broad and discrete deep sea coral zones in the Mid-Atlantic Council Region as of January 13, 2017 (https://www.greateratlantic.fisheries.noaa.gov/sustainable). The combined area is approximately 99,000km2...... 107 Figure 25. Georges Bank Deep-Sea Coral Protection Area (NOAA website online at: Final Rule to Designate Deep-Sea Coral Protection Areas | NOAA Fisheries...... 108 Figure 26. Boundaries of the Clam Dredge Exemption Areas in the Great South Channel Habitat Management Area (GSC HMA). Online at: Clam Dredge Exemption Areas in the Great South Channel Habitat Management Area | NOAA Fisheries...... 109 Figure 27. Current Scup GRAs (MAFMC 2016)...... 110 Figure 28: Fogarty Index; the ratio of total landings to total primary production in the MAB. Link and Watson (2019) give an optimal range (green shading) of the Fogarty ratio of 0.22 to 0.92 parts per thousand (PPT). Previous work suggested that index values exceeding 1 to 2 PPT (orange shading) led to ecosystem tipping points. This figure and accompanying description were taken directly from the report (NOAA 2021b)...... 111 Figure 29: Ryther index; total landings presented on a unit area basis for the MAB. Theoretical estimates (Link and Watson, 2019) imply the index should range from 0.3 - 1.1 mt per sq km annually (green shading) with a limit of 3 mt per sq km annually, above which tipping points could occur in fished ecosystems (orange shading). Expected system wide MSYs can be in the range of 1 to 3 mt per sq km (unshaded). This figure and accompanying description were taken directly from the report (NOAA 2021b)...... 112

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Figure 30: Summary of single species status for MAFMC and jointly federally managed stocks (Goosefish and Spiny dogfish). Stocks in green are below the biomass threshold (overfished), stocks in orange are above the biomass threshold but below the biomass target, and stocks in purple are above the biomass target. This figure and accompanying description were taken directly from the report (NOAA 2021b). 112 Figure 31: Spring (left) and fall (right) surveyed biomass in the Mid-Atlantic Bight. Data from the NEFSC Bottom Trawl Survey are shown in black, with NEAMAP shown in red. The shaded area around each annual mean represents 2 standard deviations from the mean. This figure and accompanying description were taken directly from the report (NOAA 2021b)...... 113 Figure 32. Management Unit of Scup Fishery (green lateral lines) (Source: https://media.fisheries.noaa.gov/dam-migration/management-units-sf-scup-bsb-map-noaa- fisheries_.pdf) ...... 169 Figure 33. ASMFC Organization Structure ...... 174 Figure 34. Organization Chart (Source: https://media.fisheries.noaa.gov/dam- migration/noaa_fisheries_org_chart-july-2020.pdf ...... 182 Figure 35. Scup Gear restricted Areas (Source: https://www.fisheries.noaa.gov/species/scup#commercial) ...... 225

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3 Glossary

AA Access area ABC Acceptable Biological Catch ACCSP Atlantic Coastal Cooperative Statistics Program ACFCMA Atlantic Coastal Fisheries Cooperative Management Act ACL Annual Catch Limit AM Accountability Measure AP Advisory Panel ASC Assessment Science Committee ASMFC Atlantic States Marine Fisheries Commission BiOp Biological Opinion Bmsy Biomass level needed to achieve maximum sustainable yield CITES Convention on International Trade in Endangered Species of Wild Fauna and Flora CEP Cooperative Enforcement Program (NOAA) CESS Committee on Economics and Social Sciences CZMA Coastal Zone Management Act DEC Department of Environmental Conservation (New York) DEEP Department of Energy and Environmental Protection (Connecticut) DEM Department of Environmental Management (Rhode Island) DEP Department of Environmental Protection (New Jersey) DEQ Department of Environmental Quality (North Carolina) DFG Department of Fish and Game (New Hampshire, Massachusetts) DMR Department of Marine Resources (Maine) DNR Department of Natural Resources (Maryland) DNREC Department of Natural Resources and Environmental Control (Delaware) DOC Department of Commerce (US) DPS Distinct Population Segments EAFM Ecosystem Approach to Fishery Management EBM Ecosystem-Based Management EEZ Exclusive Economic Zone EFH Essential Fish Habitat EIS Environmental impact statement ESA Endangered Species Act ETP Endangered, Threatened or Protected species FAO Food and Agriculture Organization of the United Nations FAC Fisheries Advisory Council (Connecticut) FCM Fisheries Certification Methodology FMAT Fishery Management Action Team FMP Fishery Management Plan Fmsy Level of fishing mortality needed to achieve maximum sustainable yield

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GARFO Greater Atlantic Regional Fisheries Office GEN General (Trip category) HAPC Habitat Areas of Particular Concern HC Habitat Committee HMS highly migratory species IFQ Individual Fishing Quota IJFA Interjurisdictional Fisheries Act ISFMP Interstate Fisheries Management Program ITQ Individual Transferable Quota ITS Incidental Take Statement JEA Joint Enforcement Agreement (NOAA) Kg Kilogram LA Lacey Act Lb. Pound, equivalent to roughly 2.2 kg LEC Law Enforcement Committee LIM Limited (Trip category) LOA Length Over-All LOF List of Fisheries M Million (lbs.) MA Mid Atlantic MAB Mid Atlantic Bight MAFMC Mid-Atlantic Fishery Management Council MBTA Migratory Bird Treaty Act MC Monitoring Committee MCS Monitoring, Control and Surveillance MFC Marine Fisheries Council (New Jersey) MFC Marine Fisheries Council (Rhode Island) MLE Maritime Law Enforcement (USCG) MMPA Marine Mammal Protection Act MPRSA Marine Protection, Research, and Sanctuaries Act MRAC Marine Resources Advisory Council (New York) MSC Marine Stewardship Council MSE Management Strategy Evaluation MSFCMA Magnusen-Stevens Fishery Conservation and Management Act (also MSA) MSTC Multispecies Technical Committee MSY Maximum sustainable yield mt metric ton NE New England NEFOP North East Fisheries Observer Program NEFSC Northeast Fisheries Science Centre NEPA National Environmental Policy Act NES LME Northeast U.S. Continental Shelf Large Marine Ecosystem

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NGO Non-Governmental Organization nm Nautical Mile NMFS National Marine Fisheries Service NOAA National Oceanographic and Atmospheric Administration NS National Standard OFL Over-Fishing Level OGC Office of General Council (NOAA) OLE Office of Law Enforcement (NOAA) OPR NOAA’s Office of Protected Resources OY Optimum Yield PI Performance Indicator PBR Potential Biological Removal PDT Plan Development Team ppt parts per thousand PRI Point of recruitment impairment PRT Plan Review Team SAFIS Standard Atlantic Fisheries Information System SAR Stock Assessment Report SAS Stock Assessment Subcommittee SASI Swept Area Seabed Impact SBRM Standardized Bycatch Reporting Methodology SBSB EA The 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment SCS SCS Global Services SI Scoring Issue SOPP Statement of Organization, Practices and Procedures SPA Shore Protection Act SSB Spawning Stock Biomass SSBMSY Spawning Stock Biomass that maximizes recruitment SSC Science and Statistical Committee TAC Total Allowable Catch TC Technical Committee TED Turtle excluder device US United States USCG United States Coast Guard USFWS United States Fish and Wildlife Service VMRC Virginia Marine Resources Commission (Virginia) VMS Vessel Monitoring System VTR Vessel Trip Report VEC Valued Ecosystem Component VME Vulnerable Marine Ecosystems WWF World Wildlife Fund

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4 Executive Summary

This report presents the Marine Stewardship Council (MSC) assessment of the Atlantic Scup (Stenotomus chrysops) Trawl Fishery, harvested by demersal otter trawls in the North and Mid-Atlantic (FAO Area 21) within the US Exclusive Economic Zone (EEZ) and permitted to harvest Atlantic Scup, subject to management by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC). This is considered a single Unit of Assessment (UoA). Within the report, the Unit of Assessment will be referred to more simply as the Atlantic Scup fishery. The assessment was conducted, and the findings were prepared by SCS Global Services (SCS), an MSC-accredited, independent, third-party conformity assessment body, in accordance with the MSC Principles and Criteria for sustainable fishing. The assessment complies with the MSC Fisheries Certification Process (FCP) v2.2 and MSC Fisheries Standard v2.01. The fishery was assessed using the standard Default Assessment Tree without modifications.

Table 1. Unit of Certification(s) and Unit of Assessment(s) Stock/Species Method of Capture Fishing fleet (FCP V2.2 7.5.2.a) (FCP V2.2 7.5.2.b) (FCP V2.2 7.5.2.c) Vessels licensed and registered to operate in FAO Area 21 within the US EEZ and permitted to harvest Atlantic Scup, subject to management by the Atlantic Scup (Stenotomus chrysops) Demersal otter trawl Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC)

Fishery Operations Overview

The Atlantic Scup Trawl Fishery Client Group is comprised of two commercial fishing operations: Lund’s Fisheries, Inc. (located in Cape May, New Jersey) and Seafreeze, Ltd. (with locations in North Kingstown, and Narragansett, Rhode Island). Lund’s Fisheries has approximately 20 fishing vessels delivering a variety of seafood to the processing facility year-round. Nineteen vessels are company-owned, and the remaining are independent vessels landing from Rhode Island, New York, Virginia, and North Carolina. The Seafreeze facility in Kingstown has three company vessels that it owns and operates and Seafreeze Shoreside handles about 10-12 additional independent trawl vessels that deliver scup to the Kingstown location, with approximately 20% (3 vessels) under 15m in length. Seafreeze vessels hail from Rhode Island, New York, and Connecticut.

Vessels associated with the Client Group fish for primarily for Longfin Squid (Loligo), Shortfin Squid (Illex), California Squid, Atlantic Sea Scallops, Summer Flounder, Black Sea Bass, Atlantic Mackerel, Atlantic Herring, Atlantic Butterfish, and Menhaden, while Atlantic Scup (Stenotomus chrysops) often occurs as an incidentally caught species in several of these fisheries. All vessels operate within FAO Area 21 using demersal otter trawls. The fishing grounds extend from the Gulf of Maine to Georges Bank and south

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 11 of 335 SCS Global Services Report through Cape Hatteras, North Carolina, supporting commercial and recreational fisheries (78% and 22% allocated, respectively). Throughout this range, landings are predominantly focused in the north of the region. Since 1979, commercial landings have largely come from Rhode Island (38%), New Jersey (26%), and New York (16%).

The commercial scup fishery operates year-round, taking place mostly in federal waters during the winter months and mostly in state waters during the summer. A coast-wide commercial quota is allocated between three quota periods, known as the winter I (Jan-Apr), summer (May-Sept), and winter II (Oct- Dec) quota periods with the Summer period quota further allocated in percent shares to the states. These seasonal quota periods were established to ensure that both smaller day boat, which typically operate near shore in the summer months, and larger vessels operating offshore in the winter months can land scup before the annual quota is reached. Assessment Overview

The team selected to undertake the assessment includes three team members that collectively meet the requirements for MSC assessment teams. These are:

▪ Dr. Gerard DiNardo, Team Leader

▪ Dr. Gerard DiNardo, Principle 1 Expert

▪ Mr. Glen Sutton, Principle 2 Expert

▪ Mr. R.J. (Bob) Allain, Principle 3 Expert

▪ Dr. Holly Rolls, Project Manager and Lead support

Summary of Findings

In this report, we provide detailed rationales for scores presented for each of the Performance Indicators (PIs) under Principle 1 (Stock status and Harvest strategy), Principle 2 (Ecosystem Impact) and Principle 3 (Governance, Policy and Management system) of the MSC Standard. No PIs failed to reach the minimum Scoring Guidepost (SG) of 60, and the average scores for the three Principles remained above SG80). The team issued three scoring issue-level conditions for two different PIs that did not meet SG80 level. The fishery received one condition in Principle 1, no conditions in Principle 2, and two conditions in Principle 3.

In Principle 1 one PI (1.2.1) received a score under SG80, which is related to robust and precautionary harvest strategies. For PI 1.2.1 the concern is with SI-f, and the lack of clear evidence that alternative measures to minimize UoA-related mortality of unwanted catch of the target stock (scup) are being reviewed, evaluated, and implemented as appropriate. The current practice treats discards as losses to the stock which is considered in subsequent stock assessments.

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The fishery’s strength includes a well-defined harvest strategy (apart from the treatment of discards) and harvest control rule that is expected to keep the stock fluctuating at or above MSY, a comprehensive range of fishery-dependent and fishery-independent information to advance stock assessment research and support fishery management decision-making, and an extensive review process to ensure assessment outcomes represent best available science.

In Principle 2, none of the PIs received scores under SG80. The strengths of this fishery are that, so far, they have been successful in minimizing bycatch on some species. For example, they were able to remain well within the established boundaries set by NOAA and NMFS for ETP species such as marine mammals and turtles. While towed bottom fishing gears, including small mesh bottom trawl, have the potential to cause significant and long-lasting impacts to benthic habitats and communities, these impacts have been mitigated by the development of managed closure areas, including those relevant to VME areas that harbor deep sea corals. In addition, there have been significant information gathering efforts undertaken to support the understanding of habitats associated with the fishery (e.g., SASI, surveys of coral and sponge distribution, etc.), which offers confidence in the scoring rationales provided.

In Principle 3, two of the PIs (3.2.1 and 3.2.3) received scores under SG80, these are related to the fishery- specific objectives, and compliance and enforcement, respectively. For PI 3.2.1, the fishery’s short and long-term objectives are not fully reflective of the many policy and management improvements to the FMP that have occurred over time and are therefore not explicit within the management system. For PI 3.2.3, the absence of state level information and data on at-sea and dockside enforcement activities and resulting outcomes render it difficult to determine if the program has demonstrated an ability to enforce relevant management measures, strategies and/or rules.

The fishery’s strengths include a well-defined and proven governance system of national and state laws; a suite of strategic policy frameworks that are supportive of the MSC’s Principles; effective leadership within federal and state management and scientific organizations; a transparent and engaging consultation and decision-making processes; and a proven federal-state record of effective collaboration and cooperation at all levels.

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5 Report Details

5.1 Authorship and peer review details

Audit Team

Gerard DiNardo, Ph.D. – SCS Global Services – Lead

Dr. Gerard DiNardo has over 25 years of experience as a research fishery scientist and senior manager for NOAA Fisheries in the United States, as well as extensive knowledge, understanding, and involvement in fishery issues and processes of tuna-RFMOs and RFOs. Ensuring sustainable development and management of fisheries, including the identification of research and plans of action to support effective management decision making has been the focus throughout his career, and with a strong background and understanding of international fisheries and MSC. He holds an MSc from Long Island University, C.W. Post Center and a Ph.D. from the University of Maryland, where his dissertation topic was FISHMAP: An Expert System for Sampling Fish Populations.

Gerard was appointed as the Fisheries Resources Division Director of the Southwest Fisheries Science Center in San Diego, CA from 2015 to 2019. Previously, he held several positions at NMFS, including Supervisor of the Stock Assessment Program in the Fisheries Research and Monitoring Division at the Pacific Islands Fisheries Science Center. Dr. DiNardo authored multiple publications related to the assessment of marine fish stocks. He’s held positions as Co-Chair of the Joint PICES/ISC Working Group on Ocean Conditions and the Distribution and Productivity of Highly Migratory Fish for the North Pacific Marine Science Organization, standing member of the NMFS National Stock Assessment Methods Steering Committee, science expert on the U.S.A. Delegation to the Western Central Pacific Fisheries Commission and Chair of the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC).

Dr. DiNardo’s experience satisfies the MSC requirements for a Team Member as described in PC2 (FCP v2.2) in that he has: ✓ Completed training meeting requirements in Table 1 of GCRV2.4, as evidenced by the certificate of passing auditor training for the ISO course 19011 on (2019). ✓ Relevant degree and/or equivalent experience in the fisheries sector related to tasks under responsibility of a team leader (Ph.D. from the University of Maryland). ✓ Completed of the latest MSC training modules applicable to this assessment (V2.2 Team Leader MSC modules) within the past five years (2019). ✓ Has undertaken multiple MSC fishery assessments or surveillance site visits in the last 5 years. ✓ Has demonstrated experience in applying different types of interviewing and facilitation techniques, as verified by SCS records and previous audit reports.

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✓ Is competent in the MSC Standard and current Certification Requirements, auditing techniques, and communication and stakeholder facilitation techniques, as verified by his completion of ISO 19011 auditor training. ✓ Has affirmed he holds no conflict of interest in conducting this assessment.

Gerard DiNardo, Ph.D. – SCS Global Services – Principle 1 Expert

See the introduction of Dr. DiNardo above.

Gerard DiNardo’s experience satisfies the MSC requirements for a Team Member as described in PC2 (FCP v2.2): ✓ With relevant degree (Ph.D. from the University of Maryland) and over 25 years of experience as a research fishery scientist and senior manager for NOAA Fisheries in the United States. ✓ Has passed the MSC compulsory training modules for Team Members within the last 5 years (2019). ✓ Affirms they have no conflict of interest in conducting this assessment.

Glen Sutton – Principle 2 Expert

Mr. Sutton received a B.S. in Fisheries, College of Fisheries and Oceanography from the University of Washington, Seattle (1993), and a M.S. (Thesis) from the Department of Ichthyology and Fisheries Science at Rhodes University, Grahamstown, South Africa, (2000). He has over twenty years of experience in fisheries working for various agencies across the globe. He spent seventeen years as a Natural Resource Specialist for the Texas Parks and Wildlife’s Coastal Fisheries Division at the Dickinson Marine Lab on Galveston Bay. Prior to this he spent several years as a researcher for the Marine Coastal Management Center in South Africa, investigating the hand-line Hake fishery on the southeast coast. Before this he worked as a research assistant for the Florida Department of Environmental Protection in Marathon, Florida Bay. Glen Sutton’s experience satisfies the MSC requirements for a Team Member as described in PC2 (FCP v2.2): ✓ With relevant degree (M.S. in Fisheries) and over twenty years of experience in fisheries, conservation, and marine ecosystem management. As evidenced by his work for fisheries agencies in the US and abroad, Mr. Sutton has been directly engaged in all aspects of coastal and estuarine ecosystem management, with a focus on managing and monitoring aquatic species. ✓ Has passed the MSC compulsory training modules for Team Members within the last 5 years (2021). ✓ Affirms he has no conflict of interest in conducting this assessment.

R.J. (Bob) Allain – Principle 3 Expert

During his 32-year career with Canada’s Department of Fisheries and Oceans (DFO), Mr. Allain served in a variety of fisheries management, strategic planning and policy positions in Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland and Labrador, and at Departmental Headquarters in Ottawa. He served as a senior executive from 1991 to 2008.

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While in Government Service, he consulted internationally for the Canadian International Development Agency, the (former) International Centre for Ocean Development, the World Bank, and the Food and Agricultural Organization of the United Nations.

Mr. Allain received several departmental commendations in recognition of his contribution to DFO’s priorities; in 2004, he was bestowed the prestigious Head of the Public Service Award (previously the Prime Minister’s Award of Excellence for Public Service) for values and ethics. In 2014, he was inducted into the Atlantic Canada Marine Industries Hall of Fame in the Builders category. He is fluent in both French and English. He holds undergraduate degrees in Science and Commerce from Saint Mary’s University in Halifax, Nova Scotia.

Currently, Mr. Allain is the president of the consulting firm OceanIQ Management Services based in Dieppe, New Brunswick. The firm provides consulting services to a broad range of public and private sector clients including government, aboriginal organizations, fish harvester organizations, fish and seafood processing companies, not-for-profits, and individuals, in the areas of fisheries management, fish and seafood processing plant workforce issues, stakeholder engagement, and conference facilitation.

Mr. Allain is a Marine Stewardship Council-certified P3 assessor who has participated in approximately 25 assessments and surveillance audits in Canada and the U.S. in respect of demersal, pelagic, invertebrate and crustacean fisheries. All mandatory MSC training modules have been successfully passed; he has no Conflict of Interest in relation to this fishery. A full CV is available upon request. Mr. Allain’s experience satisfies the MSC requirements for a Team Member as described in PC2 (FCP v2.1): ✓ With relevant degree (B.S. in Chemistry) and over 5 years of experience in marine fisheries management, strategic policy development, conservation and protection, conflict resolution, and public and stakeholder engagement. ✓ Has passed the MSC compulsory training modules for Team Members within the last 5 years (2020). ✓ Affirms he has no conflict of interest in conducting this assessment.

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1.2 Version details

Table 2. Fisheries program documents versions

Document Version number

MSC Fisheries Certification Process Version 2.2

MSC Fisheries Standard Version 2.01

MSC General Certification Requirements Version 2.4

MSC Reporting Template Version 1.2

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6 Unit(s) of Assessment and Certification and results overview

6.1 Unit(s) of Assessment (UoA) and Unit(s) of Certification

6.1.1 Unit(s) of Assessment

The Unit of Assessment includes the North and Mid-Atlantic Scup caught by demersal otter trawls from state and federally licensed vessels registered to operate in FAO Area 21 within the US EEZ and permitted to harvest Atlantic Scup from the Gulf of Maine to Georges Bank and south through Cape Hatteras, North Carolina, subject to management of the Mid-Atlantic Fishery Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission (ASMFC).

This fishery has been found to meet scope requirements (FCP v2.2 7.4) for MSC fishery assessments as it ▪ Does not operate under a controversial unilateral exemption to an international agreement, use destructive fishing practices, does not target amphibians, birds, reptiles or mammals and is not overwhelmed by the dispute. (FCP 7.4.2.1, 7.4.2.2, 7.4.3, 7.4.5). ▪ The fishery does not include an entity successfully prosecuted for shark finning within the last 2- years (FCP 7.4.2.10). ▪ There are mechanisms for resolving disputes in place (FCP 7.4.5.1), and the fishery has not previously failed assessment or had a certificate withdrawn. ▪ Is not an enhanced fishery, is not based on an introduced species and does not represent an inseparable or practically inseparable species (FCP 7.5.1, 7.5.2, 7.5.8-13). ▪ Does overlap with other MSC certified or applicant fisheries (7.5.14), with relevant components harmonised with these fisheries. ▪ And does not include an entity successfully prosecuted in respect of violation of a forced or child labour law within the last 2 years. (FCP 7.4.2.4). ▪ The Unit of Assessment, the Unit of Certification, and eligible fishers have been clearly defined, traceability risks characterized, and the client has provided a clear indication of their position relative to certificate sharing (FCP 7.5).

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Table 3. Unit of Assessment (UoA) UoA 1 Description

Species Atlantic Scup (Stenotomus chrysops)

North and Mid-Atlantic Scup harvested in FAO Area 21 within the US EEZ, subject to Stock management by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC) Fishing gear type(s) and, if relevant, vessel Demersal otter trawl type(s)

Client group Lund’s Fisheries, Inc. and Seafreeze, Ltd.

Processors within the UoA that are not currently included in the certificate addendum Other eligible fishers that agree to the specified certificate sharing requirements established by the Client Group (see Appendix 9.11) FAO Area 21 within the US EEZ under the management of the Mid-Atlantic Fishery Geographical area Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission (ASMFC)

6.1.2 Unit(s) of Certification Table 4. Unit of Certification (UoC) UoC 1 Description

Species Atlantic Scup (Stenotomus chrysops)

North and Mid-Atlantic Scup harvested in FAO Area 21 within the US EEZ, subject to Stock management by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC) Fishing gear type(s) and, if relevant, vessel Demersal otter trawl type(s)

Client group Lund’s Fisheries, Inc. and Seafreeze, Ltd.

Processors within the UoA that are not currently included in the certificate addendum Other eligible fishers that agree to the specified certificate sharing requirements established by the Client Group (see Appendix 9.11) FAO Area 21 within the US EEZ under the management of the Mid-Atlantic Fishery Geographical area Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission (ASMFC)

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6.2 Assessment results overview

6.2.1 Determination, formal conclusion and agreement

The determination of the fishery is drafted at the final report and completed at the PCR.

6.2.2 Principle level scores

To be drafted at Client and Peer Review Draft Report stage.

Table 5. Principle level scores 6.2.3 Summary of conditions

To be drafted at Client and Peer Review Draft Report stage.

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7. Traceability and eligibility

7.1 Eligibility date

The target eligibility date will be the date of the publication of the PCDR.

7.2 Traceability within the fishery

The following traceability evaluation is for the UoC/UoA covering demersal otter trawl vessels licensed and registered to operate in FAO Area 21 within the US EEZ, and permitted to harvest Atlantic Scup, subject to management by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC).

The Unit of Assessment (UoA) includes all licensed demersal otter trawl vessels with Federal and/or State permits to land scup harvested from North Carolina through Maine. The Unit of Certification (UoC) includes the Client Group processing facilities located in Cape May, NJ (Lund’s Fisheries) and North Kingstown and Narragansett, RI (Seafreeze) that receive scup harvested by licensed demersal otter trawl vessels with Federal and/or State permits to land scup harvested from North Carolina through Maine. Only scup initially received by the Client Group will be included in the UoC and covered under by the fishery certificate. Other eligible fishers include all licensed demersal otter trawlers with Federal and/or State permits to land Scup, whose catch is not initially received by one of the Client Group members. A certificate sharing mechanism will allow other eligible fishers that meet the specified certificate sharing requirements set forth by the Client Group (see Appendix 9.11) to share the certificate.

Description of Tracking, Tracing and Segregation Systems

Chain of Custody certification shall always be required following first change of ownership to any party not covered by the fishery certificate (FCP 7.9.2.1). The following lists the main stages of the supply chain within the Atlantic Scup fishery and the relevant tracking, tracing, and segregation systems at each step:

Capture of Product: The Client Group purchases scup caught by trawl and would have access to reports supplied by the vessels landing at each of the Lund’s Fisheries and Seafreeze processing facilities to confirm this. A small proportion of commercially caught scup is caught by traps and hook and line. All federal vessels with Vessel Trip Reports (VTRs) identify the gear type (to keep the vessel within the UoC trawl gear certification). For state-only permitted vessels, gear type is recorded in the dealer report for each trip.

Onboard Processing: No processing of Scup occurs onboard UoC vessels. Scup held onboard trawlers are chilled on ice, in whole round form.

Product unloading: Scup are unloaded either at the Lund’s Fisheries dock (Cape May, NJ) or the Seafreeze docks (North Kingstown, RI and the Shoreside location in Narragansett, RI) from Client-owned and other independently owned vessels. Scup received by Lund’s Fisheries or Seafreeze from any other Federal

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Product transport: Scup are received either at the Lund’s Fisheries dock (Cape May, NJ) or at the Seafreeze dock (North Kingstown, RI) from Client-owned and other independently owned vessels. Scup received by Lund’s Fisheries or Seafreeze from any other Federal dealer within the UoA but outside of the UoC (as part of the certificate sharing mechanism) will be accompanied with a Vessel Trip Report. The Client Group’s traceability systems will track all lots based on trip-level purchases and will demonstrate provenance to the source vessel. A bill of lading accompanies the product in transport. That product is labelled with a lot number and always remains traceable to the vessel/trip level.

Product storage: All scup acquired by Lund’s Fisheries’ or Seafreeze’s will be stored in frozen form at one or more commercial warehouses in the Mid-Atlantic region. The Client Group’s traceability systems will track all lots based on trip-level purchases and will demonstrate provenance to the source vessel.

Product sale and first change of ownership: Chain of Custody certification shall always be required following first change of ownership to any party not covered by the fishery certificate (FCP_7.9.2.1).

Table 5. Traceability within the fishery

Factor Description

Only the gear specified in the description of the UoA (demersal otter trawls) will be used by the Atlantic Scup Trawl Fishery to harvest scup designated as MSC-certified.

Will the fishery use gears that are not part of the Unit of A small proportion of commercially caught scup is Certification (UoC)? If Yes, please describe: caught by traps and hook and line. The client - If this may occur on the same trip, on the same group only purchases scup caught by trawl and vessels, or during the same season; would have access to either dealer reports (for - How any risks are mitigated? state-permitted vessels) or VTRs (for federally- permitted vessels) supplied by the vessels landing at the Client Group processing facilities to confirm this.

Will vessels in the UoC also fish outside the UoC geographic All Scup will be harvested within the UoA area? If Yes, please describe: geographic area (state and federal waters from - If this may occur on the same trip; North Carolina through Maine), as required by - How any risks are mitigated? state and federal permits to land Scup. Do the fishery client members ever handle certified and non- certified products during any of the activities covered by the There is a very chance that scup from other fishery certificate? This refers to both at-sea activities and eligible fishers (via certificate sharing mechanism) on-land activities. could be caught by different gear types (e.g., - Transport traps, hook and line). - Storage

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Factor Description

- Processing - Landing - Auction

If Yes, please describe how any risks are mitigated. Does transshipment occur within the fishery? If Yes, please Transshipment does not take place at sea. For describe: product being transferred in port, a bill of lading - If transshipment takes place at-sea, in port, or both; accompanies the product in transport. That - If the transshipment vessel may handle product product is labelled with a lot number and always from outside the UoC; remains traceable at the vessel/trip level. - How any risks are mitigated? Are there any other risks of mixing or substitution between certified and non-certified fish? If Yes, please describe how No other risks were identified at the ACDR stage. any risks are mitigated.

7.3 Eligibility to enter further chains of custody

To be drafted at Client and Peer Review Draft Report stage.

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8 Scoring

8.1 Summary of Performance Indicator level scores Table 6. Summary of Performance Indicator Scores and Associated Weights Used to Calculate Principle Scores. Principle Component Wt Performance Indicator (PI) Wt Score 1.1.1 Stock status 1.0 ≥ 80 Outcome 0.333 1.1.2 Stock rebuilding 0.0 75 1.2.1 Harvest strategy 0.25 60-79 One Harvest control rules & 1.2.2 0.25 ≥ 80 Management 0.667 tools 1.2.3 Information & monitoring 0.25 ≥ 80 1.2.4 Assessment of stock status 0.25 ≥ 80 2.1.1 Outcome 0.333 ≥ 80 Primary species 0.2 2.1.2 Management strategy 0.333 ≥ 80 2.1.3 Information/Monitoring 0.333 ≥ 80 2.2.1 Outcome 0.333 ≥ 80 Secondary species 0.2 2.2.2 Management strategy 0.333 ≥ 80 2.2.3 Information/Monitoring 0.333 ≥ 80 2.3.1 Outcome 0.333 ≥ 80 Two ETP species 0.2 2.3.2 Management strategy 0.333 ≥ 80 2.3.3 Information strategy 0.333 ≥ 80 2.4.1 Outcome 0.333 ≥ 80 Habitats 0.2 2.4.2 Management strategy 0.333 ≥ 80 2.4.3 Information 0.333 ≥ 80 2.5.1 Outcome 0.333 ≥ 80 Ecosystem 0.2 2.5.2 Management 0.333 ≥ 80 2.5.3 Information 0.333 ≥ 80 Legal &/or customary 3.1.1 0.333 ≥80 framework Governance and policy 0.5 Consultation, roles & 3.1.2 0.333 ≥80 responsibilities 3.1.3 Long term objectives 0.333 ≥80 Three 3.2.1 Fishery specific objectives 0.25 60-79 3.2.2 Decision making processes 0.25 ≥80 Fishery specific 0.5 3.2.3 Compliance & enforcement 0.25 60-79 management system Monitoring & management 3.2.4 0.25 ≥80 performance evaluation

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8.2 Principle 1

8.2.1 Principle 1 background

8.2.1.1 Life History Information Atlantic Scup (Stenotomus chrysops)

Taxonomic classification Class: Actinopterigii Order: Perciformes Family: Sparidae Genus: Stenotomus Species: chrysops

Biology

Scup are a migratory, schooling, demersal species found on the continental shelf of the Northwest Atlantic, commonly inhabiting waters from Cape Cod, Massachusetts to Cape Hatteras, North Carolina. The abundance in a specific area is frequently influenced by water temperature. Scup prefer temperatures greater than 45°F and are most frequently encountered in water temperatures from 55 to 77°F. Scup overwinter in offshore waters from southern New Jersey to Cape Hatteras. When water temperatures begin to rise in the spring and summer, scup migrate to more northern and inshore waters to spawn (Steimle et al., 1999).

Larval scup are pelagic and are found in coastal waters during warmer months. Juvenile scup use a variety of coastal habitats and can dominate the overall fish population in most larger estuarine areas during the summer months. Adult habitats are similar to those used by juveniles, including soft, sandy bottoms, on or near structures, such as rocky ledges, wrecks, artificial reefs, and mussel beds. As water temperatures decrease, scup move into deeper waters on the continental shelf to overwinter.

Growth and Natural Mortality

Each year, as many as 80% of all juvenile scup are eaten by larger predators such as striped bass, bluefish, and black sea bass. Adult scup feed on bottom invertebrates like crabs, annelid worms, clams, mussels, jellyfish, and sand dollars.

Maximum length and weight estimated at 46.0 cm (≈ 18 inches) and 2.1 kg, respectively. Maximum age is estimated at 20 years (Dery and Rearden 1979). Throughout their range scup are commonly encountered at approximately 25 cm (≈ 9 - 10 inches). Examining growth of male and female scup from the NewYork Bight (the continental shelf bounded by southern Long Island and the New Jersey coast), Wilk et al. (1978) found no significant difference in the length-weight relationships between sexes within the 113-361 mm (fork length, FL). The relationship for a larger sample, 27-380 mm FL, was log W = log (-5.022) + 3.169 log FL, where W is weight in grams and fork length (FL) is in mm; similar relationships have been reported in MAFMC (1996). Growth in length is curvilinear between10-38 cm

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FL corresponding to ages of about 1 to 13 years; growth is relatively rapid at 10-15 cm FL and declines with increasing size (Penttila et al. 1989)

Reproduction and Recruitment

When water temperatures begin to rise in the spring and summer, scup migrate to more northern and inshore waters to spawn. Spawning areas include locations from southern New England to Long Island, New York. Large fish arrive to the spawning grounds first, followed by successive waves of smaller individuals, suggesting that scup school by size. Scup generally spawn from May to August, peaking in June. By age 2–3 (and roughly 6 inches), most scup are sexually mature. Females release an average of 7,000 eggs per annual spawn, which often takes place over sandy or weedy areas. Fertilized eggs float for about 40 hours before they hatch, and larvae begin feeding on copepods and other plankton within several days. As larvae mature, they settle to the sea floor and are found in coastal waters during warmer months. Juvenile scup use a variety of coastal habitats and can dominate the overall fish population in large estuarine areas during the summer months (Steimle et al., 1999).

Average annual recruitment from 1984 to 2018 was estimated at approximately 133.5 million fish (age 0), and data suggest a shift in recruitment strength from low to high in 1999 (Figure 1). During the low recruitment period (1984-1998) scup recruitment averaged 86.6 million fish annually. While during the high recruitment period (1999-2016) scup recruitment averaged 178 million fish annually. Recruitment estimates in 2017 and 2018 are significantly less than the long-term average and more consistent with recruitment observed during the low recruitment period. It is unclear if this marks a return to a low recruitment period. An update assessment is scheduled for 2021 which will extend the recruitment time series to 2020. Note that the causal mechanisms for the shift in recruitment strength is not fully understood at this time. Throughout the 34 years for which recruitment information is available changes in scup management measures occurred as has the Northeast U.S. shelf ecosystem (https://repository.library.noaa.gov/view/noaa/23889). A recent habitat climate vulnerability analysis links scup to several highly vulnerable nearshore habitats from salt marsh through shallow estuarine and marine reefs which are being impacted due to raising ocean temperatures and increasing intensity in Marine heatwaves (NOAA Fisheries. 2021).

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Figure 1

Figure 1. Scup spawning stock biomass and Recruitment, 1984-2018. The horizontal dashed line is the biomass target from the from the 2019 operational stock assessment (source Northeast Fisheries Science Center, 2019).

Distribution and Stock Structure

Scup (Stenotomus chrysops) are a schooling, demersal species. They are found in a variety of habitats in the Mid-Atlantic including areas with sandy or muddy bottoms, mussel beds, and sea grass beds from the Gulf of Maine through Cape Hatteras, North Carolina. Scup undertake extensive seasonal migrations that has both a north-south and an inshore-offshore component. Scup winter in offshore waters between New Jersey and North Carolina. In spring and summer they migrate northward and inshore into estuaries and coastal waters of New Jersey, New York, and southern New England. They remain there until fall, when a reverse migration occurs.

8.2.1.2 Status of stocks

A scup operational update assessment was peer reviewed in August 2019 and concluded the stock was not overfished and overfishing was not occurring based on commercial catch data, research survey abundance indices, and revised Marine Recreational Information Program (MRIP) catch data through 2018 (Figure 2) (Northeast Fisheries Science Center 2020). During the February 2021 Assessment Oversight Panel (AOP) Meeting concern was expressed over the unusual direction of the retrospective pattern in the assessments (under estimating biomass and overestimating fishing mortality), recent recruitment levels (2016-2018) are below average levels suggesting the stock may be moving into a low recruitment phase, biomass is declining, and F is increasing. As a result the AOP recommended scup undergo a Level 2 (Expedited Review) assessment with input data updated through 2020 and results reviewed at the June 2021 AOP meeting. Recommendations from the AOP meeting would be provided to the SSC and full Mid-

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Atlantic Council in August for consideration in setting the ABC. While assessment results described below are from the 2019 assessment, MSC scoring should be based on the 2021 assessment.

Between 1984 and 1994, fishing mortality (F) on fully selected age 3 scup increased from 0.94 to 1.6, before precipitously declining to levels below the FMSY proxy reference point (F40%) of 0.215, and in 2018 (terminal year of the assessment), F was estimated at 0.158, approximately 73% of FMSY (Figure 3). There is a 90% probability that the fishing mortality rate in 2018 was between 0.123 and 0.195.

Between 1984 and 2002 spawning stock biomass (SSB) was well below the SSBMSY proxy reference point

(SSB40%) of 94,020 mt, and since 2003 SSB has been above MSY (Figure 1). In 2018, spawning stock biomass was estimated to be about two times the target (SSB40%) (

Table 7). There is a 90% chance that SSB in 2018 was between 159,746 and 221,281 mt. The main reason for the increase in SSB owes to the higher-than-average recruitment of age 0 fish to the population that was observed between 1999 and 2016 (Figure 1). Average recruitment from 1984 to 2018 was 134 million age 0 fish. Between 1984 and 1998 average annual recruitment was 87 million age 0 fish while between 1999 and 2015 average annual recruitment was 182 million age 0 fish. Since 2016 recruitment has been below average recruitment, 112 million fish in 2016, 93 million fish in 2017, and 83 million fish in 2018, and there is concern the scup population may be returning to a period of lower-than-average recruitment. Stock biomass is projected to further decrease toward the target unless more above average year classes recruit to the stock in the short term.

Assessment Model

The assessment model for scup is a complex statistical catch-at-age model (ASAP SCAA; Legault and Restrepo 1998; NFT 2013) incorporating a broad range of fishery and survey data (NEFSC 2015). The model assumes an instantaneous natural mortality rate (M) = 0.2. The fishery catch is modeled as four fleets: commercial landings, recreational landings, commercial discards and recreational discards.

Indices of stock abundance from NEFSC winter, spring, and fall, Massachusetts DMF spring and fall, Rhode Island DFW spring and fall, University of Rhode Island Graduate School of Oceanography (URIGSO), RI Industry Cooperative trap, Connecticut DEEP spring and fall, New York DEC, New Jersey DFW, Virginia Institute of Marine Science (VIMS) Chesapeake Bay, VIMS juvenile fish trawl, and NEAMAP spring and fall trawl surveys were updated and used in the 2019 Operational Assessment.

Biological Reference Points (BRPs)

Reference points were calculated using the non-parametric yield and SSB per recruit long-term projection approach. The cumulative distribution function of the 1984-2018 recruitment (corresponding to the period of input fishery catches-at-age) was re-sampled to provide future recruitment estimates for the projections used to estimate the biomass reference point.

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The existing biological reference points for scup are from the 2015 SAW 60 benchmark assessment (NEFSC 2015). The reference points are F40% as the proxy for FMSY, and the corresponding SSB40% as the proxy for the SSBMSY biomass target. The F40% proxy for FMSY = 0.220; the proxy estimate for SSBMSY = SSB40% = 87,302 mt = 192.468 million lbs; the proxy estimate for the ½ SSBMSY biomass threshold = ½ SSB40% = 43,651 mt = 96.234 million lbs; and the proxy estimate for MSY = MSY40% = 11,752 mt = 25.909 million lbs.

The F40% and corresponding SSB40% proxy biological reference points for scup were updated for this 2019 Operational Assessment. The updated fishing mortality threshold F40% proxy for FMSY = 0.215. The updated biomass target proxy estimate for SSBMSY = SSB40% = 94,020 mt = 207.279 million lbs and the updated biomass threshold proxy estimate for ½ SSBMSY = ½ SSB40% = 47,010 mt = 103.639 million lbs. The updated proxy estimate for MSY = MSY40% = 12,927 mt = 28.499 million lbs.

Figure 2. Estimates of scup spawning stock biomass (SSB) and fully-recruited fishing mortality (F, peak at age 3) relative to the updated 2019 biological reference points. Filled circle with 90% confidence intervals shows the assessment point estimates. The open circle shows the retrospectively adjusted estimates. (source Northeast Fisheries Science Center 2020).

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Figure 3. Total fishery catch and fishing mortality rate (F) for fully selected age 3 scup, 1984-2018. The horizontal dashed line is the fishing mortality reference point from the from the 2019 operational stock assessment. Overfishing is occurring when the fishing mortality rate exceeds this threshold (source Northeast Fisheries Science Center, 2019).

Table 7. Scup biological reference points from the 2019 operational stock assessment (source Northeast Fisheries Science Center, 2020).

Reference Points and terminal year 2019 operational stock assessment SSB and F estimates

SSBMSY proxy = SSB40% (biomass target) 207.28 million lb/ 94,020 mt

½ SSBMSY (biomass threshold defining an 103.639 mil lb/ 47,010 mt overfished status)

Terminal year (2018) SSB 411 mil lb/186,578 mt; 198% of SSBMSY (90% = 159,746 – 221,281 mt)

FMSY proxy = F40% (threshold defining overfishing) 0.215

Terminal year (2018) F 0.158 (90% = 0.123-0.195)

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8.2.1.3 Seasonal Operation of the Fishery

Scup are sought after by commercial and recreational fishermen throughout Southern New England and the Mid-Atlantic. Scup support commercial fisheries from Massachusetts to North Carolina, with landings focused more in the north of the region. Since 1979, commercial landings have largely come from Rhode Island (38%), New Jersey (26%), and New York (16%). Also, 78% of the available catch is allocated to the commercial fishery and 22% to the recreational fishery.

The commercial scup fishery operates year-round, taking place mostly in federal waters during the winter months and mostly in state waters during the summer. A coast-wide commercial quota is allocated between three quota periods, known as the winter I (Jan-Apr), summer (May-Sept), and winter II (Oct- Dec) quota periods (Table 8), with the Summer period quota further allocated in percent shares to the states (Table 9). These seasonal quota periods were established to ensure that both smaller day boat, which typically operate near shore in the summer months, and larger vessels operating offshore in the winter months can land scup before the annual quota is reached. Fifty percent of scup enter the fishery at age two (~6.1 inches); and 100% enter the fishery at age three (~8.3 inches).

The Council approved an acceptable biological catch (ABC) of 35.77 million pounds (16,227 mt) for 2020 and 30.67 million pounds (13,913 mt) for 2021. After accounting for expected discards, this results in a commercial quota of 22.23 million pounds (10,083 mt) and an recreational harvest limt (RHL) of 6.51 million pounds (2,954 mt) in 2020, and a commercial quota of 18.06 million pounds (8,194 mt) and an RHL of 5.34 million pounds (2,424 mt) in 2021. Compared to 2019 landings limits, this represents a 7% decrease in the commercial quota and a 12% decrease in the RHL in 2020, and a 25% decrease in the commercial quota and a 28% decrease in the RHL in 2021.

There is discarding of unwanted undersize scup in most trawl fisheries operating along the east coast of the US. The NEFSC routinely evaluates and analyzes discards in the scup in trawl fisheries based on observer data, and discards are accounted for in subsequent stock assessments as losses to the stock (100% mortality is assumed). In 2011, the NMFS published the National Bycatch Report, and updated versions of this report are released on a biennial basis. The report evaluates measures to mitigate bycatch in US fisheries, including the scup small mesh otter trawl fishery and the two scup gear restricted areas (GRAs) that were first implemented in 2000 to reduce scup discards in small-mesh trawl fisheries. Current boundaries of the GRAs are shown in Figure 4. The Scup Gear Restricted Areas (source MAFMC, 2020)., and the GSAs are thought to have contributed to the recovery of the scup population from 2005-2009. While scup discards in the scup trawl fishery have been well above the average discard rate in recent years, the Council agreed with the Monitoring Committee recommendation that no immediate management action was needed but discards should continue to be monitored. Between 1981 and 2018 the average commercial discard rate for scup in the trawl fishery was estimated at approximately 28%. Higher discard rates (> 40%) were associated higher recruitment events (Figure 5). Prior to 2000 the average discard rate associated with the recreational fishery was low (≈ 2%), increasing significantly to approximately 13% between 2000 and 2018; the higher discard rate is likely linked to the overall increase in population size.

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Commercial scup discards from 2001-2019 in squid, small-mesh , and large-mesh trawl fisheries (all trawl fisheries) is variable and generally related to recruitment strength. Discards increased by 71% between 2016 (≈ 2,750 mt) and 2017 (≈ 4,750 mt), likely due to the large 2015 year class. Although discards decreased by about 30% in 2018, they still remain well above average (https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5f32f1efc700203009b16c9c/159 7174265852/06_Scup_Council_Discard_2020.pdf). While the Monitoring Committee recommended no management action regarding observed discard rates, they noted the importance of developing a action plan to prevent big discard events when strong year classes are detected. Unfortunately no action plan has been developed despite there being an established mechanism (NEFSC fishery independent trawl survey) in place to detect year-class strength.

Table 8. Commercial Scup Quota Allocations for 2020 by Quota Period (source MAFMC, 2020).

Quota period Percent share lb mt

Winter I 45.11 10,027,597 4,548

Summer 38.95 8,658,277 3,927

Winter II 15.94 3,543,336 1,607

Total 100.0 22,229,210 10,083

Table 9. State-by-state quotas for the commercial scup fishery during the summer quota period (May-September) (source MAFMC, 2020).

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Figure 4. The Scup Gear Restricted Areas (source MAFMC, 2020).

0.6

0.5

0.4

0.3

0.2 Discard Rate Discard

0.1

0

1997 2005 1981 1983 1985 1987 1989 1991 1993 1995 1999 2001 2003 2007 2009 2011 2013 2015 2017 Year

Figure 5. Scup discard rate in the scup trawl fishery from 1981 to 2018. Blue line represents the discard rate associated with the commercial fishery; the orange line represents the discard rate associated with the recreational fishery (data source MAFMC, 2020).

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8.2.1.4 Fishing and Management

The Mid-Atlantic Fishery Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission (ASMFC) work cooperatively to develop fishery regulations for scup off the east coast of the United States. The Council and Commission work in conjunction with the National Marine Fisheries Service (NMFS), which serves as the federal implementation and enforcement entity. This cooperative management endeavor was developed because a significant portion of the catch is taken from both state (0 - 3 miles offshore) and federal waters (3 - 200 miles) offshore.

The joint Fishery Management Plan (FMP) for summer flounder became effective in 1996, when scup were incorporated into the summer flounder FMP, and established the management unit as U.S. waters from Cape Hatteras, North Carolina northward to the U.S. - Canadian border. Scup are managed under Amendment 13 to the Summer Flounder, Scup and Black Sea Bass FMP, and its subsequent Addenda (Addenda IX - XXXI).

The management program divides a total annual quota between the recreational fishery (22%) and the commercial fishery (78%). Recreational fishery management measures include a combination of minimum size limits, bag limits, and fishing seasons. Since 2004, the states of Massachusetts, Rhode Island, Connecticut, and New York have formed a northern region when setting their recreational regulations. Total scup catches declined from 1984 to 1998, before increasing in 2000, and by 2018 reported catch levels were consistent with those observed in the early 1980s. In 2018, about 26.35 million pounds of scup were landed by commercial and recreational fishermen (Figure 6).

VTR data suggest that NMFS statistical areas 537, 539, 611, 612, 613, and 616 were responsible for the largest percentage of commercial scup catch in 2018. Statistical area 539, off Rhode Island, had the highest number of trips which caught scup (Table 10, Figure 7).

The FMP also established measures to ensure effective management of summer flounder fisheries, which currently include catch and landings limits, commercial quotas, recreational harvest limits, minimum fish sizes, gear regulations, permit requirements, and other provisions as prescribed by the FMP. Gear restrictions include a minimum mesh size for trawls to minimize bycatch of immature fish and an escape panel with degradable hinges on fish pots to prevent them from becoming “ghost fishing” gear. The recreational fishery is managed by regional possession limits, minimum sizes, and season lengths designed to achieve the harvest limit.

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Figure 6. Commercial and recreational scup landings, Maine - North Carolina, 1981-2019. Recreational landings are based on the new MRIP numbers (source www.mafmc.org › Scup_info_doc_2020).

Table 10. Statistical areas which accounted for at least 5% of the total commercial scup catch (by weight) in 2018, with associated number of trips (source MAFMC, 2019).

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Figure 7. Proportion of scup catch by statistical area in 2018. Statistical areas marked “confidential” are associated with fewer than three vessels and/or dealers (source MAFMC, 2019).

8.2.1.5 Seasonal Operation of the Fishery

The commercial scup fishery operates year-round, taking place mostly in federal waters during the winter and mostly in state waters during the summer. A coast-wide commercial quota is allocated between three quota periods, known as the winter I, summer, and winter II quota periods. These seasonal quota periods were established to ensure that both smaller day boats, which typically operate near shore in the summer months, and larger vessels operating offshore in the winter months can land scup before the annual quota is reached.

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8.2.1.6 Total Allowable Catch (TAC) and catch data

Table 11. Total Allowable Catch (TAC) and catch data.

TAC Year 2020 35.77* Lbs

TAC Year 2019 36.43* Lbs

UoA share of TAC Year 2020 NA Lbs

NA UoA share of TAC Year 2019 Lbs

NA UoA share of total TAC Year 2020 Lbs

NA UoA share of total TAC Year 2019 Lbs

Year (most Total green weight catch by UoC 2020 10.28 Lbs recent) Year (second Total green weight catch by UoC 2019 10.43 Lbs most recent)

*expressed as millions of pounds

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8.2.2 Principle 1 Performance Indicator scores and rationales

PI 1.1.1 The stock is at a level which maintains high productivity and has a low probability of recruitment overfishing Scoring Issue SG 60 SG 80 SG 100

a Stock status relative to recruitment impairment

Guide It is likely that the stock is It is highly likely that the There is a high degree of post above the point where stock is above the PRI. certainty that the stock is recruitment would be above the PRI. impaired (PRI). Met? Yes Yes No

Rationale

The 2019 scup operational update assessment concluded the stock was not overfished and overfishing was not occurring based on commercial catch data, research survey abundance indices, and revised Marine Recreational Information Program (MRIP) catch data through 2018 (see Figure 3) (Northeast Fisheries Science Center 2020). A scup rebuilding plan was in place from 2005 to 2009, and the stock was declared rebuilt in 2009 (MAFMC 2013). Between 1984 and 1994, fishing mortality (F) on fully selected age 3 scup increased from 0.94 to 1.6, before precipitously declining to levels below the FMSY proxy reference point (F40%) of 0.215, and in 2018 (terminal year of the assessment), F was estimated at 0.158, approximately 73% of FMSY (see Figure 3). There is a 90% probability that the fishing mortality rate in 2018 was between 0.123 and 0.195. Note the FMSY proxy reference point (F40%) is also defined as the Fthreshold reference point (FMSY=F40%=Fthreshold).

Between 1984 and 2002 spawning stock biomass (SSB) was well below the SSBMSY proxy reference point (SSB40%) of 94,020 mt and SSBthreshold reference point (50% SSBMSY) of 47,010 mt, and since 2003 SSB has been above MSY (see Figure 1). In 2018, spawning stock biomass was estimated to be about two times the target (SSB40%) (see Table 7). There is a 90% chance that SSB in 2018 was between 159,746 and 221,281 mt. PRI is taken to be the SSB threshold (50% SSBMSY) of 47,010 mt. The main reason for the increase in SSB owes to the higher-than-average recruitment of age 0 fish to the population that was observed between 1999 and 2016 (see Figure 1). Average recruitment from 1984 to 2018 was 134 million age 0 fish. Between 1984 and 1998 average annual recruitment was 87 million age 0 fish while between 1999 and 2015 average annual recruitment was 182 million age 0 fish. Since 2016 recruitment has been below the average recruitment level and there is concern the scup population may be returning to a period of lower-than-average recruitment. Based on this information it is highly likely that the stock is above the PRI; SG 80 is met. There is not a high degree of certainty (95%) that the stock is above PRI and SG 100 is not met. Note scup is undergoing an updated stock assessment in 2021 and when available this Scoring Issue would be rescored using the new assessment. b Stock status in relation to achievement of Maximum Sustainable Yield (MSY)

Guide The stock is at or fluctuating There is a high degree of post around a level consistent certainty that the stock has with MSY. been fluctuating around a level consistent with MSY or has been above this level over recent years.

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Met? Yes No

Rationale

Information described above under SI(a) applies here and based on this information there is a 90% chance that the stock is at or fluctuating around a level consistent with MSY; SG 80 is met. As there is not a high degree of certainty (95%) there is a high degree of certainty that the stock has been fluctuating around a level consistent with MSY or has been above this level over recent years; SG 100 is not met. As noted above, scup is undergoing an updated stock assessment in 2021 and when available this Scoring Issue would be rescored using the new assessment. References

Northeast Fisheries Science Center 2020, ASMFC 2017

Stock status relative to reference points

Type of reference point Value of reference point Current stock status relative to reference point Reference point SSBthreshold (50% SSBMSY 47,010 mt SSB2018 = 186,578 mt ≈ used in scoring Proxy) is defined as PRI 400%(PRI) stock relative to PRI (SIa) Reference point SSBMSY proxy reference 94,020 mt 186,578 mt (198% SSBMSY) used in scoring point SSB40% (CV = 159,746 and 221,281 stock relative to mt) MSY (SIb)

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Results from the 2021 scup updated assessment

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 1.2.1 There is a robust and precautionary harvest strategy in place

Scoring Issue SG 60 SG 80 SG 100

a Harvest strategy design

Guide The harvest strategy is The harvest strategy is The harvest strategy is post expected to achieve stock responsive to the state of responsive to the state of management objectives the stock and the elements the stock and is designed reflected in PI 1.1.1 SG80. of the harvest strategy work to achieve stock together towards achieving management objectives stock management reflected in PI 1.1.1 SG80. objectives reflected in PI 1.1.1 SG80. Met? Yes Yes Yes

Rationale

The Mid-Atlantic Fishery Management Council (Council) and the Atlantic States Marine Fisheries Commission (Commission) work cooperatively to develop fishery regulations for scup off the east coast of the United States. The Council and Commission work in conjunction with the National Marine Fisheries Service (NMFS), which serves as the federal implementation and enforcement entity. This cooperative management endeavor was developed because a significant portion of the catch is taken from both state waters (0-3 miles offshore) and federal waters (3-200 miles offshore, EEZ). The management unit for scup includes U.S. waters from Cape Hatteras, North Carolina to the U.S./Canadian border. The Federal Fishery Management Plan (FMP) for scup has been in place since 1996, when scup was incorporated into the Summer Flounder FMP through Amendment 8 to that plan. Amendment 8 also established measures to ensure effective management of scup fisheries, including gear restrictions, reporting requirements, commercial quotas, a moratorium on new commercial scup permits, recreational possession limits, and minimum size restrictions. The Council has made several adjustments to the FMP since 1996. The FMP and subsequent amendments and framework adjustments can be found at: www.mafmc.org/sf-s-bsb/. The scup fishery is managed by the Council using a tiered approach designed to prevent overfishing a stock by establishing the overfishing limit (OFL), acceptable biological catch (ABC), annual catch limit (ACL), and annual catch target (ACT) (Figure 8). An annual catch limit (ACL) is a level of catch intended to ensure overfishing does not occur. ACLs are set less than or equal to the overfishing limit (OFL) and acceptable biological catch (ABC). An OFL is an estimate of the catch level above which overfishing is occurring, while the ABC is the maximum level of catch allowed and accounts for scientific uncertainty in the OFL. ACLs are set higher than the annual catch target (ACT). The ACT is a level of catch set to account for management uncertainty. If an ACL is exceeded, accountability measures (AM) are triggered. An AM is a management control intended to prevent ACLs from being exceeded, and to correct or mitigate overages of the ACL if they occur. AMs can be implemented in-season or postseason and may include regulatory changes such as a quota closure, a reduction in the next year’s ACL, implementation of a closed season, modifications to bag limits or trip limits, etc. Results from the scup stock assessment defines the OFL. The Council’s Science and Statistical Committee (SSC) reviews the assessment and associated scientific uncertainty in the OFL estimate (as well as any other scientific uncertainty) and derives the ABC from the OFL using the Council’s ABC Control Rule (SSC, 2015) and risk policy.

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The Council’s risk policy describes the Council’s tolerance for overfishing at a given level of biomass depending on whether the stock’s life history is considered typical or atypical. The risk policy also states that for stocks with spawning stock biomass (SSB) greater than or equal to SSBMSY (spawning stock biomass at maximum sustainable yield), as is the case for scup, then the ABC should be associated with a 40% probability of overfishing. If SSB is less than SSBMSY, then the probability of overfishing should decrease based on the linear relationship shown in Figure 9. The scup ABC is divided into commercial and recreational annual catch limits (ACLs) based on the allocation percentages defined in the FMP (78% to the commercial ACL, 22% to the recreational ACL). Sector-specific annual catch targets (ACTs) are set less than or equal to the ACLs to account for management uncertainty. Both ABCs and ACLs are catch-based limits, meaning they account for both landings and discards. Projected discards are subtracted to determine the commercial quota and recreational harvest limit, which are landings-based limits (Figure 10). The Council’s current system of catch limits (ABCs, ACLs, and ACTs) was first implemented in 2012. This system considers scientific and management uncertainty and is intended to ensure that recreational and commercial catches do not exceed the respective ACLs. The amount of total catch, including landings and dead discards, produced in the recreational and commercial fisheries in each year is contingent on how the combinations of fishery regulations (e.g., minimum fish size, gear requirements, possession limits) interact to achieve the commercial quotas and RHLs (SSC, 2015 and MAFMC, 2020). On this basis requirements at the SG 60, SG 80, and SG 100 are met, specifically that the harvest strategy is responsive to the state of the stock and is designed to achieve stock management objectives reflected in PI 1.1.1 SG80.

Figure 8. Illustration of the tiered approach towards establishing the over fishing limit (OFL), acceptable biological catch (ABC), annual catch limit (ACL), and annual catch target (ACT). (source www.fisheries.noaa.gov).

Figure 9. The Council’s risk policy on overfishing (source MAFMC, 2020).

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Figure 10. Flowchart for determining scup catch and landing limits (source MAFMC, 2020).

b Harvest strategy evaluation

Guide The harvest strategy is The harvest strategy may The performance of the post likely to work based on not have been fully tested harvest strategy has been prior experience or but evidence exists that it is fully evaluated and plausible argument. achieving its objectives. evidence exists to show that it is achieving its objectives including being clearly able to maintain stocks at target levels. Met? Yes Yes No

Rationale

Scup is managed under a FMP, that is supported by an operational framework with scientific research, monitoring, regular stock assessments with internal and external peer review, and stakeholder participation. There are biologically based reference points, a control rule, and demonstrated capacity to take corrective management actions to limit catch and/or effort, as necessary. The recent 2015 benchmark and 2019 update stock assessments demonstrate that the scup resource is healthy, with abundance levels above that required to achieve MSY. Further evidence that the management work well, is that the stock was rebuilt during the 2005-2009 period. The management plan is clearly achieving a stock status consistent with the management objectives. On this basis both SG 60 and SG 80 requirements are met, that is the harvest strategy is both likely

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to work based on prior experience or plausible argument, and while it may not have been fully tested, the evidence exists that it is achieving its objectives. While there is evidence to show that it is achieving its objectives including being clearly able to maintain stocks at target levels, the performance of the harvest strategy has not been fully evaluated and no evidence exists to show that it is achieving its objectives including being clearly able to maintain stocks at target levels. The NEFSC has noted the importance of using a Management Strategy Evaluation (MSE) to advance management decision making but has not engaged in its development (NEFSC, 2020). On this basis SG 100 is not met.

c Harvest strategy monitoring

Guide Monitoring is in place that post is expected to determine whether the harvest strategy is working. Met? Yes

Rationale

The NMFS NEFSC routinely conducts fishery independent seasonal trawl surveys for fishery resources along the east coast of the US. This is complemented with a program of fishery dependent surveys including an at-sea observer program, dockside sampling, log-books, vessel trip reports (VTRs), and dealer reports from shore-side buyers. There are regular stock assessments with internal and external peer reviews conducted by staff at the NEFSC and independent experts (i.e., academia). There is a sound enforcement program to ensure the regulations are being followed both at sea and on land. There is a high degree of stakeholder participation in the management process including commercial and recreational fishermen, environmental NGOs, and academic scientists, and general consensus that the FMP with its operational framework, is working well. Based on this information monitoring is in place that is expected to determine whether the harvest strategy is working; SG 60 is met.

d Harvest strategy review

Guide The harvest strategy is post periodically reviewed and improved as necessary. Met? Yes

Rationale

The harvest strategy is based on the Magnuson Stevens Act (MSA, 2006) as implemented by the Council and Commission through the Summer flounder, scup and black seas bass FMP, with its periodic updates in amendments and frameworks that respond to changing conditions (www.mafmc.org/sf-s-bsb/). The fishery dependent and independent monitoring provides real time information used to evaluate the effectiveness of the harvest strategy. Based on this information the harvest strategy is periodically reviewed and improved as necessary; SG 100 is met.

e Shark finning

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Guide It is likely that shark It is highly likely that shark There is a high degree of post finning is not taking place. finning is not taking place. certainty that shark finning is not taking place. Met? NA NA NA

Rationale

Sharks are not a target species and therefore this scoring issue is not scored.

f Review of alternative measures

Guide There has been a review There is a regular review of There is a biennial review post of the potential the potential effectiveness of the potential effectiveness and and practicality of effectiveness and practicality of alternative alternative measures to practicality of alternative measures to minimise minimise UoA-related measures to minimise UoA-related mortality of mortality of unwanted catch UoA-related mortality of unwanted catch of the of the target stock and they unwanted catch of the target stock. are implemented as target stock, and they are appropriate. implemented, as appropriate. Met? Yes No Not scored

Rationale

In response to critically low biomass levels of scup in the Mid-Atlantic region, two scup gear restricted areas (GRAs) were first implemented in 2000 with the goal of reducing scup discards in small-mesh fisheries and rebuilding the population. The GRA boundaries have been modified multiple times since their initial implementation. The current boundaries are shown in Figure 4. Trawl vessels may not fish for or possess longfin squid, black sea bass, or silver hake in the Northern GRA from November 1 – December 31 and in the Southern GRA from January 1 – March 15 unless they use mesh which is at least 5 inches in diameter. The GRAs are thought to have contributed to the recovery of the scup population in the mid- to late-2000s (MAFMC 2020). Based on this information SG 60 is met. As part of the scup stock assessment process, NEFSC routinely evaluates, and analyses discards in the scup trawl fishery based on observer data and recommends research to minimise UoA-related mortality of unwanted scup catch (NEFSC 2020). Unfortunately, there is no evidence indicating that the recommended research is implemented; discard information is used in subsequent stock assessments as losses to the stock. In 2011, the NMFS published the National Bycatch Report, and updated versions of this report are released on a biennial basis (Beneka et al., 2019). The reports provide a compilation of bycatch information as well as national and regional overviews to help monitor bycatch trends and set fishery monitoring priorities. They do not provide a basis for evaluating measures to mitigate bycatch in US fisheries, including the scup small mesh otter trawl fishery. Based on this information there is not a regular review of the potential effectiveness and practicality of alternative measures to minimise UoA-related mortality of unwanted catch of the target stock (scup) and measures are not implemented as appropriate; SG 80 is not met, and SG 100 is not scored.

References

SSC, 2015; MAFMC, 2020; MSA 2006, NEFSC, 2020; Beneka et al. 2019

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https://www.fisheries.noaa.gov/southeast/sustainable-fisheries/frequent-questions-annual-catch-limit- monitoring

https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5f32f1efc700203009b16c9c/159717426 5852/06_Scup_Council_Discard_2020.pdf

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range 60-79

Information gap indicator Information on discard mitigation research and evaluation.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score 75

Condition number (if relevant)

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PI 1.2.2 There are well defined and effective harvest control rules (HCRs) in place

Scoring Issue SG 60 SG 80 SG 100

a HCRs design and application

Guide Generally understood HCRs Well defined HCRs are in The HCRs are expected to post are in place or available that place that ensure that the keep the stock fluctuating are expected to reduce the exploitation rate is reduced at or above a target level exploitation rate as the point as the PRI is approached, are consistent with MSY, or of recruitment impairment expected to keep the stock another more appropriate (PRI) is approached. fluctuating around a target level taking into account level consistent with (or the ecological role of the above) MSY, or for key LTL stock, most of the time. species a level consistent with ecosystem needs. Met? Yes Yes Yes

Rationale

Scup fisheries are managed using a tiered approach designed to prevent overfishing a stock by establishing the overfishing limit (OFL), acceptable biological catch (ABC), annual catch limit (ACL), and annual catch target (ACT) (see Figure 8). An annual catch limit (ACL) is a level of catch intended to ensure overfishing does not occur. ACLs are set less than or equal to the overfishing limit (OFL) and acceptable biological catch (ABC). An OFL is an estimate of the catch level above which overfishing is occurring, while the ABC is the maximum level of catch allowed and accounts for scientific uncertainty in the OFL. ACLs are set higher than the annual catch target (ACT). The ACT is a level of catch set to account for management uncertainty. If an ACL is exceeded, accountability measures (AM) are triggered. An AM is a management control intended to prevent ACLs from being exceeded, and to correct or mitigate overages of the ACL if they occur. AMs can be implemented in-season or postseason and may include regulatory changes such as a quota closure, a reduction in the next year’s ACL, implementation of a closed season, modifications to bag limits or trip limits, etc. (https://www.mafmc.org/s/AMs-description_SF_scup- BSB_Dec2020.pdf). On this basis generally understood HCRs are in place or available that are expected to reduce the exploitation rate as the point of recruitment impairment (PRI) is approached; SG 60 is met. Results from the scup stock assessment defines the OFL. The Council’s SSC reviews the assessment and associated scientific uncertainty in the OFL estimate (as well as any other scientific uncertainty) and derives the ABC from the OFL using the Council’s ABC Control Rule (SSC, 2015) and risk policy. The Council has modified the risk policy and ABC control rule since their implementation in 2011 to address technical issues and provide for some additional flexibility under specified circumstances. Under the current risk policy, the Council’s acceptable probability of overfishing (P*) for a given stock is conditional on current stock biomass (B) relative to the biomass at maximum sustainable yield (BMSY) and the life history of the species (see Figure 9). The P* is 0 percent (i.e., no fishing) if the ratio of B/BMSY is less than or equal to a stock replenishment threshold of 0.10 to ensure the stock does not reach low levels from which it cannot recover. The probability of overfishing increases linearly for stocks defined as “typical” as the ratio of B/BMSY increases, until the inflection point of B/BMSY = 1.0 is reached (i.e., current stock biomass greater than BMSY). A maximum 40 percent probability of overfishing (P* = 0.4) is utilized for ratios equal to or greater than 1.0. The same approach applies to those stocks defined as “atypical”, currently applied to ocean quahog, except the maximum probability of overfishing when the B/BMSY ratio is equal to or greater than 1.0 is 35 percent (P* = 0.35). The Council’s SSC determines whether a stock is typical or atypical each

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time an ABC is recommended and whether the atypical life history has been fully addressed in the stock assessment. In addition, for managed stocks that are under a rebuilding plan, the upper limit on the 20 probability of exceeding FREBUILD would be 50 percent unless modified to a lower value (i.e., a higher probability, 75 percent for example, of not exceeding FREBUILD) through a rebuilding plan amendment. If the SSC recommends a more restrictive ABC, based on the application of the Council’s risk policy and ABC control rule, than the ABC derived from the use of the Council specified FREBUILD, the SSC recommends the lower of the ABC values. Also, if no OFL is available and no OFL proxy is provided by the SSC when making an ABC recommendation, a cap on the allowable increases to the ABC is established. The ABC may not be increased until and OFL has been identified. This action does not modify these components to the risk policy. Based on this information a well-defined HCR is in place that ensures that the exploitation rate is reduced as the PRI is approached, and is expected to keep the stock fluctuating around a target level consistent with (or above) MSY, SG 80 is met. The current ABC control rule utilizes a multi-level approach in setting an ABC that is based on the overall level of scientific uncertainty associated with each species stock assessment. This approach identifies four types of overall stock assessment uncertainty defined by characteristics of the stock assessment and other relevant information. The SSC determines which control rule type the assessment for a particular stock belongs when setting ABC specifications. Then the processes described within each type are used to calculate ABC. The SSC's assessment of how uncertainty is handled by assessments affects the final ABC determination in terms of how much of a buffer is used to lower the ABC from the point estimate of the OFL. In summary, the amount of scientific uncertainty that the SSC assigns to any OFL estimate also impacts the amount of the buffer and resulting ABC. The more uncertainty an OFL is deemed to have, the greater the buffer. The SSC can use the amount of uncertainty in the OFL as produced by a stock assessment. However, to date the SSC has always expanded the produced uncertainty measures (CV) because not all uncertainties are fully captured in the assessment calculations. This expansion increases the buffers and decreases ABCs. Thus a buffer can be larger (and ABC smaller) either because the Council wants a lower risk of overfishing (P*) and/or because the SSC determines that to actually achieve a given risk a higher degree of scientific uncertainty must be assumed and catch must be lowered. On this basis the HCR is expected to keep the stock fluctuating at or above a target level consistent with MSY; SG 100 is met. Note evidence that the existing management process has been working, is that the stock is at the SG80 level for PI 1.1.1, that is, it is fluctuating at a level consistent with or above MSY. b HCRs robustness to uncertainty

Guide The HCRs are likely to be The HCRs take account of a post robust to the main wide range of uncertainties uncertainties. including the ecological role of the stock, and there is evidence that the HCRs are robust to the main uncertainties. Met? Yes No

Rationale

As noted above in SI (a) the scup HCR is considered to be robust to the main uncertainties. Uncertainties in management (i.e. landings) and scientific (i.e. model error) are identified, quantified and must be accounted for in setting ACLs. Given all the checks and balances in the management process, the HCR is likely to be robust to the main uncertainties. However, MSE has not been used, to date, to evaluate harvest strategies. The HCR does not take account for a wide range of uncertainties including the ecological role of the stock, and there is no evidence that the HCRs are robust to the main uncertainties, other than performance to date. Therefore, the scup fishery meets the SG80 requirements, that is, the HCRs are likely to be robust to the main uncertainties, but not

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the SG 100 requirements, that is, the HCRs take account of a wide range of uncertainties including the ecological role of the stock, and there is evidence that the HCRs are robust to the main uncertainties. c HCRs evaluation

Guide There is some evidence that Available evidence indicates Evidence clearly shows that post tools used or available to that the tools in use are the tools in use are implement HCRs are appropriate and effective in effective in achieving the appropriate and effective in achieving the exploitation exploitation levels required controlling exploitation. levels required under the under the HCRs. HCRs. Met? Yes Yes Yes

Rationale

Evidence that the existing tools in use are effective in achieving the exploitation levels required under the HCRs, is that the stock is at the SG80 level for PI 1.1.1, that is, it is fluctuating at a level consistent with or above MSY. The results of the 2015 benchmark assessment and 2019 update assessment indicated that scup were not overfished or experiencing overfishing (NOAA 2015, . In 2018 (terminal year of the 2019 assessment), F was estimated at 0.158, approximately 73% of FMSY and there is a 90% probability that the fishing mortality rate in 2018 was between 0.123 and 0.195. Spawning stock biomass in 2018 was estimated to be about two times the target (SSB40%) and there is a 90% chance that SSB is between 159,746 and 221,281 mt; PRI is taken to be the SSB threshold (50% SSBMSY) of 47,010 mt. The main reason for the increase in SSB owes to the higher-than-average recruitment of age 0 fish to the population that was observed between 1999 and 2016. Note a scup rebuilding plan was instated from 2005 to 2009, and the fishery was declared rebuilt in 2009. Based on the information evidence clearly shows that the tools in use are effective in achieving the exploitation levels required under the HCRs; SG 60, SG 80, and SG 100 are met.

References

SSC 2015, MAFMC 2020, NOAA 2015, NEFSC 2020 https://www.mafmc.org/s/AMs-description_SF_scup-BSB_Dec2020.pdf

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information is sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score 95

Condition number (if relevant)

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PI 1.2.3 Relevant information is collected to support the harvest strategy

Scoring Issue SG 60 SG 80 SG 100

a Range of information

Guide Some relevant information Sufficient relevant A comprehensive range of post related to stock structure, information related to stock information (on stock stock productivity and fleet structure, stock productivity, structure, stock productivity, composition is available to fleet composition and other fleet composition, stock support the harvest strategy. data are available to support abundance, UoA removals the harvest strategy. and other information such as environmental information), including some that may not be directly related to the current harvest strategy, is available. Met? Yes Yes Yes

Rationale

There is a comprehensive range of information available on stock structure, stock productivity, fleet composition/characteristics, stock abundance, UoA removals and other information such as environmental information, including some that may not be directly related to the current harvest strategy; much of this information is routinely used in the scup stock assessments. The NEFSC has had a program of research studies over the last 50 years directed at understanding life history characteristics, population biology and dynamics, habitat requirements, and ecosystem interactions, as well as providing stock productivity and stock status determinations based on fishery dependent and independent information. The scientific studies and surveys also include the collection of extensive data on environmental conditions, and such data is now being used to study the impacts of climate change on northeast fisheries (NOAA Fisheries, 2021). Fishery information including the number and types of vessels in the fishing fleets, as well as the temporal and spatial patterns of the fishery by gear type are well documented. Most vessels involved in this fishery are required to have operational VMS on board. The NEFSC observer program provides about 20% coverage by sea days of the small mesh bottom trawl fishery in the New England and mid-Atlantic areas. Dockside monitoring includes weigh out information on landings and biological sampling. These data are corroborated with dealer reports and vessel trip reports (VTRs). Based on this information there is a comprehensive range of available information (on stock structure, stock productivity, fleet composition, stock abundance, UoA removals and other information such as environmental information), including some that may not be directly related to the current harvest strategy; SG 60, SG 80 and SG 100 are met. b Monitoring

Guide Stock abundance and UoA Stock abundance and UoA All information required by post removals are monitored and removals are regularly the harvest control rule is at least one indicator is monitored at a level of monitored with high available and monitored accuracy and coverage frequency and a high degree

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with sufficient frequency to consistent with the harvest of certainty, and there is a support the harvest control control rule, and one or good understanding of rule. more indicators are available inherent uncertainties in the and monitored with information [data] and the sufficient frequency to robustness of assessment support the harvest control and management to this rule. uncertainty. Met? Yes Yes No

Rationale

Stock abundance and UoA removals are regularly monitored at a level of accuracy and coverage consistent with the harvest control rule, and one or more indicators are available and monitored with sufficient frequency to support the harvest control rule. As noted above in SI (a), the NEFSC has had a program of research studies over the last 50 years directed at understanding life history characteristics, population biology and dynamics, habitat requirements, and ecosystem interactions, as well as providing stock productivity and stock status determinations based on fishery dependent and independent information. The scientific studies and surveys also include the collection of extensive data on environmental conditions, and such data is now being used to study the impacts of climate change on northeast fisheries (NOAA Fisheries, 2021). Fishery information including the number and types of vessels in the fishing fleets, as well as the temporal and spatial patterns of the fishery by gear type are well documented. Most vessels involved in this fishery are required to have operational VMS on board. The NEFSC observer program provides about 20% coverage by sea days of the small mesh bottom trawl fishery in the New England and mid-Atlantic areas. Dockside monitoring includes weighout information on landings and biological sampling. These data are corroborated with dealer reports and vessel trip reports (VTRs). On this basis requirements at the SG 60 and SG 80 levels are met. Despite the extensive amount of information collected there is not a good understanding of inherent the uncertainties in the information [data] and the robustness of assessment and management to this uncertainty. The importance of using MSE to assess the utility of HCRs and the “value” of data and associated data collection programs to reduce uncertainty has been discussed by the SSC and Council, but its current application has been limited in scope. On this basis requirements at the SG 100 level are not met. c Comprehensiveness of information

Guide There is good information on post all other fishery removals from the stock. Met? Yes

Rationale

Federal management agencies (Councils, Commissions, and NOAA Fisheries) are responsible for monitoring all fishing removals (mortality) and bycatch (discards) of FMP species in both the commercial and recreational fleets. Fishery landings (number and weight) are also monitored at the dockside point of offloading and information must also be reported to NOAA Fisheries in fishery monitoring documents completed by the captain for each trip (VTRs). The other trawl fisheries that remove scup are required to have observer coverage, so the levels of discarding are also well documented in these fisheries. All this information is used regularly by NEFSC scientists to conduct stock assessments for scup; on this basis the SG 80 requirements.

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References

NOAA Fisheries, 2021

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information is sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 1.2.4 There is an adequate assessment of the stock status

Scoring Issue SG 60 SG 80 SG 100

a Appropriateness of assessment to stock under consideration

Guide The assessment is The assessment takes into post appropriate for the stock account the major features and for the harvest control relevant to the biology of the rule. species and the nature of the UoA. Met? Yes Yes

Rationale

The assessment model for scup is a forward projecting statistical catch-at-age model (ASAP SCAA; Legault and Restrepo 1998; NFT 2013) incorporating a broad range of fishery and survey data (NEFSC 2020). The model assumes an instantaneous natural mortality rate (M) = 0.2. The fishery catch is modeled as four fleets: commercial landings, recreational landings, commercial discards and recreational discards. Indices of stock abundance from NEFSC winter, spring, and fall, Massachusetts DMF spring and fall, Rhode Island DFW spring and fall, University of Rhode Island Graduate School of Oceanography (URIGSO), RI Industry Cooperative trap, Connecticut DEEP spring and fall, New York DEC, New Jersey DFW, Virginia Institute of Marine Science (VIMS) Chesapeake Bay, VIMS juvenile fish trawl, and NEAMAP spring and fall trawl surveys were used in the 2019 assessment update. The NEFSC has had a program of research studies over the last 50 years directed at understanding life history characteristics, population biology and dynamics, habitat requirements, and ecosystem interactions. The scientific studies and surveys also include the collection of extensive data on environmental conditions, and such data is now being used to study the impacts of climate change on northeast fisheries (NOAA Fisheries, 2021). There is evidence of a decreasing trend in mean weights at age and maturity, perhaps indicative of density dependent effects. There is not a major retrospective pattern evident in the scup assessment model. The ‘historical’ retrospective analysis (comparison between assessments) indicates that the general trends in spawning stock biomass, recruitment, and fishing mortality have been consistent for the last decade (Figure 11). Reference points were calculated using the non-parametric yield and SSB per recruit long-term projection approach. The cumulative distribution function of the 1984-2018 recruitment (corresponding to the period of input fishery catches-at-age) was re-sampled to provide future recruitment estimates for the projections used to estimate the biomass reference point.

The existing biological reference points for scup are F40% as the proxy for FMSY, and the corresponding SSB40% as the proxy for the SSBMSY biomass target. The F40% proxy for FMSY = 0.215 and the proxy estimate for SSBMSY = SSB40% = 94,020 mt = 207. 279 million lbs. The SSB threshold proxy is estimated as ½ SSBMSY = ½ SSB40% = 47,010 mt = 103.639 million lbs; and the proxy estimate for MSY = MSY40% = 12,927mt = 28.499 million lbs. In July 2018, the Marine Recreational Information Program (MRIP) replaced the existing estimates of recreational catch (‘Old’ MRIP) with a calibrated 1981-2017 time series (‘New’ MRIP) that corresponds to new survey methods that were fully implemented in 2018. For comparison with the existing estimates noted above, the ‘New’ MRIP estimate of 2017 recreational landings is 6,143 mt = 13.543 million lb, 2.5 times the ‘Old’ estimate. The ‘New’ MRIP estimate of 2017 recreational discards is 1,079 mt = 2.372 million lb, 2.7 times the ‘Old’ estimate. The ‘New’ MRIP recreational catch estimates increased the 1981-2017 total catch by an average of 18% (from 9,575 mt =

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21.109 million lb to 11,310 mt = 24.934 million lb), ranging from +1% in 1986 to +51% in 2000. The increase in 2017 was +30%, from 14,608 mt = 32.205 million lb to 18,961 mt = 41.802 million lb. The 2019 updated assessment model includes the ‘New’ MRIP estimates of recreational landings and discards. The review of the 2019 Operational Assessment by the Council’s Scup Working Group and SSC concluded that the assessment represents best available scientific information (MAFMC 2020). Based on this determination and available information the assessment is both appropriate for the stock and for the harvest control rule, and takes into account the major features relevant to the biology of the species and the nature of the UoA; SG 80 and SG 100 are met.

Figure 11. Historical retrospective of the 2008 (Data Poor Stocks; NEFSC 2009), 2015 (SAW 60; NEFSC 2015), 2017 (MAFMC SSC Update; unpublished) and 2019 (Operational Assessment) stock assessments of scup. The heavy solid lines are the 2019 Operational Assessment estimates that include the ‘New’ MRIP recreational catch (source NEFSC 2020).

b Assessment approach

Guide The assessment estimates The assessment estimates post stock status relative to stock status relative to generic reference points reference points that are appropriate to the species appropriate to the stock and category. can be estimated. Met? Yes Yes

Rationale

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The 2019 scup assessment estimates stock status relative to both generic reference points appropriate to the species category and reference points that are appropriate to the stock and can be estimated. In particular, as was described above in the rationale for SI (a), existing biological reference points for scup are F40% as the proxy for FMSY, and the corresponding SSB40% as the proxy for the SSBMSY biomass target. The F40% proxy for FMSY = 0.215 and the proxy estimate for SSBMSY = SSB40% = 94,020 mt = 207. 279 million lbs. The SSB threshold proxy is estimated as ½ SSBMSY = ½ SSB40% = 47,010 mt = 103.639 million lbs; and the proxy estimate for MSY = MSY40% = 12,927mt = 28.499 million lbs. Based on this information the assessment estimates stock status relative to generic reference points appropriate to the species category and reference points appropriate to the stock; SG 60 and SG 80 are met. c Uncertainty in the assessment

Guide The assessment identifies The assessment takes The assessment takes into post major sources of uncertainty into account. account uncertainty and is uncertainty. evaluating stock status relative to reference points in a probabilistic way. Met? Yes Yes Yes

Rationale

As noted in PI1.1.1, the current stock abundance of scup is estimated in a probabilistic way, and is compared to point estimates of the reference points. The stock assessment process considers uncertainty in all fishery dependent and independent data sources, and produces estimates of stock biomass and fishing mortality that also include uncertainty expressed as probability distributions for both biomass and fishing mortality in the terminal year. Therefore, the scup fishery meets the SG 60, 80 and 100 level requirements, that is the scup assessment takes into account uncertainty and is evaluating stock status relative to reference points in a probabilistic way. d Evaluation of assessment

Guide The assessment has been post tested and shown to be robust. Alternative hypotheses and assessment approaches have been rigorously explored. Met? Yes

Rationale

As the 2019 stock assessment is categorized as an Operational Assessment or updataed assessment, testing to evaluate robustness was conducted during the benchmark assessment in 2015 (NEFSC, 2015). Testing associated with that assessment follows. The biological inputs to the scup stock assessment are based on well-founded assumptions (e.g., for natural and discard mortality) and precisely estimated parameters (e.g., growth, age, maturity, and mean weights). Further, the research survey index CVs used in model calibration were increased by 50-100% (depending on assessment model fit diagnostics) to account for process error. Twenty-five alternative configurations of the assessment base model were examined to evaluate robustness, including starting years, impact of NEFSC calibration factors, natural mortality, fishery selectivity, and time-varying survey catchability. This broad set of configurations produced a range about +/- 40% in the estimate of terminal year

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SSB of about 183,000 mt (= 403 million lbs). The internal retrospective average error (for the terminal 7-years) of the assessment is low, at less than 10% for both SSB and F. The analytically derived CV for the 2014 SSB is 11%, the CV for the 2014 F is 15%, and the CV for the 2014 age 1 and older stock size total number is 15%. Given these properties of the 2015 scup stock assessment, it was concluded that an approximate doubling of the analytically derived 2016-2018 OFL CVs to 30% is a reasonable and sufficient adjustment to account for additional uncertainty in the assessment such as the magnitude of domed fishery selection, the magnitude of commercial fishery discards and recreational catch during the early part of the assessment model time series, and potential error in the ageing process. In summary, alternative models are considered, and the most appropriate model is selected for the assessment. Adjustments are made as necessary and appropriate to correct any bias, retrospective trends, or any other uncertainty that is detected. Based on the information, the assessment has been tested and shown to be robust, and alternative hypotheses and assessment approaches have been rigorously explored; SG 100 is met. e Peer review of assessment

Guide The assessment of stock The assessment has been post status is subject to peer internally and externally review. peer reviewed. Met? Yes Yes

Rationale

The NEFSC conducts internal reviews of all stock assessment updates, and external peer review by a panel of experts of all benchmark or full assessments. As the 2019 stock assessment is categorized as an Operational Assessment or updated assessment, the structure of the assessment model cannot change from the 2015 benchmark assessment. The only allowable changes are updates to input data time series (e.g., catch). Therefore, the 2015 benchmark assessment was subject to an external peer and the 2019 Operational Assessment was subject to internal peer review. On this basis the assessment is considered to be internally and externally peer reviewed; SG 80 and SG 100 is met. References

NEFSC, 2015

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information is sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score 100

Condition number (if relevant)

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8.3 Principle 2

8.3.1 Principle 2 background

Bottom otter trawls are the dominant gear used to catch Scup, and based on VTR data, accounted for 97% of the total commercial landings of this fishery in 2018 (MAFMC 2020). Otter trawls are also the main gear used extensively in multiple other fisheries operating in the New England and Mid-Atlantic regions.

Trawl mesh size is categorized as being either (large mesh >= 5 inches or small mesh < 5 inches) in the annual Standardized Bycatch Reporting Methodology (SBRM) reports. Mesh size in the Scup fishery falls into both size categories because mesh size varies depending on location and conditions. However, mesh size restrictions are in place. The minimum mesh size for bottom trawls used in the Scup fishery is 5 inches applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net1.

Otter trawls are typically cone-shaped nets, with large rectangular doors attached to two cables to keep the net open while deployed. They have a footrope at the trawl mouth with steel weights (bobbins) to keep the trawl on the seabed. Some are equipped with rubber discs or steel bobbins (rockhoppers) that ride over structures such as boulders. The codend is the constricted posterior netting that retains the catch. See diagram below for a visualization of a typical bottom otter trawl and its main components (Figure 12).

Tow speeds and duration of bottom trawl deployments vary by vessel, but Scup trawls are usually towed for 0.25 to 2 hours at 2.5 to 3.5 knots (M. Lapp, Seafreeze Ltd., per comm). Currently, only the summer flounder bottom trawl fishery must comply with gear requirements in the sea turtle regulations (50 CFR 223.206).

Figure 12. Diagram of a bottom otter trawl.

1 NOAA Species Directory Scup (Scup | NOAA Fisheries).

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8.3.1.1 Overview of Non-target Catch

All species that are affected by the fishery and that are not part of the Unit of Certification are considered under Principle 2. This includes species that are retained for sale or personal use (assessed under Performance Indicator 2.1), bycatch species that are discarded (Performance Indicator 2.2), and species that are considered endangered, threatened, or protected by the government in question or are listed by the Convention of International Trade of Endangered Species (CITES) (Performance Indicator 2.3). This section contains an evaluation of the total impact of the fishery on all components in P2 and includes both observed and unobserved fishing mortality. Unobserved mortality may occur from illegal, unregulated, or unreported (IUU) fishing, biota that are injured and subsequently die as a result of encountering fishing gear, ghost fishing, waste, or biota that are stressed and die as a result of attempting to avoid being caught by fishing gear. This section also considers impacts on marine habitats (Performance Indicator 2.4) and the ecosystem more broadly (Performance Indicator 2.5).

8.3.1.2 Overview of Species Classification

The analysis for P2 is made considering that the UoA and the UoC (to be determined) are the same and comprised of the US Northeast and Mid-Atlantic bottom trawl fleets with federal permits to land Scup.

Primary species

For the purposes of a MSC evaluation, primary species are those in the catch, and within the scope of the MSC program (fishes or shellfish), and not defined by the client as the target – which is evaluated under Principle 1. Primary species will usually be species of commercial value to either the UoA or fisheries outside the UoA, with management tools controlling exploitation as well as known reference points in place. In addition, the institution or arrangement that manages the species (or its local stock) will usually have some overlap in a jurisdiction with the UoA fishery.

Secondary species

Species associated with the target that is harvested under some management regime, where measures are in place intended to achieve management, and these are reflected in either limit or target reference points are evaluated as Primary species within Principle 2. In contrast, secondary species include fish and shellfish species that are not managed according to reference points. Secondary species are also considered to be all species that are out of the scope of the standard (birds/ mammals/ reptiles/ amphibians) and that are not ETP species. These types of species could in some cases be landed intentionally to be used either as bait or as food for the crew or for other subsistence uses but may also in some cases represent incidental catches that are undesired but somewhat unavoidable in the fishery. Given the often-unmanaged status of these species, there are unlikely to be reference points for biomass or fishing mortality in place, as well as a general lack of data availability.

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Main species

For Primary and Secondary species, species may be considered “Main” based on either resilience/vulnerability and catch volume. Species that are not “Main” are Minor. Main and Minor species must meet different Performance Indicators (PIs) in P2.

Resilience/vulnerability: If the species is considered "less resilient" (as defined in SA3.4.2.2) and it is ≥ 2% of the catch, then it is considered Main, otherwise it is considered Minor.

Catch volume: If the species is not considered "less resilient" and it is ≥ 5% of the catch, then it is considered Main, otherwise, it is considered Minor.

Out of scope species (amphibians, reptiles, birds, mammals) impacted by the UoA that are not classified as ETP shall be considered ‘main (SA3.7.1.2).

8.3.1.3 Classification of Non-Target species

Fleet Information

The New England and Mid Atlantic bottom otter trawl fleets target numerous species, and vessels may hold several commercial fishing permit types and fish under multiple permits on a single trip. Vessels specify up to five target species on a trip, but they are not restricted to directed fishing or landing of those designated species. This renders an evaluation of catch composition of a discrete ‘Scup fishery’ impracticable for MSC purposes, in particular due to the MSC requirement that states: “The UoA and UoC shall not be defined based on the species caught as determined at the time of fishing” (FCP v2.1), meaning, the fishery should not be evaluated on the basis of trips or hauls that land Scup alone.

Given that bottom trawls are used to target multiple species, and fishing trips can be conducted under multiple permit types, our Northeast Fisheries Observer Program (NEFOP) data draw was filtered by selecting trips with Scup landings >= 1000 lbs., or if <= 1000 lbs., if at least 50% of the total catch was Scup (see Data sources below). This allowed for a broad representation of typical Scup trips covering both smaller vessel inshore trips, and large vessel offshore trips using bottom otter trawls (large and small mesh) operating in the New England and Mid-Atlantic regions. Note: Scup are often landed incidentally with other commercial species.

Data Sources

The assessment team requested a custom data draw of observer data from NOAA Fisheries, Northeast Fisheries Science Center to reflect the UoA scope between 2015 and 20202 referred to as the Northeast

2 Northeast Fisheries Observer Program (NEFOP) custom data draw. File compiled on: 05/20/2021. Data Request: 21-008

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Fisheries Observer Program (NEFOP) data for the remainder of this section. This observer data provides detailed information on the catch composition of the bottom trawl vessels landing Scup. These data are not, however, extrapolated to estimate fleetwide catch composition. It should be viewed as a representation of catch composition in the UoA.

NEFOP catch data are reported in pounds (lbs.) and grouped by year, disposition, and trawl type. Disposition is the code used to separate “retained” from “discarded” catch. Trawl types fell into 3 categories, 1) bottom otter trawl, 2) large mesh belly panel otter trawl, and 3) Ruhle bottom otter trawls. Examination of the data revealed that 99% of the total landings were caught with bottom otter trawls. Catches were not selected for mesh size and include all mesh sizes (both large >= 5 inches and small < 5 inches). The entire NEFOP dataset is provided in Appendix 8.8, Table 44.

In determining non-target catch bycatch species composition, the team decided to use NEFOP data over the Annual Standardized Bycatch Reporting Methodology (SBRM) reports because the latter only accounts for federally managed species, whereas NEFOP data provides observer data on all species caught by the UoA, i.e., target and non-target, managed and non-managed, and includes observer data on any gear interactions with, or takes of ETP species.

While NEFOP data was considered the best option to classify catch composition in the UoA, SBRM reports were considered the better option for quantifying bycatch of federally managed species that were classified as Primary-Main. See Section 7.3.1.4. (Observer coverage/Information sources) for considerations in using NEFOP observer data to classify non-target species.

Classification using NEFOP data

Species observed in the NEFOP data represent what is typically caught by the UoA. In determining catch composition, catch weights in the data set were used as proxy values for catches made by the UoA. From this, it was possible to derive proxy values for estimates of percent catch composition in the UoA. Table 12, includes a shortened list of all species (except ETP species) observed in the NEFOP data from 2015 to 2020; where catch weights > 0.5% of the total catch3; the table includes the common and scientific name of each species, catch weight of each species (lbs.), % of total catch, % of catch discarded for each species caught, and MSC classification used. See in Appendix 8.8, Table 44 to view the entire NEFOP dataset, which includes all species in the NEFOP data set other than ETP species, which are covered separately in Section 7.3.1.8.

In using the NEFOP data to classify species caught by the UoA, those classified as Primary-main species include Spiny Dogfish (Squalus acanthias), Little Skate (Raja eriancea), Winter Skate (Raja ocellata), and Summer Flounder or Fluke (Paralichthys dentatus). Primary–main species combined amounted to 4,427,944 lbs. or 27.0% of the total catch weight. Species classified as Primary minor amounted to

3 Total catch refers to the total catch weight of all species (excluding ETP species) that were recorded by observers in the NEFOP data set between 2015 and 2020 (source NEFOP data).

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4,401,130 lbs. or 26.8% of the total catch weight. None of the species in the data were classified as Secondary main. Species classified as Secondary minor amounted to 1,220,362 lbs. or 7.4% of the total catch weight. The total catch weight of all species in the NEFOP data set (excluding ETP species) amounted to 16,519,332 lbs. The target species (Scup) amounted to 6,370,909 lbs. or 38.6% of the total catch weight in the NEFOP data. All species classified as Main that require individual scoring, i.e., Primary-Main and ETP species have been summarized below in (Table 13). All species that accounted for 2-5% of the total catch were considered in light of their resiliency (MSC SA3.4.2.2a). This did not result in any changes to the above classifications.

Table 12. Summary of prominent species observed in Scup otter trawls, where catch weights are > 0.5 % of the total catch weight (2015 - 2020, NEFOP data). Total Catch Catch weight Common name Scientific name catch discarded MSC Classification (Lbs.) (%) (%) Scup Stenotomus chrysops 6,370,909 38.6 23.1 Target Dogfish, Spiny Squalus acanthias 1,430,063 8.7 97.3 Primary- main Skate, Little Raja eriancea 1,055,124 6.4 98.1 Primary- main Skate, Winter Raja ocellata 998,133 6.0 75.1 Primary- main Flounder, Summer Paralichthys dentatus 944,624 5.7 15.8 Primary- main Sea Bass, Black Centropristis striata 746,294 4.5 36.4 Primary-minor Squid, Atl Long-Fin Loligo pealei 740,906 4.5 5.9 Primary-minor Hake, Silver Merluccius bilinearis 613,993 3.7 33.0 Primary-minor Sea Robin, Northern Prionotus carolinus 523,174 3.2 99.8 Secondary-minor Monkfish Lophius americanus 513,068 3.1 63.9 Primary-minor Butterfish Peprilus triacanthus 421,661 2.6 72.1 Primary-minor Skate, Nk Rajidae 218,028 1.3 46.6 Primary-minor Dogfish, Smooth Mustelus canis 214,569 1.3 77.3 Primary-minor Hake, Red Urophycis chuss 170,328 1.0 85.4 Primary-minor Skate, Clearnose Raja eglanteria 145,587 0.9 98.1 Primary-minor Hake, Spotted Urophycis regia 141,205 0.9 92.8 Secondary-minor Sea Robin, Striped Prionotus evolans 138,704 0.8 97.7 Secondary-minor Skate, Barndoor Raja laevis 126,900 0.8 99.8 Primary-minor Fish, Nk Osteichthyes 115,408 0.7 93.6 unknown Squid, Short-Fin Illex illecebrosus 102,882 0.6 80.2 Primary-minor Flounder, Fourspot Paralichthys oblongus 101,885 0.6 99.8 Secondary-minor * * See Appendix 8.8, Table 44 for the full list of species observed in NEFOP data. Note: list does not include ETP species.

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Table 13. Main species with individual scoring. Component Scoring elements Data-deficient

Primary Dogfish, Spiny Not Data-deficient

Primary Skate, Little Not Data-deficient

Primary Skate, Winter (Big) Not Data-deficient

Primary Flounder, Summer (Fluke) Not Data-deficient

ETP: marine mammals Dolphin, Common Not Data-deficient

ETP: marine mammals Dolphin, Risso's Not Data-deficient

ETP: marine mammals Seal, Gray Not Data-deficient

ETP: sea turtles Turtle, Loggerhead Not Data-deficient

ETP: fish Sturgeon, Atlantic Not Data-deficient Cory's shearwater Greater shearwater ETP: birds Not Data-deficient Northern gannet Herring gulls

8.3.1.4 Observer Program/Information sources

Observer coverage

Observer coverage was estimated by calculating the amount of Scup catch reported in the NEFOP data in relation to total annual catches of Scup caught in bottom otter trawls reported by NOAA in the Discard Estimation, Precision, and Sample Size Analyses memorandums (Wigley et al 2018, Wigley & Tholke 2019, Wigley & Tholke 2020). In this, NEFOP data was calibrated to fit the reporting time frame for each SBRM analysis that run from July-June for each consecutive year preceding the report. See (Table 14) for calculations on the percent observer coverage in the NEFOP data and the time frames covering these calculations. On average the NEFOP observers were able to cover 8.2% of all Scup landed by bottom otter trawls (large and small mesh) in the NE and Mid-Atlantic regions between July 2016 and June 2019.

The SBRM 3-year Review Report-2021 (NOAA 2021) estimated the percentage of observed landings for 36 fleets using the July-June year in the 2018, 2019, and 2020 SBRM analysis reports. These were calculated for all fleets by dividing the kept annual landing weight in the observer data set by the kept annual weight of landings in the Vessel Trip Report (VTR) data set. Overall coverage of all fleets averaged 4.3% in 2018, 4.9% in 2019, and 4.3 in 2020. Combined coverage of the New England and Mid Atlantic small and large mesh otter trawl fleets were higher at 12.0% in 2018, 34% in 2019, and 16% in 2020 on average. The report concluded that “The majority of fleets have less than 10% coverage of trips, sea days,

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 61 of 335 SCS Global Services Report or landings”. The bar chart taken from the NOAA 2021 report showing the respective percentage of observed VTR landings for all 36 fleets is included below (Figure 13).

The NEFOP observer coverage of the Scup fleet used for this assessment is higher than the overall coverage of the 36 fleets mentioned above, but lower than the average coverage seen for otter trawl fleets in the SBRM report (NOAA 2021). This offers some degree of confidence towards there being adequate observer coverage. However, in addition to this there are similar descriptions of catch composition in the Scup fishery that closely match our NEFOP data set. The Framework Adjustment 12 To the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan4 described the most caught species on trips for which scup made up at least 75% of the landings (by weight; a proxy for directed scup trips) seen in NEFOP data from 2011-2015. These were Spiny Dogfish, Little Skate, Black Sea Bass, Summer Flounder, Longfin squid, Butterfish, Northern Sea Robin, Winter Skate, Striped Sea Robin, and Silver Hake. The ten most common species in the NEFOP 2015-2020 data set were Spiny Dogfish, Little Skate, Winter Skate, Summer Flounder, Black Sea Bass, Longfin squid, Silver Hake, Northern Sea Robin, Monkfish, and Butter fish. The only difference between the two datasets was a slightly different ranking of Striped Sea Robin and Monkfish. Neither of which would have altered any of the derived species' classifications.

Therefore, the team believes the NEFOP observer coverage is adequate for describing catch composition in the UoA. Table 14 includes estimates of percent observer coverage in the NEFOP data using the ratio of kept Scup catch in NEFOP data observer data to kept Scup catch in VTR available in SBRM reports (Wigley & Tholke 2018, Wigley & Tholke 2019, and Wigley & Tholke 2020).

4 Framework Adjustment 12 To the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan, available at: Scup_quota_period_FW_EA_resubmission2_Feb2018.pdf (squarespace.com)

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Figure 13. Percentage of observed VTR landings for 36 selected fleets. Taken from the SBRM 3-year Review Report-2021 (NOAA 2021).

Table 14. Observer coverage estimates using the ratio of VTR landings from SBRM reports to that reported in the NEFOP data. Observer SBRM report SBRM kept Scup NEFOP kept Scup % Year publish year catch weight (lbs.) catch weight (lbs.) coverage 2018 12,709,145 917,039 7.2 July 2016 to June 2017 2019 10,595,570 883,576 8.3 July 2017 to June 2018 2020 10,087,255 937,875 9.3 July 2018 to June 2019 Totals 33,391,970 2,738,490 8.2 July 2016 to June 2019

Observer trip information

A total of 927 observer trips were conducted in the process of collecting data between 2015 and 2020. Of these, 129 trips were conducted in 2015, 133 trips in 2016, 285 trips in 2017, 169 trips in 2018, 173 trips in 2019, and 38 trips in 2020 (only partial number available for the year). Excluding 2020, an average of 178 trips was conducted annually.

Observer data includes a first and second target species report field. In examining these, Scup was recorded as the first target species in most observer trips, at 479 of the 927 trips (51.7% of the total number of trips). This was followed by Summer Flounder at 172 or 18.6% of the trips, Atlantic Longfin squid at 134 or 14.5% of trips, Black Seabass at 59 or 6.4% of trips, and Silver Hake at 32 or 3.5% of trips.

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The remainder of trips reported target species other than the above that amounted to < 2% of the total trips. For the complete summary of first target species see Table 15.

Only 422 of the 927 observer trips recorded a second target species. These ranked in order of occurrence were recorded as Scup (35.8%), Summer Flounder (22.5%), Black Seabass (18.7%), Atlantic Longfin Squid (7.3%), Silver Hake (7.3%), and Butterfish (2.8%). The remaining second targeted species were < 1%. See

Table 16 for a complete list of second target species recorded in dataset.

Table 15. First Target Species recorded in observer trips. (Source NEFOP data)

Target species recoded as: Number % Of total trips Scup 479 51.7 Flounder, Summer (Fluke) 172 18.6 Squid, Atl Long-Fin 134 14.5 Sea Bass, Black 59 6.4 Hake, Silver (Whiting) 32 3.5 Fish, Nk 11 1.2 Butterfish 10 1.1 Skate, Nk 10 1.1 Groundfish, Nk 4 0.4 Flounder, Winter (Blackback) 3 0.3 Skate, Little 3 0.3 Squid, Nk 3 0.3 Monkfish (Goosefish) 2 0.2 Croaker, Atlantic 1 0.1 Dogfish, Spiny 1 0.1 Flounder, Yellowtail 1 0.1 Hake, Red (Ling) 1 0.1 Mackerel, Atlantic 1 0.1

Table 16. Second Target Species of recorded in observer trips. (Source NEFOP data).

Target species recoded as: Number % Of total trips Scup 151 35.8 Flounder, Summer (Fluke) 95 22.5 Sea Bass, Black 79 18.7 Squid, Atl Long-Fin 35 8.3 Hake, Silver (Whiting) 31 7.3 Butterfish 12 2.8 Squid, Short-Fin 4 0.9 Flounder, Yellowtail 3 0.7 Skate, Winter (Big) 3 0.7

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Target species recoded as: Number % Of total trips Dogfish, Spiny 2 0.5 Flounder, Winter (Blackback) 2 0.5 Hake, Red (Ling) 1 0.2 Hake, White 1 0.2 Mackerel, Atlantic 1 0.2 Skate, Nk 1 0.2 Whelk, Nk, Conch 1 0.2

8.3.1.5 Discards information

Standardized Bycatch Reporting Methodology (SBRM)

The (current) Standardized Bycatch Reporting Methodology has been effective for the Greater Atlantic Fishery Region as of July 20, 2015. In accordance with the July 2015 Amendment (FR Vol 80, No 125), an annual “Discard Estimation, Precision, and Sample Size Analyses for 14 Federally Managed Species Groups in the Waters off the Northeastern United States” is produced. Sea turtles are additionally considered within scope of the SBRM reporting and observer needs evaluation. The annual report describes analyses associated with discard estimation from July -June of the previous year for the 14 federally managed fish and invertebrate species groups. It also provides the expected coverage needed by at-sea observers for the following year (April -March) using the SBRM, where coverage needed is that which can provide for a precision-based performance standard (30% coefficient of variation of the discard estimate). The sea day analyses use a standardized protocol to account for the importance of the discarded species relative to the amount of discards by each fleet and total fishing mortality (Wigley & Tholke 2020).

Data sources used in the SBRM reports include:

▪ Northeast Fisheries Observer Program (NEFOP) database

▪ Observed hauls with a ‘complete’ sampling protocol: includes species weights for both kept and discarded portions of all species in the catch.

▪ Vessel Trip Report (VTR; including logbooks from the surfclam [Spisula solidissima] and ocean quahog [Arctica islandica] fishery) database.

▪ Northeast Fisheries Science Center (NEFSC) commercial landings database

▪ National Oceanic and Atmospheric Administration Marine Recreational Information Program (MRIP) database.

Trips are partitioned into non-overlapping fleets based on 5 variables:

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▪ Geographic region:

New England (NE): departure ports from Maine to Rhode Island

Mid-Atlantic (MA): departure ports from Connecticut to northern North Carolina

(Note: previous studies have found that >93% of observed trips demonstrate that trips originate and fish in the same region, and VTRs align with this finding.

▪ Gear type

▪ Mesh size groups are defined for otter trawl and gillnet only.

Otter trawls: small mesh (<5.5in) and large mesh (>=5.5in)

Gillnets: small (mesh less than 5.50 in), large (mesh from 5.50 to 7.99 in), and extra-large (mesh 8.00 in and greater)

▪ Access area: access area (AA) and open (OPEN)

▪ Trip category: the sea scallop fishery was divided into general (GEN) and limited (LIM) category trips; all other fisheries were combined into a category called “all.”

The analysis also uses calendar quarters to analyze seasonal variations in fishing activity and discard rates.

VTRs form the basis for the sampling frame definitions and are used to extrapolate NEFOP discard ratios to total discard estimates in the SBRM reports, as these are required for all federal commercial fishing trips (with the exclusion of the commercial lobster fishery). Dealer data is understood to have more accurate weights but lacks detail such as mesh size and area fished.

Observer coverage representativeness is evaluated both temporally and spatially based on a kept weight ratio. Discard ratios are calculated and there are no survival ratios applied. Data from adjoining strata are pooled to develop estimates for cells with <3 trips. 3 trips for fleet-quarter are considered a minimum threshold for allocating observer coverage. At-sea observers record fish dispositions, and the SBRM considers 6 discard categories: no market, regulation (size), regulation (quota), regulation (other), poor quality, and other (Wigley & Tholke 2020).

8.3.1.6 Primary Species

Spiny Dogfish (Squalus acanthias) Biology

Spiny dogfish are distributed in the western North Atlantic from Labrador to Florida and are considered to be a unit stock in this region (Burgess 2002). During the colder months, spiny dogfish occur in coastal

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 66 of 335 SCS Global Services Report waters between North Carolina and Southern New England. In summer, dogfish migrate northward to the Gulf of Maine Georges Bank region and into Canadian waters (Jensen 1965). They tend to school by size and, when mature, by sex. Dogfish feed on many species of fish and crustaceans, but generally target the most abundant species (Link et al. 2012). In the Northwest Atlantic, maximum reported ages for males and females are 35 and 40 years, respectively (Nammack et al. 1985). The species bears live young, with a gestation period of about 18 to 22 months and produce between 2 to 15 pups with an average of 6. Size at maturity for females is around 80 cm but can vary from 78 cm to 85 cm depending on the abundance of females. (Sosebee 2005). Status

In the most recent stock assessment update, the population of spiny dogfish was found not to be overfished or experiencing overfishing (NEFSC 2018).

For spiny dogfish, Bmsy (proxy) is the spawning stock biomass that maximizes recruitment (SSBmax) in a Ricker type (dome-shaped) stock-recruitment model. SSBmax is estimated to be 351 million pounds with ½ of that target corresponding to the biomass threshold 175.5 million pounds (Figure 14). The spawning stock biomass estimate of 235 million was slightly above the biomass threshold of 175 million pounds, while the fishing mortality estimate (0.202) is just below the fishing mortality threshold (0.2439)5.

While the 2018 stock assessment determined that the spiny dogfish stock was not overfished or experiencing overfishing, it was noted that biomass had declined in recent years requiring a significant reduction in the 2019-2020 quota to ensure overfishing did not occur. Ultimately, a 46% reduction in quota was allocated for the 2019-2020 fishing season.

The Atlantic Spiny Dogfish is an MSC certified fishery that is currently undergoing re-assessment. Management

The principal commercial fishing gears used to catch dogfish are sink gillnets, bottom longlines and trawls. Dogfish are frequently caught as bycatch and discarded during groundfish operations. Gillnets contribute the most to spiny dogfish landings followed by longlines and trawls. Trawls were the most important gear during the 90s when spiny dogfish were so severely overfished. The trawl fishery has been discouraged from participating in the present spiny dogfish fishery by using restrictive trip limits of 6,000 lbs. per trip, and a limit of 1 trip per calendar day. Recreational and foreign fishing are of minor importance.

The fishery is managed under a Fishery Management Plan developed jointly by the Mid-Atlantic and New England Fishery Management Councils for federal waters and a plan developed concurrently by the Atlantic States Marine Fisheries Commission for state waters. Information

5 NEFSC Stock assessment updates are available on the ASMFC website (species - Atlantic States Marine Fisheries Commission (asmfc.org))

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Spiny dogfish were discarded at a rate of approximately 42% in a range of fisheries between July 2018 and June 2019, where otter trawls, using both large and small mesh trawls in New England and Mid-Atlantic regions comprise approximately 79% of this total (Wigley & Tholke, 2020). These discard percentages are shown below in a pie chart (Figure 15).

According to the most recent 3 years of SBRM reports (Wigley et al 2018, Wigley & Tholke 2019, Wigley & Tholke 2020, cited by NOAA 2021), 93.5% of spiny dogfish caught by small and large mesh bottom trawls in the Mid-Atlantic were discarded. This estimate is close to the 97.3% observed in the NEFOP data. The proportion of discards to landings exhibited a generally increasing trend in the SBRM reports mentioned above, moving from 90.6% in 2018, to 94.3% in 2019, and then 95.6% in 2020. Discards in 2019 for the Mid Atlantic were estimated with CVs of 0.165 for small mesh and 0.249 for large mesh sizes and for the New England region, 0.259 and 0.176 respectively (Wigley & Tholke 2020). These high discard rates are attributable to the low market value of spiny dogfish and their high abundance.

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Figure 14. Spiny dogfish indices of female SSB, SSB Target (BMSY proxy), and SSB Threshold from 1991 to 2018. Available online: species – Atlantic States Marine Fisheries Commission (asmfc.org).

Figure 15. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Spiny Dogfish (from Wigley & Tholke 2020).

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Skate Complex: Little Skate (Leocoraja erinaces) and Winter Skate (Leucoraja ocellata) Biology

While the Little Skate and Winter Skate are the only species in the skate complex to be classified as Primary-Main in the UoA, it was necessary to consider all skate species because skates are managed as one skate complex. In addition, discard estimates are aggregated in the annual SBRM discard reports for federal species. However, for this assessment, it was possible to estimate discards for individual skate species using NEFOP skate species composition data (Table 17).

The seven species in the Northeast Region skate complex are: Little Skate (Leucoraja erinacea), Winter Skate (L. ocellata), Barndoor Skate (Dipturus laevis), Thorny Skate (Amblyraja radiata), Smooth Skate (Malacoraja senta), Clearnose Skate (Raja eglanteria), and Rosette Skate (L. garmani). The Barndoor Skate is the most common skate in the Gulf of Maine. Georges Bank and southern New England is the center of distribution for the Little and Winter skates. The Thorny and Smooth skates typically occur in the Gulf of Maine. The Clearnose and Rosette skates have a more southern distribution and occur primarily in southern New England and the Chesapeake Bight.

Little Skate (Leocoraja erinaces)

Little Skate (Leocoraja erinaces) occurs from Nova Scotia to Cape Hatteras and is one of the dominant members of the demersal fish community of the northwest Atlantic (Bigelow and Schroeder 1953; McEachran and Musick 1975). Its center of abundance is in the northern section of the Mid Atlantic Bight and on Georges Bank, where it is found year-round over almost the entire range of temperatures recorded for those areas (McEachran and Musick 1975). The egg cases are laid in pairs. Development takes 6-12 months depending on water temperature. Maximum observed length from NEFSC surveys was 62 cm TL, and length and age at maturity were estimated at 50 cm TL and 4 years (Packer et al. 2003).

Winter Skate (Leucoraja ocellata)

Occurs from the south coast of Newfoundland and the southern Gulf of St. Lawrence to Cape Hatteras Its center of abundance is on Georges Bank and in the northern section of the Mid Atlantic Bight (Packer et.al. 2003). As with all skates (Rajiformes), Winter Skates lay benthic, leathery egg cases, usually two at a time. Incubation extends over several weeks (Musick and Ellis 2005). Egg deposition occurs during summer and fall off Nova Scotia and probably in the Gulf of Maine as well. Egg deposition continues into December and January off southern New England. Winter skates are one of the larger skates in the Gulf of Maine, with a maximum known size of 150 cm TL Size and age at maturity is ca. 78 cm and seven years (Packer et.al. 2003). Status

Stock Assessments of skate species overfishing is based on a rate of change in the three-year moving average for NEFSC Groundfish Survey biomass (Figure 16). According to the most recent abundance indices from the Northeast Fisheries Science Center (NEFSC), only Thorny skate is in an overfished

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 70 of 335 SCS Global Services Report condition (NEFMC 2020). A summary of stock status in the NEFMC’s most recent Annual Monitoring Report (NEFMC 2020) was provided as follows:

For Barndoor skate, the 2017-2019 NEFSC fall average survey biomass index of 2.02 kg/tow is above the biomass threshold reference point (0.78 kg/tow) and the BMSY proxy (1.57 kg/tow). The 2017-2019 average index is above the 2016-2018 index by 11.4%. It is recommended that this stock is not overfished, and overfishing is not occurring.

For Clearnose skate, the 2017-2019 NEFSC fall average biomass index (no data for 2017) of 1.05 kg/tow is above the biomass threshold reference point (0.33 kg/tow) and the BMSY proxy (0.66 kg/tow). The 2017- 2019 index is above the 2016 and 2018 index by 73.1%. It is recommended that this stock is not overfished, and overfishing is not occurring.

For Little skate, there was little 2020 survey coverage; therefore, stock status cannot be updated. For little skate, the 2017-2019 NEFSC spring average biomass index of 5.32 kg/tow is above the biomass threshold reference point (3.07 kg/tow) but below the BMSY proxy (6.15 kg/tow). The 2017-2019 average index is above the 2016-2018 average by 13.4%. It was recommended in 2019 that this stock is not overfished, and overfishing is not occurring.

For Rosette skate, the 2017-2019 NEFSC fall average biomass index (no data for 2017) of 0.050 kg/tow was above the biomass threshold reference point (0.024 kg/tow) and above the BMSY proxy (0.048 kg/tow). The 2017-2019 index is above the 2016 and 2018 index by 6.4%. It is recommended that this stock is not overfished, and overfishing is not occurring.

For Smooth skate, the 2017-2019 NEFSC fall average biomass index of 0.27 kg/tow is above the biomass threshold reference point (0.134 kg/tow) and at the BMSY proxy (0.27 kg/tow). The 2017- 2019 index is about equal to the 2016-2018 index. It is recommended that this stock is not overfished and is rebuilt, and overfishing is not occurring.

For Thorny skate, the 2017-2019 NEFSC fall average biomass index of 0.18 kg/tow is well below the biomass threshold reference point (2.06 kg/tow). The 2017-2019 index is above the 2016-2018 index by 11.4%. It is recommended that this stock is overfished, but overfishing is not occurring.

For Winter skate, the 2017-2019 NEFSC fall average biomass index of 8.61 kg/tow is above the biomass threshold reference point (2.83 kg/tow) and above the BMSY proxy (5.66 kg/tow). The 2017-2019 average index is above the 2016-2018 index by 19.2%. It is recommended that this stock is not overfished, and overfishing is not occurring. Management

Skate landings have two components, one focused on larger skates to cut wings, and the other focused on small skates for bait in other fisheries. Based upon NMFS port sampling data, over 98 percent of skate wing fishery landings are composed of Winter Skate. Similarly, approximately 143 percent of skate bait

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While in most circumstances it is unlawful to retain, land, or possess Barndoor, Thorny, and Smooth skates, vessels and fish dealers must still report the unauthorized landing of these (NOAA 2014). NMFS implemented the Northeast Skate Complex Fishery Management Plan (Skate FMP) in September 2003.

The FMP required both dealers and vessels to report skate landings by species, includes possession prohibitions of barndoor, thorny, and smooth skates in the Gulf of Maine, implemented a trip limit of 10,000 lbs. for winter skate, and requires fishermen to obtain a Letter of Authorization to exceed trip limits for the little skate bait fishery.

In 2010, Amendment 3 to the Skate FMP implemented a rebuilding plan for smooth skate and established an ACL and annual catch target for the skate complex, total allowable landings for the skate wing and bait fisheries, and seasonal quotas for the bait fishery. Possession limits were reduced; in-season possession limit triggers were implemented, as well as other measures to improve management of the skate fisheries.

In June 2020, the Council approved its list of research priorities into age, growth, maturity, and fecundity of managed skate species, emphasizing the need for more information on thorny and rosette skates; the hope is the research will provide insights into the cause of the ongoing biomass decline of thorny skate (NEFMC 2020). Information

Information on impacts from discards is readily available and current. In the most recent discards report, Wigley and Tholke 2020 estimated that 63% of the skate complex catch is discarded, of which 49% are attributed to the New England and Mid Atlantic bottom otter trawl vessels (large and small mesh) (Figure 17).

According to the most recent 2020 SBRM report using July 2018 to June 2019 data (Wigley and Tholke 2020), 72.0% of skates caught by small and large mesh bottom trawl in New England and Mid-Atlantic regions were discarded. Discards for the Mid-Atlantic small mesh and large mesh were estimated with a 0.161 and 0.150 CV respectively, as were the New England fleets, with CVs of 0.207 and 0.250 for the small and large mesh sizes (Wigley & Tholke 2020).

In the NEFOP data collected between 2015 and 2020, 85% of the skate complex (all skate species combined) were discarded. Discards of Little skate accounted for 47% of this total, and discards of Winter skate accounted for 34.1%. Discards and catch of the other Skate species were considerably lower, with the catch of Thorny skate, as the only overfished skate species, below 0.0002% of the total catch weight (Table 17).

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Table 17. Observed catch composition of skate species in the bottom trawl fishery from 2015-2020 (source: NEFOP). % of skate Species Total weight (lbs.) % Discarded complex discarded Skate, Little 1,055,124 98 47.0 Skate, Winter 998,133 75 34.1 Skate, Nk 261,747 54 6.5 Skate, Clearnose 145,587 98 6.5 Skate, Barndoor 126,900 100 5.8 Skate, Rosette 3,473 100 0.2 Skate, Thorny 41 100 <0.01 Skate, Smooth 33 100 <0.01 Totals 2,591,038 85 100

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Figure 16. NEFSC survey biomass indices (kg/tow). Thin lines with symbols are annual indices, thick lines are 3-year moving averages, and the thin horizontal lines are the biomass thresholds and targets developed through 2007/2008 with consistent strata sets (From NEFMC 2020).

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Figure 17. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Spiny Dogfish (from Wigley & Tholke 2020).

Summer Flounder (Paralichthys dentatus) Biology

Summer Flounder occur from the Canadian border to South Carolina, and spawn during the fall and winter over the continental shelf from October to May. Juveniles use inshore estuarine nursery areas. Summer Flounder exhibit strong seasonal inshore-offshore movements, normally inhabiting shallow coastal and estuarine waters during the warmer months of the year and remaining offshore during the colder months. Most fish are sexually mature by age 2. Summer Flounder exhibit sexual dimorphism by size; most of the largest fish are females. Females can attain lengths over 90 cm (36 in) and weights up to 11.8 kg (26 lbs.; NEFSC 2011). While female Summer Flounder grow faster (reaching a larger size at the same age), the sexes attain about the same maximum age (currently age 15 at 56 cm for males, and age 14 at 65 cm for females (MAFMC 2017b). Status

In 2019, the NEFSC completed a stock assessment update (SAW/SARC-66) for summer flounder which indicated that the summer flounder stock was neither overfished nor experiencing overfishing in 2017 (NEFSC 2019). Fishing mortality (F) since 2007 had increased and was 0.334 in 2017, below the 2018 SAW- 66 FMSY proxy = F35% = 0.448. The 90% confidence interval for F in 2017 was 0.276 to 0.380. The SSB in 2017 was estimated to be 44,552 mt, which is 56% above the 2018 SAW-66 SSBMSY threshold proxy = ½ SSB35% = 28,580 mt, and 78% of the 2018 SAW-66 SSBMSY target proxy = SSB35% = 57,159 mt (Figure 18). Projections of SSB from 2018 through until 2023 are all positive based on fishing at the Fmsy proxy and using the 2018 ABC show increases rather than declines through until 2023.

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Management

Summer Flounder are managed by the MAFMC under the Summer Flounder, Scup, and Seabass FMP. Regulations currently include catch and landings limits, commercial quotas, recreational harvest limits, minimum fish sizes, gear regulations, permit requirements, and other provisions as prescribed by the FMP. Information

Summer Flounder were discarded at a rate of approximately 27% in a range of fisheries between July 2018 and June 2019, where otter trawls in New England and Mid-Atlantic using both large and small mesh comprises approximately 67% of this total for region (Wigley & Tholke, 2020). These discard percentages calculated are shown below in a pie chart (Figure 19). Over this same time, approximately 31.3% were caught by small and large mesh bottom trawls in the Mid-Atlantic were discarded on average (Wigley & Tholke, 2020). This estimate is above the 15.8% observed in the NEFOP data. Discards were estimated with CVs of 0.153 for small mesh and 0.164 for large mesh sizes and for the New England, 0.22 and 0.185 respectively (Wigley & Tholke 2020). Most of the discards were attributed to regulation size.

Figure 18. Summer flounder spawning stock biomass (SSB; solid line) and recruitment at age 0 (R; vertical bars) by calendar year through 2017. The horizontal dashed line is the 2018 SAW-66 target biomass reference point proxy. The horizontal solid line is the 2018 SAW-66 threshold biomass reference point proxy (NEFSC 2019).

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Figure 19. Percentage of Vessel Trip Report landings (kept) and estimated discards (Total, left pie) and the percentage of estimated discards by fleet (Discards, right pie) for Fluke (from Wigley & Tholke 2020).

8.3.1.7 Primary Minor Species

Minor species do not receive the same depth of consideration as main species in the MSC system. Furthermore, as recognized by the MSC, there are time and cost implications of scoring each individual element separately, particularly in cases where there are large numbers of species to assess. Therefore, the team elected to not to score each minor species separately as permitted by the Minor species and scoring element approach at SG100 (FCR v2.2 - 7.17.10, Annex SA PI 2.1.1 -2.2.3). Guidance on this approach, referred to as the “all or none” approach to scoring, can be found on the MSC interpretations log 6; it says that if any of the minor species, did not achieve 100, then all of the minor species stay at SG80.

Red Hake is one of the Primary-minor species caught by the UoA (Table 12). Information on the management and status of Primary-minor species are available from NOAA Fisheries Find A Species webpage7. A summary of the information available for Red Hake on the NOAA’s Find a species webpage is included below.

6 Minor species and scoring element approach at SG100. Online at: Minor species and scoring element approach at SG100 (FCR v2.0 - 7.10.7, Annex SA PI 1.1.1, 2.2.1) (force.com) 7 NOAA fisheries Find A Species webpage. Online at (www.fisheries.noaa.gov/species/).

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Red Hake (Urophycis chuss) Biology

Red hake are a member of the cod family and normally reach a maximum size of 50 centimeters (20 inches) and 2 kilograms (4.4 pounds). Females are generally larger than males of the same age, and reach a maximum length of 63 centimeters (25 inches) and a weight of 3.6 kilograms (7.9 pounds). Although they generally do not live longer than 8 years, red hake have been recorded up to 14 years old. They feed primarily on crustaceans such as decapods and rock crabs as well as fish such as haddock, silver hake, sea robins, sand lance, mackerel, and small red hake. Primary predators of red hake include spiny dogfish, cod, goosefish, and silver hake. Status

There are two stocks of red hake: Gulf of Maine/Northern Georges Bank and Southern Georges Bank/Mid Atlantic. According to the most recent 2017 stock assessment 8: The Gulf of Maine/Northern Georges Bank (northern) stock of red hake is not overfished and is not subject to overfishing, and the Southern Georges Bank/Mid Atlantic (southern) stock of red hake is overfished and subject to overfishing (2017 stock assessment). Management

NOAA Fisheries and the New England Fishery Management Council manage the red hake fishery via the Northeast Multispecies Fishery Management Plan for Small Mesh Multispecies. The small-mesh multispecies fishery is managed primarily through a series of exemptions from the Northeast Multispecies Fishery Management Plan. Exempted fisheries allow vessels to fish for specific species, such as red hake, in designated areas using mesh sizes smaller than the minimum mesh size allowed under the Regulated Mesh Area regulations. The NEFMC is developing a plan to restore the southern red hake stock, Framework 629. Information

Red hake has a high percentage of discards (75% of total catch) mostly due to economic reasons (“No Market”); The scallop dredge fleet and New England large mesh otter trawl fleet had the highest estimated discards of SBRM species (Wigley and Tholke 2020).

8.3.1.8 Secondary Species

Secondary-main

There were no Secondary Main species observed in the bycatch data. See Appendix 8.8, Table 44

8 2017 Stock Assessment report for Red Hake. Available online: Stock SMART (noaa.gov) 9 NEFMC Framework 62. Available online: Management Plans - NEFMC

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Secondary-minor

The assessment team has elected not to conduct the RBF on minor Secondary species, as permitted under PF4.1.4. Accordingly, the final PI score is scored down to meet SG80 only (PF5.3.2.1).

8.3.1.9 Endangered, Threatened and Protected (ETP) Species

Background

ETP species include species recognized by international agreements specified under MSC Fisheries Standard v2.01 SA3.1.5.2, including CITES Appendix 1 and out-of-scope species classified as Vulnerable, Endangered, or Critically Endangered by the IUCN. In addition, species recognized under national legislation are also qualified as ETP.

The national legislative basis for the protection of ETP species relevant to this assessment is found in the Endangered Species Act (ESA), the Marine Mammal Protection Act (MMPA), and the Migratory Bird Treaty Act (MBTA). The legislation is briefly introduced here and the current impact evaluations of the UoA under the respective legislative frameworks relative to the protected species are discussed in further detail below.

NOAA’s Office of Protected Resources (OPR) is the program responsible for protecting marine mammals and endangered/threatened marine life. The OPR works in cooperation with NOAA regional offices and science centers. Responsibilities of the program include listing species under the ESA and designating critical habitat, developing, and implementing recovery plans for listed species; consulting on any Federal actions that may affect a listed species to minimize the effects of the action; investigating violations of the ESA and authorizing research on protected species. The NMFS Office of Protected Species collects and analyses data on interactions between fisheries and ETP species using data primarily from observer programs and logbooks in commercial fisheries, scientific surveys at sea, standings on shore. These data sources are reviewed annually to monitor impacts on ETP species and to ensure resources are allocated for additional at sea observer coverage for fisheries that are considered a risk to ETP species.

Eligible Species and Recorded Interactions

Numerous species which inhabit the environment within the management unit of the Summer Flounder, Scup and Black Seabass FMP are afforded protection under the Endangered Species Act (ESA) of 1973 (i.e., for those designated as threatened or endangered) and/or the Marine Mammal Protection Act of 1972 (MMPA). The names of all species (except seabirds) found in the New England/Mid Atlantic and currently classified as threatened or endangered are available on NOAA Threatened and Endangered Fisheries Species Directory Page (Threatened and Endangered Species Directory Page | NOAA Fisheries). The list of for the region includes two dolphin species, one pinniped, five fish species, four turtle species and five whale species (Table 18). Seabirds are not available on the NOAA species directory, but are monitored by the USFWS, informed by NEFOP observer data that records seabird interactions. A full list of protected

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The number of ETP species interactions observed in New England and Mid Atlantic bottom trawl fleets between 2015 and 2000 have been summarized in (

Table 19). There was a total of ninety-one observed incidental interactions with Dolphins, including eighty- nine Common Dolphins (2 alive, 86 dead), one Risso's Dolphin (dead), and one unknown Dolphin species (dead). There were eight observed interactions with Loggerhead turtles (6 alive, 2 resuscitated). Two Gray Seals were observed (both dead). A total of seven sea birds were recorded (all dead unless noted otherwise), including 1 Northern Gannet, 1 Herring Gull, 2 unknown Gulls, 1 Cory’s Shearwater (alive), 1 Greater Shearwater, and 1 unknown seabird species. Eighteen Atlantic Sturgeon were recorded.

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Table 18. Threatened or endangered species found in the New England/Mid Atlantic area), plus mammals protected under the MMPA (* denotes observed interactions recorded in NEFOP data). Threatened or endangered species Status

Marine Mammals: Cetaceans North Atlantic right whale (Eubalaena glacialis) Endangered Fin whale (Balaenoptera physalus) Endangered Blue whale (Balaenoptera musculus) Endangered Sei whale (Balaenoptera borealis) Endangered Sperm whale (Physeter macrocephalus Endangered *Risso's dolphin (Grampus griseus) Protected *Common dolphin (Delphinus delphis) Protected *Gray Seal (Halichoerus grypus atlantica) Protected Sea Turtles Species Leatherback sea turtle (Dermochelys coriacea) Endangered Kemp's Ridley Sea turtle (Lepidochelys kempii) Endangered Green sea turtle (Chelonia mydas), North Atlantic DPS Threatened *Loggerhead sea turtle (Caretta caretta), Northwest Atlantic Threatened Ocean DPS Fish and Shark Species Atlantic salmon – Gulf of Main DPS (Salmo salar) Endangered *Atlantic sturgeon (Acipenser oxyrinchus) Chesapeake Bay DPS Endangered New York Bight DPS Endangered Carolina DPS Endangered South Atlantic DPS Endangered Gulf of Maine DPS Threatened Giant Manta Ray (Manta birostris) Threatened Oceanic Whitetip shark (Carcharhinus longimanus) Threatened Shortnose sturgeon (Acipenser brevirostrum) Endangered

Table 19. UoA bottom trawl numbers of observed fishery interactions with ETP species between 2015- 2000 (from NEFOP data).

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Average % 2015 2016 2017 2018 2019 2020 Total Species dead Marine Mammals Dolphin, Common 4 10 38 11 14 12 89 89% Dolphin, Nk 1 1 100% Dolphin, Risso’s 1 1 100% Seal, Gray 1 1 2 100% Sea Turtles Turtle, Loggerhead 3 1 2 2 8 0% Sea Birds Bird, Nk 1 1 0% Gannet, Northern 1 1 0% Gull, Herring 1 1 0% Gull, Nk 1 1 2 0% Shearwater, Cory’s 1 1 100% Shearwater, Greater 1 1 0% Fish Species Atlantic Sturgeon 2 7 3 6 18 unavailable

Marine Mammals

The Marine Mammal Protection Act (MMPA) enacted in 1972, protects all marine mammals. Similar to the ESA, the MMPA prohibits the "take" of marine mammals, with certain exceptions, including special cases for subsistence, scientific research, and permits authorizing incidental take of marine mammals to commercial fishing operations.

Under the MMPA, NMFS assesses all marine mammal stocks, and for all stocks provides a description of the stock's geographic range, a "minimum population estimate", current population trends, current and maximum net productivity rates, "Potential Biological Removal" (PBR) levels, status of the stock, estimates of annual human-caused mortality and serious injury by source, and descriptions of other factors that may be causing a decline or impeding the recovery of "strategic stocks" (stocks for which human-caused mortality exceeds the PBR). NMFS reviews reports for "strategic stocks" of marine mammals annually.

Non-strategic stock reports are reviewed every three years, or when new information becomes available. Under section 118 of the MMPA, NMFS must publish and annually update the List of Fisheries (LOF)10, which places all U.S. commercial fisheries in one of three categories based on the level of incidental serious injury and mortality of marine mammals in each fishery (arranging them according to a two-tiered

10 The current List of Fisheries is available at: Mid-Atlantic Bottom Trawl Fishery - MMPA List of Fisheries | NOAA Fisheries.

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The classification criteria for the annually updated LOF consists of a two-tiered, stock-specific approach that first addresses the total impact of all fisheries on each marine mammal stock (Tier 1) and then addresses the impact of the individual fisheries on each stock (Tier 2). If the total annual mortality and serious injury of all fisheries that interact with a stock is less than 10% of the Potential Biological Removal (PBR) for the stock, then the stock is designated as Tier 1 and all fisheries interacting with this stock would be placed in Category III. Otherwise, these fisheries are subject to categorization under Tier 2.

Under Tier 2, individual fisheries are subject to the following categorization:

▪ Category I. Annual mortality and serious injury of a stock in a given fishery is greater than or equal to 50% of the PBR level;

▪ Category II. Annual mortality and serious injury of a stock in a given fishery is greater than one percent and less than 50% of the PBR level; or

▪ Category III. Annual mortality and serious injury of a stock in a given fishery is less than one percent of the PBR level.

PBR is the product of minimum population size, one-half the maximum productivity rate, and a “recovery” factor (MMPA Sec. 3. 16 U.S.C. 1362; Wade and Angliss 1997). The PBR level is the product of the following factors: the minimum population estimate of the stock; one-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and a recovery factor of between 0.1 and 1.0. PBR is really designed as a metric to be used when comparing all estimated annual, anthropogenic mortalities, so as to decide if a marine mammal stock should be considered a strategic stock. A strategic stock is defined by the MMPA "as a marine mammal stock-- for which the level of direct human-caused mortality exceeds the potential biological removal level; which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future; or which is listed as a threatened or endangered species under the ESA, or is designated as depleted under the MMPA." While there is considerable analysis that goes into estimating PBR, it is not a limit as compared to fishery-based limits (target and threshold).

The Scup fishery is represented by the Mid-Atlantic bottom trawl fishery on the LOF. The Mid-Atlantic bottom trawl fishery is classified as Category II on the basis that “The total mortality and serious injury of common dolphins (Western North Atlantic [WNA] stock), long-finned pilot whales (WNA stock), Risso's dolphins (WNA), and short-finned pilot whales (WNA stock) in this fishery is greater than 1% and less than 50% of each of the stocks’ PBR.” NMFS has authority to place observers on any Category I or II vessel, but as a Category II fishery it is not required to address marine mammal interactions with a Take Reduction Team (TRT) process.

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ETP Species: Quantitative UoA Impacts and Status Information

Marine Mammals

The following section provides a description of marine mammal species protected under MMPA that based on the NEFOP observer data show recent interactions with bottom trawls used in the UoA.

Table 19 includes the number of recorded interactions with marine mammals from the NEFOP data (2015- 2020). It is important to note that the NEFOP data represents just a portion of fishing effort. NMFS Stock Assessment Reports (SARs) 11 estimate total annual interaction numbers for the whole Mid-Atlantic bottom trawl fishery for which the Scup fishery is part. Information on each mammal species presented in this section was taken from the SARs.

Common dolphin (Delphinus delphis) (PBR = 1,452)

The common dolphin may be one of the most widely distributed species of cetaceans, as it is found worldwide in temperate, tropical, and subtropical seas. They are widespread from Cape Hatteras northeast to Georges Bank (35° to 42° North latitude) in outer continental shelf waters from mid-January to May. Exact total numbers of common dolphins off the U.S. or Canadian Atlantic coast are unknown, although the most recent Stock Assessment Report considers the best abundance estimate for common dolphins to be 172,825 (Coefficient of Variation (CV) =0. 21) (Hayes et al 2019). The 2013-2017 average annual mortality attributed to the Mid-Atlantic bottom trawl was 278 animals (CV=0.13) (Hayes et al 2019), which is below the PRB value of 1,452 for bottom trawls. The portion of these estimates attributable to the Scup fisheries is unknown, but NEFOP data from 2015-2020 reports 89 interactions with common dolphins (98% mortality).

11 SARs are available from: http://www.nmfs.noaa.gov/pr/laws/mmpa/.

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Risso's dolphin (Grampus griseus) (PBR = 126)

Risso's dolphins are distributed worldwide in tropical and temperate seas, and in the Northwest Atlantic occur from Florida to eastern Newfoundland. Off the east U.S. coast, Risso's dolphins are distributed along the continental shelf edge from Cape Hatteras northward to Georges Bank during spring, summer, and autumn. In winter, the range is in the Mid-Atlantic Bight and extends outward into oceanic waters. The best population estimate for the western North Atlantic Risso’s dolphin is 35,493 (CV=0.19) (Hayes et al 2019). The Scup fishery is included in both the Mid-Atlantic bottom trawl fisheries. The 2010-2014 average annual mortality attributed to the Mid-Atlantic bottom trawl was 37 animals (CV=0.29). The portion attributable to specific fisheries is unknown, but NEFOP data from 2015-2020 reports one interaction with a Risso’s dolphin, which was recorded as dead.

Gray Seal (Halichoerus grypus atlantica) (PBR = 1,389)

The gray seal (Halichoerus grypus atlantica) is found on both sides of the North Atlantic, with three major populations: eastern Canada, northwestern Europe, and the Baltic Sea. The western North Atlantic stock is equivalent to the eastern Canada population, and ranges from New Jersey to Labrador where the stock is separated by geography, differences in the breeding season, and mitochondrial and nuclear DNA variation from the northeastern Atlantic stocks. Tissue samples collected from Canadian and U.S. populations confirm that recolonization by Canadian gray seals is the source of the U.S. population. PBR for the western North Atlantic stock of gray seals in U.S. waters is 1,389 animals. The 2010-2014 average annual mortality attributed to the Mid-Atlantic bottom trawl was 17 animals (CV=0.30). The portion attributable to Scup fisheries is unknown, but two interactions with gray seals, were recorded in the NEFOP data, both dead.

Sea Turtles and Sturgeon: Protected under the Endangered Species Act

The ESA, signed on 1973, provides for the conservation of species that are endangered or threaten the conservation of the ecosystems on which they depend. NOAA has jurisdiction over 159 endangered and threatened marine species and works with the U.S. Fish and Wildlife Service (USFWS) to manage ESA- listed species. Generally, NOAA manages marine species, while USFWS manages land and freshwater species. When a species is listed as endangered it is illegal to “take” (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to do these things) that species. Section 10 of the ESA allows NOAA Fisheries Service to issue permits for incidental take, with the requirement of a conservation plan to minimize and mitigate impacts to the affected species. NMFS’ Office of Law Enforcement works with the U.S. Coast Guard and other partners to enforce and prosecute ESA violations (NOAA).

Section 9 of the ESA prohibit take of endangered species, but under the terms of section 7(b) (4) and section 7(o) (2), taking that is incidental to and not the purpose of carrying out an otherwise lawful activity is not considered to be prohibited under the ESA provided that such taking is in compliance with the terms

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Biological opinions detail how federal agencies’ actions may affect ESA-listed species and critical habitat. These consider a description of proposed actions (e.g. the continued implementation of the FMPs), status of species (unlikely to be adversely affected and potentially affected), the environmental baseline including other human impacts and ongoing initiatives to reduce threats to ESA species, climate change effects, the effects of the proposed actions (fisheries) on ESA-listed species, cumulative effects, and a conclusion that includes ITSs, reasonable and prudent measures, conservation recommendations and terms for reinitiating consultation 13.

Reasonable and Prudent measures include requirements for permit holders regarding sea turtles, Atlantic Sturgeon and Atlantic salmon, including but not limited to requirements to possess handling and resuscitation requirements, continued development and distribution of training materials for commercial fishermen, continued investigation into gear modification and implementation where appropriate within a reasonable timeframe, continued review of all data available on take and review of whether there are particular conditions or areas where take is most likely, continued deployment of observers to monitor interactions to ensure that monitoring detects exceedance of (ITSs), continued monitoring and recording of entanglement and associated gear such that any adverse impact is monitored, continued tagging and tissue sampling, and continued implementation of serious injury guidelines to better assess and evaluate injuries for potential population impact (NMFS 2021).

The most recent Biological Opinion (2021 BiOp) considers the actions of 10 FMPs for fisheries operating in the Mid Atlantic, including the Flounder, Scup, and Black Seabass FMP (NMFS 2021). This consultation is required under Section 7(a) (2) of the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.) which state that each Federal agency shall ensure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of critical habitat of such species. As an implementing agency, NMFS

12 An ITS is an estimate by the NMFS of the "take" of a threatened or endangered species that is likely to result from an action by a federal agency. ITSs are produced by the Services as part of a biological opinion resulting from consultations with the federal agencies under section 7 of the Endangered Species Act.

13 Per 50 CFR 402.16, “reinitiation of formal consultation is required where discretionary federal agency involvement or control over the action has been retained (or is authorized by law) and if: (1) the amount or extent of incidental take is exceeded; (2) new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered; (3) the agency action is subsequently modified in a manner that causes an effect to the listed species or critical habitat not considered in this Opinion; or (4) a new species is listed or critical habitat designated that may be affected by the action. In the event that the amount or extent of take is exceeded, NMFS NERO must immediately request reinitiation of formal consultation. In addition [for the 2013 BiOp regarding the seven Northeast commercial fisheries, re-initiation will be required if… (1) more than three mortalities or serious injuries of North Atlantic right whales; or (2) more than eight mortalities or serious injuries of humpback whales; or (3) more than three mortalities or serious injuries of fin whales; and/or (4) more than two mortalities or serious injuries of sei whales.” (NMFS 2013)

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Sea Turtles

The 2021 BiOp contains detailed information on sea-turtle interactions (NMFS 2021). The Opinion updates information on sea turtle interactions with bottom trawl gear in the Summer Flounder, Scup, and Black Seabass fisheries. Summary information is provided below, and the full document above may be consulted for details. The Opinion concluded that Mid-Atlantic fisheries (including Scup) “may adversely affect, but is not likely to jeopardize, the continued existence of” Loggerhead, specifically, the Northwest Atlantic Distinct Population Segments (DPS), leatherback, Kemp’s Ridley, and green sea turtles (South Atlantic DPS). The primary species likely to be adversely affected by the Scup fishery would be loggerhead sea turtles, as they are the most abundant species occurring in U.S. Atlantic waters.

Sea Turtle Species Status Summaries

The GARFO Protected Resources Division provided the assessment team with summaries of available information on status and trends for the four turtle species known to interact with the fishery:

Loggerhead (Northwest Atlantic Ocean DPS)

Bycatch studies in the western North Atlantic is considered to affect the Northwest Atlantic DPS almost exclusively (Stewart 2019, cited by NMFS 2021). According to the BiOp 2021 (NMFS 2021), none of a number of stock assessments that examined the stock status of loggerheads in the Atlantic Ocean have developed a reliable estimate of absolute population size; counts of nests and nesting females are commonly used as an index of abundance even though there are doubts about the ability of this method to estimate the overall population size.

As designated in the 2008 loggerhead Recovery Plan (NMFS 2008), the Northwest Atlantic DPS of loggerheads is divided into five recovery units, representing nesting assemblages. These are: (1) the Northern Recovery Unit (NRU: Florida/Georgia border through southern Virginia); (2) the Peninsular Florida Recovery Unit (PFRU: Florida/Georgia border through Pinellas County, FL); (3) the Dry Tortugas Recovery Unit (DTRU: islands located west of Key West, FL); (4) the Northern Gulf of Mexico Recovery Unit

14 In NMFS 2021 it was noted that, “the North Atlantic right whale reinitiation trigger for the biological opinion on the Northeast multispecies, monkfish, spiny dogfish, Atlantic bluefish, Northeast skate complex, mackerel/squid/butterfish, and summer flounder/scup/black sea bass fisheries (“Batched Opinion”) was exceeded”. NOAA Fisheries has developed and is committed to implementing the North Atlantic Right Whale Conservation Framework for Federal Fisheries in the Greater Atlantic Region to further reduce entanglements and mortality and serious injury of North Atlantic right whales.

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(NGMRU: Franklin County, FL through Texas); and (5) the Greater Caribbean Recovery Unit (GCRU: Mexico through French Guiana, Bahamas, Lesser Antilles, and Greater Antilles). Index beach nesting in the largest recovery unit, PFRU, had a 24% increase in nesting from 1989 to 1998, followed by a 42% decline from 1998 to 2007. Over the past 10 years (2007-2016), annual nests have increased. Overall, from 1989 to 2016, there a slight positive but not statistically significant nesting trend (FFWCC 2017, unpub. Data). The second largest recovery unit, NRU, found no significant trend in nesting from 1983-2014. Nesting in 2015 was near 2013 levels.

Quantitative UoA Impacts – Sea Turtles

There were 8 observed interactions with loggerhead sea turtles from 2015-2020 in the NEFOP data. All of these were released alive (2 were resuscitated). It is important to note that these data represent just a portion of fishing effort so does not represent an estimate of total annual interactions. Summary of take by year is included below in

Table 19. As noted previously, the SBRM is required to report annual discards of sea turtles using information obtained from the NEFOP. A recent 3-year SBRM review report (NOAA 2021) provided new bycatch estimates for turtle interactions for each gear type, and region. The report references a study by Murry 2020 that estimated the average annual number of Loggerhead interactions in the Mid Atlantic between 2014 and 2018 for Bottom and Scallop Otter trawls, with an annual mean and CV estimated as 114 (CV = 0.29). The number of interactions specific to the Scup fishery are unknown but are included as part of this total.

Management Measures

The 2021 BiOp contains the most current ITS annual levels of incidental take for sea turtle interactions with bottom trawls (NMFS 2021). In this ITS, the most recent GARFO and SERO fishery consultations considered adverse effects to green, Kemp’s Ridley, loggerhead, and leatherback sea turtles. In each of the fishery opinions, it was concluded that the ongoing action was likely to adversely affect but was not likely to jeopardize the continued existence of any sea turtle species. Each of these opinions included an Incidental Take Statement (ITS) exempting a certain amount of lethal or non-lethal take. These ITSs are summarized below for each species showing the number of captures that may be lethal or non-lethal.:

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▪ for Loggerhead Sea Turtles from the NWA DPS, NMFS anticipates: (a) the take of no more than 1,345 individuals over any consecutive five-year period in gillnet gear, of which up to 835 may be lethal, (b) the take of no more than 852 individuals over any consecutive four-year period in trawl gear, of which up to 284 may be lethal; and (c) the annual take of up to one individual in trap/pot gear, which may be lethal or non-lethal;

▪ for Leatherback Sea Turtles, NMFS anticipates (a) the annual observed take of up to four individuals in gillnet gear, of which up to three per year may be lethal; (b) the annual observed take of up to four individuals in bottom trawl gear, of which up to two per year may be lethal; and (c) the annual observed take of up to four individuals in trap/pot gear, which may be lethal or non-lethal;

▪ for Kemp’s Ridley Sea turtles, NMFS anticipates the annual observed take of up to four individuals in gillnet gear, of which up to three per year may be lethal, and the annual observed take of up to three individuals in bottom trawl gear, of which up to two per year may be lethal; and

▪ for Green Sea Turtles, NMFS anticipates the annual observed take of up to four individuals in gillnet gear, of which up to three per year may be lethal, and the annual observed take of up to three individuals in bottom trawl gear, of which up to two per year may be lethal.

Use of TEDS is not currently required in the Scup fishery but is an area of ongoing research. In 2010 a large flounder grid TED design was tested in Southern New England. Initially, there was a loss of ~55% but after making modifications the loss decreased to 10%, which was not significant. (DeAlteris 2010) However, this 10% figure was based on only 16 paired tows on a single vessel. Currently, there are field tests ongoing for a cable TED design. A cable TED as it may be more operationally feasible with net reels and vessel configurations used in this area. NMFS uses 5-year estimates to evaluate annual interactions relative to the ITS, due to the small number of observed interactions that make annually produced estimates less reliable than estimates using multiple years of data. NMFS states that in addition to its 5-year reviews it considers on an annual basis observed takes of loggerhead turtles to consider trends in takes and look for patterns and changes in take levels. For sea turtle species other than loggerheads, NMFS will use all available information (e.g., observed takes, changes in fishing effort, etc.) to assess if the annual incidental take level in the Opinion has been exceeded (Oceana, Inc. Plaintiff, v. Penny Pritzker, Secretary of Commerce, et. al., 2016).

Atlantic sturgeon

Status

In 2012 NOAA’s Fisheries Service announced a final decision to list five distinct population segments (DPS) of Atlantic sturgeon under the Endangered Species Act. The Chesapeake Bay, New York Bight, Carolina, and South Atlantic DPSs of Atlantic sturgeon were listed as endangered, while the Gulf of Maine DPS was listed as threatened. Atlantic sturgeon from any of the five DPSs could occur in areas where Scup trawls operate, and the species has been captured in Scup trawls.

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The ASMFC released a new benchmark stock assessment for Atlantic sturgeon in October 2017 (ASMFC 2017). It concluded that all five Atlantic sturgeon DPSs are depleted relative to historical levels. Although there is also some evidence of population recovery at the coastwide scale, and mixed population recovery at the DPS scale (ASMFC 2017). The 2017 stock assessment also concluded bycatch, habitat loss, and ship strikes continue to impede the recovery rate of Atlantic sturgeon (ASMFC 2017).

Table 20. Stock status determination for the coastwide stock and DPSs (recreated from the Commission’s Atlantic Sturgeon Stock Assessment Overview, October 2017; cited from the 2021 Biological Opinion for NMFS 2021).

*EPR= eggs per recruit. The EPR analysis was used to find the value of total mortality (Z) that resulted in an EPR that was 50% of the EPR at the unfished state for ages 4-21 (Z50%). **For indices that started after 1998, the first year of the index was used as the reference value. The terminal year of a given survey was compared to the fitted abundance index from 1998 (the year the Commission’s moratorium for Atlantic sturgeon was implemented).

Quantitative UoA Impacts

The following information on fishery impacts was taken from the 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment (MAFMC 2020):

The 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment (SBSB EA) claims that Atlantic sturgeon interactions in the form of bycatch have been observed with bottom trawl gear since 1989 and have the potential to result in the injury or mortality. There are three studies covering three time periods, that describe bycatch of Atlantic sturgeon in gillnet and bottom trawl gear: Stein et al. (2004b) for 1989-2000; ASMFC (2007) for 2001-2006; and Miller and Shepard (2011) for 2006-2010. However, the SBSB EA claims that none of these documents provide estimates of Atlantic sturgeon bycatch by Distinct Population Segment. Miller and Shepard 2011 analyzed fishery observer data and VTR data to estimate the average annual number of Atlantic sturgeon interactions in gillnet and otter trawl in the Northeast Atlantic between 2006 and 2010. The Miller and Shepard (2011) publication is considered to represent the most accurate predictor of annual Atlantic sturgeon interactions in the Northeast gillnet and bottom trawl fisheries (NMFS 2013). Using these data, NMFS (2013) estimated that the annual bycatch of Atlantic sturgeon is 1,342 sturgeons in bottom otter trawl gear. Atlantic sturgeon interactions in trawl gear were observed with small (< 5.5 inches) and large (≥ 5.5 inches) mesh sizes and with estimated mortality rates of 5.0% (Miller and Shepard 2011). Similar conclusions were reached in Stein et

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 90 of 335 SCS Global Services Report al. (2004) and ASMFC (2007) reports. However, an important consideration to these findings is that observed mortality is considered a minimum of what occurs and therefore, are not reflective of the total mortality associated with bottom otter trawl gear. To date, total Atlantic sturgeon mortality associated with trawl gear remains uncertain.

Management Measures

The 2021 Biological Opinion (NMFS 2021) concluded that the Northeast Atlantic batched fisheries may adversely affect but are not likely to jeopardize the continued existence of any of the five DPSs of Atlantic sturgeon. The Biological Opinion included reasonable and prudent measures, as well as terms and conditions which will further reduce impacts to Atlantic sturgeon. The incidental take permitted according to the 2021 BiOp includes incidental take of varying amounts allocated across all 5 DPS’. The updated 2021 ITS estimates interactions with Atlantic Sturgeon according to DPS as follows:

▪ for Atlantic sturgeon from the GOM DPS, NMFS anticipates (a) the annual take of up to 137 individuals over a five-year average in gillnet gear, of which up to 17 adult equivalents per year may be lethal; (b) the annual take of up to 148 individuals over a five-year average in bottom trawl gear, of which up to 5 adult equivalents per year may be lethal;

▪ for Atlantic sturgeon from the NYB DPS, NMFS anticipates (a) the annual take of up to 632 individuals over a five-year average in gillnet gear, of which up to 79 adult equivalents per year may be lethal; (b) the annual take of up to 685 individuals over a five-year average in bottom trawl gear, of which up to 21 adult equivalents per year may be lethal;

▪ for Atlantic sturgeon from the CB DPS, NMFS anticipates (a) the annual take of up to 162 individuals over a five-year average in gillnet gear, of which up to 21 adult equivalents per year may be lethal; (b) the annual take of up to 175 individuals over a five-year average in bottom trawl gear, of which up to 6 adult equivalents per year may be lethal;

▪ for Atlantic sturgeon from the Carolina DPS, NMFS anticipates (a) the annual take of up to 25 individuals over a five-year average in gillnet gear, of which up to four adult equivalents per year may be lethal; (b) the annual take of up to 27 individuals over a five-year average in bottom trawl gear, of which up to one adult equivalent per year may be lethal; and

▪ for Atlantic sturgeon from the SA DPS, NMFS anticipates (a) the annual take of up to 273 individuals over a five-year average in gillnet gear, of which up to 34 adult equivalents per year may be lethal; (b) the annual take of up to 296 individuals over a five-year average in bottom trawl gear, of which up to 9 adult equivalents per year may be lethal.

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Although, recovery Goals Recovery Plans have not yet been drafted for any of the Atlantic sturgeon DPSs, a recovery outline has been developed as interim guidance to direct recovery efforts, including recovery planning, until a full recovery plan is approved15 (NOAA 2021).

Seabirds: Protected under the Migratory Bird Treaty Act

The Migratory Bird Treaty Act was enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it unlawful without a waiver to pursue, hunt, take, capture, kill, or sell birds listed therein as migratory birds. The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs, and nests. The U.S. Fish and Wildlife Service issues permits for otherwise prohibited activities under the act. These include permits for taxidermy, falconry, propagation, scientific and educational use, and depredation, an example of the latter being the killing of geese near an airport, where they pose a danger to aircraft. There is no general exemption granted to U.S. commercial fisheries.

The migratory bird species protected by the Act are listed in 50 CFR 10.13. In accordance with the Migratory Bird Treaty Reform Act of 2004 (MBTRA) (Pub. L. No. 108-447, 118 Stat. 2809, 3071- 72), all species native to the United States or its territories, which are those that occur as a result of natural biological or ecological processes are now included (See 70 FR 12710, March 15, 2005).

Birds of Management Concern are a subset of Migratory Bird Treaty Act, and comprise protected species which pose special management challenges because of a variety of factors (e.g., too few, too many, conflicts with human interests, societal demands).

The U.S. FWS have also identified ‘birds of conservation concern’ for species likely to become candidates for listing under the ESA and focal species for which management plans are created. FWS also spearheads broader initiatives for seabird protection including the North American Waterbird Conservation Plan. There is no established or regulatory linkage between these initiatives and NMFS fishery management operations at GARFO, NEFSC, or the Councils, but there is a staff member at GARFO with primary responsibility for liaising on seabird issues, and historical collaborations between the management agencies.

The NEFOP data provided observations on a low level of incidental interactions seabirds, all of which are listed on the MBTA and some of which are listed as birds of management concern

15 https://www.media.fisheries.noaa.gov/dam-migration/ats_recovery_outline.pdf (noaa.gov)

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Table 19 provides a summary of data on seabird interactions from observer records for the UoA bottom trawl fleet from 2015-2020.

Status adapted from (USFWS 2011) and audobon.org.

Cory’s Shearwater

Audobon.org species profile describes the status as being still numerous despite declines in some nesting areas. Colonies are vulnerable to disturbance and to pollution of nearby waters. They favor relatively warm waters, warmer than those sought by Greater Shearwater. Many move farther north in coast in warm-water years. They can be found over continental shelf and far out to sea, nests on islands, often rocky or mountainous. According to the audobon.org species profile they winter mainly off southern Africa. Breeding adults are generally near colonies from March to October, so birds seen off east coast of North America (peak numbers June to November) apparently are immatures and nonbreeders.

Greater Shearwater

Greater Shearwaters (Puffinus gravis) are among the world’s longest distance migrants, breeding on remote islands in the southern Atlantic Ocean, and migrating to the northwest Atlantic for the austral winter. The total population of Greater Shearwaters is thought to exceed 5 million breeding pairs. However, as the species nests in cliff burrows on extremely remote islands, populations are nearly impossible to accurately census and monitor, thus a decline may not be readily apparent. Despite the large population estimate, Greater Shearwaters are considered a Species of Conservation Concern by the U.S. Fish and Wildlife Service (USFWS) and are on National Audubon Society and American Bird Conservancy watch lists. As with many marine birds, Greater Shearwaters are long-lived with a low productivity. Thus, the cumulative impact of human threats could cause rapid declines in Greater Shearwater numbers that would be difficult or impossible to recover.

Northern Gannet

The Northern Gannet (Morus bassanus) is one of the largest seabirds of the North Atlantic. They breed only in eastern Newfoundland and the Gulf of St. Lawrence. From there, they travel south to the Gulf of Mexico and the Caribbean from December to February. In the fall they migrate south across the Gulf of Maine and Georges Bank, and travel as far south as the Mid-Atlantic Bight. In April, the spring migration reaches its peak on the Georges Bank and the majority of birds present are adults. According to the

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Audubon.org profile, populations declined drastically during 19th century owing to taking of eggs and slaughter of adults over much of range, but especially off eastern Canada. With protection, populations began to recover early in 20th century, with increase apparently continuing to present day.

Herring Gull

Herring gulls (Larus argentatus) are an abundant and widespread species. According to the species profile on Audubon.org, they occur year-round as far north as New England, Great Lakes, and southern Alaska. Some move south as far as Mexico, a few to West Indies and Panama. Young birds tend to migrate farther south in winter than adults. Populations declined in the 19th century when seabirds were hunted for eggs and feathers, but have since increased greatly under legal protections. Herring gull range has extended in recent decades towards the south, a unique occurrence among other similar large gulls.

Hatch (2017) provides a summary of all observed interactions with seabirds in the northeast from 1996- 2014. Bottom trawl (all mesh sizes) comprised 17%, 32%, 0.4%, and 2% of interactions of Northern gannet, herring gull, red-throated loon, and greater shearwaters, respectively. According to the 2017 studies, bottom trawl had the second highest level of interactions with sea birds behind gill nets. According to the USFWS 2011, data from the NMFS Fisheries Observer Program indicates that Greater Shearwaters make up the vast majority of marine bird bycatch in northern U.S. Atlantic waters, particularly within the New England groundfish fishery. According to the same report, In U.S. Atlantic waters Red-throated Loons are regularly killed particularly in gillnets in nearshore and inshore commercial fisheries of the MidAtlantic. Some data have indicated that >70% of these bycatch mortalities are adult birds, which could have a strong adverse impact on the population as a species with low reproductive capacities and slow maturation. A peer-reviewed analysis of bycatch data from the NMFS Fishery Observer Program found an average of nearly 900 Red-throated Loons killed by commercial mid Atlantic gillnet fisheries each year (Warden 2010) and concluded that such bycatch is 62 to 83% of the “potential biological removal level (PBR)” for the U.S. Atlantic Red-throated Loon population.

Management

The MBTA offers broad protection to listed seabird species; however, there is not a clear and established system to provide for and monitor incidental takes by commercial fishing operations. The North American Waterbird Conservation Plan identifies fisheries bycatch as a serious threat to at least 17 species of marine birds in the Mid-Atlantic/New England/Maritimes, and Southeastern regions, an area including all U.S. Atlantic waters. Several of these birds are also considered Species of Conservation Concern by the USFWS and are on National Audubon Society and American Bird Conservancy watch lists. However, there is no systematic or regulatory linkage that combines monitoring with impact evaluation and consideration of necessary management measures as seen in the MMPA via the LOF. There have been several interagency and national and international collaborations to mitigate seabird impacts, particularly on longline fisheries in the Pacific, but overall, there is a paucity of information for seabird–fishery interactions occurring in the US Northeast and mid-Atlantic regions, including gear types that are often overlooked (e.g., gillnets and trawls) and that may pose serious threats to seabird populations (Hatch 2017). The primary source

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8.3.1.10 Habitat Impacts

Overview

When assessing the status of habitats and the impacts of fishing, teams are required to consider the full area managed by the local, regional, national, or international governance body(s) responsible for fisheries management in the area(s) where the UoA operates (this is called the “managed area” for assessment purposes).

According to MSC Fisheries Standard and Guidance v2.01 GSA 3.13.3, the assessment team must determine and justify which habitats are commonly encountered, vulnerable marine ecosystems (VMEs), and minor (i.e., all other habitats) for scoring purposes, [where]:

“A commonly encountered habitat shall be defined as a habitat that regularly comes into contact with a gear used by the UoA, considering the spatial (geographical) overlap of fishing effort with the habitat’s range within the management area(s) covered by the governance body(s) relevant to the UoA; and

A VME shall be defined as is done in paragraph 42 subparagraphs (i)-(v) of the FAO Guidelines (definition provided in GSA 3.13.3.216) [as having one or more of the following characteristics: uniqueness or rarity, functional significance, fragility, Life-history traits of component species that make recovery difficult, and/or structural complexity]. This definition shall be applied both inside and outside EEZs and irrespective of depth.”

16 According to MSC Fisheries Standard and Guidance v2.01 GSA 3.13.3.2: VMEs have one or more of the following characteristics, as defined in paragraph 42 of the FAO Guidelines: ▪ Uniqueness or rarity – an area or ecosystem that is unique or that contains rare species whose loss could not be compensated for by similar areas or ecosystems. ▪ Functional significance of the habitat – discrete areas or habitats that are necessary for survival, function, spawning/reproduction, or recovery of fish stocks; for particular life-history stages (e.g., nursery grounds, rearing areas); or for ETP species. ▪ Fragility – an ecosystem that is highly susceptible to degradation by anthropogenic activities. ▪ Life-history traits of component species that make recovery difficult – ecosystems that are characterized by populations or assemblages of species that are slow growing, are slow maturing, have low or unpredictable recruitment, and/or are long lived. ▪ Structural complexity – an ecosystem that is characterized by complex physical structures created by significant concentrations of biotic and abiotic features.”

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Both commonly encountered and VME habitats are considered ‘main’ habitats for scoring purposes (GSA 3.13.3).

Habitat Type: Commonly Encountered

Status

Commonly encountered habitats include high energy mobile sediments. This description can be found in the 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis (MAFMC 2020a), referred to in this document as the SBSB EA. The description reads as follows: “Trawl fisheries for summer flounder, scup, and black sea bass in federal waters are conducted primarily in high energy mobile sand and bottom habitat ((Amendment 13 (MAFMC 2002))”.

According to NOAA’s Fisheries Ecology of the Northeast US Continental Shelf Website17, sediments are by far the dominant type of surficial substrate in the Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME) and slope. Accordingly, fine sediments are more easily moved by bottom currents, resulting in heavier sands and gravels being found in high-energy (“erosional”) areas, and silts and clays in deeper and less energetic (“depositional”) areas. A map of sediment distribution from the website is included in (Figure 20), and reasons for the importance of these sediments read as follows:

“They are important in an ecosystem context due to their abundance and for other reasons including: 1) some or all life stages of many plant and animal species are closely tied to certain sediment types, so their distribution and abundance are partly determined by sediments; 2) sediment-dwelling organisms from microbes through benthic macrofauna are important in food webs and other ecosystem functions; 3) sediments are a significant site for deposition and uptake of organic carbon and contaminants, and nutrient regeneration, and they sometimes contribute to bottom water hypoxia and release of toxic compounds such as hydrogen sulfide and ammonia; and 4) sediments are relatively amenable to monitoring to determine trends over space and time in contamination and other ecosystem indicators.”

Greene et al. (2010), cited by (MAFMC 2020a) identified and described Ecological Marine Units (EMUs) in New England and the Mid-Atlantic based on sediment type, according to this classification scheme, the sediment composition off New England and the Mid-Atlantic is about 68% sand, 26% gravel, and 6% silt/mud. Bottom habitats (the seafloor) are classified as about 52% flat, 26% depression, 19% slope, and 3% steep.

Sediment types in high energy environments have been characterized using the Swept Area Seabed Impact (SASI) model (NEFMC 2011). The SASI model, primarily used to assess seafloor vulnerability to fishing gear impacts, offers characterizations of the geological and biological features according to

17 NOAA Fisheries Ecology of the Northeast US Continental Shelf Website, https://apps- nefsc.fisheries.noaa.gov/nefsc/ecosystem-ecology/physical.html.

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According to the 2011 SASI report (NEFMC 2011), dominant substrates in areas fishable by trawl gear in high energy environments were by percentage: 52.9% sand, 15.0% mud, 22.9% granule pebble, 7.2% cobble and 2.1% boulder. The top biological features (>10%) in the fishable trawl area in high area environments included: hydroids and Modiolus (10.8% each), and ~9% distribution of polychaetes (2 forms), sponges, cerianthid burrowing anemones, ascidians, and Placopecten magellanicus.

The SASI model has been used to generate susceptibility scores for substrates impacted by otter trawls. Bar charts comparing susceptibility and recovery scores for geological and biological features in high and low energy environments for otter trawls are provided (Figure 23) (taken from Grabowski et al. 2014). Here susceptibility is “the percentage of total habitat features encountered by fishing gear during a hypothetical single pass fishing event that have their functional value reduced (NEFMC 2011). Recovery is “the time in years that would be required for the functional value of that unit of habitat to be restored”. Recovery does not necessarily mean a restoration of the exact same features, but that after recovery the habitat would have the same functional value. (NEFMC 2011).

SASI scores for the three most dominant sediment types in high energy environments (accounting for 90.8% of the total substrate) are provided below.

▪ Sand as a geographic feature receives a susceptibility score of approximately 32%, and a recovery score of approximately 0.7 years; as a biological feature it receives susceptibility scores of approximately 29% and 3 years to recover.

▪ Granule pebble as a geographic feature receives a susceptibility score of approximately 18%, and a recovery score of approximately 1 year; as a biological feature it receives susceptibility scores of approximately 30% and 3 years to recover.

▪ Mud as a geographic feature receives a susceptibility score of approximately 38%, and a recovery score of approximately 0.5 years; as a biological feature it receives susceptibility scores of approximately 22% and 2.5 years to recover.

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It is useful to note that sensitivity analyses demonstrated that recovery scores are an important driver of model results, with longer recovery times contributing to higher estimates of vulnerability.

Figure 20. Distribution of major sediment types throughout the NES LME (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries-science-center).

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Table 21. Ten habitat types identified in the Vulnerability Assessment (From: NEFMC 2011).

Management

The SBSB EA (MAFMC 2020a) is an omnibus action covering all Council FMPs. It examines several management alternatives using different quota allocations (1A-1D) to assess impacts on the physical habitat. Management alternatives 1A-1D were as follows: status quo, preferred, least restrictive, and most restrictive. Although changes to both commercial and recreation harvest limit (RHL) were included in this analysis, the impact of recreational fishing is considered to be far less than commercial bottom trawls. It was determined that all expected levels of fishing effort (from least restrictive to most restrictive)

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Managed actions by the MAMFC to protect marine habitats are referenced in Section 6.2 of the SBSB EA (MAFMC 2020a). These include Amendment 9 and 16 to the Mackerel, Squids, and Butterfish (MSB) FMP. In Amendment 9, the Council determined that bottom trawls deployed by these fisheries had the potential to adversely affect EFH for some federally managed fisheries (MAFMC 2008). This resulted in Amendment 1 to the Tile fish FMP (MAFMC 2008) to closures in the Veatch and Norfolk Canyons to protect tilefish EFH by prohibiting all bottom trawling activity. In Amendment 16, the use of all bottom-tending gear was prohibited in fifteen discrete zones and one broad zone where deep-sea corals are known or highly likely to occur (81 Federal Register 90246, December 14, 2016). Coral is covered in the VME section of this report. In addition, management action implemented in the Summer Flounder, Scup, and Black Sea Bass FMP, in considering impacts on EFH18 stipulated that management measures were unnecessary given the negligible impacts incurred by bottom trawling on high emery environments (Amendment 13 (MAFMC 2002)). A citation provided by SBSB EA (MAFMC 2020a) explaining this action reads as follows:

“Actions implemented in the Summer Flounder, Scup, and Black Sea Bass FMP that affected species with overlapping EFH was considered in Amendment 13 (MAFMC 2002). The analysis in Amendment 13 indicated that no management measures were needed to minimize impacts to EFH because the trawl fisheries for summer flounder, scup, and black sea bass in federal waters are conducted primarily in high energy mobile sand and bottom habitat where gear impacts are minimal and/or temporary in nature. “

Closed areas in state waters

Most states have some restrictions on trawling including seasonal and permanent closures (Amendment 13). Oceana’s Marine Conservation Biology Institute provides a full list of restriction for all states in the USA on their website (State Regulation of Bottom Trawls, www.oceana.org). States with permanent non- seasonal closures have been included below as follows:

▪ Connecticut - Bottom trawling prohibited in nearshore waters (from shore out to 0.25-1.0 miles, depending on location).

▪ Delaware - Bottom trawling prohibited in state waters, except for scientific purposes (DEL. CODE ANN. tit. 7 (2004)).

▪ Maryland - Bottom trawling prohibited within 1 mile of coastal shore, or in Chesapeake Bay or bays behind the Atlantic barrier islands (MD. REGS. CODE tit. 08.02, § 05.03 (2004)).

18 EFH is not considered by itself a common habitat, however it is linked to high energy sediments. EFH’s are treated as a VME in this assessment.

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▪ New Hampshire - Complete ban on trawls in state waters (N.H. REV. STAT. ANN. § 211.49 (2004)).

▪ New Jersey - No trawling within 2 miles of coast (limited exception for shrimp trawls) (N.J. ADMIN. CODE tit. 7:25, § 18.14(b) (2004)).

▪ North Carolina - Bottom trawling prohibited in nearly 50% of inshore waters.

Information

Managed Area

In accordance with MSC FS V 2.01, SA3.13.5, when assessing the status of habitats and the impacts of fishing, teams are required to consider the full area managed by the local, regional, national, or international governance body(s). Scup is caught in areas managed by both the New England Fisheries Management Council and the Mid-Atlantic Fisheries Management Council. The managed area is the state and federal waters stretching from the Gulf of Maine to Cape Hatteras. The topography for this area is described on NOAA’s Ecology of the Northeast U.S. Continental Shelf website19 as follows:

The Gulf of Maine, a semi-enclosed continental shelf sea, is characterized by an extremely complex physiographic structure. Three major deep basins occur in the Gulf (Figure 21). Georges Basin is the smallest but deepest of the three, covering an area of 4100 km2 with a mean depth of approximately 300m. Wilkinson and Jordan Basins are similar in average depth (approximately 225 m) with Wilkinson the larger of the two (~7100 km2 vs ~6700 km2). There are over 20 smaller basins located with the Gulf of Maine. Two relatively large ledge-bank systems (Stellwagen and Jeffries Ledges) occur within the Gulf of Maine proper. Four major river systems feed into the Gulf of Maine (the Androscoggin, Penobscot, Merrimack, and Kennebec Rivers), playing an important role in the oceanography of the coastal Gulf of Maine.

Georges Bank, a broad shallow submarine plateau forming the seaward boundary of the Gulf of Maine, is delineated to the north and east by the Northeast Channel and to the south and west by the Great South Channel (Figure 21). The bank encompasses approximately 42,000 km2 within the 100 m isobath. When water levels were substantially lower at the end of the last ice age, Georges Bank was part of a larger cape, and later with rising sea levels (approximately 14,000 years ago), an island. It was completely submerged approximately 11,500 year ago. The average depth of Georges Bank is now 75 m but is just 30 m at its shallowest on Georges Shoals.

The seaward margin of Georges Bank on the continental slope is incised with 11 major submarine canyons. Submarine canyons are typically deep, V-shaped valleys cut into the sediments of the continental slope and shelf approximately perpendicular to the depth contours of those structures,

19 NOAA’s Ecology of the Northeast U.S. Continental Shelf website. Online at: (https://apps- nefsc.fisheries.noaa.gov/nefsc/ecosystem-ecology/physical.html)

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(Figure 22). A large number of smaller, unnamed canyons, also called gullies, cross the slope in between the large ones, but do not impinge on the shelf.

Canyons converge at their lower ends into a smaller number of collection valleys, called canyon channels, that continue down across the continental rise toward the abyssal plain. Like terrestrial canyons, these submarine megafeatures were created by erosion. However, while several of the large canyons are aligned with the now-submerged valleys of rivers that flowed across the shelf during the last ice age when sea level was nearly 100 m lower, none of the submarine canyons were actually exposed; they were not carved by rivers like terrestrial canyons. Rather, they are thought to have formed initially by slumping of accumulated sediments beginning on the slope, which propagated progressively shelfward with time, and were further excavated by sediment flows. Hence the largest canyons are thought to be the oldest. Submarine canyons in the NES LME are not restricted to the Georges Bank region. Major canyons further to the south include Block Canyon off southern New England, Hudson Canyon (part of the Hudson River drainage system, and Norfolk Canyon off the Virginia capes.

Major influences in the Middle-Atlantic Bight region include several large estuaries including the Hudson, Delaware Bay, and Chesapeake Bay.

Figure 21. Bathymetry of the NES LME and adjacent offshore waters with the names of major features. (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries-science-center).

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Figure 22. Edge of the continental shelf showing canyon systems off the Northeastern United States. (Source: NOAA NEFSC website online at https://www.fisheries.noaa.gov/about/northeast-fisheries-science-center).

Bottom trawl impacts on habitat

Towed bottom fishing gears, including small mesh bottom trawl, have the potential to cause significant and long-lasting impacts to benthic habitats and communities (Jennings & Kaiser 1998). Repeated disturbance by fishing gear can remove high biomass of seabed organisms that contribute to seabed complexity and provide shelter for fish and other species (Kaiser et al. 2002). The overall impact of towed gears and the recovery time of the ecosystem vary depending on intensity of the interaction (the total area impacted and the frequency of tows), the composition of the seabed habitat, and the level of natural perturbation (DeAlteris 2005). Habitats and communities that are subject to high levels of natural perturbation are more likely to recover quickly from towed gears (Hiddink et al. 2006).

Hiddink et al. 2017 compared otter trawls (OTs), beam trawls (BTs), towed (scallop) dredges (TDs), and hydraulic dredges (HDs) to estimate depletion and recovery rates of biota after trawling. The study found that otter trawls caused the least depletion, where depletion of biota and trawl penetration is highly correlated. Median recovery times for all gear types ranged from 1.9-6.4 years. Study sites were focused in the northwest and northeast Atlantic. The analyses did not identify any variables other than trawling frequency that affected community biomass. The findings suggest that differences in time to recovery and expected biomass (B/K) will be driven primarily by gear type (and hence, d) and trawling frequency (F). The study finding that community recovery rates increase with trawling frequency due to a shift to communities with faster life histories but notes that this increased resilience does not indicate faster recovery to a pre-trawled state.

SASI Model

Information to inform habitat management has been bolstered by the recent Omnibus Essential Fish Habitat Amendment 2, which assessed seabed vulnerability to fishing gear impacts, using the Swept Area

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Seabed Impact (SASI) approach (NEFMC 2011). Though the Amendment and use of the model is based out of the NEFMC (versus the MAFMC), the model evaluation includes the UoA because the managed areas and stock range of species managed by the two Councils overlap (see description of Managed Area above). SASI results for different gear types can be compared in order to evaluate the benefits and costs of restricting fishing in particular areas for one or more gear types. Because SASI is based on an annual time step, model outputs are not useful for considering seasonal closures. Status quo habitat closed areas can be evaluated by considering whether adverse effects accumulate in those areas to a greater degree than across the portions of the model domain as a whole.

The SASI approach used (NEFMC 2011) consists of a vulnerability assessment and a spatial model. The vulnerability assessment reviewed the habitat impacts literature relevant to Northeast U.S. fishing gears and seabed types, and created a framework for organizing and generating susceptibility and recovery values for seabed features based on a scale of relative differences for use in the SASI model. A basic summary of the methodology used in the SASI approach is provided here, and a complete description of the methodology is available online: https://www.nefmc.org/library/omnibus-habitat-amendment-2.

The vulnerability assessment reviewed relevant habitat impacts literature to Northeast U.S. to organize seabed features (e.g., sponges, biogenic burrows, bed forms, etc.) according to vulnerability 20 , susceptibility21 (initial effect by single pass of fishing gear) and recovery22 values. A value of 10 years is selected as the potential recovery times for the features incorporated in the SASI model, which may be an underestimate of the recovery for some features. To examine distribution of vulnerable seafloor habitats, seabed features were inferred to occur in particular combinations of seafloor substrate (mud, sand, granule-pebble, cobble, or boulder) and seafloor energy (high or low). The susceptibility and recovery of each ‘seabed feature-gear-substrate-energy’ combination was scored on a 0-3 scale (Table 22).

Table 22. Susceptibility and Recovery values. Reproduced from NEFMC 2011b.

20 Vulnerability “represents the extent to which the effects of fishing gear on a feature are adverse. ‘Vulnerability’ is defined as the combination of how susceptible the feature is to a gear effect and how quickly it can recover following the fishing impact (NEFMC 2011). 21 Susceptibility: “the percentage of total habitat features encountered by fishing gear during a hypothetical single pass fishing event that have their functional value reduced (NEFMC 2011) 22 Recovery: “the time in years that would be required for the functional value of that unit of habitat to be restored”: Recovery does not necessarily mean a restoration of the exact same features, but that after recovery the habitat would have the same functional value. (NEFMC 2011).

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The vulnerability assessment identified low-energy granule-pebble, cobble- and boulder dominated habitats as being the most vulnerable to fishing impacts (Appendix D, Grabowski et al 2014). According to the 2011 SASI report (NEFMC 2011), these vulnerable habitats represent ~20% of the distribution of areas assumed to be fishable by generic trawl gear.

This vulnerability is driven primarily by the estimated recovery times, i.e., the amount of time it takes for structural habitat features to return to their prior state (NEFMC 2011). Bar charts comparing susceptibility and recovery scores for geological and biological features in high and low energy environments for otter trawls are shown (Figure 23, taken from Grabowski et al. 2014). It is necessary to note that the modeled effects are per unit of area impacted. Further it is useful to note that sensitivity analyses demonstrated that recovery scores are an important driver of model results, with longer recovery times contributing to higher estimates of vulnerability. To read more about the methodology of the SASI model See Omnibus Habitat Amendment 2.

Figure 23. Mean susceptibility (% damaged) and recovery (time in years) of biological and geological features from otter trawls impacts; hatched verticals error bars are ±1 SE, (taken from Grabowski et al., 2014). Shaded bars represent high energy environments while open bars represent low energy environments.

Habitat Type: Vulnerable Marine Ecosystems (VME) Status

Vulnerable Marine Ecosystems found within the managed area include Deep Sea Corals found within the Class Anthozoa, with major types including stony corals (Order Scleractinia), sea pens (Order Pennatulacea), true soft corals and gorgonians (Orders Alcyonacea), and black corals (Order Antipatharia). Types of deep-sea corals observed to date in the Greater Atlantic range from small, solitary corals to larger

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In the United States, there is no explicit VME designation. NOAA’s website identifies 5 types of habitats on their Habitat Protection website (http://www.habitat.noaa.gov/protection/index.html): Coastal wetlands, corals, essential fish habitat (EFH), rivers: hydropower and fish passage, and Cape Fear River Partnership. Of these, only coral and EFH are relevant to the marine fisheries within UoA jurisdiction.

The definition of VME provided by MSC SA3.13.3.21 and related guidance is based on the 2009 FAO International Guidelines for the management of Deep-sea Fisheries in the High Seas. Although the FAO Guidelines were written for deep-sea fisheries, for MSC purposes the Guidelines’ VME characteristics also considered to apply to non-deep-sea fisheries, and the definition of VME could include other species groups and communities for MSC assessment purposes. MSC guidance further states that it intends that the CAB consider VME’s and ‘potential’ VMEs as accepted, defined, or identified by relevant management authorities. Only defined VME’s are considered under 2.4.1, while ‘potential’ VME’s should be additionally recognized under 2.4.2 as a precautionary measure.

EFH are identified, described, and mapped for every federally managed fish species. Designation of EFH does not confer particular protections, rather management councils use EFH designations to identify sensitive habitats and apply appropriate regulations (such as gear restrictions) where appropriate because all FMPs are required to evaluate and minimize to the extent practicable fishing impacts on all EFH.

Habitat Areas of Particular Concern (HAPC) are a subset of EFH and are habitat types and/or geographic areas identified by any of the eight regional fishery management councils and NOAA Fisheries as priorities for habitat conservation, management, and research. The criteria used to define HAPCs generally aligns with those of VMEs (ecological function, sensitivity, exposure to development stress, and rarity); however, management regions are not required to define HAPCs based on habitats of highest importance relative to these criteria. This flexibility is intended to allow management to use the HAPCs as a habitat conservation tool based on local priorities. As in EFH, HAPC designation does not confer any inherent protection measure. HAPCs can be defined as habitat types, or discrete geographical sites. (Regional HAPC Report – May 2016).

The assessment team considers the EFH and HAPC designations as effective in focusing habitat protection regulations but considers the designation of EFH too broad given the designations are made for all federally managed species, and that the EFH definition does not align well with the VME definition as EFH pertain more to fish species specific characteristics rather than habitat specific characteristics described in the FAO guidelines above. HAPC criteria align with the VME definition, but the identification and designation process is not based on a systematic characterization and ranking of HAPC candidates, and the process is purposefully flexible to allow for management regions to use the designation as a management tool as appropriate in the local context, where management measures spurred by the designation may or may not intend to address fishing impacts. Thus, this is not considered an appropriate basis for VME classification for MSC assessment.

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Management

Deep sea corals have been recognized as a priority for conservation, with discretionary authority for conservation action provided with the 2006 reauthorization of the MSA (16 U.S.C. 1853 § 303 (b) (2)). In 2013, the NEFMC, MAFMC, and SAFMC signed an MOU16 regarding the management of deep-sea corals. The background to this document notes deep sea coral fragility, structural complexity, slow-growing life history, functional significance, and vulnerability to fishing impacts as the rationale for the creation of an MOU to establish a framework for coordination and cooperation to protect deep coral ecosystems.

Protection of deep sea coral was provided via the 2016 Amendment (Amendment 16) to the Atlantic Mackerel, Squid, and Butterfish (MSP) FMP. While the Amendment was written under the MSB FMP, it applies to all federally managed fisheries operating with relevant gear types in the designated coral zones. The amendment identifies two types of coral zones for protection (see http://www.mafmc.org/actions/msb-am16 for further information). The closure area in the image below is called the Frank R Lautenberg Deep Sea Coral Protection Area (Figure 24). It includes the following:

▪ A broad coral zone, consisting of a large, deep area, the vast majority of which is beyond the depths of current fishing effort. This area is intended to limit and prevent the expansion of current commercial gear use into these deeper areas.

▪ A set of discrete coral zones, which are smaller areas of known or highly likely coral presence. These include specific offshore canyons and slope areas.

Figure 24. Effective broad and discrete deep sea coral zones in the Mid-Atlantic Council Region as of January 13, 2017 (https://www.greateratlantic.fisheries.noaa.gov/sustainable). The combined area is approximately 99,000km2.

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In both types of coral zones, the use of most types of bottom-tending gear are prohibited, including both mobile and stationary/passive gear types. This action does not impact the lobster trap fishery, nor does it apply to recreational gear types. An exemption from gear restrictions is provided for the red crab fishery indefinitely in the broad zones and for a period of at least two years in the discrete zones. The final rule includes a provision allowing for vessel transit through or across all deep-sea coral zones with a requirement that the vessel’s fishing gear be stowed during transit.

In June 2021, the NEFMC signed the final rule prohibiting the use of certain bottom tending gears in the Georges Bank Deep-Sea Coral Protection Area, an area extending along the outer continental shelf in waters no shallower than 600 m to the outer limit of U.S. Exclusive Economic Zone boundary to the east and north, and south to the Franklin R. Lautenberg Deep Sea Coral Protection Area. Map included below (Figure 25).

Figure 25. Georges Bank Deep-Sea Coral Protection Area (NOAA website online at: Final Rule to Designate Deep-Sea Coral Protection Areas | NOAA Fisheries.

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The Great South Channel Habitat Management area is closed to all mobile bottom-tending fishing gear (Clam Dredges are exempt) because it contains complex benthic habitat that is important for juvenile cod and other fish species23. A map of this area is included below (Figure 26).

Figure 26. Boundaries of the Clam Dredge Exemption Areas in the Great South Channel Habitat Management Area (GSC HMA). Online at: Clam Dredge Exemption Areas in the Great South Channel Habitat Management Area | NOAA Fisheries.

The first Scup GRAs were implemented in November 2000 and designed to reduce discard mortality of juvenile scup in small-mesh fisheries.; these prohibit trawl vessels from fishing for or possessing longfin squid, black sea bass, and silver hake (also known as whiting) when using mesh smaller than 5.0 inches in diameter in the Northern Scup GRA during November and December and in the Southern Scup GRA from January 1 through March 15 (MAFMC 2016). See map below for dimensions and placement of the Scup GRA (Figure 27).

23 A Rule by the National Oceanic and Atmospheric Administration. Online at: Federal Register :: Fisheries of the Northeastern United States; Habitat Clam Dredge Exemption Framework.

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Figure 27. Current Scup GRAs (MAFMC 2016).

8.3.1.11 Ecosystem Impacts

Status

The status of the ecosystem was assessed using available information on key elements of the UoA fitting the definition provided in SA 3.16.3, “the features of an ecosystem considered as being most crucial to giving the ecosystem its characteristic nature and dynamics and are considered relative to the scale and intensity of the UoA. They are features most crucial to maintaining the integrity of its structure and functions and the key determinants of the ecosystem resilience and productivity.”

Structure and function

The UoA resides within what NOAA identifies as the Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME), which spans the area from Cape Hatteras to the Gulf of Maine. LMEs are defined by four ecological criteria: bathymetry, hydrography, productivity, and trophically linked populations. It is by these characteristics that the ~260,000km2 area known as the NES LME is defined and distinguished

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The Northeast U.S. Continental Shelf Large Marine Ecosystem is a dynamic, highly productive, and intensively studied system providing a broad spectrum of ecosystem goods and services. This region supports some of the highest revenue fisheries in the U.S. The system historically underwent profound changes due to very heavy exploitation by distant-water and domestic fishing fleets. Further, the region is experiencing changes in climate; new habitat climate vulnerability analysis links black sea bass, scup, and summer flounder to several highly vulnerable nearshore habitats from salt marsh through shallow estuarine and marine reefs (NOAA 2021b)

Seafood production

In the 2021 State of the Ecosystem Report for the Mid Atlantic (NOAA 2021b), it was shown that trends in total commercial landings continue to trend downwards in the Mid Atlantic Bight (MAB). The most significant commercial landings trend was found in the benthos (clams). The report notes that these trends can be driven by many interacting factors, including combinations of ecosystem and stock production, management actions, market conditions, and environmental change. However, some of the fishing related drivers were examined, including ecosystem overfishing, stock status, and system biomass trends.

Ecosystem Overfishing

Figure 28Figure 29

Figure 28: Fogarty Index; the ratio of total landings to total primary production in the MAB. Link and Watson (2019) give an optimal range (green shading) of the Fogarty ratio of 0.22 to 0.92 parts per thousand (PPT). Previous work suggested that index values exceeding 1 to 2 PPT (orange shading) led to ecosystem tipping points. This figure and accompanying description were taken directly from the report (NOAA 2021b).

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.

Figure 29: Ryther index; total landings presented on a unit area basis for the MAB. Theoretical estimates (Link and Watson, 2019) imply the index should range from 0.3 - 1.1 mt per sq km annually (green shading) with a limit of 3 mt per sq km annually, above which tipping points could occur in fished ecosystems (orange shading). Expected system wide MSYs can be in the range of 1 to 3 mt per sq km (unshaded). This figure and accompanying description were taken directly from the report (NOAA 2021b).

Stock Status

Stock status as a potential driver in downward commercial landings was considered unlikely (NOAA 2021b). In this, the report demonstrated that biomass and fishing mortality thresholds are being met for all but two MAFMC managed species, though the status of six stocks is unknown (Figure 30); only mackerel was below the F/Fmsy management threshold.

Figure 30: Summary of single species status for MAFMC and jointly federally managed stocks (Goosefish and Spiny dogfish). Stocks in green are below the biomass threshold (overfished), stocks in orange are above the biomass threshold but below the biomass target, and stocks in purple are above the biomass target. This figure and accompanying description were taken directly from the report (NOAA 2021b).

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System Biomass

Aggregate biomass trends for Piscavores, Benthivores, Planktivores, and Benthos were found to be mostly stable in the MAB with some long term increases for Spring piscivores and fall benthos (Figure 31) (NOAA 2021b), as derived from the NEFSC Bottom Trawl and NEAMAP scientific resource surveys. The report concluded that “while managed species make up varying proportions of aggregate biomass, trends in landings are not mirroring shifts in the overall trophic structure of survey-sampled fish and invertebrates. Therefore, major shifts in feeding guilds or ecosystem trophic structure are unlikely to be driving the decline in landings” (NOAA 2021b).

Figure 31: Spring (left) and fall (right) surveyed biomass in the Mid-Atlantic Bight. Data from the NEFSC Bottom Trawl Survey are shown in black, with NEAMAP shown in red. The shaded area around each annual mean represents 2 standard deviations from the mean. This figure and accompanying description were taken directly from the report (NOAA 2021b).

Predator prey relationships

Adult Scup are described as benthic feeders (benthivores) that consume a variety of prey, including small crustaceans (including zooplankton), polychaetes, mollusks, small squid, vegetable detritus, insect larvae, hydroids, sand dollars, and small fish (MAFMC 2020a).

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During certain times Scup diets were found to overlap those of Red Hake (Urophycis chuss) and, depending on size, those of Silver Hake (Merluccius bilinearis) and Gulf Stream flounder (Citharichthys arctifrons) (Sedberry1983, cited from Steimle et al. 1999). There was little overlap with Cod (Gadus morhua) or Silver Hake off New England, even though they have similar benthic diets (Langton (1982), cited from Steimle et al. 1999). There does appear to be competition between Scup and Winter Flounder where it was hypothesized that an expanding scup population in Narragansett Bay seemed to replace the winter flounder (Pseudopleuronectes americanus) because both species shave similar diets, i.e., if abundance of winter flounder were reduced, more prey could be available for benthic-feeding species such as scup (Jeffries and Terceiro (1985), cited from Steimle et al. 1999).

Predators of scup, include several shark species, skates, silver hake, bluefish, summer flounder, black sea bass, weakfish, lizardfish, king mackerel, and monkfish (Steimle et al. 1999, cited by MAFMC 2020a).

Fish and invertebrates were aggregated into similar feeding categories (guilds) to evaluate ecosystem level trends in predator prey relationships (NOAA 2021b), (Table 23). Species level comparisons are unavailable in the report, however aggregate biomass trends for all of the guilds including benthivores and benthos were found to be generally stable (NOAA 2021b).

Table 23. Feeding guilds and managing bodies (NOAA 2021b).

Management

According to the NEFSC Ecosystem Dynamics and Assessment Branch website (https://www.nefsc.noaa.gov/ecosys/), the importance of implementing marine Ecosystem based Management in the United States has recently been highlighted with the adoption of a new National Ocean Policy, established under presidential order on July 19, 2010. This policy identifies nine objectives,

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As further detailed in below, every federal fishery management action requires either an environmental assessment (EA) or an environmental impact statement (EIS). This process includes the identification of Valued Ecosystem Components (VECs), which include:

1) Managed resources

2) Non-target species

3) Habitat including EFH for the managed resource and non-target species

4) Endangered and protected resources

5) Human Communities

Impacts to VECs are analyzed relative to both short-term impacts and from a cumulative effects’ perspective, which is in the context of other past, present, and reasonably foreseeable future actions.

In addition, the Mid-Atlantic Fishery Management Council (Council) articulated objectives for the living marine resources under its management authority in its 2020-2024 Strategic Plan (MAFMC 2019b). One of the main goals is to, “Support the ecologically sustainable utilization of living marine resources in a manner that maintains ecosystem productivity, structure, and function”. Information

In 2016, the Council approved a Guidance Document for an Ecosystem Approach to Fisheries Management. This document does not in and of itself operationalize any changes in management, but is rather considered a “how-to” guide, though it could be converted into a regulatory document in the future (MAFMC 2016). It has since been revised and updated (MAFMC 2019a) and is available on the Council’s Ecosystem Approach to Fisheries Management website (www.mafmc.org/eafm/).

The NEFSC Ecosystem Dynamics and Assessment Branch provides an annual ‘State of the Ecosystem’ report focused on the Mid-Atlantic, reviewing trends and available information based on ecosystem objectives spanning economic, social, and environmental considerations, including elements identified above as key ecosystem elements (i.e., productivity, biomass, trophic structure). The most recent 2021 State of the Ecosystem Report for the Mid Atlantic24 (NOAA 2021b) was compiled to synthesize ecosystem information to better meet fishery management objectives, and to update the MAFMC’s Ecosystem Approach to Fishery Management (EAFM) risk assessment. Information in this report is organized into two sections, 1) performance measured against ecosystem-level management objectives and 2) risks to

24 The 2021 State of the Ecosystem Report for the Mid Atlantic is available on the NOAA website (https://www.mafmc.org/s/1_2021-Mid-Atlantic-SOE-report.pdf)

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Table 24. Ecosystem-scale fishery management objectives in the Mid-Atlantic Bight (NOAA 2021b).

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8.3.2 Principle 2 Performance Indicator scores and rationales

PI 2.1.1 The UoA aims to maintain primary species above the point where recruitment would be impaired (PRI) and does not hinder recovery of primary species if they are below the PRI Scoring Issue SG 60 SG 80 SG 100

a Main primary species stock status

Guide Main primary species are Main primary species are There is a high degree of post likely to be above the PRI. highly likely to be above the certainty that main primary PRI. species are above the PRI OR and are fluctuating around a OR level consistent with MSY. If the species is below the PRI, the UoA has measures in If the species is below the place that are expected to PRI, there is either evidence ensure that the UoA does of recovery or a not hinder recovery and demonstrably effective rebuilding. strategy in place between all MSC UoAs which categorise this species as main, to ensure that they collectively do not hinder recovery and rebuilding. Met? Spiny Dogfish – Yes Spiny Dogfish – Yes Spiny Dogfish – No Little Skate – Yes Little Skate – Yes Little Skate – No Winter Skate – Yes Winter Skate – Yes Winter Skate – Yes Summer Flounder - Yes Summer Flounder - Yes Summer Flounder - No Rationale

There are four Main-Primary species considered under this SI. They are Spiny Dogfish, Little Skate, Winter Skate, and Summer Flounder.

Spiny Dogfish - According to the most recent stock assessment (NEFSC 2018) overfishing is not occurring and the stock is not overfished. For spiny dogfish, Bmsy (proxy) is the spawning stock biomass that maximizes recruitment (SSBmax) in a Ricker type (dome-shaped) stock-recruitment model. SSBmax is estimated to be 351 million pounds with ½ of that target corresponding to the biomass threshold 175.5 million pounds. The spawning stock biomass estimate of 235 million was slightly above the biomass threshold of 175 million pounds, while the fishing mortality estimate (0.202) was just below the fishing mortality threshold of (0.2439). Based on this information from this most recent available stock assessment, spawning biomass is above the threshold biomass. So, it is likely that Spiny Dogfish are above PRI, thus SG60 is met. Furthermore, spawning biomass has been above the threshold level for at least 10 years making it highly likely it is above the PRI, thus SG80 is met. However, stocks are not fluctuating around a level consistent with MSY (SSBmax in this assessment) and have been below this value since 2015. Therefore, SG100 is not met.

Little skate - there was insufficient 2020 survey coverage; therefore, stock status was only updated until 2019. The 2017-2019 NEFSC spring average biomass index of 5.32 kg/tow was above the biomass threshold reference

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point (3.07 kg/tow) but below the BMSY proxy (6.15 kg/tow). However, the 2017-2019 average index was above the 2016-2018 average by 13.4%. Therefore, it was recommended in 2019 that this stock is not overfished, and overfishing is not occurring (NEFMC 2020). As per the stock assessment, Little Skate stock is above the biomass threshold and thus likely above PRI. Therefore, SG60 is met. Little Skate stock has also not dropped below this threshold for at least 10 years. Therefore, stocks are highly unlikely to be below the PRI, SG80 is met. However, the assessment shows that non-seasonal annual indices have been below the BMSY proxy level for several years so it cannot be said that Little skate stocks are fluctuating around a level consistent with MSY. SG100 is not met.

Winter skate – the 2017-2019 NEFSC Fall average biomass index of 8.61 kg/tow is above the biomass threshold reference point (2.83 kg/tow) and above the BMSY proxy (5.66 kg/tow). The 2017-2019 average index is above the 2016-2018 index by 19.2%. It is recommended that this stock is not overfished, and overfishing is not occurring (NEFMC 2020). Winter skate stock are above the biomass threshold and likely above PRI, thus SG60 is met. Biomass indices have been above the threshold for at least 10 years; so, it is highly likely stocks are above PRI, and SG80 is met. Stocks have been mostly well above the BMSY proxy level for at least 10 years, so SG100 is met.

Summer Flounder (Fluke) - According to the most recent Stock Assessment Workshop (SAW) 66 benchmark assessment (NEFSC 2019), Summer Flounder stock was neither overfished nor experiencing overfishing. The SSBMSY target proxy = SSB35% = 57,159 mt., and the SSBMSY threshold proxy = ½ SSB35% = 28,580 mt. The SSB in 2017 was estimated to be 44,552 mt., which is 78% of the SSB35%, and 56% above the ½ SSB35%. The upper and lower 90% confidence intervals for SSB in 2017 were 39,195mt., and 50,935mt. Given the SSB in 2017 is above the ½ SSB35% threshold, Flounder stocks are likely above the PRI, so SG60 is met. Given the lower bound of the 90% confidence intervals around the SSB in 2017 is above the ½ SSB35% threshold, it is highly likely that stocks are above the PRI, thus SG80 is met. However, the SSB in 2017 was below SSB35%, and has been for several years. Therefore, it cannot be said the stock is fluctuating around a level consistent with MSY. SG100 is not met.

b Minor primary species stock status

Guide Minor primary species are post highly likely to be above the PRI.

OR

If below the PRI, there is evidence that the UoA does not hinder the recovery and rebuilding of minor primary species. Met? No

Rationale

Based on the large number of primary minor species caught by bottom otter trawls, and given that the majority of these species are caught in low volumes (see Appendix 8.8, Table 44), the team decided to not score each of these minor species as a separate element, and accept the default score of SG80, as permitted by the Minor species and scoring element approach at SG100 (FCP v2.2 - 7.17.10, Annex SA PI 2.1.1 - 2.2.3, G7.17.10.a). This approach referred to as the all or none approach was permitted for use with FCR v2.0. See MSC interpretations

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log online at: Minor species and scoring element approach at SG100 (FCR v2.0 - 7.10.7, Annex SA PI 1.1.1, 2.2.1) (force.com). In this, if any of the minor species, did not achieve 100, then all of the minor species stay at SG80.

Scoring Red Hake

Red Hake is one Primary-Minor species caught by the UoA (Table 12) and are used here to represent Primary minor species in accordance with the all or none approach. Information on this species is covered in Section 8.3.1.7. In determining the score for Red Hake, the northern stock is not overfished and overfishing is not occurring. However, the southern stock is overfished and overfishing is occurring. The northern stock meets SG60 and SG80 given it is highly likely that the stock is above PRI based on the most recent report. However, it does not meet SG100 because with a high degree of certainty that stocks fluctuated around MSY. The southern red hake stock is not highly likely above PRI, and the NEFMC rebuilding plan cannot be said to be a demonstrably effective strategy because it is still being developed (Section 8.3.1.7). So, the southern stock meets SG60 because there measures in place, but fails to meet SG80. Overall, according to the all or none approach Red Hake stocks do not meet SG100, so all primary minor species meet SG80.

Red Hake stocks SG60 SG80 SG100

Northern Yes Yes No

Southern Yes No No

References

NEFSC 2018, species - Atlantic States Marine Fisheries Commission (asmfc.org).

NEFMC 2020, (2020-Skate-Annual-Monitoring-Report_200921_100052.pdf).

NEFSC 2019. 66th Northeast Regional Stock Assessment Workshop (66th SAW) Assessment Summary Report (noaa.gov).

Appendix 8.8, Table 44

Section 8.3.1.7

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

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Condition number (if relevant)

P2.1.1 Scoring calculations Elements SIa SIb PI score Spiny Dogfish 80 n/a ≥80 Little Skate 80 n/a Winter Skate 100 n/a Summer Flounder 80 n/a Primary minor species n/a 80

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PI 2.1.2 There is a strategy in place that is designed to maintain or to not hinder rebuilding of primary species, and the UoA regularly reviews and implements measures, as appropriate, to minimise the mortality of unwanted catch Scoring Issue SG 60 SG 80 SG 100

a Management strategy in place

Guide There are measures in place There is a partial strategy in There is a strategy in place post for the UoA, if necessary, place for the UoA, if for the UoA for managing that are expected to necessary, that is expected main and minor primary maintain or to not hinder to maintain or to not hinder species. rebuilding of the main rebuilding of the main primary species at/to levels primary species at/to levels which are likely to be above which are highly likely to be the PRI. above the PRI.

Met? Yes Yes No

Rationale

All Primary Main species are managed under Federal FMP’s. The FMPs have measures in place to reduce bycatch of all primary species, in alignment with the national strategy for bycatch management in U.S. fisheries. An example of one such measure can be found in the Summer Flounder, Scup and Black Sea Bass (FMP), through introduction of Framework 13, that modified the accountability measures required for overages not caused by directed landings (i.e., discards) in these fisheries (MAFMC 2018b). This meets the U.S. National Standard Guidelines requirements for FMPs to include considerations to reduce bycatch to the extent practicable25. The measures in place are expected to maintain or to not hinder rebuilding of the main primary species, so SG60 is met.

To achieve this, FMPs rely on the acquisition of verifiable and accurate discard data. The Northeast Fisheries Observer Program directs trips to collect information onboard vessels, based on a predetermined number-of- days per fleet determined in evaluation according to the standardized bycatch reporting methodology (SBRM) Amendment. Onboard observers are required to document catch composition and present annual discard reports to the Fishery Management Councils. Bycatch reports allow Councils to review the effectiveness of the SBRM and serve to inform management issues or actions via the various FMPs in place for Scup and other federally managed bycatch species. These measures constitute a partial strategy (cohesive arrangement), so SG80 is met.

Bottom otter trawl fisheries catch a variety of species, and it is widely acknowledged they have a high discard rate. Historically, when primary species have fallen below biological reference points, there have been demonstrable actions on the part of management to implement measures to minimize impacts on those species. Examples include the Framework adjustment 9 to the Summer Flounder, Scup and Black Sea Bass FMP (MAFMC 2016), that modified the southern and eastern boundaries of the Southern Scup Gear Restricted Area (in effect

25 U.S. National Standard Guidelines Available on NOAA’s website: National Standard Guidelines | NOAA Fisheries

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January 1 – March 15) to further reduce bycatch on numerous primary species. Scup bottom trawl fisheries are also subject to the same gear, area, and catch limit restrictions as applied via other FMPs.

Per MSC definition, it can be said there is a strategy (cohesive and strategic arrangement) that includes monitoring (via SBRM, NEFOP, and other fishery dependent sources) and resulting management measures (FMP Amendments and fishery specifications) that are designed to manage the main primary species in accordance with the explicit goals laid out in the U.S. National Standard Guidelines requirements for FMPs. However, the same cannot be said for all Primary minor species. For example, Atlantic croaker is managed by the ASFMC and while some aspects of the federal bycatch management program apply (e.g., monitoring via the NEFOP), there is not the same cohesion as provided for federally managed species via the SBRM. To attain a score of SG100, there should be a strategy for all Primary-Main and Primary-Minor. Therefore, SG100 is not met.

b Management strategy evaluation

Guide The measures are There is some objective basis Testing supports high post considered likely to work, for confidence that the confidence that the partial based on plausible argument measures/partial strategy strategy/strategy will work, (e.g., general experience, will work, based on some based on information theory or comparison with information directly about directly about the fishery similar fisheries/species). the fishery and/or species and/or species involved. involved. Met? Yes - all Primary main Yes - all Primary main Yes - all Primary main species, species, species

Rationale

All Primary-main species are federally managed as described in Sia above that through their respective FMPs can take measures that are likely to work, and SG60 is met.

There is an objective basis for confidence in the partial strategy working and measures set by FMPs can address bycatch issues as they relate to federally managed species. There are some examples of this; Amendment 10 to the Atlantic Mackerel, Squid, and Butterfish fishery FMP instituted a butterfish rebuilding plan that included a mortality cap in the directed longfin squid fishery, as well as increased mesh size requirements in trimesters 1 and 3 to reduce bycatch and discarding of butterfish as well as other finfish species (MAFMC 2009). Today, Butterfish are not considered to be overfished or to be experiencing overfishing, and the mesh size regulations have remained in place. A second example is the implementation of Scup Gear Restricted Areas (GRAs) in 2000 to address concerns over discard rates. The NEFSC determined that GRAs have likely reduced the discard mortality of small Scup and are responsible for the improved post [1] recruitment survival of these small Scup26 . Therefore, SG80 is met.

The partial strategy has been tested in its ability to function and produce results. FMPs have demonstrated that they can respond to and solve bycatch issues for federally managed species by implementing measures to reverse adverse effects. The Summer flounder, Scup, Black seabass FMP evaluates the effects of existing conservation

26 Commercial fishery scup discarding and the Gear Restricted Areas (GRAs) by Mark Terceiro and Alicia Miller NEFSC Population Dynamics Branch. Available at: SCUP_GRA_TerceiroMiller.pdf (squarespace.com)

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and management efforts to reduce bycatch. The acquisition and regular evaluation of verifiable and accurate discard data also provides confidence that strategies will work. Stock assessments of primary main species evaluate the management strategies in place. Therefore, SG100 is met.

c Management strategy implementation

Guide There is some evidence that There is clear evidence that post the measures/partial the partial strategy/strategy strategy is being is being implemented implemented successfully. successfully and is achieving its overall objective as set out in scoring issue (a). Met? Yes Yes

Rationale

There is some evidence that the strategy has been implemented successfully, as described in Sib, so SG60 and SG80 are met. The Scup fishery management system implemented Scup gear restricted areas (see SIb above), and nearly all main-primary species discards can be estimated with < 0.3 CV based on the achieved observer coverage (Wigley & Tholke 2020). This is considered to constitute some clear evidence of successful implementation, SG100 is likely met.

d Shark finning

Guide It is likely that shark finning It is highly likely that shark There is a high degree of post is not taking place. finning is not taking place. certainty that shark finning is not taking place. Met? Yes Yes Yes

Rationale

Sharks must be landed with fins attached to the carcass by law (NMFS HMS 2017). In 2010 Congress passed the Shark Conservation Act (SCA), which requires that all sharks landed in the United States be brought to shore with their fins naturally attached. As part of SCA NOAA created regulations for its implementation. Therefore, it is likely that shark finning is not taking place. SG60 is met.

Spiny dogfish are caught and retained in this fishery and is an MSC fishery. It has been determined by the assessment team for the MSC certification that shark finning is highly likely not to be taking place in this fishery and this UoA is a subset of the spiny dogfish UoA. Spiny dogfish are not processed at sea. No tailing or finning is allowed in this fishery. Apart from Spiny Dogfish, all other shark species caught by the UoA are considered Primary-minor because they are managed by the ASMFC and are of a low catch volume. The weight of all Primary- secondary shark species combined comprise < 0.02% of total catch according to the NEFOP observer data from 2015-2020. See Appendix 8.8, Table 44. So, SG 80 is met.

The NMFS Office of Law Enforcement (OLE) conducts inspections to enforce the Shark Finning Prohibition Act (SFPA) of 2000 and implement the ensuing regulations. The observer program also monitors compliance with the 2000 Shark Finning Prohibition Act. In the spiny dogfish fishery, there are regulations in place pertaining to record keeping and reporting of the landing, sale, transfer, purchase, or other disposition of fins or shark carcasses. All

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federally permitted seafood dealers are required to report the purchase of dogfish. This likely meets the SG100 requirements for a high degree of certainty.

Review of alternative measures e Guide There is a review of the There is a regular review of There is a biennial review of post potential effectiveness and the potential effectiveness the potential effectiveness practicality of alternative and practicality of and practicality of measures to minimise UoA- alternative measures to alternative measures to related mortality of minimise UoA-related minimise UoA-related unwanted catch of main mortality of unwanted catch mortality of unwanted catch primary species. of main primary species and of all primary species, and they are implemented as they are implemented, as appropriate. appropriate. Met? Yes Yes No

Rationale

MSC defines ‘unwanted catch’ as “the part of the catch that a fisher did not intend to catch but could not avoid and did not want or chose not to use” (SA3.1.6). The assessment team considers that unwanted catch is best represented by discard data. Information on discard percentages for the four Main primary species considered here, Spiny Dogfish, Little Skate, Winter Skate, and Summer Flounder, is covered in (Section 7.3.1.6).

A ‘regular’ review is defined as a review occurring at least every 5 years (SA3.5.3.2). An interpretation by the MSC clarifies that the ‘review’ may be “undertaken by the client fishery group members, a fisheries association or similar body or the wider management authority.” 27

There are reviews of bycatch practices to support a bycatch reduction strategy at the national, regional and FMP levels. The National Strategy for Bycatch Reduction produced in 2016 includes objectives to monitor and estimate bycatch, conduct research to improve estimates, conserve and manage fisheries to reduce bycatch, enforce management measures, and communicate to develop of common understanding of bycatch. SG60 is met.

Since then, the National Bycatch Reduction Strategy Implementation Plan 2020-2024 has been published on the NOAA website28. This plan outlines tasks that the headquarters’ offices, regional offices, and science centers will undertake to implement the strategy. It is 5-year plan covering activities from 2020 to 2024. The Plan’s research priority themes include “Research to Support measures which reduce/eliminate discards”. Notably, research focus has been primarily on the Summer Flounder, Scup, and Black Sea Bass fisheries.

27 MSC interpretation online at: What constitutes a 'review' of alternative measures? (FCR v2.0 - Annex SA PI 2.1.2, SA 3.5.3, GSA 3.5) (force.com) 28 National Bycatch Reduction Strategy Implementation Plan. Available online: (National Bycatch Reduction Strategy Implementation Plan (noaa.gov)).

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We have evidence that measures in the form of regulations are regularly implemented to address bycatch issues for federally managed species through GRAs29 and mesh size restrictions. These underwent evaluation under the criteria of the MSA and National Standards for effectiveness within the bounds of ‘practicability’ according to NOAA policy and are reviewed annually. SG80 is met.

However, it cannot be said that there is a biennial review of the potential effectiveness and practicality of alternative measures Therefore, the SG100 is likely not met.

References

MAFMC 2009. Amendment 10 To The Atlantic Mackerel, Squid, And Butterfish Fishery Management Plan. Online at: Microsoft Word - Amendment 10 DSEIS - FINAL FINAL 2009_6_19.doc (squarespace.com) MAFMC 2010. Amendment 10 To The Atlantic Mackerel, Squid, And Butterfish Fishery Management Plan. Online at: Microsoft Word - Amendment 10 DSEIS - FINAL FINAL 2009_6_19.doc (squarespace.com). MAFMC 2016. Framework Adjustment 9 To The Summer Flounder, Scup, And Black Sea Bass Fishery Management Plan. Online at: Scup_GRA_framework_EA_resubmissionOct2016.pdf (squarespace.com) MAFMC 2018b. Framework 13 – Commercial Accountability Measures Framework. 13. Online at: SFSCBSB+Commercial+AM+EA+document_Final+with+signed+FONSI.pdf (squarespace.com). The National Bycatch Reduction Strategy Implementation Plan 2020-2024. Online at . National Bycatch Reduction Strategy Implementation Plan (noaa.gov) Wigley SE, Tholke C. 2018. 2018 Discard estimation, precision, and sample size analyses for 14 federally managed species groups in the waters off the northeastern United States. US Dept Commer, NOAA Tech Memo NMFS NE-243; 182 p. Online at: https://doi.org/10.25923/snsa-rk52 Primary species Section 7.3.1.6

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

29 Scup Gear restricted Areas (https://www.fisheries.noaa.gov/species/scup#commercial)

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PI 2.1.3 Information on the nature and extent of primary species is adequate to determine the risk posed by the UoA and the effectiveness of the strategy to manage primary species

Scoring Issue SG 60 SG 80 SG 100

a Information adequacy for assessment of impact on main primary species

Guide Qualitative information is Some quantitative Quantitative information is post adequate to estimate the information is available and available and is adequate to impact of the UoA on the is adequate to assess the assess with a high degree of main primary species with impact of the UoA on the certainty the impact of the respect to status. main primary species with UoA on main primary species respect to status. with respect to status. OR OR If RBF is used to score PI 2.1.1 for the UoA: If RBF is used to score PI Qualitative information is 2.1.1 for the UoA: adequate to estimate Some quantitative productivity and information is adequate to susceptibility attributes for assess productivity and main primary species. susceptibility attributes for main primary species. Met? Yes -All Yes - All No - All

Rationale

All Primary main species are federally managed and subject to the same monitoring and information systems. The following rationale therefore applies to all main primary species scored for this UoA, namely Spiny Dogfish, Little Skate, Winter Skate, and Summer Flounder.

Quantitative information is available in the form of fishery dependent information (VTR, dealer data); NEFOP observer data, and SBRM reports. These information sources are detailed in the background of the report. Each of these species is also quantitatively assessed directly as a federal managed species. Such that, the status of each of the Main-Primary species is well understood and stock assessment reference points available. This information is adequate to estimate the impact of the UoA on Primary-Main species with respect to status. SG60 is met, and SG80 is met.

There is some uncertainty in estimating discards based on observed data being extrapolated by the SBRM, however coefficient of variations (CVs) surrounding discard estimates are available for each species by gear type, and location. The goal of the SBRM is to achieve a discard estimate with a CV precision of 30% across all species and fleets. In the 2020 SBRM report (Wigley & Tholke 2020), < 30% CV was achieved for all 14 federally managed (main primary) specie groups except for Surf Clams, which are unrelated to any of the otter trawl fisheries. However, discards comprise a significant amount of the total catch for some main primary species (skates and spiny dogfish in particular). This precludes the ability to assess the impact of the UoA on main primary species with a high degree of certainty. SG100 is likely not met.

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b Information adequacy for assessment of impact on minor primary species

Guide Some quantitative post information is adequate to estimate the impact of the UoA on minor primary species with respect to status. Met? N/A

Rationale

The team decided to not score each of these minor species as a separate element. See 2.1.2 (b). All primary minor species automatically achieve SG80.

c Information adequacy for management strategy

Guide Information is adequate to Information is adequate to Information is adequate to post support measures to support a partial strategy to support a strategy to manage main primary manage main primary manage all primary species, species. species. and evaluate with a high degree of certainty whether the strategy is achieving its objective. Met? Yes Yes No

Rationale

As noted in SIa, all main primary species are federally managed and are subject to the monitoring under the SBRM and are also subject to direct stock assessment and fishery management plans under the MAFMC or NEFMC, and in some cases additional management under the ASFMC. The management of primary species is further described in PI 2.1.2 and in the background section: 7.3.1.6. In this, information is adequate to support measures to manage Primary main species. SG60 is met. Information is also adequate to support a partial strategy. SG80 is met.

The monitoring and information system driven by the observer program and SBRM for fleetwide extrapolation and discard estimation is sufficient to support the strategy as designed for federally managed main primary species; however, non-target species management is not as cohesive as it pertains to non-federally managed species. Relevant to this information PI is that the SBRM does not account for non-federally managed species in its discard estimation and precision analysis. Due to this, it cannot be said that information is adequate to support all primary species with a high degree of certainty. SG100 is likely not met.

References

Wigley SE, Tholke C. 2020. 2020 Discard estimation, precision, and sample size analyses for 14 federally managed species groups in the waters off the north-eastern United States. US Dept Commerce, NOAA Tech Memo NMFS NE-261; Available online: 2020 Discard Estimation, Precision, and Sample Size Analyses for 14 Federally Managed Species Groups in the Waters off the Northeastern United States (noaa.gov). Section 8.3.1.6

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Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.2.1 The UoA aims to maintain secondary species above a biologically based limit and does not hinder recovery of secondary species if they are below a biological based limit Scoring Issue SG 60 SG 80 SG 100

a Main secondary species stock status

Guide Main secondary species are Main secondary species are There is a high degree of post likely to be above highly likely to be above certainty that main biologically based limits. biologically based limits. secondary species are above biologically based limits. OR OR

If below biologically based If below biologically based limits, there are measures in limits, there is either place expected to ensure evidence of recovery or a that the UoA does not demonstrably effective hinder recovery and partial strategy in place such rebuilding. that the UoA does not hinder recovery and rebuilding. AND Where catches of a main secondary species outside of biological limits are considerable, there is either evidence of recovery or a, demonstrably effective strategy in place between those MSC UoAs that have considerable catches of the species, to ensure that they collectively do not hinder recovery and rebuilding. Met? NA NA NA

Rationale

There are no Secondary Main species in this UoA. b Minor secondary species stock status

Guide Minor secondary species are post highly likely to be above biologically based limits.

OR

If below biologically based limits’, there is evidence that the UoA does not hinder the

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recovery and rebuilding of secondary species Met? No

Rationale

The assessment team has elected not to conduct the RBF on minor Secondary species, as permitted under PF4.1.4. Accordingly, the final PI score is scored down to meet SG80 only (PF5.3.2.1). A complete list of secondary species found in the catch according to NEFOP data can be found in Appendix 8.8, Table 44.

References

NEFOP species list (Appendix 8.8, Table 44).

Section 8.3.1.3

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.2.2 There is a strategy in place for managing secondary species that is designed to maintain or to not hinder rebuilding of secondary species and the UoA regularly reviews and implements measures, as appropriate, to minimise the mortality of unwanted catch Scoring Issue SG 60 SG 80 SG 100

a Management strategy in place

Guide There are measures in place, There is a partial strategy in There is a strategy in place post if necessary, which are place, if necessary, for the for the UoA for managing expected to maintain or not UoA that is expected to main and minor secondary hinder rebuilding of main maintain or not hinder species. secondary species at/to rebuilding of main secondary levels which are highly likely species at/to levels which to be above biologically are highly likely to be above based limits or to ensure biologically based limits or to that the UoA does not ensure that the UoA does hinder their recovery. not hinder their recovery. Met? NA NA No

Rationale

In relation to the use of 'if necessary' in P2 management PIs, FCR v2.2 - Annex SA PI 2.1.2, 2.2.2, 2.4.2, 2.5.2, guidance on the MSC interpretations log30 is as follows:

“Although it is not specified in the requirements, the MSC’s intent is that the ‘if necessary’ in scoring issue (a) also pertains to scoring issues (b) and (c). If the fishery does not need to have measures or partial strategy because there is no or negligible impact on Primary, Secondary, Habitats or Ecosystem components, it would meet at least the SG80 level in scoring issues a-c.”

There were no Secondary Main species observed in the UoA bycatch. Therefore, there cannot be any impacts on Primary, Secondary, Habitats or Ecosystem components, making it unnecessary to score SG60 and SG80. Then based on the above guidance, SG80 is met.

While there is evidence of a strategy in place for federally managed species. There is a relative lack of monitoring and evaluation focused on non-federally managed species. Therefore, it cannot be said that there is a strategy in place for managing Main and Minor Secondary species. SG100 is not met.

b Management strategy evaluation

Guide The measures are There is some objective basis Testing supports high post considered likely to work, for confidence that the confidence that the partial based on plausible argument measures/partial strategy strategy/strategy will work, (e.g., general experience, will work, based on some based on information

30 Use of 'if necessary' in P2 management PIs (FCR v2.0 - Annex SA PI 2.1.2, 2.2.2, 2.4.2, 2.5.2). Available online: https://mscportal.force.com/interpret/s/article/Use-of-if-necessary-in-P2-management-PIs-2-1- 2-2-2-2-2-4-2-2-5-2-PI-2-1-2-1527262011402

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theory or comparison with information directly about directly about the UoA similar UoAs/species). the UoA and/or species and/or species involved. involved. Met? NA NA NA

Rationale

See SI (a) above. SG80 is met.

c Management strategy implementation

Guide There is some evidence that There is clear evidence that post the measures/partial the partial strategy/strategy strategy is being is being implemented implemented successfully. successfully and is achieving its objective as set out in scoring issue (a). Met? NA NA

Rationale

See SI (a) above. SG80 is met.

d Shark finning

Guide It is likely that shark finning It is highly likely that shark There is a high degree of post is not taking place. finning is not taking place. certainty that shark finning is not taking place. Met? NA NA NA

Rationale

There were no secondary species of shark caught by the UoA. All the shark species caught by the UoA, apart from Spiny Dogfish, were classified as Primary-minor, and these were addressed in PI 2.1.2 (d). SG100 is met.

e Review of alternative measures to minimise mortality of unwanted catch

Guide There is a review of the There is a regular review of There is a biennial review of post potential effectiveness and the potential effectiveness the potential effectiveness practicality of alternative and practicality of and practicality of measures to minimise UoA- alternative measures to alternative measures to related mortality of minimise UoA-related minimise UoA-related unwanted catch of main mortality of unwanted catch mortality of unwanted catch secondary species. of main secondary species of all secondary species, and and they are implemented they are implemented, as as appropriate. appropriate. Met? NA NA No

Rationale

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There were no Secondary main species observed in the UoA bycatch. Therefore, there cannot be a regular review of the potential effectiveness and practicality of alternative measures to minimize the mortality of unwanted catch of Main Secondary species; SG60 and SG80 are met.

SG100 is applicable because it relates to all secondary species (main and minor). However, it cannot be said that there are biennial reviews of the potential effectiveness and practicality of alternative measures to minimise UoA- related mortality for all secondary species. SG100 is likely not met.

References

FCR v2.2 - Annex SA PI 2.1.2, 2.2.2, 2.4.2, 2.5.2

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator More information sought

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.2.3 Information on the nature and amount of secondary species taken is adequate to determine the risk posed by the UoA and the effectiveness of the strategy to manage secondary species Scoring Issue SG 60 SG 80 SG 100

a Information adequacy for assessment of impacts on main secondary species

Guide Qualitative information is Some quantitative Quantitative information is post adequate to estimate the information is available and available and adequate to impact of the UoA on the adequate to assess the assess with a high degree of main secondary species with impact of the UoA on main certainty the impact of the respect to status. secondary species with UoA on main secondary respect to status. species with respect to OR status. OR If RBF is used to score PI 2.2.1 for the UoA: If RBF is used to score PI 2.2.1 for the UoA: Qualitative information is adequate to estimate Some quantitative productivity and information is adequate to susceptibility attributes for assess productivity and main secondary species. susceptibility attributes for main secondary species. Met? Yes Yes No

Rationale

There is information available on bycatch of secondary species via the NEFOP. These data informed us that there were no secondary main species captured between by the UoA from 2015 and 2020. This allows us the team to estimate the impact of the UoA on Main Secondary species (i.e., negligible to none). Therefore, SG60 and SG80 are met. However, information in the form of extrapolated bycatch estimates or information on stock status are not available for secondary main species, therefore SG100 is likely not met.

b Information adequacy for assessment of impacts on minor secondary species

Guide Some quantitative post information is adequate to estimate the impact of the UoA on minor secondary species with respect to status. Met? No

Rationale

Minor secondary species are not managed by state or federal agencies, and there are no available stock assessments or status information for most of these species. For most minor species, there are few abundance

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estimates. NEFOP data, although adequate for characterizing catch composition, does not provide extrapolated precision-based estimates of bycatch that can be found in the SBRM reports. Therefore, SG100 is likely not met.

c Information adequacy for management strategy

Guide Information is adequate to Information is adequate to Information is adequate to post support measures to support a partial strategy to support a strategy to manage main secondary manage main secondary manage all secondary species. species. species, and evaluate with a high degree of certainty whether the strategy is achieving its objective. Met? Yes Yes No

Rationale

Despite there not being any secondary-main species caught by this UoA there is information available from the NEFOP on bycatch of secondary species, which is adequate to support measures and a partial strategy to manage secondary species. So SG60 and SSG80 are met.

However, this NEFOP information by itself although adequate to support a partial strategy, is focused primarily on federally managed species, and there is limited information on life history for many bycatch species. Therefore, a high degree of certainty is not achieved and SG100 is likely not met.

References

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.3.1 The UoA meets national and international requirements for the protection of ETP species The UoA does not hinder recovery of ETP species Scoring Issue SG 60 SG 80 SG 100

a Effects of the UoA on population/stock within national or international limits, where applicable

Guide Where national and/or Where national and/or Where national and/or post international requirements international requirements international requirements set limits for ETP species, the set limits for ETP species, the set limits for ETP species, effects of the UoA on the combined effects of the MSC there is a high degree of population/ stock are known UoAs on the population certainty that the combined and likely to be within these /stock are known and highly effects of the MSC UoAs are limits. likely to be within these within these limits. limits. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- Y

All Sea Turtles, Atlantic All Sea Turtles, Atlantic All Sea Turtles, Atlantic Sturgeon, and Sturgeon, and Sturgeon, and Seabirds - NA Seabirds - NA Seabirds - NA Rationale

All Sea Turtles, Atlantic Sturgeon, and All Seabirds

Incidental Take Limits set for ESA-listed species do not function as limits for the UoA as they set a level of expected interactions for all bottom trawls (broader than the UoA scope) that is evaluated on a 5-year basis unless statistically significant changes to impacts spur re-evaluation. There are no limits on seabird interactions. SIa is therefore not scored for these ETP elements.

Marine Mammals

Potential Biological Removal (PBR) Level is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The PBR is not allocated on a fishery specific basis, but does provide a quantitative limit on acceptable impacts, that is used as a management tool to monitor fishery impacts and trigger actions when necessary. For the purposes of this assessment, PBRs as set for species with known interactions with the UoA are considered limits. SG60 is met.

The following marine mammal species were recorded in the NEFOP data, and therefore considered elements for ETP scoring:

▪ Common dolphin

▪ Risso’s dolphin

▪ Bottlenose dolphin

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▪ Gray seal

The table below summarizes the current PBR, and average annual mortality estimates by LOF-classified MA Bottom Trawl fleets31 to which the Scup fishery is assigned (these numbers are from multiple fisheries classified as MA Bottom trawl fleets and are therefore larger than the UoA). See Marine Mammals under Section 7.3.1.8 for more detail on the status and evidence of interactions with each species.

Observed serious injury Observed non- MA Bottom Trawl or mortality lethal Marine Mammals: average annual interaction(s) in NEFOP PRB interaction(s) in Cetaceans mortality observer data (2015- NEFOP observer estimates by LOF 2020) data (2015-2020)

Risso's dolphin 126 37 No Yes (Grampus griseus)

Common dolphin 1,452 278 Yes Yes (Delphinus delphis)

Gray Seal (Halichoerus 1,389 17 No Yes grypus atlantica)

Per the above, the number of Mid-Atlantic Bottom Trawl mortalities are well below the PBR, providing a high degree of certainty that the UoA impacts are within limits.

Cumulative Impact Considerations

At the SG80 level, V2.01 of the standard MSC includes cumulative impact considerations such that all MSC UoAs must be considered. Of the marine mammal species identified, no species exceed their PBR. The total mortalities for the remaining ETP marine mammals are well below their established PBR. Therefore, regardless of the number of MSC UoAs for cumulative impact consideration, fishery impacts can be said to be within limits with a high degree of certainty. This meets SG80 for the following elements: Common dolphin, Risso’s dolphin, and Gray seal.

The Mid-Atlantic bottom trawl LOFs include all bottom trawl in the Mid-Atlantic (all mesh sizes). MSC certified or in assessment fisheries that are accounted for within this LOFs include: U.S. Gulf of Maine and Georges Bank Haddock, Pollock and Redfish trawl, U.S. Atlantic Spiny Dogfish, and the U.S. Acadian Redfish, Haddock and Pollock otter trawl fishery. MSC-certified fisheries that are not accounted for in this list include the longline and gillnet portion of the spiny dogfish fishery, the U.S. Atlantic scallop fishery, and the US Atlantic Surclam and Ocean Quahog fishery.

31 The current List of Fisheries is available at: Mid-Atlantic Bottom Trawl Fishery - MMPA List of Fisheries | NOAA Fisheries

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MSC Guidance in Table GSA3 states: “To ensure that the cumulative impact of all MSC fisheries is within sustainable limits, a UoA assessed against the MSC Fisheries Standard v2.0 may need to consider the combined impact of itself and other overlapping UoAs. This determination will include other UoAs assessed against earlier versions of the CR (e.g., v1.3).” However, subsequent interpretation via the MSC interpretation portal32 states that “Table GSA3 may be taken as a suggestion and does not need to be implemented. The expectation would be that fisheries assessed against v2.01 of the standard shall only be required to consider cumulative impacts with other v2.01 fisheries.” On this basis, the assessment team is considering only V2.01 fisheries when evaluating cumulative impacts.

Of these, the U.S. Southern New England winter and little skate, U.S. Acadian redfish, pollock and haddock otter trawl fishery, U.S. Gulf of Maine and Georges Bank haddock, pollock and redfish trawl, US Northeast Squid Bottom Trawl Fishery (Lund’s and Town Dock), U.S. Northeastern Coast Longfin Inshore Squid and Northern Shortfin Squid Bottom Trawl Fishery (Seafreeze – Seafresh), U.S. Atlantic Sea Scallop fishery, U.S. Atlantic Surfclam and Ocean Quahog fishery have been assessed under V2.01 (See Section 9.9.1.2).

The Surfclam and Ocean Quahog fisheries have no recorded ETP interactions with marine mammals. The remaining fisheries are covered in the Mid-Atlantic bottom trawl LOFs. and therefore the mortality estimates provided in the table above already include the relevant cumulative impacts. There is a high degree of certainty that the combined UoAs are within the limits established by the PBR. Therefore, the SG100 is likely met.

b Direct effects

Guide Known direct effects of the Direct effects of the UoA are There is a high degree of post UoA are likely to not hinder highly likely to not hinder confidence that there are no recovery of ETP species. recovery of ETP species. significant detrimental direct effects of the UoA on ETP species. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- Y All Sea Turtles- Y All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- Y All Seabirds- N Rationale

Marine Mammals

The following marine mammal species have recorded interactions with Scup bottom trawls: common dolphin, Risso’s dolphin, and Gray seals. The MMPA requires that a PBR is established for each species, designed to ensure fisheries do not hinder stocks from reaching or maintaining optimum sustainable populations. This goes beyond the criteria of ‘no significant detrimental direct effects’ or ‘hindrance of recovery’. As in SIa, because UoA- associated mortalities can be said to below the PBR with a high degree of certainty for common dolphin, Risso’s dolphin, and Gray seals; and, because PBR is set to prevent significant detrimental direct effects, SG60, SG80, and SG100 are likely met for these species.

Turtles

32 MSC interpretation portal online at: Assessing P2 species "cumulatively" between v2.0 and 1.3 fisheries (FCR v2.0 - Table GSA 3) (force.com)

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The 2021 Biological Opinion concluded that Mid-Atlantic fisheries (including Flounder, Scup, and Black Seabass) “may adversely affect, but is not likely to jeopardize, the continued existence of” Loggerhead (specifically, the NWA DPS). The Loggerhead turtle was recorded as having interacted with Scup bottom trawls in the 2015-2020 observer data provided to the team and as such considered to be an ETP element.

There is a degree of uncertainty in the status and trends of Loggerhead turtles. As designated in the 2008 loggerhead Recovery Plan (NMFS 2008), the Northwest Atlantic Distinct Population Segment of loggerheads is divided into five recovery units, representing nesting assemblages. Index beach nesting in the largest recovery unit, PFRU, had a 24% increase in nesting from 1989 to 1998, followed by a 42% decline from 1998 to 2007. Over the past 10 years (2007-2016), annual nests have increased. Overall, from 1989 to 2016, there a slight positive but not statistically significant nesting trend (FFWCC 2017 unpub. data). The second largest recovery unit, NRU, found no significant trend in nesting from 1983-2014. Nesting in 2015 was near 2013 levels.

The primary species likely to be adversely affected by the Scup fishery would be loggerhead sea turtles, as they are the most abundant species occurring in U.S. Atlantic waters. Information available to the assessment team, including 5 years of observer data (2015-2020), support this conclusion: According to NEFOP, there were eight observed interactions with Loggerheads from 2015-2020.

The 2021 BiOp incidental take statement (ITS) was produced regarding sea turtle interactions, with anticipated interaction levels broken down by general gear category (gillnet, trawl, and trap/pot) and species (NMFS 2021). See the background for a detailed breakdown across gears and species. The anticipated annual number of interactions/lethal interactions for Loggerhead are (204/67, estimated total). The ITS interaction levels are formally evaluated on a 5-year basis, on an annual basis observed takes of loggerhead turtles are reviewed to consider trends in takes and look for patterns and changes in take levels.

Observer records cannot be compared directly to the Biological Opinion ITS because this represents a subset of the trawl gear component for the ITS. The recent 3-year SBRM report (Wigley et al. 2020) estimates there were 114 interactions on average for the years 2014-2018 for all bottom trawl (including fish and scallops), which is under the ITS estimate of 204. When considering the CV of 29% the actual interactions may have been below or above the ITS. Finally, the ITS are estimated expected interactions, not management measures or limits.

The available evidence indicates that there are a non-trivial number of interactions of Loggerhead Sea turtles with the bottom trawl Scup fleet that comprises this UoA. However, the available trend information on loggerheads indicate that the UoA is not hindering recovery of loggerhead sea turtle. SG60 and SG80 are met but uncertainty in data on interactions and the level of ongoing interactions prevents the UoA from meeting the SG100 criteria for Loggerhead turtles. SG100 is not met.

Sturgeon

Atlantic Sturgeon are captured in sink gillnet, drift gillnet, and otter trawl gear. Of these gear types, sink gillnet gear poses the greatest known risk of mortality for bycaught sturgeon. The Miller and Shepard working paper (NMFS 2011) is considered to represent the most accurate predictor of annual Atlantic sturgeon interactions in the Northeast gillnet and bottom trawl fisheries (NMFS 2013). Using data from this study, NMFS estimated that the annual bycatch of Atlantic sturgeon is 1,342 sturgeons in all bottom otter trawl gear (NMFS 2013). Atlantic sturgeon interactions in trawl gear were observed with small (< 5.5 inches) and large (≥ 5.5 inches) mesh sizes

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and with estimated mortality rates of 5.0% (NMFS 2011). NEFOP observers recorded 18 recorded interactions between 2015 and 2020, approximately 3 per year in the NEFOP dataset (Appendix 8.8, Table 44).

The data available on UoA interactions, the findings of the 2021 Biological Opinion, and estimated post capture survival rates provide sufficient confidence to achieve the SG80. Therefore, SG60 and SG80 are met. Due to uncertainty in post capture survival and relatively low observer coverage, SG100 is not met.

Seabirds

Observer data provided to the assessment team included low levels of incidental interactions with several protected species of migratory seabirds, including Northern Gannet, Herring Gull, Cory’s Shearwater and Greater Shearwater. All species are considered ‘Least Concern’ on the IUCN Redlist but one of these species are classified as ‘species of conservation concern’ by the US FWS (the Greater shearwater). There is no indication that the bottom trawl fleet is having a population level impact on these seabird species, though there is a lack of ongoing monitoring of impacts by Northeast fleets on seabird populations.

From the information available, it is highly likely the UoA is not hindering recovery of any of the seabird species with which interactions have been recorded, SG60 and SG80 are met. Given there is not a high degree of confidence due to uncertainties in the extent of interactions and population impacts in the Northeast, SG100 is likely not met.

c Indirect effects

Guide Indirect effects have been There is a high degree of post considered for the UoA and confidence that there are no are thought to be highly significant detrimental likely to not create indirect effects of the UoA unacceptable impacts. on ETP species. Met? Yes, to All No, to All

Rationale

The primary indirect effects of the UoA on these ETP species would include critical habitat disturbance and trophic impacts. Indirect impacts have been considered for ETP species via stock assessments, designation of critical habitat under the ESA, and various studies of the trophic ecology of the NES LME and role of forage species (e.g., Houde et al 2014). The UoA operates a bottom trawl gear with benthic disturbances, but the location of the operation of the gear is not expected to disturb critical habitats for the ETP species, only some of which depend on the benthic environment.

Scup are considered benthivores and play an important role as predator and prey for many species in the food web, however the most recent stock assessment found that the spawning stock biomass (SSB) was about two times the target SSB and is not experiencing overfishing. This indicates the UoA is not having significant indirect impacts via removal of a key prey, SG80 is met. However, there is no direct evidence to confirm this with a high degree of certainty. SG100 is likely not met.

References

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NMFS (National Marine Fisheries Service). 2008. Recovery plan for the Northwest Atlantic population of the loggerhead turtle (Caretta caretta), Second revision. Washington, D.C.: National Marine Fisheries Service. Available: Recovery plan for the northwest Atlantic population of the Loggerhead sea turtle (caretta caretta) (noaa.gov)

NMFS (National Marine Fisheries Service). 2013. Endangered Species Act Section 7 Consultation on the Continued Implementation of Management Measures for the Northeast Multispecies, Monkfish, Spiny Dogfish, Atlantic Bluefish, Northeast Skate Complex, Mackerel/Squid/Butterfish, and Summer Flounder/Scup/Black Sea Bass Fisheries. Online at: https://repository.library.noaa.gov/view/noaa/27911.

NMFS (National Marine Fisheries Service). 2021. Biological Opinion on 10 Fishery Management Plans in the Greater Atlantic Region and the New England Fishery Management Council's Omnibus Habitat Amendment 2. NMFS, Consultation No. GARFO-2017-00031. Available: Final Fisheries BiOp_05_28_21.pdf (noaa.gov).

Florida Fish and Wildlife Conservation Commission (FFWCC). 2017. Unpublished data. Available: http://www.myfwc.com/research/wildlife/sea-turtles/nesting/

Houde, Edward; Gaichas, Sarah; Seagraves, Richard. 2014. Managing Forage Fishes in the Mid-Atlantic Region: A White Paper to Inform the Mid-Atlantic Fishery Management Council. Available: Tab 03_Forage Fish White Paper.pdf (squarespace.com).

Marine Mammals under Section 8.3.1.9

The current List of Fisheries is available at: Mid-Atlantic Bottom Trawl Fishery - MMPA List of Fisheries | NOAA Fisheries

Wigley S, Asci S, Benjamin S, Chamberlain G, Cierpich S, Didden J, Drew K, Legault C, Linden D, Murray K, Potts D, Sampson K, Tholke C. 2021. Standardized Bycatch Reporting Methodology 3-year Review Report - 2021. NOAA Tech Memo NMFS NE. 266; 186p.

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Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.3.2 The UoA has in place precautionary management strategies designed to: - meet national and international requirements; - ensure the UoA does not hinder recovery of ETP species.

Also, the UoA regularly reviews and implements measures, as appropriate, to minimise the mortality of ETP species Scoring Issue SG 60 SG 80 SG 100

a Management strategy in place (national and international requirements)

Guide There are measures in place There is a strategy in place There is a comprehensive post that minimise the UoA- for managing the UoA’s strategy in place for related mortality of ETP impact on ETP species, managing the UoA’s impact species, and are expected to including measures to on ETP species, including be highly likely to achieve minimise mortality, which is measures to minimise national and international designed to be highly likely mortality, which is designed requirements for the to achieve national and to achieve above national protection of ETP species. international requirements and international for the protection of ETP requirements for the species. protection of ETP species. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- Y Others- Not Relevant (See Others- Not Relevant (See Others- Not Relevant (See SIb) SIb) SIb)

Rationale

Per SA3.11.2.1 v2.01, this scoring issue shall be evaluated where there are requirements for protection and rebuilding provided through national ETP legislation or international agreements.

All Marine Mammals: MMPA

All marine mammals under the MMPA undergo stock assessments and are assigned a PBR level that is the product of the following factors: the minimum population estimate of the stock; one-half the maximum theoretical or estimated net productivity rate of the stock at a small population size; and a recovery factor of between 0.1 and 1.0. PBR is really designed as a metric to be used when comparing all estimated annual, anthropogenic mortalities, to decide if a marine mammal stock should be considered a strategic stock. SG60 and SG80 are met.

A strategic stock is defined by the MMPA "as a marine mammal stock-- for which the level of direct human-caused mortality exceeds the potential biological removal level; which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the ESA within the foreseeable future; or which is listed as a threatened or endangered species under the ESA, or is designated as depleted under the MMPA."

The U.S. Office of Protected Resources List of Fisheries (LOF) classifies U.S. commercial fisheries into one of three Categories according to the level of incidental mortality or serious injury of marine mammals: Category I. Annual mortality and serious injury of a stock in any given fishery is greater than or equal to 50% of the PBR level; Category II. Annual mortality and serious injury of a stock in any given fishery is greater than one percent and less

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than 50% of the PBR level; or Category III. Annual mortality and serious injury of a stock in any given fishery is less than one percent of the PBR level. The categorization of a fishery in the LOF determines whether participants in that fishery may be required to comply with certain provisions of the MMPA, such as registration, Northeast Fishery Observer Program observer coverage, and take reduction plan requirements. The categorization is updated annually.

Under Section 118 of the MMPA, NOAA is required to develop and implement take reduction plans for fisheries listed as Category I and Category II. These measures under the MMPA serve to minimize mortality for fisheries in the US EEZ. This meets the requirements of a “comprehensive strategy” as “a complete and tested strategy made up of linked monitoring, analyses, and management measures and responses.” SG100 is likely met.

b Management strategy in place (alternative)

Guide There are measures in place There is a strategy in place There is a comprehensive post that are expected to ensure that is expected to ensure strategy in place for the UoA does not hinder the the UoA does not hinder the managing ETP species, to recovery of ETP species. recovery of ETP species. ensure the UoA does not hinder the recovery of ETP species. Met? Marine Mammals- Not Marine Mammals- Not Marine Mammals- Not Relevant (See SIa) Relevant (See SIa) Relevant (See SIa) Sea Turtles- Y Sea Turtles- Y Sea Turtles- Y Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- Y Seabirds- Y Seabirds- Y Seabirds- N Rationale

Per SA3.11.2.2 v2.01, this scoring issue shall be evaluated where there are no requirements for protection and rebuilding provided through national ETP legislation or international agreements.

All Sea Turtles and Atlantic Sturgeon: ESA

The ESA, signed on 1973, provides for the conservation of species that are endangered or threatened the conservation of the ecosystems on which they depend. NOAA has jurisdiction over 159 endangered and threatened marine species and works with the U.S. Fish and Wildlife Service (USFWS) to manage ESA-listed species. Generally, NOAA manages marine species, while USFWS manages land and freshwater species. When a species is listed as endangered it is illegal to “take” (harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, collect, or attempt to do these things) that species. Section 10 of the ESA allows NOAA Fisheries Service to issue permits for incidental take, with the requirement of a conservation plan to minimize and mitigate impacts to the affected species. NMFS’ Office of Law Enforcement works with the U.S. Coast Guard and other partners to enforce and prosecute ESA violations (NOAA). SG60 and SG80 are met.

A 2021 Biological Opinion (NMFS 2021) on ten fishery management plans, and the associated revised incidental take statement provide for an operationalized strategy for managing impacts of these federally managed fisheries, including the Summer Flounder, Scup, and Black Sea Bass FMP, on ETP species. BiOp 2021 includes an incidental take statement that includes an expected number of interactions and required ‘reasonable and prudent measures’ to be undertaken by the fisheries to minimize impacts on sea turtles and Atlantic sturgeon. See more about the ITS for sea turtles in Background Section 8.3.1.9.

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This meets the requirements of a “comprehensive strategy” as “a complete and tested strategy made up of linked monitoring, analyses, and management measures and responses.” SG100 is likely met.

Seabirds: MBTA

Seabird management under the MBTA is administered by the US FWS. The linkage of protections under the MBTA to commercial fisheries is not formally established as in the MMPA and ESA, but there is evidence of successful implementation of seabird impact mitigation initiatives in US fisheries such as the Pacific pelagic longline fishery. There is ongoing monitoring of interactions via the observer program and evidence of consideration of commercial fishery impacts. The US FWS can priority species into management classifications including: Birds of Conservation Concern, Birds of Management Concern, and Focal Species. Seabirds are also considered in the NOAA National Bycatch Report.

The evidence of monitoring and studies on impacts (e.g. Hatch 2017) along with the legislative protections and seabird management initiatives at the US FWS is sufficient to meet the requirements for a strategy, So SG60 and SG80 are met. However, is cannot be considered a comprehensive strategy due to the lack of a formal linkages between the MBTA and US FWS initiatives with commercial fisheries management monitoring by NMFS. SG100 is not met.

c Management strategy evaluation

Guide The measures are There is an objective basis The strategy/comprehensive post considered likely to work, for confidence that the strategy is mainly based on based on plausible argument measures/strategy will work, information directly about (e.g., general experience, based on information the fishery and/or species theory or comparison with directly about the fishery involved, and a quantitative similar fisheries/species). and/or the species involved. analysis supports high confidence that the strategy will work. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- Y All Sea Turtles- Y All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- Y All Seabirds- N Rationale

There is a demonstrated history of action being taken, by federally managed fisheries, including reduction plans and placement of observers under the MMPA, studies and implementation of TED gear in trawl fisheries to reduce sea turtle impacts, and seabird interaction mitigation implementation in pelagic longline fisheries. SG60 is met.

There is an objective basis that the above detailed strategy and comprehensive strategies will work based on the availability of information from the fisheries and ongoing evaluations of population status and trends for the ETP species including marine mammals, sea turtles, Atlantic Sturgeon, and seabirds. SG80 is met.

There is quantitative analysis supporting much of the management strategies, but there is significant uncertainty in the evaluations of population status and trends for many ETP species, and not all have population status estimates available. The management of quantitative impacts by fisheries is established for gear types that

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encompass numerous FMPs, which results in an inability to clearly measure fishery-specific impacts relative to the biological limits established for any given ETP species.

, As such, with the exception of marine mammals that have PRB limits in place, the other ETP species fall short in providing high confidence that this strategy will work and therefore SG100 is likely not met.

d Management strategy implementation

Guide There is some evidence that There is clear evidence that post the measures/strategy is the strategy/comprehensive being implemented strategy is being successfully. implemented successfully and is achieving its objective as set out in scoring issue (a) or (b). Met? All Marine Mammals- Y All Marine Mammals- N All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- N Rationale

Marine Mammals

Evidence of implementation of the MMPA is provided via the annually updated stock assessments for marine mammals and the associated annually updated LOF classifications where fisheries are classified based on their interactions with marine mammals, relative to their established PBRs. A fishery that has interactions >50% of an established PBR should be classified as Category 1.

For all marine mammal species elements, mortalities attributed to either the NE or MA bottom trawl LOFs are below 50% of PBR, meaning the classification as Category 2 is appropriate to the management system design. No additional management actions are required for these species, and the LOFs and SARs continue to be updated to monitor changes in impacts. On this basis, there is some evidence that the strategy is being implemented successfully for Common dolphin, Risso’s dolphin, and Gray seal. Therefore, SG80is met.

Due to the lack of certainty in the stock status of the marine mammal populations and relatively low observer coverage, it cannot be said that there is clear evidence that the strategy as implemented is achieving its objective. SG100 is likely not met.

Sea Turtles and Atlantic Sturgeon: (Scored together per primary management under the ESA)

There is some evidence that the ESA strategy has been implemented successfully, as a Biological Opinion has been issued covering the FMP to which the UoA applies that includes likely estimated take (ITS) and specific ‘reasonable and prudent measures’ to be undertaken by the fishery. The 2021 BiOp provides evidence of ongoing monitoring of fishery impacts. Therefore, SG80 is likely met.

However, this is not considered ‘clear’ evidence because of the uncertainty in the status of sea turtles and Atlantic sturgeon, the ongoing rate of interactions of the fleet with loggerhead turtles, and the broad gear-level

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designation of the ITS that combined with relatively low observer coverage does not allow the assessment team to draw any clear conclusion regarding the UoA specifically. SG100 is likely not met.

e Review of alternative measures to minimize mortality of ETP species

Guide There is a review of the There is a regular review of There is a biennial review of post potential effectiveness and the potential effectiveness the potential effectiveness practicality of alternative and practicality of and practicality of measures to minimise UoA- alternative measures to alternative measures to related mortality of ETP minimise UoA-related minimise UoA-related species. mortality of ETP species and mortality ETP species, and they are implemented as they are implemented, as appropriate. appropriate. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- N All Sea Turtles- Y All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- Y All Seabirds- N Rationale

Marine Mammals

There is an annual review of fishery impacts on marine mammals via the LOF classification, where a range of measures including observer placement and take reduction plans are possible based on the relative impact of a fishery on marine mammal stocks. A take reduction strategy was implemented within the fleet under assessment historically. Thus, the SG60 and SG80 are likely met. These reviews, however, are not biennial and therefore SG100 is likely not met.

Atlantic sturgeon and sea turtles (under the ESA)

The Biological Opinion for this fishery revised ITS (NMFS 2021) include an expected level of interactions that is to be reviewed on a 5-year basis, in addition to a suite of ‘reasonable and prudent measures’ that must be implemented by the fishery. The 5-year review of the fishery impacts relative to the ITS meets the MSC definition for ‘regular’ and the reasonable and prudent measures reflect measures to minimize mortality that have been considered appropriate. Stemming from the revised ITS in 2021, reasonable and prudent measures and terms and conditions were implemented to minimize impacts of any incidental take. This meets the requirements of SG60 and SG80.

However, because mortality and implementation of measures relative to the ITS are not formally reviewed biennially, the SG100 is likely not met.

Seabirds

Thought not as cohesive and systematic in linking monitoring and evaluation with management, there is some evidence of review of seabird impacts by NMFS in the availability of observer data and various studies, including Hatch 2017That are conducted with sufficient regularity. Seabirds are also considered in the NOAA National Bycatch Report. The evidence of monitoring and studies on fishery impacts to birds, as well as legislative

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protections and management initiatives for seabirds collectively serve as measures implemented that are sufficient to meet SG60 and SG80.

However, because there has been relatively low-level management attention to seabird impact mitigation and there are no biennial reviews, SG100 is likely not met

References

Hatch, Joshua. 2017. Comprehensive estimates of seabird-fishery interactions for the US Northeast and mid- Atlantic. Aquatic Conservation: Marine and Freshwater Ecosystems. 10.1002/aqc.2812.

NMFS (National Marine Fisheries Service). 2021. Biological Opinion on 10 Fishery Management Plans in the Greater Atlantic Region and the New England Fishery Management Council's Omnibus Habitat Amendment 2. NMFS, Consultation No. GARFO-2017-00031. Available: Final Fisheries BiOp_05_28_21.pdf (noaa.gov).

Background Section 8.3.1.8

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Information gap indicator Information sufficient to score PI

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Condition number (if relevant)

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PI 2.3.3 Relevant information is collected to support the management of UoA impacts on ETP species, including: - Information for the development of the management strategy; - Information to assess the effectiveness of the management strategy; and - Information to determine the outcome status of ETP species Scoring Issue SG 60 SG 80 SG 100

a Information adequacy for assessment of impacts

Guide Qualitative information is Some quantitative Quantitative information is post adequate to estimate the information is adequate to available to assess with a UoA related mortality on ETP assess the UoA related high degree of certainty the species. mortality and impact and to magnitude of UoA-related determine whether the UoA impacts, mortalities and OR may be a threat to injuries and the protection and recovery of consequences for the status If RBF is used to score PI the ETP species. of ETP species. 2.3.1 for the UoA: Qualitative information is OR adequate to estimate productivity and If RBF is used to score PI susceptibility attributes for 2.3.1 for the UoA: ETP species. Some quantitative information is adequate to assess productivity and susceptibility attributes for ETP species. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- N All Sea Turtles- Y All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- Y All Seabirds- N Rationale

The UoA related mortality and impacts on all ETP species are informed primarily via observer program data. Observer coverage is relatively low (~10%), but can be extrapolated to provide estimates of total impacts. There is significant uncertainty in the population status and trends of several ETP species such that establishing biologically based limits for fisheries impacts may likewise be uncertain. The uncertainties in estimating population status and trends for many ETP species is not easily overcome, and the assessment team considers that the management systems use the available quantitative information to assess fishery impacts in a precautionary manner. The management system also allows for observer placements to be made based on sea turtle and MMPA impact considerations- which are the impacts of greatest concern to this fishery. Some quantitative data available is available to discern fishery impacts to ETP as needed, therefore SG60 and SG80 are likely met. However, quantitative information on the magnitude of UoA-related impacts, mortalities and injuries and the consequences for the status of ETP species, falls short of reaching the “high degree of confidence” mark, thus SG100 is likely not met.

b Information adequacy for management strategy

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Guide Information is adequate to Information is adequate to Information is adequate to post support measures to measure trends and support support a comprehensive manage the impacts on ETP a strategy to manage strategy to manage impacts, species. impacts on ETP species. minimize mortality and injury of ETP species, and evaluate with a high degree of certainty whether a strategy is achieving its objectives. Met? All Marine Mammals- Y All Marine Mammals- Y All Marine Mammals- N All Sea Turtles- Y All Sea Turtles- Y All Sea Turtles- N Atlantic Sturgeon- Y Atlantic Sturgeon- Y Atlantic Sturgeon- N All Seabirds- Y All Seabirds- Y All Seabirds- N Rationale

The information as described above is sufficient to support the associated strategies to manage impacts on ETP species. Observer data informs the assessment of fishery impacts, and there is regular and ongoing research regarding the status and trends in populations of ETP species. The U.S. Office of Protected Resources requires regular monitoring of the status of all federally listed ETP species and relative fishery impacts, and where applicable, management measures (e.g., careful handling or gear modifications) and limits are put in place to ensure requirements for protection and rebuilding are met. There is adequate evidence of historical implementation of management measures when indicated by monitoring to manage impacts on ETP species, therefore this fishery meets SG60 and SG80. However, a high degree of certainty cannot be inferred due to the relatively low levels of observer coverage and uncertainty regarding the population status and trends of several ETP species, therefore SG100 is not met.

References

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report

Overall Performance Indicator score

Condition number (if relevant)

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PI 2.4.1 The UoA does not cause serious or irreversible harm to habitat structure and function, considered on the basis of the area covered by the governance body(s) responsible for fisheries management in the area(s) where the UoA operates

Scoring Issue SG 60 SG 80 SG 100

a Commonly encountered habitat status

Guide The UoA is unlikely to The UoA is highly unlikely to There is evidence that the post reduce structure and reduce structure and UoA is highly unlikely to function of the commonly function of the commonly reduce structure and encountered habitats to a encountered habitats to a function of the commonly point where there would be point where there would be encountered habitats to a serious or irreversible harm. serious or irreversible harm. point where there would be serious or irreversible harm. Met? Yes Yes No

Rationale

Commonly Encountered Habitats in the UoA include high energy mobile sediments. Percent composition varies slightly by study, however the SASI model estimates sand as the most abundant sediment at 52.9%, granule pebble 22.9%, and mud 15%. These account for 90.8% of the sediment coverage (Section 7.3.1.9, Commonly encountered habitat).

The SASI model approach used by the NEFMC for its Habitat Omnibus Amendment 2 estimates percent damage and recovery time by gears, concluding that otter trawls can result in up to 32% damage on geographical features in sandy habitats with a maximum recovery time estimate of ~3 years (including 1 SE) for biological features. Mud as a geographical feature received up to 38% damage (highest percent damage) but had the lowest recovery time of ~0.5 years for this feature. The longest recovery times were for sand and granule pebble both at ~3 years (NEFMC 2011).

The SASI model accounts for some differences in gear configuration in its estimation of adverse impact, but does not account for all differences in the typical configurations for targeted Scup fishing according to industry and agency staff input. The result of this means the SASI model will overestimate adverse impacts of the Scup trawl fishery. A recent study by Hiddink et al (2017) concluded that otter trawls cause the least depletion when compared to beam trawls and scallop and hydraulic dredges, and median recovery times post trawling (from 50 to 95% of unimpacted biomass) ranged between 1.9 and 6.4 years.

The SBSB EA (MAFMC 2020a) concluded that slightly negative impacts would likely be incurred for all quota considerations due to continued interactions with fishing gear and bottom habitat.

Table SA8 of the MSC requirements define “serious or irreversible harm to habitat structure and function” for habitats as “the reduction in habitat structure, biological diversity, abundance and function such that the habitat would be unable to recover to at least 80% of its unimpacted structure, biological diversity and function within 5- 20 years if fishing were to cease entirely.” Highly likely is defined in Table SA9 as achieving a <30th percentile unlikelihood.

On the basis that the Scup bottom trawl fishery commonly encounters high energy sand, pebble, and mud habitats, the fishery does not impact the entire distribution of bottom habitat types, and literature on impacts of bottom trawl gear suggest that recovery to at least the 80% of unimpacted structure and function would occur in at least, if not less than, 5-20 years, SG60 and SG80 are likely met.

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The lack of detailed information on habitat distribution and characteristics in all locations where the UoA operates, and gaps in information regarding the deployment and interactions with the gear as configured and used by the Scup fishery means there is no direct evidence to support this conclusion. Therefore, SG100, is likely not met.

b VME habitat status

Guide The UoA is unlikely to The UoA is highly unlikely to There is evidence that the post reduce structure and reduce structure and UoA is highly unlikely to function of the VME habitats function of the VME habitats reduce structure and to a point where there to a point where there function of the VME habitats would be serious or would be serious or to a point where there would irreversible harm. irreversible harm. be serious or irreversible harm. Met? Yes Yes No

Rationale

The identification of VMEs in the UoA is discussed in depth in the status section for this PI, see (Section 8.3.1.10 Habitat Type: Vulnerable Marine Ecosystems), leading to the conclusion that deep sea coral habitats best align with the MSC VME criteria.

Other habitat designations or types considered, but excluded, from VME consideration include EFH and HAPCS. EFH is considered too broad a designation to be considered a VME designation. Habitat Areas of Particular Concern (HAPC) are a subset of EFH and are habitat types and/or geographic areas identified by any of the eight regional fishery management councils and NOAA Fisheries as priorities for habitat conservation, management, and research. The criteria used to define HAPCs generally aligns with those of VMEs (ecological function, sensitivity, exposure to development stress, and rarity); however, management regions are not required to define HAPCs based on habitats of highest importance relative to these criteria. This flexibility is intended to allow management to use the HAPCs as a habitat conservation tool based on local priorities. As in EFH, HAPC designation does not confer any inherent protection measure. HAPCs can be defined as habitat types, or discrete geographical sites (MAFMC 2016).

Deep sea coral habitats are considered VMEs in this UoA, aligning with the MSC definition and guidance for VMEs. Deep sea corals have been the subject of collaborative Council and agency action based on their fragility, structural complexity, slow-growing life history, functional significance, and vulnerability to fishing impacts.

There is relatively little information available from the Mid-Atlantic Council region on impacts to deep sea corals, but bottom trawling gear is detrimental to deep sea coral habitat as it can destroy the fragile coral structures and associated fauna.

Due to their depth and because rocky and coralline substrate can damage gear, industry reports that deep sea corals are generally avoided by fishers. This is supported by the NOAA 2017 update to “The State of Deep-Sea Coral and Sponge Ecosystems of the United States Report” that states that “annual number of interactions between fishing gear and deep-sea corals and sponges is not known, but bycatch data indicate that a relatively small number of trips interact with deep-sea corals.”

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Amendment 16 established Deep Sea Coral area protections where fishing by the UoA is prohibited, along with most types of bottom tending gear (Section 7.3.1.9, Figure 24).

The prohibition of fishing effort in a broad area of deep-sea coral habitat with the 2016 amendment, and available information on deep sea coral distribution relative to fishing effort is likely sufficient to meet SG60 and SG80.

The resolution of the data on deep sea coral habitat distribution and a lack of baseline information on historic impacts of fishing on VMEs means there is no evidence for this conclusion. SG100 is likely not met.

c Minor habitat status

Guide There is evidence that the post UoA is highly unlikely to reduce structure and function of the minor habitats to a point where there would be serious or irreversible harm. Met? No

Rationale

Minor habitats would include larger sediment type habitats (gravel, coralline, and boulder) that are less common in the areas fished by the UoA. As noted above, there is not detailed information available regarding the distribution of these habitats and interactions with bottom trawl gear as configured in the UoA. Impacts are generally inferred via models based on assumed characteristics of habitat types. SG100 is likely not met.

References

Hiddink, J. G., Jennings, S., Sciberras, M., Szostek, C. L., Hughes, K. M., Ellis, N., … Kaiser, M. J. (2017). Global analysis of depletion and recovery of seabed biota following bottom trawling disturbance. Proceedings of the National Academy of Sciences of the United States of America, 114, 8301–8306.

MAFMC (Mid-Atlantic Fishery Management Council). 2016. Regional Use of the Habitat Area of Particular Concern (HAPC) Designation. Available online: http://www.mafmc.org/s/Regional-HAPC-Report_WEB.pdf.

MAFMC (Mid-Atlantic Fishery Management Council). 2020a. 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. 3 (squarespace.com).

NEFMC (New England Fishery Management Council). 2011a. OMNIBUS ESSENTIAL FISH HABITAT (EFH) AMENDMENT 2 FINAL ENVIRONMENTAL IMPACT STATEMENT. Appendix D: The Swept Area Seabed Impact (SASI) approach: a tool for analyzing the effects of fishing on Essential Fish Habitat. Online at: https://s3.amazonaws.com/nefmc.org/Appendix_D_Swept_Area_Seabed_Impact_approach_171011_091330.p df.

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NOAA (National Oceanic and Atmospheric Administration). 2017. The state of deep-sea coral and sponge ecosystems of the United States. NOAA Technical Memorandum NMFS-OHC. Available online: The state of deep- sea coral and sponge ecosystems of the United States (noaa.gov). Section 8.3.1.10

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.4.2 There is a strategy in place that is designed to ensure the UoA does not pose a risk of serious or irreversible harm to the habitats Scoring Issue SG 60 SG 80 SG 100

a Management strategy in place

Guide There are measures in There is a partial strategy in There is a strategy in place for post place, if necessary, that are place, if necessary, that is managing the impact of all expected to achieve the expected to achieve the MSC UoAs/non-MSC fisheries Habitat Outcome 80 level of Habitat Outcome 80 level of on habitats. performance. performance or above. Met? Common - Yes Common - Yes Common - No VME – Yes VME – Yes VME – No

Rationale

There is a partial strategy in place for managing impacts on habitat, primarily founded in EFH requirements in the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Every federally managed fishery is required to identify EFH and evaluate all potential adverse effects of fishing on EFH designated within the FMP as well as all other EFH of federally managed fisheries, including consideration of cumulative impacts. The EFH Regulatory Guidelines further require each FMP to minimize such adverse effects to the extent practicable, and to review all EFH information at least once every five years, and as recommended by the Secretary. (50 CFR Ch. VI § 600.815). The EFH focus on habitat in the context of fishery resource needs aligns with MSC’s focus on habitat in terms of structure and function, i.e., the ecosystem services it provides, including the necessity of habitats for “some species to complete their life cycle or determine the overall composition of the ecological community.” (MSC FCRV2.0 GSA 3.13.1).

Habitat Areas of Particular Concern (HAPC) are a subset of EFH and are habitat types and/or geographic areas identified by any of the eight regional fishery management councils and NOAA Fisheries as priorities for habitat conservation, management, and research. Beyond EFH, deep sea corals have been recognized as a priority for conservation, with discretionary authority for conservation action provided with the 2006 reauthorization of the MSA (16 U.S.C. 1853 § 303 (b) (2)). All updates to management measures undertaken by the Council must consider impacts on habitat as a valued ecosystem component and for regulatory compliance with EFH requirements of the MSA.

The MSA, primarily via the EFH requirements, lays out a strategic arrangement for habitat impacts to be evaluated relative to prioritized habitats (EFH) and managed actions to be considered with the objective of minimizing adverse impacts. Such a cohesive arrangement may be considered to meet the MSC requirements for a ‘strategy’, therefore SG60 and SG80 are met; however, the EFH designations and considerations do not extent beyond federally managed species, and non-federally managed (i.e., state or ASFMC managed) fisheries are not required to apply the EFH-driven habitat management strategy. Therefore, it cannot be said that there is a strategy in place for all MSC UoAs and non-MSC UoAs. SG100 is likely not met.

b Management strategy evaluation

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Guide The measures are There is some objective Testing supports high post considered likely to work, basis for confidence that the confidence that the partial based on plausible measures/partial strategy strategy/strategy will work, argument (e.g. general will work, based on based on information directly experience, theory or information directly about about the UoA and/or comparison with similar the UoA and/or habitats habitats involved. UoAs/habitats). involved. Met? Common - Yes Common - Yes Common - No VME – Yes VME – Yes VME – No

Rationale

There have been some management actions taken by the MAMFC to protect marine habitats, such as Amendment 9 and 16 to the Mackerel, Squids, and Butterfish (MSB) FMP. In Amendment 9, the Council determined that bottom trawls deployed by these fisheries had the potential to adversely affect EFH for some federally managed fisheries (MAFMC 2008). This resulted to closures in the Veatch and Norfolk Canyons to protect tilefish EFH by prohibiting all bottom trawling activity. In Amendment 16, the use of all bottom-tending gear was prohibited in fifteen discrete zones and one broad zone where deep-sea corals are known or highly likely to occur (81 Federal Register 90246, December 14, 2016). In addition, there are areas closed to bottom trawling in State water (see Section 7.3.1.9, Closed areas in state waters. Management measures that restrict bottom-tending gear provide an objective basis for confidence for success in protecting a given habitat by eliminating the gear impact entirely. SG60 is met.

For habitats that encounter bottom tending gear, the SBSB EA (MAFMC 2020a) in implementing quotas evaluated all management alternatives (1A- 1D) and their expected impacts on aspects of the affected environment, including EFH and physical habitat. It was determined that all Scup alternatives (from least restrictive 1C to most restrictive 1D) were unlikely to degrade habitat beyond its current state, but that slightly negative impacts would likely be incurred for all alternatives 1A- 1D due to continued interactions with fishing gear and bottom habitat.

This information provided by the SBSB EA (MAFMC 2020a) complies with the strategy outlined in the MSA, i.e., the assessment identified EFH within the area affected by the Scup fishery, it evaluated all potential adverse effects of fishing on EFH designated within the FMP and has thus provided an update of EFH within the 5-year timeframe. This provides some objective bases for confidence that the partial strategy has worked. SG80 is met.

There does not appear to be any evidence of testing that supports with high confidence the partial strategy will work, based on information directly about the UoA and/or habitats involved. Actions taken have been based on modelling or studies on the effect of trawling. Therefore, SG100 is not met.

c Management strategy implementation

Guide There is some quantitative There is clear quantitative post evidence that the evidence that the partial measures/partial strategy is strategy/strategy is being being implemented implemented successfully and successfully. is achieving its objective, as outlined in scoring issue (a). Met? Common - Yes Common - No VME – Yes VME – No

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Rationale

There is some quantitative evidence of successful implementation of area closures as a measure for habitat protection based on VMS monitoring and enforcement records.

There are models estimating cumulative adverse impact of the UoA on habitat (i.e., via the SASI model), though much of the quantitative evidence is based on generalized categorization of habitat characteristics.

The SG80 only requires that some quantitative information exist, which based on the understood compliance record of the fleet regarding closure areas, and percent damage of generalized habitat damage estimates in the SASI model, SG80 is likely met.

However, because of a lack of precise quantitative information on habitat distribution and gear impacts, only SG100 is not met.

d Compliance with management requirements and other MSC UoAs’/non-MSC fisheries’ measures to protect VMEs Guide There is qualitative There is some quantitative There is clear quantitative post evidence that the UoA evidence that the UoA evidence that the UoA complies with its complies with both its complies with both its management requirements management requirements management requirements to protect VMEs. and with protection and with protection measures measures afforded to VMEs afforded to VMEs by other by other MSC UoAs/non- MSC UoAs/non-MSC fisheries, MSC fisheries, where where relevant. relevant. Met? Common - Yes Common - Yes Common - Yes VME – Yes VME – Yes VME – Yes

Rationale

The primary management measure to protect deep sea corals was produced as an amendment to the MSB FMP (Amendment 16) and applies to other FMPs, including the Summer Flounder, Scup, and Black Sea Bass FMP, and most bottom-tending gear. Closures under Amendment 1 to the Tilefish FMP (likewise apply area-based restrictions to the UoA (See Section 7.3.1.9, Habitat Type: Vulnerable Marine Ecosystems (VME)

The application of habitat protection measures set out in FMPs specify applicability to other FMPs and across Councils where needed such that requirements are clear. Quantitative evidence is provided to NOAA through VMS monitoring, and enforcement records do not indicate that there is a concern over systematic noncompliance. Therefore, SG60, SG80 and SG100 are likely met.

References

MAFMC (Mid-Atlantic Fishery Management Council). 2008. AMENDMENT 9 TO THE ATLANTIC MACKEREL, SQUID, AND BUTTERFISH FISHERY MANAGEMENT PLAN. Online at: https://www.mafmc.org/s/SMB_Amend_9_Vol_1.pdf.

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MAFMC (Mid-Atlantic Fishery Management Council). 2020a. 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. 3 (squarespace.com).

Section 8.3.1.10

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.4.3 Information is adequate to determine the risk posed to the habitat by the UoA and the effectiveness of the strategy to manage impacts on the habitat

Scoring Issue SG 60 SG 80 SG 100

a Information quality

Guide The types and distribution of The nature, distribution and The distribution of all post the main habitats are vulnerability of the main habitats is known over their broadly understood. habitats in the UoA area are range, with particular known at a level of detail attention to the occurrence OR relevant to the scale and of vulnerable habitats. intensity of the UoA. If CSA is used to score PI 2.4.1 for the UoA: OR Qualitative information is adequate to estimate the If CSA is used to score PI types and distribution of the 2.4.1 for the UoA: main habitats. Some quantitative information is available and is adequate to estimate the types and distribution of the main habitats. Met? Common - Yes Common - Yes Common - No VME – Yes VME – Yes VME – No

Rationale

There is information on the types and distribution of main habitats encountered by fishery that is adequate to understand the nature of the main impacts of gear use on these habitats, including spatial overlap of habitat with fishing gear. SG60 is met.

Relative vulnerability of the habitat in the managed area has been modelled based on inferred geological and biological features and modelled energy levels have been used to assign susceptibility and recovery scores under the SASI approach. A Habitat Protection Index was calculated for top habitats identified as vulnerable to adverse fishing impacts based on an estimate of EFH protected in the given alternative over the total amount of EFH designated (See Section 8.3.1.10 for more detail).

There has also been significant information gathering efforts undertaken to support the design of Amendment 16 for deep sea coral protection, including surveys of coral and sponge distribution (see Packer et al 2017) and workshops33 with stakeholders to obtain diverse perspectives on fishery impacts and effective and practicable management alternatives.

33 Coral workshops. Online at: https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/55841da8e4b0b65f09fd0562/14347253881 08/DSC+Workshop+Summary.pdf

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These efforts have provided information on the nature, distribution, and vulnerability of main habitats, therefore SG80 is likely met, but there is not sufficiently detailed information on the distribution of habitats, SG100 is not met.

b Information adequacy for assessment of impacts

Guide Information is adequate to Information is adequate to The physical impacts of the post broadly understand the allow for identification of the gear on all habitats have nature of the main impacts main impacts of the UoA on been quantified fully. of gear use on the main the main habitats, and there habitats, including spatial is reliable information on the overlap of habitat with spatial extent of interaction fishing gear. and on the timing and location of use of the fishing OR gear.

If CSA is used to score PI OR 2.4.1 for the UoA: Qualitative information is If CSA is used to score PI adequate to estimate the 2.4.1 for the UoA: consequence and spatial Some quantitative attributes of the main information is available and habitats. is adequate to estimate the consequence and spatial attributes of the main habitats. Met? Common - Yes Common - Yes Common - No VME – Yes VME – Yes VME – No

Rationale

Although there are areas for improvement, the information available is sufficient to identify main impacts of the UoA on main habitats, and fishery dependent information (i.e., VTR and VMS) data provide consistent information on the timing and location of the deployment of the gear. SG60 is met.

The information available from observational and experimental studies of bottom trawls (see NEFMC 2011a) is sufficient to identify the main impacts of the UoA on its main habitats of interaction. SG80 is met.

However, there are gaps in the information available. In the offshore fishery in particular, management has noted that more detailed information on the habitats interacted with and location of gear deployment from industry would help with important information gaps in understanding actual habitat distribution and fishery impacts. Impact modelling via SASI does not characterize the different configurations of bottom trawl gear based on target species. This prevents the UoA from achieving the SG100 criteria for full quantification of physical impacts on all habitats. SG100 is not met.

c Monitoring

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Guide Adequate information Changes in all habitat post continues to be collected to distributions over time are detect any increase in risk to measured. the main habitats. Met? Common - Yes Common - No VME – Yes VME – No

Rationale

As noted in the discussions above adequate information continues to be collected to detect any increase in risk to the main habitats, thus SG 80 is likely met. This information includes ongoing monitoring of distribution of fishing effort, and consideration of impacts of any updates to fishery management plans on habitat.

However, changes in habitat distributions over time have not been measured for application to the habitat management strategy, and therefore the fishery does not likely meet the SG 100 level.

References

NEFMC (New England Fishery Management Council). 2011a. OMNIBUS ESSENTIAL FISH HABITAT (EFH) AMENDMENT 2 FINAL ENVIRONMENTAL IMPACT STATEMENT. Appendix D: The Swept Area Seabed Impact (SASI) approach: a tool for analyzing the effects of fishing on Essential Fish Habitat. Online at: https://s3.amazonaws.com/nefmc.org/Appendix_D_Swept_Area_Seabed_Impact_approach_171011_091330.p df.

Packer DB, Nizinski MS, Cairns SD, Hourigan TF (2017) Deep‐Sea Coral Taxa in the U.S. Northeast Region: Depth and Geographical Distribution. Online resource: Deep-Sea Coral Taxa in the U.S. Northeast Region: Depth and Geographical Distribution (noaa.gov)

Section 8.3.1.10

MAFMC (Mid-Atlantic Fishery Management Council). 2020a. 2020-2021 Scup and Black Sea Bass Specifications Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. 3 (squarespace.com).

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Information gap indicator More information sought

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.5.1 The UoA does not cause serious or irreversible harm to the key elements of ecosystem structure and function Scoring Issue SG 60 SG 80 SG 100

a Ecosystem status

Guide The UoA is unlikely to disrupt The UoA is highly unlikely to There is evidence that the post the key elements underlying disrupt the key elements UoA is highly unlikely to ecosystem structure and underlying ecosystem disrupt the key elements function to a point where structure and function to a underlying ecosystem there would be a serious or point where there would be structure and function to a irreversible harm. a serious or irreversible point where there would be harm. a serious or irreversible harm. Met? Yes Yes No

Rationale

The UoA resides within what NOAA identifies as the Northeast U.S. Continental Shelf Large Marine Ecosystem (NES LME), which spans the area from Cape Hatteras to the Gulf of Maine and is considered a highly productive and dynamic ecosystem. LMEs are defined by four ecological criteria: bathymetry, hydrography, productivity, and trophically linked populations. These criteria are considered the key ecosystem elements, where productivity and trophically linked populations are the elements vulnerable to fishery impacts.

Productivity

Seafood productivity is trending downwards for the region, although reasons for this are multi-faceted and could be driven by many interacting factors, including combinations of ecosystem and stock production, management actions, market conditions, and environmental change (NOAA 2021b).

Fishery related impacts to the ecosystem were examined in the 2021 State of the Ecosystem Report for the Mid Atlantic (NOAA 2021b), including ecosystem overfishing, stock status of Federally managed species, and system biomass. Ecosystem overfishing occurs when total landings exceeding ecosystem productive capacity (NOAA 2021b). However, stock status as a potential driver in downward commercial landings was considered unlikely (NOAA 2021b). Biomass and fishing mortality thresholds are being met for all but two MAFMC managed species, though the status of six stocks is unknown (Figure 30); only mackerel was below the F/Fmsy management threshold.

Trophically linked populations.

System Biomass trends for Piscivores, Benthivores, Planktivores, and Benthos were found to be mostly stable in the MAB with some long term increases for Spring piscivores and fall benthos (NOAA 2021b). The report concluded that, “while managed species make up varying proportions of aggregate biomass, trends in landings are not mirroring shifts in the overall trophic structure of survey-sampled fish and invertebrates. Therefore, major shifts in feeding guilds or ecosystem trophic structure are unlikely to be driving the decline in landings”.

Overall, based on the favourable stock status of Scup and the stable biomass trends for Piscivores, Benthivores, Planktivores, and Benthos, it is highly unlikely that the UoA is disrupting productivity in the ecosystem, and so

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SG60 and SG80 are likely met. However, there is insufficient evidence to back up this claim given the large number of Primary and Secondary species encountered by bottom trawling, SG 100 is likely not met.

References

NOAA (National Oceanic and Atmospheric Administration). 2021b. The 2021 State of the Ecosystem Report for the Mid Atlantic. Online at: (https://www.mafmc.org/s/1_2021-Mid-Atlantic-SOE-report.pdf).

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.5.2 There are measures in place to ensure the UoA does not pose a risk of serious or irreversible harm to ecosystem structure and function Scoring Issue SG 60 SG 80 SG 100

a Management strategy in place

Guide There are measures in place, There is a partial strategy in There is a strategy that post if necessary which take into place, if necessary, which consists of a plan, in place account the potential takes into account available which contains measures to impacts of the UoA on key information and is expected address all main impacts of elements of the ecosystem. to restrain impacts of the the UoA on the ecosystem, UoA on the ecosystem so as and at least some of these to achieve the Ecosystem measures are in place. Outcome 80 level of performance. Met? Yes Yes No

Rationale

The goal of the MAFMC’s Ecosystem Approach to Fisheries Management (EAFM) is to manage for ecologically sustainable utilization of living marine resources while maintaining ecosystem productivity, structure, and function (MAFMC 2019). This document is available on the MAFMC website34.

The purpose of the 2021 State of the Ecosystem Report for the Mid Atlantic was to synthesize ecosystem information to better meet the MAFMC management objectives, and to update the MAFMC’s Ecosystem Approach to Fishery Management (EAFM) risk assessment (NOAA 2021b). In this report, thresholds for ecosystem-level overfishing based on system production characteristics were proposed [1] and applied in the analysis for the MAB; it was also considered that future reports could include commercial discards and recreational removals to improve threshold estimates. So, SG60 is met.

Together these provide at least a partial strategy which considers available information and is expected to restrain impacts of the UoA on the ecosystem. SG 80 is likely met. However, this falls short of a strategy that has a plan with measures in place to address all main impacts. SG100 is likely not met.

b Management strategy evaluation

Guide The measures are There is some objective basis Testing supports high post considered likely to work, for confidence that the confidence that the partial based on plausible argument measures/ partial strategy strategy/ strategy will work, (e.g., general experience, will work, based on some based on information theory or comparison with information directly about directly about the UoA similar UoAs/ ecosystems). the UoA and/or the and/or ecosystem involved. ecosystem involved. Met? Yes Yes No

34 Available online: Mid-Atlantic Fishery Management Council — Ecosystem Approach to Fisheries Management (mafmc.org)

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Rationale

There is an objective bases to support the MAFMC’s Ecosystem Approach to Fisheries Management. All main species have a healthy stock status. This would not be the case were the ecosystem structure and function to be damaged. SG60 is met. There is annual reporting on catch composition across all fleets. Habitat impacts have been modelled for consideration of impacts on designated EFH. ETP species are also monitored with regulatory mechanisms to spur management response when impacts exceed biological limits. Therefore, SG80 is likely met. However, the EAFM has not been tested, using ecosystem modelling or other holistic approaches to raise confidence that the strategy works. Therefore, SG100 is likely not met.

c Management strategy implementation

Guide There is some evidence that There is clear evidence that post the measures/partial the partial strategy/strategy strategy is being is being implemented implemented successfully. successfully and is achieving its objective as set out in scoring issue (a). Met? Yes No

Rationale

There is evidence via the 2021 State of the Ecosystem Report for the Mid Atlantic (NOAA 2021b) that system Biomass trends for Piscivores, Benthivores, Planktivores, and Benthos were found to be mostly stable in the MAB, as shown in PI 2.5.1. Therefore, SG80 is met. However, without explicit and operationalized objectives and metrics for ecosystem-based management within the fishery, it cannot be said that there is clear evidence that objectives for ecosystem-based management are being achieved. SG100, is likely not met.

References

MAFMC (Mid-Atlantic Fishery Management Council). 2019. Ecosystem Approach to Fisheries Management Guidance Document. Online at: EAFM+Doc+Revised+2019-02-08.pdf (squarespace.com).

NOAA (National Oceanic and Atmospheric Administration). 2021b. The 2021 State of the Ecosystem Report for the Mid Atlantic. Online at: (https://www.mafmc.org/s/1_2021-Mid-Atlantic-SOE-report.pdf).

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 2.5.3 There is adequate knowledge of the impacts of the UoA on the ecosystem

Scoring Issue SG 60 SG 80 SG 100

a Information quality

Guide Information is adequate to Information is adequate to post identify the key elements of the broadly understand the key ecosystem. elements of the ecosystem. Met? Yes Yes

Rationale

There is substantial information available on the key elements of the ecosystem, primarily available from the 2021 State of the Ecosystem Report for the Mid Atlantic (NOAA 2021b). This report summarizes and analyses the key ecosystem elements, including those directly impacted by the UoA, namely productivity and trophic interactions. Supporting and additional information is available from the monitoring efforts associated with the management of the ecosystem components as described in Pis2.1.3, 2.2.3, and 2.4.3. Information is adequate to broadly understand the key elements of the ecosystem, SG60 and SG80 are met.

b Investigation of UoA impacts

Guide Main impacts of the UoA on Main impacts of the UoA on Main interactions between the post these key ecosystem elements these key ecosystem elements UoA and these ecosystem can be inferred from existing can be inferred from existing elements can be inferred from information, but have not been information, and some have existing information, and have investigated in detail. been investigated in detail. been investigated in detail. Met? Yes Yes No

Rationale

Main impacts of the UoA can be inferred, and some have been investigated in detail. The management system considers fishery impacts on ‘valued ecosystem components’ with each management action, and particular impacts by the fishery may be investigated in detail when considering alternative management actions (such as closures or gear modifications). There are also available studies that investigate the trophic web of the NES LME (e.g., Bowman et al 2000). Based on this, SG60 and SG80 are likely met. However, it cannot be said that all main interactions between Scup, other benthivores, and other trophic groups have been investigated in any detail and therefore, SG100 is likely not met.

c Understanding of component functions

Guide The main functions of the The impacts of the UoA on P1 post components (i.e., P1 target target species, primary, species, primary, secondary and secondary and ETP species and ETP species and Habitats) in the Habitats are identified and the ecosystem are known. main functions of these components in the ecosystem are understood.

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Met? Yes No

Rationale

All main species evaluated under Primary and Secondary species considerations are federally managed, and are thus subject to their own FMPs, regular stock assessment, and EFH designations. ETP species also undergo stock assessments and fishery impacts are categorized annually via the LOF. Key habitats are identified for all federally managed species as EFH. Biological and physical habitat impacts have been modelled for main gear types and federally managed fleets (See Section 7.3.1.9). SG80 is likely met.

There is not enough information available to fully understand the impacts of the UoA on P1 target species, primary, secondary and ETP species and Habitats are identified and the main functions of these components in the ecosystem. Little is known about species interactions, and predator-prey dynamics. This makes it difficult to gauge the impacts of bycatch and discards. There are also gaps in identifying impacts on other components, such as understanding impacts of bottom trawl fleets on localized habitat. SG100 is likely not met.

d Information relevance

Guide Adequate information is Adequate information is post available on the impacts of the available on the impacts of the UoA on these components to UoA on the components and allow some of the main elements to allow the main consequences for the ecosystem consequences for the ecosystem to be inferred. to be inferred. Met? Yes Yes

Rationale

As noted above, the main functions of the ecosystem components as defined by the MSC are known, and there is adequate information for the impact of the UoA on these components to be inferred. Therefore, SG80 is met. SG100 requires that information be adequate for all elements of all components, including minor elements. Secondary minor elements include several species that are not subject to federal or state management, and for which there are no stock assessments available. Still, information from all fleets subject to observer coverage means that there is information available on impacts of the UoA and main consequences to the ecosystem can be inferred based on more ecosystem status monitoring and inferences from more in-depth considerations undertaken for federally managed species. SG100 is likely met.

e Monitoring

Guide Adequate data continue to be Information is adequate to post collected to detect any increase support the development of in risk level. strategies to manage ecosystem impacts. Met? Yes Yes

Rationale

There is sufficient information available and collected to detect any increase in risk level. Therefore, SG80 is met. More information on the target species population dynamics, spawning distribution, and impacts of the fishery would benefit a

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strategy to directly manage for ecosystem impacts, but there is sufficient information to support the development of a strategy. SG100 is likely met.

References

Bowman, R.E., Stillwell, C.E., Michaels, W.L. & Grosslein, M.D., 2000. Food of Northwest Atlantic ¢shes and two common species of squid. NOAA Technical Memorandum, NMFS-NE-155, 138 pp.

NOAA (National Oceanic and Atmospheric Administration). 2021b. The 2021 State of the Ecosystem Report for the Mid Atlantic. Online at: (https://www.mafmc.org/s/1_2021-Mid-Atlantic-SOE-report.pdf).

Section 8.3.1.11

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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8.4 Principle 3

8.4.1 Principle 3 background

The intent of Principle 3 (P3) of the MSC’s Fisheries Standard (v2.01, August 31, 2018) is to ensure that there is an institutional and operational framework appropriate to the size and scale of the UoA for implementing Principles 1 and 2, and that this framework is capable of delivering sustainable fisheries in accordance with the outcomes articulated in these Principles.

The P3 default tree structure divides the Performance Indicators (PIs) into two Components: Governance and Policy, and Fishery-Specific Management System. The first component captures the broad, high-level context of the fishery management system within which the UoA is found; it consists of three PIs: ▪ Legal and/or Customary framework (PI 3.1.1); ▪ Consultation, roles and responsibilities (PI 3.1.2); and ▪ Long term objectives (PI 3.1.3)

The second component focuses on the management system directly applied to the fishery and is informed by four PIs: ▪ Fishery-specific objectives (PI 3.2.1); ▪ Decision-making processes (PI 3.2.2); ▪ Compliance and enforcement (PI 3.2.3); and ▪ Monitoring and management performance evaluation (PI 3.2.4)

Assessors evaluate, analyze and score specific parameters using publicly-available information and data from various sources, with interpretive guidance from the MSC’s Guidance to the Fisheries Standard. Sources include literature (published, gray, peer reviewed), regulatory documents, technical and scientific reports, management procedures and protocols, forms and records, and qualitative and/or anecdotal sources.

8.4.1.1 Area of Operation and Relevant Jurisdictions

The Unit of Assessment (UoA) includes one species (scup, Stenotomus chrysops) harvested by otter trawl in federal waters (3-200 nm) and some state waters (0-3 nm) off the coast of the United States from Cape Hatteras, North Carolina to the U.S./Canadian border. The commercial scup fishery operates year-round, taking place mostly in federal waters during the winter and mostly in state waters during the summer (Figure 32). A coast-wide commercial quota is allocated between three quota periods, known as the winter I, summer, and winter II quota periods. These seasonal quota periods were established to ensure that both smaller day boats, which typically operate near shore in the summer months, and larger vessels operating offshore in the winter months can land scup before the annual quota is reached. The commercial scup fishery in federal waters is predominantly a bottom otter trawl fishery. In 2019, about

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81% of the commercial scup landings (by weight) reported by state and federal dealers were caught with bottom otter trawls.

The Mid-Atlantic Fishery Management Council (MAFMC), under the Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA), has primary authority for developing Fishery Management Plans (FMPs) for Council-managed species. The Atlantic States Marine Fisheries Commission (ASMFC) and the Council meet jointly at least twice a year to approve management measures for the fishery for the upcoming year or years. State fishery agencies implement FMP measures under the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA) for application in their territorial waters, while NOAA Fisheries’ National Marine Fisheries Service (NMFS) issues rules to implement approved FMPs prepared by the Council.

The commercial scup fishery is subject to a suite of other federal and state statutes and regulations; they are highlighted in Section 7.4.1.2.

Figure 32. Management Unit of Scup Fishery (green lateral lines) (Source: https://media.fisheries.noaa.gov/dam- migration/management-units-sf-scup-bsb-map-noaa-fisheries_.pdf)

8.4.1.2 National Level Management

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The MAFMC and the ASMFC cooperatively develop fishery regulations for scup off the east coast of the United States. NOAA Fisheries’ NMFS serves as the federal implementation and enforcement entity. This cooperative management endeavor was developed because scup catches occur in both state and federal waters of the UoA.

The Commission has primary authority for the development of FMPs for state waters under the authority of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA) of 1993. Recognizing the interjurisdictional nature of fishery resources and the necessity of the states and federal government coordination on regulations, under this act, all Atlantic coast states that are included in a Commission FMP must implement required conservation provisions of the plan or the Secretary of Commerce may impose a moratorium for fishing in the noncompliant state’s waters.

The Council, under the MSFCMA, has primary authority for developing federal FMPs for Council-managed species. The Commission and the Council meet jointly at least twice a year to approve management measures for the fishery for the upcoming year or years. State fishery agencies implement FMP measures under the ACFCMA for application in their territorial waters, while NOAA Fisheries issues rules to implement approved FMPs prepared by the Council.

7.4.1.2.1 Federal Statutes

The U.S. federal statutes listed here are widely acknowledged to be the most relevant to the management and conservation of marine resources and the environment.

A. Magnuson-Stevens Act (MSA, MSFCMA)35

This statute is the primary law governing marine fisheries management in US federal waters. First passed in 1976, the Magnuson-Stevens Act fosters long-term biological and economic sustainability of the country’s marine fisheries out to 200 nautical miles from shore. Key objectives of the Act are to: (i) prevent overfishing; (ii) rebuild overfished stocks; (iii) increase long-term economic and social benefits, and; (iv) ensure a safe and sustainable supply of seafood.

The Act created regional councils whose primary responsibility is the development of fishery management plans (FMPs). These FMPs must comply with a number of conservation and management requirements, including 10 National Standards - principles that promote sustainable fisheries management.

Congress has twice made significant revisions to the Act, first in 1996 with the passage of the Sustainable Fisheries Act 36 and, in 2007, with the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act.37 The latter includes a number of important principles and regulatory provisions of

35 https://media.fisheries.noaa.gov/dam-migration/msa-amended-2007.pdf 36 https://www.govinfo.gov/content/pkg/BILLS-104s39enr/pdf/BILLS-104s39enr.pdf 37 https://media.fisheries.noaa.gov/dam-migration/msa-amended-2007.pdf

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Sec. 306 of the Act lays the legal foundation for State management of marine resources. State Jurisdiction 16 U.S.C. 1856 97-453, 98-62338 (a) In General - A State may regulate a fishing vessel outside the boundaries of the State in the following circumstances: ▪ The fishing vessel is registered under the law of that State, and (i) there is no fishery management plan or other applicable Federal fishing regulations for the fishery in which the vessel is operating; or (ii) the State's laws and regulations are consistent with the fishery management plan and applicable Federal fishing regulations for the fishery in which the vessel is operating. ▪ The fishery management plan for the fishery in which the fishing vessel is operating delegates management of the fishery to a State and the State's laws and regulations are consistent with such fishery management plan. If at any time the Secretary determines that a State law or regulation applicable to a fishing vessel under this circumstance is not consistent with the fishery management plan, the Secretary shall promptly notify the State and the appropriate Council of such determination and provide an opportunity for the State to correct any inconsistencies identified in the notification. If, after notice and opportunity for corrective action, the State does not correct the inconsistencies identified by the Secretary, the authority granted to the State under this subparagraph shall not apply until the Secretary and the appropriate Council find that the State has corrected the inconsistencies.

B. Interjurisdictional Fisheries Act (1986)39 (IJFA)

The purposes of this statute are to promote and encourage: (i) State activities in support of the management of interjurisdictional fishery resources; (ii) management of interjurisdictional fishery resources throughout their range; and (iii) research in preparation for the implementation of the use of ecosystems and interspecies approaches to the conservation and management of interjurisdictional fishery resources throughout their range.

38 https://uscode.house.gov/view.xhtml?req=(title:16%20section:1856%20edition:prelim) 39 https://legcounsel.house.gov/Comps/Interjurisdictional%20Fisheries%20Act%20Of%201986.pdf

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C. Atlantic Coastal Fisheries Cooperative Management Act40 (ACFCMA)

The Act is instrumental in supporting and encouraging the development, implementation, and enforcement of effective interstate conservation and management of Atlantic coastal fishery resources. It recognizes that the failure by one or more Atlantic States to fully implement a coastal fishery management plan can affect the status of Atlantic coastal fisheries and can discourage other States from fully implementing coastal fishery management plans. In the event of non-compliance, the Secretary of Commerce may impose a moratorium in that state's waters for harvesting the species in question.

D. Marine Protection, Research, and Sanctuaries Act of 197241 (MPRSA), Titles I and III

The MPRSA provides protection of fish habitat through the establishment and maintenance of marine sanctuaries.

E. Shore Protection Act of 198842 (SPA)

The MPRSA and the SPA regulate ocean transportation and dumping of dredged materials, sewage sludge, and other materials. Criteria for issuing such permits include consideration of the effects of dumping on the marine environment, ecological systems, and fisheries resources.

F. Coastal Zone Management Act of 197243 (CZMA), as amended

The Act encourages coastal states to develop and implement coastal zone management plans, thereby allowing states and the federal government to work together for the protection of U.S. coastal zones from the overdevelopment of the environment which can be harmful. States receive federal assistance grants to maintain federally-approved planning programs for enhancing, protecting, and utilizing coastal resources. These are state programs, but the act requires that federal activities must be consistent with the respective states’ CZM programs. Depending upon the individual state’s program, the act provides the opportunity for considerable protection and enhancement of fishery resources by regulation of activities and by planning for future development in the least environmentally damaging manner.

G. Endangered Species Act of 197344 (ESA), as amended

The Act provides for the listing of plant and animal species that are threatened or endangered. Once listed as threatened or endangered, a species may not be taken, possessed, harassed, or otherwise molested. It also provides for a review process to ensure that projects authorized, funded, or carried out by federal

40 https://media.fisheries.noaa.gov/2020- 09/Atlantic%20Coastal%20Fisheries%20Cooperative%20Management%20Act%20RTC_2017-2018.pdf 41 https://www.epa.gov/enforcement/marine-protection-research-and-sanctuaries-act-mprsa-and-federal- facilities 42 https://www.epa.gov/laws-regulations/summary-shore-protection-act 43 https://definitions.uslegal.com/c/coastal-zone-management-act-of-1972/ 44 http://www.nmfs.noaa.gov/pr/laws/esa/

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H. National Environmental Policy Act45 of 1970 (NEPA), as amended

The Act requires that all branches of government give proper consideration to the environment in the course of their decision-making prior to undertaking any major federal action that significantly affects the environment. Environmental Assessments (EAs) and Environmental Impact Statements (EISs), which are assessments of the likelihood of impacts from alternative courses of action, are required from all Federal agencies and are the most visible NEPA requirements.

I. Marine Mammal Protection Act46 of 1972 (MMPA) as amended

The Act prohibits, with certain exceptions, the take of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.

7.4.1.2.2 Roles and Responsibilities - Federal Agencies

A. Atlantic States Marine Fisheries Commission (ASMFC)

Mandate

All fifteen Atlantic seaboard states are members of the Commission. They include: Connecticut, Delaware, Florida, Georgia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, North Carolina, Pennsylvania, Rhode Island, South Carolina, and Virginia. Each member state is represented by three commissioners. One commissioner represents the state agency charged with conservation of fisheries resources, one is a legislator, and one is selected by the governor for a three-year term. Each participating state pays dues for the support of the Commission in proportion to the value of its marine fisheries catch (Code Natural Resources Article, Sections 4-301 through 4-305).

According to Section 5104 of the ACFCM Act, the Commission ‘’shall prepare and adopt coastal fishery management plans to provide for the conservation of coastal fishery resources. In preparing a coastal fishery management plan for a fishery that is located in both State waters and the exclusive economic zone, the Commission shall consult with appropriate Councils to determine areas where such coastal fishery management plan may complement Council fishery management plans. The coastal fishery management plan shall specify the requirements necessary for States to be in compliance with the plan. Upon adoption of a coastal fishery management plan, the Commission shall identify each State that is required to implement and enforce that plan.’’

45 https://www.epa.gov/laws-regulations/summary-national-environmental-policy-act 46 https://www.fws.gov/international/laws-treaties-agreements/us-conservation-laws/marine-mammal- protection-act.html

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The ASMFC is the only entity with a management plan for Atlantic scup and there is no complementary plan in federal waters. The Commission’s plan provides coastwide regulations for the management of the commercial fishery.

Interstate Fisheries Management Program

The Commission carries out an Interstate Fisheries Management Program (ISFMP), authorized by Article IV of the Commission's Rules and Regulations. It is the policy of the Commission that the program promote the conservation of Atlantic coastal fishery resources, be based on the best scientific information available, and provide adequate opportunity for public participation. The Commission is the final approval authority for any fishery management plan (FMP) and FMP amendment, and any final determination of a state's non-compliance with the provisions of a Commission approved FMP.

The Commission’s organization structure consists of a number of committees and technical support groups (Figure 33) ).47

Figure 33. ASMFC Organization Structure

The ISFMP Policy Board is responsible for the overall administration and management of the Commission's fishery management programs. The goal of the program is to promote the cooperative management of marine, estuarine, and anadromous fisheries in state waters of the East Coast through interstate fishery management plans (FMPs). The major objectives of the ISFMP are to: ▪ Determine the priorities for interjurisdictional fisheries management in coastal state waters;

47http://www.asmfc.org/files/commissionerManual/AllOtherSections/8_OrgChart_ChairMemo_StandingCommMe rged.pdf

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▪ Develop, monitor, and review FMPs; ▪ Recommend to states, regional fishery management councils, and the federal government management measures to benefit these fisheries; ▪ Provide an efficient structure for the timely, cooperative administration of the ISFMP; and ▪ Monitor compliance with approved FMPs; review any non-compliance recommendation of the various Boards, and, if it concurs, forward it to the Commission for action.

Management Boards and Sections are established by and advise the ISFMP Policy Board. Each board/section is comprised of the states/jurisdictions with a declared interest in the fishery covered by that board/section. The boards/sections consider and approve the development and implementation of FMPs, including the integration of scientific information and proposed management measures. In this process, the boards/sections primarily rely on input from two main sources – species technical committees and advisory panels. Boards/sections are responsible for tasking plan development teams (PDTs), plan review teams (PRTs), technical committees (TCs), advisory panels (APs) and stock assessment subcommittees (SAS). Each management board/section shall select its own chair and vice-chair. Chairmanship will rotate among the voting members every two years.

The Summer Flounder, Scup, and Black Sea Bass Management Board establishes and oversees the activities of the various PDTs, the PRTs, the TCs and the APs. In addition, the Board makes changes to the management program under adaptive management, reviews state programs implementing an amendment, and approves alternative state programs through conservation equivalency. The Board reviews the status of state compliance with the management program annually, and if it determines that a state is out of compliance, reports that determination to the ISFMP Policy Board under the terms of the ISFMP Charter.

Plan Development and Review Teams are appointed by boards/sections to draft FMPs. They are comprised of personnel from state and federal agencies who have scientific and management ability, knowledge of a species and its habitat, and an interest in the management of species under the jurisdiction of the relevant board. Personnel from regional fishery management councils, academicians, and others as appropriate may be included on a PDT. The size of the PDT is based on specific need for expertise but is generally to be kept to a maximum of six persons. The Plan Review Team (PRT) is composed of personnel from state and federal agencies who have scientific and management ability and knowledge of summer flounder, scup, and black sea bass. The PRT is responsible for providing annual advice concerning the implementation, review, monitoring, and enforcement of this Amendment once it has been adopted by the Commission. After final action on the amendment, the Board may elect to retain members of the PDT as members of the PRT or appoint new members.

Advisory Panels include stakeholders from a wide range of interests including the commercial, charter boat, and recreational fishing industries, conservation interests, as well as non-traditional stakeholders. Members are appointed by the three Commissioners from each state with a declared interest in a species because of their particular expertise within a given fishery. APs provide guidance about the fisheries that

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The Summer Flounder, Scup, and Black Sea Bass Advisory Panel (AP) is established according to the Commission’s Advisory Committee Charter. Members of the AP are citizens who represent a cross-section of commercial and recreational fishing interests and others who are concerned about summer flounder, scup, and black sea bass conservation and management. The AP provides the Board with advice directly concerning the Commission’s summer flounder, scup, and black sea bass management program.

Technical Committees members are appointed by Management boards/sections to address specific technical or scientific needs requested periodically by the respective board/section, PDT, PRT, or the Management and Science Committee (MSC). A TC may be comprised of representatives from the states, federal fisheries agencies, Regional fishery management councils, Commission, academia, or other specialized personnel with scientific and technical expertise and knowledge of the fishery or issues pertaining to the fishery being managed. The TC should consist of only one representative from each state or agency with a declared interest in the fishery, unless otherwise directed by the board/section. The Summer Flounder, Scup, and Black Sea Bass Technical Committee consists of representatives from state or federal agencies, Regional Fishery Management Councils, the Commission, a university, or other specialized personnel with scientific and technical expertise, and knowledge of the summer flounder, scup, and black sea bass fisheries. The Board appoints the members of the TC and may authorize additional seats as it sees fit. The role of the TC is to assess the species’ population, provide scientific advice concerning the implications of proposed or potential management alternatives, and respond to other scientific questions from the Board, PDT, or PRT.

Stock Assessment Subcommittees. Upon the request of a board/section, the TC shall nominate individuals with appropriate expertise in stock assessment and fish population dynamics to a species stock assessment subcommittee (SAS), which will report to the TC. SAS nominations are approved by the board/section and shall continue in existence as long as the board/section requires. Membership of a species SAS will be comprised of TC members with appropriate knowledge and experience in stock assessment and biology of the species being assessed. Individuals from outside the TC with expertise in stock assessment or biology of the species may also be nominated and appointed, if necessary. The TC chair will serve as an ex-officio member of the species SAS. Overall membership should be kept to a maximum of six persons unless additional analytical expertise is requested by the board, TC or SAS.

Management and Science Committee. The MSC provides advice concerning fisheries management and the science of coastal marine fisheries to the ISFMP Policy Board. MSC’s major duties are to provide oversight to the Commission’s Stock Assessment Peer Review Process, review and provide advice on species- specific issues upon request of the ISFMP Policy Board, evaluate and provide guidance to fisheries managers on multispecies and ecosystem issues, and evaluate and provide advice on cross-species issues (e.g., tagging, invasive species and exotics, fish health and protected species issues). The MSC also assists in advising the Policy Board regarding stock assessment priorities and timelines in relation to current workloads. The MSC is comprised of one representative from each member state/ jurisdiction, the NOAA

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Fisheries Northeast and Southeast Regions, and the USFWS Regions 4 and 5 who possess scientific as well as management and administrative expertise.

Assessment Science Committee. The ASC is a stock assessment advisory committee that reports to the ISFMP Policy Board. ASC is comprised of one representative from each state/jurisdiction, the NOAA Fisheries Northeast and Southeast Regions, the 3 East Coast regional fishery management councils, and the USFWS. All agencies may nominate individuals for appointment to the ASC based on stock assessment and population dynamics expertise. The ISFMP Policy Board should review all nominations and appoint members to the ASC based on expertise, as opposed to agency representation. The ASC membership should be kept to a maximum of 25 members and periodic rotation of membership should be considered. The ASC is responsible for reviewing and recommending changes to the update and benchmark stock assessment schedule, advising the Policy Board regarding priorities and timelines in relation to current workloads, providing stock assessment advice and guidance documents for TCs and boards on technical issues as requested, and providing oversight to the Commission’s Stock Assessment Training Program.

Multispecies Technical Committee. The MSTC is appointed by and advises the ISFMP Policy Board on multispecies modeling efforts with the goal of moving towards the use of multispecies model results in management decisions. The MSTC is comprised of state, federal, and academic scientists from the TCs with the expertise necessary to complete multispecies tasks on the species of interest and modeling approaches being employed. Individuals from outside the TC with expertise in stock assessment or biology of the species may also be appointed, if necessary.

Habitat Committee. The HC is a standing Commission committee appointed at the discretion of the Commission Chair on an annual basis. The Committee advises the ISFMP Policy Board with the goal of enhancing and cooperatively managing vital fish habitat for conservation, restoration, and protection, and supporting the cooperative management of Commission managed species. The HC is primarily responsible for developing habitat sections of FMPs and creating habitat management series publications as needed. Membership includes state representatives, the USFWS, NOAA Fisheries, National Ocean Service, Environmental Protection Agency, U.S. Geological Survey, and the Army Corps of Engineers. Two seats are available on the Habitat Committee for members from non-governmental organizations (NGOs).

Law Enforcement Committee. The LEC is a body of professionals in marine fisheries enforcement. It is comprised of representatives from each of the Commission’s participating states and the District of Columbia. Members also represent NOAA Fisheries, the U. S. Coast Guard and USFWS. The LEC carries out assignments at the specific request of the Commission, the ISFMP Policy Board, the boards/sections, the PDTs, and the PRTs. In general, the Committee provides information on law enforcement issues, brings resolutions addressing enforcement concerns before the Commission, coordinates enforcement efforts among states, exchanges data, identifies potential enforcement problems, and monitors enforcement of measures incorporated into the various FMPs.

Committee on Economics and Social Sciences. The purpose of the Committee on Economics and Social Sciences (CESS) is to provide socioeconomic technical oversight for both the ISFMP and the Atlantic Coastal Cooperative Statistics Program (ACCSP). CESS’s major duties are to develop and implement

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Other Technical Support Subcommittees. Upon the approval of a board/section, the TC shall appoint individuals with special expertise, as appropriate, to other technical support subcommittees (not including SASs) in order to support TC deliberations on specific issues. These kinds of subcommittees include species tagging and stocking subcommittees, but do not include ISFMP socioeconomic subcommittees. All technical support subcommittees shall report to the TC and shall continue in existence so long as the Management board/section requires. All technical support subcommittees should elect their own chair and vice- chair, who will be responsible for reporting to the TC and the management board/section as necessary. Overall membership should be kept to a maximum of six persons unless additional expertise is requested by the TC or board.

Special Issue Technical Committees. The ISFMP Policy Board may form new TCs to address special issues (e.g., Interstate Tagging Committee, Fish Ageing Committee, Fishing Gear Technology Work Group, Fish Passage Working Group). Nominations are approved by the Policy Board. Special TCs meet as often as necessary (resources permitting) to address specific Policy Board tasks.

B. Mid-Atlantic Fishery Management Council (MAFMC)

The MAFMC is one of eight regional fishery management councils established by the Magnuson-Stevens Fishery Conservation and Management Act in 1976 to manage fisheries within U.S. federal waters. Its management authority extends from three to 200 miles off the coasts of New York, New Jersey, Pennsylvania, Delaware, Maryland, and Virginia. The Council manages more than sixty-five species with 7 FMPs. Fifteen species are directly managed with specific FMPs. An additional 50+ forage species are managed as “ecosystem components,” meaning that the Council can set possession and landing limits to prevent the expansion of directed fisheries on these species in the Mid-Atlantic. The Council is the only U.S. Regional Council to have implemented a management plan for summer flounder, scup, and black sea bass.

The Council coordinates its management activities closely with several other management bodies, including the New England Fishery Management Council and the ASMFC, to ensure that fisheries are managed effectively across jurisdictional boundaries.

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Strategic Plan 2020-202448

The multi-year plan guides the Council’s activities and priorities in respect of the following overarching objectives: ▪ Maintain sustainable fisheries, ecosystems, and habitats in the Mid-Atlantic; ▪ Address specific issues identified by the Council and its constituents; ▪ Improve communication with constituents and other organizations; ▪ Improve the Councils ability to collect and use input from constituents and management partners; ▪ Increase efficiency in the management process; ▪ Promote stability in Mid-Atlantic fisheries; and ▪ Establish a more proactive process for addressing management challenges.

The implementation of the strategic plan is a long-term process supported through the annual development of one-year implementation plans that identify specific tasks necessary for achieving the Council’s goals and objectives. Annual implementation plans are used as a planning tool by the Council and staff and as a way to update the public on progress toward achieving the goals and objectives of the strategic plan.49

Management Cadre

The Council consists of 21 voting members of which 13 are private citizens such as fishermen, industry leaders, environmentalists, academics, and other interested stakeholders; 7 are state officials representing each of the Mid-Atlantic states’ fish and wildlife agencies; and the regional administrator for the National Marine Fisheries Service’s Greater Atlantic Regional Office. There are 4 non-voting members representing the Coast Guard, State Department, U.S. Fish and Wildlife Service, and the ASMFC.

An executive, technical and administrative staff supports the Council by providing information for management decisions, informing the public about Council activities, coordinating meetings, creating fishery management documents, and assisting advisory groups. The Council receives input and recommendations from its Advisory Panels (APs), Fishery Management Action Teams (FMATs), Monitoring Committees (MCs), a Scientific and Statistical Committee (SSC), and other committees and working groups. These bodies provide guidance and advice on fishery management issues being considered.

Policies and Documents

48https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5e4c565db7b5e27580b4828a/158206114 9835/2020-2024-MAFMC-Strategic-Plan.pdf 49https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ffc9272307246181d650aea/1610388083 267/2021+Implementation+Plan_final.pdf

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A well-developed suite of issue-specific policies and guiding, process, and informational documents constitute the administrative tools that guide the day-to-day activities of the Council.50 They include:

Guiding Documents ▪ Statement of Organization, Practices, and Procedures (revised June 2017) ▪ 2020-2024 Strategic Plan

Council Process Documents ▪ MAFMC - Original FMP and Major Amendment Work and Timeline ▪ FMP Development Overview ▪ NMFS Policy Guidelines for the Use of Emergency Rules ▪ MAFMC Framework Action Development - Process Overview (5/6/14) ▪ Regional Operating Agreement Between MAFMC, NOAA Fisheries GARFO, NOAA Fisheries NEFSC, and NOAA Office of Law Enforcement (7/22/13)

Issue-Specific Council Policies ▪ Ecosystem Approach to Fisheries Management Guidance Document (revised 2/8/19) ▪ Council Policies on Impacts of Fishing on Fish Habitat (8/12/16) ▪ Council Policies on Non-Fishing Activities that Impact Fish Habitat (2/12/16) ▪ MAFMC Allocation Review Policy (8/19/19)

Administrative Policies and Informational Documents ▪ Council Webinar Guide (5/20/20) ▪ Webinar Policy (8/17/17) ▪ Fishery Management Action Teams (8/2/17) ▪ Advisory Panel Overview (8/22/18) ▪ Travel Guidelines

Council Meetings and Deliberations51

The Council typically meets six times a year. All meetings are open to the public and include opportunities for public comment. Meeting agendas are usually made available 3 weeks prior to the meeting. Individuals can sign up to receive agendas for upcoming meetings by email. Meeting agendas, materials, minutes,

50 https://www.mafmc.org/council-policies 51 https://www.mafmc.org/meetings

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Committee System53

The Council’s committee structure includes both species committees (including for Summer Flounder, Scup and Black Sea Bass) and functional Committees for Ecosystem and Ocean Planning, Protected Resources, Law Enforcement, Research, Highly Migratory Species, Executive, and Scientific and Statistical. Meeting agendas, materials and minutes are also available on the Committee’s web page.

Scientific and Statistical Committee (SSC)54

The Scientific and Statistical Committee (SSC) serves as the Council’s primary scientific/technical advisory body. The SSC provides ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch, preventing overfishing, maximum sustainable yield, and achieving rebuilding targets, and reports on stock status and health, bycatch, habitat status, social and economic impacts of management measures, and sustainability of fishing practices. The duties and objectives of the SSC are described in detail in the Council’s SOOP (Section 2.6.1).

Advisory Panels (APs)55

APs provide information and recommendations to the Council during the development of fishery management plans, amendments, specifications, and management measures. One of the chief responsibilities of advisory panels is the annual development of Fishery Performance Reports. These reports provide the Council and SSC with information about the factors that influenced fishing effort and catch within each fishery during the previous year. The duties and objectives of the APs are described in detail in the Council’s SOOP (Section 2.6.2).

Monitoring Committees56

Each of the Council’s FMPs has a Monitoring Committee (MC) which is responsible for annually reviewing the best available data and recommending commercial and recreational measures designed to assure that the target mortality level for each fishery managed under the FMP is not exceeded. The Council and its Committees consider MC recommendations (along with input from the SSC, advisory panels, and the public) during the annual specification-setting process for each fishery.

Fishery Management Action Teams57

52https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5a4d12fd9140b791bb3fc30e/1515000575 610/2017-06-08_MAFMC-SOPP-final.pdf 53 https://www.mafmc.org/committees 54 https://www.mafmc.org/ssc 55 https://www.mafmc.org/advisory-panels 56 https://www.mafmc.org/monitoring-committees 57 https://www.mafmc.org/fmat

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FMATs are teams formed by the Council to develop alternatives and provide technical analysis in support of a specific, major Council action. They help plan and execute the procedural and technical steps needed to complete an action and collaborate to create the supporting documents for Council actions (e.g., white papers, environmental assessments, environmental impacts statements, etc.). FMATs work closely with Council Committees to refine options and evaluate management proposals to ensure they are consistent with Council goals and any statutory or regulatory requirements.

C. National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries)

NOAA Fisheries (also known as the National Marine Fisheries Service - NMFS) is an office within the U.S. Department of Commerce. It is responsible for the stewardship of the nation's ocean resources and their habitat. It provides vital services for the nation: productive and sustainable fisheries, safe sources of seafood, the recovery and conservation of protected resources, and healthy ecosystems—all backed by sound science and an ecosystem-based approach to management. The office has five regional offices, six science centers, and more than 20 laboratories around the United States and U.S. territories, and works with partners across the nation (Figure 34).

NOAA's Mission is focussed on science, service and stewardship to enable it to (i) understand and predict changes in climate, weather, oceans and coasts; (ii) share that knowledge and information with others; and (iii) conserve and manage coastal and marine ecosystems and resources.

For the purpose of this assessment, NOAA’s Office of General Counsel (a service office) and the National Marine Fisheries Service (a line office) will be highlighted in view of their operational relevance to Principle 3 of the MSC Standard.

Figure 34. Organization Chart (Source: https://media.fisheries.noaa.gov/dam-migration/noaa_fisheries_org_chart-july- 2020.pdf

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Office of the General Counsel (OGC)

The OGC provides legal service and guidance for all matters that may arise in the conduct of NOAA's missions. These functions are carried out subject to the overall authority of the GC of the Department of Commerce, as provided in Department Organization Order 10-6.58 More specifically, the GC has the primary responsibility for providing advice related to regulatory policy, promulgation, review, and improvement; for developing or coordinating and managing the development of regulatory policies and reforms; for being the regulatory ombudsman for the Department; and for advising the Secretary on regulatory matters.

One of its 13 sections includes Enforcement based in Silver Springs, MD. The Section prosecutes civil administrative violations committed under a myriad of laws administered by NOAA. It also provides legal advice to its primary client, the Office of Law Enforcement, on the development and implementation of enforcement policies and operational guidance. Additional information is provided at Section 7.4.1.7 of this report.

National Marine Fisheries Service (NMFS) - New England/Mid-Atlantic Region

The region’s responsibilities are focused on maintaining sustainable fisheries and protecting marine life. It is a joint effort of the Greater Atlantic Regional Fisheries Office (GARFO) and the Northeast Fisheries Science Center (NEFSC). The work of these regional entities is informed by a New England/Mid-Atlantic Geographic Area Strategic Plan for 2020 - 2023.59

The Plan emphasizes the importance of nurturing and sustaining partnerships in carrying out the mission. Partners include other NOAA line offices, the New England and MAFMCs, the ASMFC, federal agencies, states, tribes, commercial and recreational fishing stakeholders, national and regional aquaculture associations, foundations, non-governmental organizations, academia, and other stakeholders, including other international agencies.

The region’s 3 Strategic Goals for 2020-2023 are supported by various key strategies. The goals are to: ▪ Amplify the economic value of commercial and recreational fisheries while ensuring their sustainability; ▪ Conserve and recover protected species while supporting responsible fishing and resource development; and ▪ Improve organizational excellence and regulatory efficiency.

Greater Atlantic Regional Fisheries Office (GARFO)

58 https://www.osec.doc.gov/opog/dmp/doos/doo10_6.html 59 https://s3.amazonaws.com/media.fisheries.noaa.gov/2020-11/GARFO- geographic%20strategic%20plan_implementation%20plan.pdf?null

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Situated in Gloucester, Massachusetts, the GARFO works closely with partner agencies, the fishing industry, international partners, non-governmental organizations, tribal nations, and members of the public to achieve its goals of sustainable use of living marine resources, conservation of the habitats upon which these resources depend, and the protection of endangered and threatened species that spend all or part of their lives in the ocean, and marine mammals. The Office also works closely with its NOAA Fisheries counterpart, the Northeast Fisheries Science Center (NEFSC), to make informed management decisions based on sound science, and with two regional fishery management councils (New England and Mid-Atlantic) and with coastal states through the ASMFC to conserve and manage marine fisheries in federal waters from Maine through Virginia.60

The Office’s organization consists of 8 Divisions:

Directorate: The Director’s Office provides GARFO oversight and communications.

Analysis and Program Support Division: The division provides permit services, data collection, data quality, and data analysis to support catch monitoring and fishery management decisions.

Habitat Conservation Division: The division conducts environmental, aquaculture, and offshore wind consultation, review, and permitting.

National Environmental Policy Act Review: No information available.

Operations and Budget Division: The division manages grants, operations, and budget planning. Protected Resources Division: Endangered Species and Marine Mammal Protection Act consultations, stranding and recovery coordination, policy making.

Sustainable Fisheries Division: Commercial and recreational fisheries management and policymaking.

Technology and Data Management Division: The division support IT infrastructure and operations and software application/database development.

The GARFO has published a detailed 2021 plan of implementation for its key strategies (details per the aforementioned Strategic Plan).

The NEFSC is structured as follows:

Directorate: Provided oversight, academic programs, and addresses wind energy issues.

Ecosystems and Aquaculture Division: The division manages aquaculture, environment and marine biota interactions, ecosystem monitoring, and habitat ecology.

60 https://www.fisheries.noaa.gov/about/greater-atlantic-regional-fisheries-office

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Fishery Monitoring and Research Division: The division manages cooperative research, observer, and at- sea monitoring programs.

Information Technology Division: The division provides IT security, IT infrastructure, data systems, and data application design and development.

Resource Evaluation and Assessment Division: The division provides science for protected species, fisheries, socio-economic and ecosystem dynamics.

Operations, Management, and Information Division: The division manages facilities, budget execution, and communication.

Population and Ecosystems Monitoring and Analysis Division: The division conducts fishery independent surveys, fish biology, age-and growth, shark biology.

Policies and Directives61

NOAA Fisheries has a number of national policies and directives that are intended to promote accountability and consistency in management and science practices and demonstrate a commitment to implementing identified priorities. The national policies include: ▪ Ecosystem-Based Fishery Management with 6 guiding principles: (i) implement ecosystem-level planning, (ii) Advance our understanding of ecosystem processes, (iii) Prioritize vulnerabilities and risks of ecosystems and their components, (iv) Explore and address trade-offs within an ecosystem, (v) Incorporate ecosystem considerations into management advice, and (vi) Maintain resilient ecosystems. ▪ National Habitat and Ocean Noise ▪ National Saltwater Recreational Fishing

The agency’s policy directives, like the policies themselves, are intended to guide organizational decisions and actions. The Policy Directive System serves as the repository for NOAA Fisheries policy directives, allowing for their widespread dissemination. Policy directives exist in three forms: policies, procedures, and supplements: ▪ Policies state NOAA Fisheries directions and objectives and explain why they exist. ▪ Procedures provide guidance for how to apply the direction and objectives stated in policies. They are written as instructions or manuals. ▪ Supplements adapt procedures to meet the unique geographical needs of individual Regional Offices, Science Centers, and other field offices; and meet the unique needs of specific programs.

61 https://www.fisheries.noaa.gov/topic/laws-policies#policies

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Policy directives fall under the following subject areas: Fisheries Management - Examples: ▪ Procedures for Initiating Secretarial Review of Fisheries Management Plans and Amendments; ▪ Operational Guidelines for the MSA Process; ▪ Communication of Regional Fishery Management Council Meeting Actions; ▪ Policy Guidelines for the Use of Emergency Rules; ▪ Procedures on Public Comments on Fishery Management Plans; ▪ Procedures to Determine Stock Status and Rebuilding Progress; ▪ NOAA Fisheries Framework for Determining that Stock Status Determinations and Catch Specifications are based on the best scientific information available; ▪ National Bycatch Reduction Strategy; and ▪ Regulatory Flexibility Act and Regulatory Impact Review Process.

Protected Resources - Examples: ▪ NMFS Endangered and Threatened Species: Listing and Recovery Priority Guidelines; ▪ Recovery Planning Guidance; ▪ Endangered Species Consultation Handbook: Procedures for Conducting Consultation and Conference Activities under Section 7 of the ESA; ▪ Policy for the Ecosystem Approach to the Endangered Species Act; ▪ Policy for Information Standards Under the Endangered Species Act; ▪ Policy for Peer Review in Endangered Species Act Activities; ▪ Policy for Endangered Species Act Section 9 Prohibitions; and ▪ Reviewing and Designating Stocks and Issuing Stock Assessment Reports under the Marine Mammal Protection Act. Habitat Conservation and Restoration - Examples : ▪ Assessment of Impacts of Fishery Management Actions on Essential Fish Habitat; ▪ Guidance on EFH Conservation Recommendations; ▪ Guidance for Integrating MSFCMA EFH Consultations with ESA Section 7 Consultations; ▪ Further Guidance on Combined EFH and ESA Consultations; and ▪ Guide to EFH Consultations.

Science and Technology - Examples: ▪ NMFS Data and Information Management; and

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▪ Policy on Electronic Technologies and Fishery-Dependent Data Collection.

Law Enforcement - Examples: ▪ Vessel Monitoring Systems Data Access and Dissemination.

National Environmental Policy Act - Examples: ▪ Policy for National Environmental Policy Act Compliance; and ▪ National Environmental Policy Act Compliance for Fishery Management Actions under the Magnuson-Stevens Act.

D. United States Coast Guard (USCG) - 1st and 5th Districts

The USCG, as a component of the Department of Homeland Security (DHS), partners with the Department of Defense (DOD) and other government agencies to protect the country’s maritime domain. The 1st District is headquartered in Boston, MA and is responsible for Coast Guard activities in Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York, and Northern New Jersey. The 5th District, headquartered in Portsmouth, VA, is responsible for a geographic area comprised of portions of New Jersey, Pennsylvania, Delaware, Maryland, the District of Columbia, Virginia, and North Carolina. The Districts’ vision statement is to “serve as a maritime leader and partner of choice ensuring the safety, security and resiliency across all areas of U.S. national interest, defending citizens, sovereignty and facilitating commerce”.62

Nationally, the agency’s multi-year Strategic Plan 2018-2022 supports the program requirements of the Department of Homeland Security and the Department of Defense. 63 The Districts’ key strategic priorities 64 include: (i) optimize a highly skilled and resilient workforce, (ii) strengthen and advance resilient capabilities, (iii) bolster and advance key relationships, (iv) safeguard and cultivate a rapidly growing Maritime Transportation System, and (v) encourage on-scene initiative and continuous improvement. Each of the priorities are accompanied by detailed implementation actions (not presented here).

8.4.1.3 State Level Management

7.4.1.3.1 Legislative Authority

62 https://www.atlanticarea.uscg.mil/Portals/7/Fifth%20District/D5/Documents/Mid- Atlantic%20MaritimeStrategy%202018-2022.28%20Jun%20Final.pdf?ver=2019-10-18-094021-690 63 https://media.defense.gov/2018/Nov/16/2002063979/-1/- 1/0/USCG_STRATEGIC%20PLAN__LORES%20PAGE_20181115_VFINAL.PDF

64 See footnote 23.

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Each Atlantic coastal state has an administrative body tasked with the management of commercial and recreational fisheries within their jurisdiction (Table 25). The Atlantic states with interest in the Atlantic scup commercial fishery and their lead departments or agencies include: New York’s Department of Environmental Conservation; Rhode Island’s Department of Environmental Management; New Jersey’s Department of Environmental Protection, Natural and Historic Resources; Massachusetts’ Department of Fish and Game; and Connecticut’s Department of Energy and Environmental Protection, Bureau of Natural Resources. Each state authority is legally empowered to introduce and enforce fisheries management regulations, through either the State administrative code, statutes, or specific legal instruments.

Table 25. State agencies

State Agency Maine (ME) Department of Marine Resources: http://www.maine.gov/dmr/commercial-fishing/index.html New Hampshire (NH) Department of Fish and Game: http://www.wildlife.state.nh.us/index.html Massachusetts (MA) Department of Fish and Game: https://www.mass.gov/orgs/department-of-fish-and-game Rhode Island (RI) Department of Environmental Management – Bureau of Natural Resources, Division of Marine Fisheries: http://www.dem.ri.gov/programs/marine-fisheries/index.php Connecticut (CT) Department of Energy and Environmental Protection, Bureau of Natural Resources: http://www.ct.gov/deep/site/default.asp New York (NY) Department of Environmental Conservation, Office of Natural Resources, Division of Marine Resources: http://www.dec.ny.gov/24.html New Jersey (NJ) Department of Environmental Protection, Natural and Historic Resources Group, Division of Fish and Wildlife: http://www.njfishandwildlife.com/about.htm Maryland (MD) Department of Natural Resources, Division of Fisheries and Boating Services: http://dnr2.maryland.gov/Fisheries/Pages/management.aspx Delaware (DE) Department of Natural Resources and Environmental Control, Division of Fish and Wildlife: http://www.dnrec.delaware.gov/fw/Pages/AboutUs.aspx Virginia (VA) Virginia Marine Resources Commission: http://www.mrc.virginia.gov/mrcoverview.shtm North Carolina (NC) Department of Environmental Quality, Division of Marine Fisheries: https://deq.nc.gov/about/divisions/marine-fisheries

7.4.1.3.2 Scope of Management System

Section 5104 of the ACFCM Act addresses the statutory obligations of states in implementing and enforcing the measures of coastal fishery management plans that are proposed and adopted by the Commission. For example, states are required to implement and enforce65 a plan’s measures within the

65 According to the Act, the words ‘’implement and enforce’’ mean: to enact and implement laws or regulations as required to conform with the provisions of a coastal fishery management plan and to assure compliance with such laws or regulations by persons participating in a fishery that is subject to such plan.’’

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7.4.1.3.3 Jurisdictional Authority and Scup Management of Select States

The 5 states highlighted in this section had the highest scup landings of all Atlantic states for the 2019 fishing season. They accounted for 84% of the commercial landings in that year.66

Rhode Island67

The commercial marine fisheries in Rhode Island are the responsibility of the Department of Environmental Management’s Bureau of Natural Resources’ Fish and Wildlife Division, one of nine divisions which report to the Bureau.

Departmental Mandate and Mission

The Division is responsible for setting seasons, size limits, methods of taking, and daily limits for the harvest of all wildlife as well as all recreational and commercial fisheries in the state. It is divided into several sections including Marine Fisheries, Law Enforcement and Outreach and Education. The Division’s mission statement is: ‘’to ensure that the Freshwater, Marine, and Wildlife Resources of the State of Rhode Island will be conserved and managed for equitable and sustainable use.’’

Rhode Island Marine Fisheries Council

The Council serves in an advisory capacity to the Director of the RI Department of Environmental Management and/or other state agencies on the planning, management, and regulation of the State’s marine fisheries. The Council is specifically charged with providing recommendations to the Director on proposed management plans and regulations pertaining to marine fisheries, including commercial and recreational licensing.68 The Council has two standing committees, one of which is the Industry Advisory Committee whose mandate is to provide coordination among commercial fisheries sectors and to review plans and recommendations that affect more than one commercial fishery sector, and to advise the

66https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ef2556b49622f07741782cb/1592939884 646/Scup_info_doc_2020.pdf 67 http://www.dem.ri.gov/programs/naturalresources/ 68 http://www.dem.ri.gov/programs/marine- fisheries/rimfc/RIMFC.php#:~:text=The%20Rhode%20Island%20Marine%20Fisheries%20Council%20%28Council%2 9%20is,management%20plans%20and%20regulations%20pertaining%20to%20marine%20

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Council and the Director on matters which affect commercial fishing as a whole (e.g., commercial licensing).69

Industry Advisory Committee70

In accordance with RIGL 20-2.1-11, the Council is responsible for establishing an Industry Advisory Committee to provide coordination among commercial fisheries sectors and to review plans and recommendations that affect more than one commercial fishery sector and to advise the Council and the Director on matters which affect commercial fishing as a whole. The Committee shall deliberate and, by vote, provide recommendations to the Council on all matters that are brought before the committee for consideration.

Marine Fisheries Regulatory Provisions - Scup71

The State’s regulations are organized into several parts. Those of relevance to this assessment include: ▪ Part 2 - Commercial and Recreational Saltwater Fishing Licensing Regulations ▪ Part 3 - Finfish ▪ Part 7 - Fish/Shellfish Dealers Regulations

The following is a general listing of provisions that underpin the state’s commercial fisheries management system, including for scup where specifically mentioned in the regulations: ▪ The fishery endorsement period for scup is from May 1 to October 31; the non-restricted period extends from January 1 to April 30; ▪ The Department may place limits on entry consistent with the fisheries management plans; ▪ The management controls set forth in the Regulations shall be consistent with fisheries management plans adopted by the Department pursuant to R.I. Gen. Laws § 20-2.1-9(5). Such plans shall be updated annually, with the draft plan made available for public review a minimum of thirty (30) days prior to any public hearing that addresses commercial licensing; ▪ The management controls set forth in the Regulations shall also be consistent with fisheries management plans adopted by a Federal agency or regional body of competent jurisdiction; ▪ The minimum size for scup harvested commercial is 9 inches (total length);

69 http://www.dem.ri.gov/programs/marine- fisheries/rimfc/RIMFC.php#:~:text=The%20Rhode%20Island%20Marine%20Fisheries%20Council%20%28Council%2 9%20is,management%20plans%20and%20regulations%20pertaining%20to%20marine%20 70 http://www.dem.ri.gov/programs/bnatres/fishwild/mfapmtng/RIMFCPolPro.pdf 71 http://www.dem.ri.gov/programs/marine-fisheries/rimftoc.php

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▪ Season, quota and possession limit: January 1 through April 30 (Federal Winter I) - 50,000 lb per vessel per day, decreasing to 1,000 lb per vessel per day once 80% of the Federal Winter I coastwide scup quota has been harvested as determined by NOAA Fisheries; ▪ Season, quota and possession limit: October 1 through December 31 (Federal Winter II) - 2,000 lb per vessel per day, decreasing to 500 lb per vessel per day once 70% of the Federal Winter II coastwide scup quota has been harvested as determined by NOAA Fisheries; ▪ Season, quota and possession limit: May 1 through September 30 (State quota) - General Category (gear types other than floating fish traps - 40%) possession limit - 10,000 lb per vessel per calendar per week; ▪ Minimum mesh size - otter trawl: o Owners or operators of otter trawl vessels possessing greater than 1,000 lb of scup from October 1 through April 14; or greater than 2,000 lb of scup from April 15 through June 15; or greater than two 200 lb of scup from June 16 through September 30, may only fish with nets that have a minimum mesh size of five inches (5”) diamond (inside measure) or square mesh with a minimum length of seventy-five (75) meshes from the terminus of the net. For nets with less than seventy-five (75) mesh cod ends, the entire net will be five inches (5”) minimum size diamond or square mesh; and o Vessels possessing trawl devices while harvesting scup in excess of the possession limits specified herein may have nets onboard the vessel that have a mesh size less than the minimum size specified in the Regulations provided that the net is stowed and is not available for immediate use. ▪ License holders must meet all applicable and current Federal and State laws and Regulations governing harvest and possession relating to the species being sold; ▪ Dealers shall accurately identify all marine species received as categorized in the Standard Atlantic Fisheries Information System (SAFIS). Dealers shall have accounted for the quantity by count, weight and/or volume of all marine species landed at the point of transfer from the harvester; ▪ Dealers shall submit an electronic report to the SAFIS. In cases where a seafood dealer falls under the jurisdiction of both the State of Rhode Island and the Federal government (NMFS), the dealer must comply with the more frequent of the minimum reporting schedules or the more detailed trip level data requirement; and ▪ Rhode Island licensed seafood dealers shall submit a negative report to SAFIS for each weekly reporting period during which no seafood product was landed or purchased. ▪ Commercial trips shall be accurately logged in the Paper Catch and Effort Harvester Logbook or entered in an electronic device, prior to offloading. Minimum trip elements shall include, but are not limited to: trip date, area fished, vessel state registration or USCG documentation number, gear type fished, quantity of gear fished, fishing time, species landed, pounds or count of species landed, and disposition;

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▪ Accurately completed copies of the Federal Vessel Trip Reports or State reporting forms shall be kept in numerical order on board the vessel dating back to January 1 of the current year and furnished upon request. A vessel shall be exempt from this requirement if the captain of said vessel is currently enrolled in an electronic logbook program. Instead, the vessel must have all records dating back to January 1 of the current year entered electronically; ▪ Data will be collected, managed and disseminated according to the coastwide minimum protocols of the ACCSP.

Non-compliance with certain licence or other regulatory provisions can be punishable by a revocation of fishing privileges; financial penalties may also be imposed. A fisher can seek an adjudicatory hearing in order to contest an enforcement action of an alleged violation of the state’s fishing rules and regulations by filing a request in writing with the clerk of Administrative Adjudication Division. The appeal process is subject to the provisions of the Administrative Procedures Act, Chapter 35 of Title 42.

New York

The mission of the Department of Environmental Conservation is to conserve, improve and protect New York's natural resources and environment and to prevent, abate and control water, land and air pollution, in order to enhance the health, safety and welfare of the people of the state and their overall economic and social well-being. The department has 24 divisions and offices and is further organized into bureaus to fulfil the functions and regulations established by Title 6 of New York Codes, Rules and Regulations. Some programs are also governed by federal law.

The Department provides coordination and secretariat services to a number of independent boards and commissions, including the Marine Resources Advisory Council (MRAC).72 Established in 1987, MRAC’s statutory duties of the council include to: ▪ review DEC allocations and expenditures for the care, management, protection and enlargement of marine resources; ▪ issue reports and information regarding DEC’s marine resources program to commercial and recreational harvesters; ▪ consult with commercial and recreational harvesters to develop recommendations regarding marine resource program needs; ▪ assist DEC’s efforts to expand available income to meet (marine) program needs; and ▪ review and provide recommendations to DEC on any proposed regulations for the management of marine fisheries.

72 https://you.stonybrook.edu/mrac/

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Marine Fisheries and Conservation

Title 1, Article 13, Section § 13-0105 of the State’s Environmental Conservation Statute sets out the primary principle governing marine fisheries management and conservation.

1(a). It is the policy of the state that the primary principle in managing the state's marine fishery resource is to maintain the long-term health and abundance of marine fisheries resources and their habitats, and to ensure that the resources are sustained in usable abundance and diversity for future generations. Utilization and allocation of available resources will be administered consistent with the restoration and maintenance of healthy stocks and habitats. The state shall actively manage its marine fisheries and shall endeavor to: protect and conserve habitats; restore habitats in areas where they have been degraded; and maintain water quality at a level that will foster occurrence and abundance of marine resources.

1(b). The marine fisheries conservation and management policy shall be carried out through achievement of the following objectives: ▪ the state shall strive to obtain the best possible scientific information through research and monitoring of the resources; ▪ the state shall use the best available scientific information in managing the resources; ▪ the state recognizes that an informed public is integral to the management system and shall inform and involve constituents in management decisions; ▪ the management of the state's transboundary and migratory species shall be consistent with any interjurisdictional management plans, interstate or state-federal; ▪ in the event that fishery conservation and management require actions that result in resource allocation impacts, the state shall endeavor to assure such allocation impacts are distributed equitably among user groups, giving priority to existing fisheries within the state; ▪ the state shall minimize waste and reduce discard mortality of marine fishery resources; ▪ the state shall investigate and encourage the development of aquaculture of economically important species, both to relieve pressure on and enhance wild stocks and to provide economic opportunity; ▪ the state shall encourage and, when feasible, provide access to the state's marine fishery resources consistent with marine fisheries conservation and management policy; and ▪ the state recognizes that adequate law enforcement services are integral to the success of any marine resource management program and shall endeavor to provide the necessary law enforcement services to ensure the protection of the resources and compliance of users with laws and regulations designed to manage and allocate those resources.

Commercial Fisheries Regulations: General Provisions and Special Regulations (Scup)

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The commercial fisheries regulations are specified in the Codes, Rules, and Regulations of the State of New York, Title 6 (Department of Environmental Conservation), Chapter I (Fish and Wildlife), Subchapter F (Marine Fisheries), part 40 (Marine Fish).73

The General Provisions for the state’s commercial fisheries include: ▪ The holder of a commercial license shall carry on his or her person or shall have posted on his or her vessel such license at all times when fishing for food fish, and make it available for inspection upon the request of an authorized agent of the department; ▪ License holders shall display a valid commercial food fish license decal, provided by the department, whenever the vessel is operating as a commercial fishing vessel or when any person onboard is fishing under the authority of a commercial food fish license; ▪ It shall be unlawful for a New York commercial food fish license holder to possess, ship, or transport, or cause to be shipped or transported, any container holding scup which has not been properly labelled at the point of landing in New York State; ▪ No person, including dealers, shippers, wholesalers and retailers, shall receive, store, possess, sell, offer for sale, transport, ship, or reship, or cause to be received, stored, possessed, sold, offered for sale, transported, shipped or reshipped, any New York landed scup in containers that have not been properly labelled; ▪ No person, including dealers, shippers, wholesalers and retailers, shall receive, store, possess, sell, offer for sale, transport, ship, or reship, or cause to be received, stored, possessed, sold, offered for sale, transported, shipped or reshipped, any scup lawfully taken in another state unless there is a complete bill of lading that accompanies such product and each container is marked with a label; ▪ Any scup lawfully taken and landed in other states and shipped into New York for trade, barter or sale must meet New York's minimum total length requirements for such species and be from a state which authorizes reciprocal privileges for such species taken in New York.

The Special Regulations in effect for the commercial scup fishery are set out in subparagraph (r) and are highlighted here (with some editing for context): ▪ The total annual harvest of scup may not exceed that amount annually allocated to New York State by the NMFS and/or the ASMFC for the period May 1 through October 31. Harvest limits for scup are based on the fishery management plan (FMP) for scup as adopted and approved by the ASMFC and the MAFMC; ▪ Quotas, trip limits and directed fishery thresholds for the periods of January 1 to April 30 and November 1 to December 31 will be established by NMFS. The department will establish trip limits and directed fishery thresholds within the periods of January 1 to April 30 and November

73 https://govt.westlaw.com/nycrr/index?contextData=%28sc.Default%29&transitionType=Default

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1 to December 31 consistent with those established by NMFS. Trip limits and directed fishery thresholds will be established for the period of May 1 to October 31 such that the harvest in this period does not exceed the quota assigned to New York by NMFS and/or the ASFMC. The department may establish trip limits within the period of May 1 to October 31 annually, based upon projected landings, and the FMP, following consultation with industry and appropriate notice to individual fishermen; ▪ When the department determines during the period of May 1 to October 31, based on a projection of any period's landings using the NMFS weekly dealer reports, that adjustment of a trip limit is necessary, such trip limits will be adjusted, and will be enforceable upon 72 hours written notice to license holders of the trip limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In the period of May 1 to October 31 the trip limit may be increased if the projection of the landings indicates that period's total quota will not be caught. During periods of trip limits all scup not being held alive must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel; ▪ If the department determines that the maximum allowable harvest of scup will have taken place in the time periods of January 1 to April 30 or November 1 to December 31, harvesting for commercial purposes and possession of scup will be prohibited for all license holders during the remainder of the period. If the department determines that the maximum allowable harvest for scup will have taken place in the time period of May 1 to October 31, harvesting for commercial purposes and possession of scup will be prohibited for all license holders except for holders of a summer flounder fixed gear permit (pound net/trap net only) as directed by the department upon 72 hours written notice to license holders; ▪ If the department closes the period, but unanticipated events result in the quota not being landed by the projected date and at least one month remains in the time period, then the department may reopen the period for a specified time and a specified trip limit up to the maximum allowed for that period upon 72 hours written notice to permit holders. If less than one month remains in the time period, the remaining quota available from that period will be added to the next open period in the same year; ▪ Fourteen days following the beginning of any period when commercial harvesting is prohibited, it shall be unlawful to possess scup for sale, or offer scup for sale, trade or barter except scup taken by gear other than fixed gear during the period of May 1 to October 31; ▪ It is unlawful for any person to take scup for commercial purposes without having in possession a valid New York State commercial food fish license; and ▪ The department may, under mutual agreement with another state and with the concurrence of the Regional Administrator of the Northeast Region, NMFS or the ASMFC, transfer scup quota to that state or combine the scup quota from that state with the New York quota.

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Other regulatory measures

Currently, the minimum size for scup is 9 inches (total length)74 with a possession limit of 50,000 lb as of January 1, 2021.75 The 2021 commercial summer scup quota for New York State from May through September is 1,263,608 lb as determined by the MAFMC, the ASMFC, and regulations promulgated by NOAA Fisheries.76

All food fishing permit holders must complete and submit to DEC’s Division of Marine Resources an accurate Vessel Trip Report (VTR) for each fishing trip, detailing all fishing activities and all species landed. Those who hold a federal fishing permit issued by NMFS must instead satisfy the reporting requirements specified by NMFS. VTRs must be submitted to DEC within 15 days after the end of each month. If no fishing trips were undertaken during an entire month, a VTR must be submitted to DEC stating no trips were made that month.

Commercial harvesters have the option of submitting their records electronically via the Atlantic Coastal Cooperative Statistics Program (ASCCP) that uses a web-based data entry system known as SAFIS (Standard Atlantic Fisheries Information System). Electronic trip reports are entered into eTRIPS, a SAFIS application.

New Jersey

Management of marine fish stocks in New Jersey’s state waters falls under the jurisdiction of the Bureau of Marine Fisheries (BMF), part of the NJ Division of Fish and Wildlife (DFW), which itself is a component of the Department of Environmental Protection. The Division’s mission is to protect and manage the State's fish and wildlife to maximize their long-term biological, recreational and economic values for all New Jerseyans. It pursues this mission guided by three overarching goals: ▪ To maintain New Jersey’s rich variety of fish and wildlife species at stable, healthy levels and to protect and enhance the many habitats on which they depend. ▪ To educate New Jerseyans on the values and needs of our fish and wildlife and to foster a positive human/wildlife co-existence. ▪ To maximize the recreational use and economic potential of New Jersey’s fish and wildlife for both present and future generations.

The Division’s fisheries management activities are assigned to two Bureaus or Offices - the Bureau of Law Enforcement (BLE), and Marine Fisheries Administration (MFA) which includes the Bureau of Marine Fisheries (BMF). The MFA supervises and coordinates the planning, organization, operation and management of the State’s marine and estuarine finfish and shellfish resources. It also coordinates the

74 https://www.dec.ny.gov/outdoor/113797.html 75 https://www.dec.ny.gov/outdoor/51157.html 76 https://www.dec.ny.gov/outdoor/26824.html

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State’s management activities on a coastwide basis with the ASMFC and the MAFMC. The BMF conducts fisheries research, develops and implements management plans, and protects and enhances fish stocks and habitats. This research is combined with information from other Atlantic states and federal management agencies to support coastwide management plans.

Marine Fisheries Council77

This council advises the Commissioner of the Department of Environmental Protection (DEP) on various issues and management programs related to marine fishery resources. It can veto marine fishery regulations proposed by the DEP Commissioner. The Council also contributes to the preparation and revision of fishery management plans, holds public hearings on marine fishery issues, convenes species- related citizen panels as appropriate, and advises the commissioner on departmental policies and planning related to marine resources. Its administrative processes and governance parameters contribute to transparency and accountability in the discharge of its mandate.78

Legislative Authorities

As previously reported, Federal legislation mandates that states implement all of the fishery management plans approved by the ASMFC. Each plan requires that states employ the required management measures, enforce those rules and monitor the status of the fishery population. States failing to comply with the requirements of the plan risk a federally-imposed moratorium in their state for those species covered.

New Jersey Fish and wildlife regulations are based on Permanent Statute Titles 23, 39, 50, 58, 2C - Code of Criminal Justice, and the Administrative Code N.J.A.C. 7:25 et. seq. Legislation is generally contained within Title 23 of the New Jersey Permanent Statute (Fish and Game, Wild Birds, and Animals). Fisheries management measures required by the ASMFC must first be approved by the Council. The Council usually addresses these issues at their March meeting with the management measures becoming effective in mid- to-late April or early May. The Marine Digest is published in May. Regulations remain in effect until changed.

Commercial Fishing Regulations

All laws and regulations relating to commercial fishing can be found in New Jersey Statutes Annotated, Titles 23 and 50, and New Jersey Administrative Code, Title 7, Subtitle E, Chapter 25 and 25A. Provisions for the commercial scup fishery include specific permits to qualifying individuals to control harvest and species-specific dealer permits to track commercial landings on a more frequent basis. Other provisions are highlighted below: ▪ A harvester or vessel shall not land scup for the purpose of sale or sell any scup unless that harvester or vessel is in the possession of a valid Scup Moratorium Permit issued by the NMFS;

77 https://www.nj.gov/dep/fgw/marcncl.htm 78 https://www.nj.gov/dep/fgw/pdf/marine/mfc_guidelines.pdf

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▪ The annual coastwide scup quotas and daily trip limits are in effect for the periods from January 1 through April 30 and October 1 through December 31, and a New Jersey scup quota is in effect for the period from May 1 through September 30; ▪ All landings of scup in New Jersey during the period from May 1 through September 30 are applied to the New Jersey quota; ▪ No vessel shall land, and no dealer shall accept from any one vessel more than the daily trip limit set by the NMFS or the ASMFC for the seasons from January 1 through April 30 and October 1 through December 31 or more than the daily trip limit of 5,000 pounds of scup during the season of May 1 through September 30 or as otherwise notified; ▪ Once the season has been closed for the commercial scup fishery, no vessel may land and no dealer may accept any scup landed in New Jersey; ▪ Any harvester or vessel landing scup in New Jersey for the purpose of sale must sell all scup to a permitted New Jersey Scup Dealer who must provide weekly landing reports to the Division; ▪ All Scup Moratorium Permit holders landing scup in New Jersey must provide monthly landing reports to the Division; ▪ All New Jersey Scup Dealer’s reports should be submitted electronically through the SAFIS. The frequency of State mandated reporting of landings takes precedence over the frequency of SAFIS reporting under Federal requirements. Scup dealers must provide weekly (Sunday to Saturday) reports during the period January 1 through December 31 during the open season listing the amount of scup landed on a daily basis by vessel and size category; ▪ No vessel may have available for immediate use any otter or beam trawl while on the marine waters of the State during the hours between sunset and sunrise except on the Atlantic Ocean, at a distance of greater than two miles from the coast line; and ▪ A person utilizing an otter or beam trawl in a directed fishery for scup shall not use a net of less than 5 inches stretched mesh inside measurement applied for a minimum of 75 continuous meshes forward of the terminus of the net. Nets not large enough to accommodate these number of meshes cannot contain any meshes less than 5 inches stretched mesh inside measurement throughout the entire net. A directed fishery for scup is defined as the possession of more than 500 pounds of scup during the period of October 1 through April 30 and more than 200 pounds of scup during the period of May 1 through September 30 on board a vessel or landed from a vessel.

Massachusetts

The Division of Marine Fisheries (DMF) of the Department of Fish and Game (DFG) manages the state’s commercial and recreational saltwater fisheries and oversees other services that support the marine

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 198 of 335 SCS Global Services Report environment and fishing communities. Chapter 130 of the Massachusetts General Law79 is one of two primary statutory authorities in respect of the construct of the marine fisheries management program and the organization that delivers it. Sections of particular relevance to the program include: ▪ Section 1a - Division of marine fisheries; ▪ Section 1b - Marine fisheries advisory commission; ▪ Section 2 - Transferability of licenses, permits and certificates of registration; suspension or voidance for violation of marine laws; surrender; impounding fishing gear; ▪ Section 4a - Administrative inspections; ▪ Section 17a - Management of marine fisheries; ▪ Section 21 - Compilation of statistical information useful to marine fish industries; ▪ Section 38 - Licenses, application, fee, eligibility, marking of buoys, exhibition of licence; ▪ Section 60 - Hearing on issuance of licence, notice, publication; and ▪ Section 80 - Commercial permits and certificates, issuance, transfers, wholesale dealer permit, regulated marine fishery permit, rules and regulations, cancellation, revocation, penalties.

The Code of Massachusetts Regulations, Title 322 is the other primary statutory authority that regulates commercial fishing in waters of the Commonwealth.80 Sections of relevance to this assessment include: ▪ CMR 2: Adopting administrative regulations (including public participation). ▪ CMR 4: Fishing and Shellfish Equipment (including use of mobile gear, maximum trawl length); o All vessels fishing with trawl gear within the waters under the jurisdiction of the commonwealth shall only possess fish taken with nets that have a minimum mesh size opening that measures at least 6 ½ inches throughout the cod end and six inches throughout the remainder of the net; o Exempted small mesh trawl fisheries include squid and whiting. ▪ CMR 6: Regulation of catches (including scup fishery management); o Permit Requirements. A regulated fishery permit endorsement, issued by the Director pursuant to 322 CMR 7.01(4)(a): Regulated Fishery Permit Endorsement, is required to sell scup, or to fish for, retain, possess or land scup in accordance with scup commercial fishery regulations at 322 CMR 6.27(2). o Minimum Size. It is unlawful for any commercial fisherman or dealer to possess scup less than nine inches in total length.

79https://malegislature.gov/Laws/GeneralLaws/PartI/TitleXIX/Chapter130#Massachusetts%20General%20Law%20 Chapter%20130 80 https://www.mass.gov/law-library/322cmr

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o Winter I Fishery. The Winter I fishery occurs during the period of January 1 through April 30 . This is a federal commercial scup management period. Federal limits are set pursuant to 50 CFR 648.122 and 648.123. The Director shall establish state possession and landing limits through Declaration, in accordance with the procedure set forth at 322 CMR 6.41(2)(d). o Summertime Fishery. The summertime fishery occurs during the period of May 1 through September 30 and is subject to the commercial scup quota. The commercial scup quota is managed through gear type specific trip limits, seasons and fishing days. Trawlers permitted in accordance with 322 CMR 7.01(4)(a) may fish for, possess and land scup seven days per week. Trawlers shall not land more than 10,000 pounds of scup per calendar week or possess more than 10,000 pounds of scup at any one time. The calendar week shall begin on Sunday at 12:01 A.M. and end on the following Saturday at 11:59 P.M. o Winter II Fishery. The Winter II fishery occurs during the period of October 1 through December 31 . This is a federal commercial scup management period. Federal limits are set pursuant to 50 CFR 648.122 and 648.123. The Director shall establish state possession and landing limits through Declaration, in accordance with the procedure set forth at 322 CMR 6.41(2)(d). o Trip Limit Restrictions on Trawl Vessels. Vessels using trawls shall not possess more than 1,000 pounds of scup from October 1 through April 14 , more than 2,000 pounds of scup from April 15 through June 15 , nor more than 200 pounds of scup from June 16 through September 30 , unless fishing with nets that have a minimum mesh size of five inches diamond applied throughout the cod end of the net for at least 75 continuous meshes forward of the terminus of the net and all other nets are stowed and not available for immediate use. ▪ CMR 8: Coastal Fisheries Conservation and Management o Vessels greater than 72 feet registered length may not conduct fishing activities in any waters under the jurisdiction of the Commonwealth.

The Marine Fisheries Advisory Commission81 is required to hold public hearings relative to matters within the jurisdiction of the division and to make recommendations to the director for the proper management and development of the marine fisheries of the commonwealth. The Division Director is authorized to take specific decisions affecting the management of marine fisheries with the agreement of the Commission, such as: the manner of taking fish; the legal size limits of fish to be taken; the seasons and hours during which fish may be taken; the numbers or quantities of fish which may be taken; the opening and closing of areas within the coastal waters to the taking of any and all types of fish.

Trawlers may land scup 7 days per week. Trawlers fishing with mesh less than 5" are subject to a 1,000 lb possession limit from October 1 - April 14, a 2,000 lb possession limit from April 15 - June 15 and a 200

81 https://www.mass.gov/orgs/marine-fisheries-advisory-commission

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 200 of 335 SCS Global Services Report pound possession limit from June 16 - September 30. The Winter I and Winter II periods are managed by the federal government, and seasons and limits are set by NMFS and complemented by DMF. The 2021 Winter I limit is 50,000 pounds and there are no closed fishing or landing days. No vessel over 90’ registered length may fish in MA waters. However, mobile gear vessels are limited to 72’ with some exceptions. Mobile gear fishing in coastal waters at night is prohibited.82

The Department’s Division of Marine Fisheries develops and implements marine fisheries policies for the Commonwealth including transfer of limited entry permits, and habitat policies.83

Connecticut

In 1972, Connecticut enacted a uniform state law known as the Uniform Administrative Procedure Act.84 This law is codified in the Connecticut General Statutes as Chapter 54 (Sections 4-166 et. seq.). It establishes procedures that state agencies must follow when performing listed administrative functions. One of the administrative functions the state performs is the development of regulations that are codified into the Regulations of Connecticut State Agencies. The Act sets out the procedures that state agencies must follow to adopt regulations. In Connecticut, a standing committee of the General Assembly (Regulations Review Committee) must ultimately approve a regulation before it becomes law. Regulations are given the same weight as statutes once the regulations have been properly enacted. The state’s regulatory process is very detailed, consisting of 20 steps.85 Proposed regulatory changes are listed on the state’s website, thus ensuring that the public and interested stakeholders are kept fully informed.86

Marine Fisheries Management

Under authority of Section 26-159a of the Connecticut General Statutes and Section 26-159a-22 of the Regulations of Connecticut State Agencies, the Commissioner of Energy and Environmental Protection is authorized to establish or adjust, by declaration, closed seasons, length limits, creel limits, trip limits and trip limit adjustment values in order to comply with interstate fishery management plans adopted by the ASMFC or the U.S. Department of Commerce. Moreover, under authority of Section 26-102 of the Connecticut General Statutes, the Commissioner is authorized to establish prescribed conditions for the operations of commercial fishing activity for any species of fish threatened with undue depletion.

Bureau of Natural Resources

The state’s Marine Fisheries Program is situated within the Fisheries Division of the Bureau of Natural Resources of the Department of Energy and Environmental Protection (DEEP).87 The Division:

82 https://www.mass.gov/doc/finfish-definitions-and-prohibitions/download 83 https://www.mass.gov/service-details/marine-fisheries-policies 84 https://www.cga.ct.gov/current/pub/chap_054.htm 85 https://portal.ct.gov/DEEP/Laws/The-Regulatory-Process 86 https://eregulations.ct.gov/eRegsPortal/Browse/ProposedRegulations 87 https://portal.ct.gov/DEEP/About/The-Things-We-Do-For-You

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▪ Manages fishery resources to provide sustainable populations and public benefit commensurate with habitat capability and relevant ecological, social and economic considerations; ▪ Manages fisheries for diadromous species consistent with interjurisdictional management plans; ▪ Manages and enhances inland and diadromous fish populations and fisheries; ▪ Operates three fish culture facilities; ▪ Stocks trout, salmon, walleye and northern pike; ▪ Protects and conserves aquatic habitat and associated riparian zones by reviewing and commenting on permit applications for development, water diversion and habitat alteration; ▪ Conducts public awareness and educational programs to promote an understanding and appreciation for fishing, aquatic resources and aquatic habitat.

Marine Fisheries Program

The program’s key deliverables include: ▪ Managing marine fish and crustacean resources to provide optimum sustained benefit to user groups while assuring the diversity, abundance and conservation of populations commensurate with habitat capability and relevant ecological, social and economic considerations; ▪ Conducting monitoring and research programs; ▪ Developing fishery management plans and regulations consistent with coast-wide management plans; ▪ Protecting and conserves marine living resources and habitat by commenting on permit applications for development and habitat alteration: and ▪ Conducting public awareness and outreach activities to promote an understanding of fishery management programs and marine aquatic resources.

The state’s commercial scup fishery regulations are detailed in Section 26-159a of the Connecticut General Statutes and Section 26-159a-22 of the Regulations of Connecticut State Agencies cited previously. Measures applying to scup are necessary to maintain compliance with the mandatory provisions of the ASMFC’s fishery management plan for the species under the ACFCMA. (16 U.S.C. Chapter 17, Section 5106).

Commercial Fishery Possession and Landing Limits88 ▪ Between January 1 and April 30, the landing limit shall be 30,000 pounds per two-week period, aggregated over all ports landed, until 80% of said coastwide quota has been landed, at which time the possession limit shall be 1,000 pounds until 100% of said coastwide quota has been

88 Possession and landing limits are subject to change per the FMP’s annual allocation formula; some editing was done for purposes of context.

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landed, at which time the limit shall be zero pounds. During any such two-week period, no license holder shall land scup at any other port once that license holder's aggregate landings for that two-week period total 30,000 pounds. A two-week period means from Sunday morning at 0000 hours to the second subsequent Saturday night at 2400 hours. For the purposes of quota- monitoring, the beginning of the first two-week period of a year shall be consistent with that established by the National Marine Fisheries Service or the Atlantic States Marine Fisheries Commission; ▪ Between November 1 and December 31, the possession limit shall be 3,500 pounds until 100% of said coastwide quota has been landed, at which time the limit shall be zero pounds; ▪ Between May 1 and May 31, in the bottom trawl fisheries, the possession limit shall be 50 pounds; ▪ Between June 1 and August 31, in the bottom trawl fisheries, the possession limit shall be 200 pounds until 40% of the Connecticut quota specified in the plan has been landed in Connecticut, at which time the possession limit shall be 50 pounds until 70% of said Connecticut quota has been landed, at which time the limit shall be zero pounds; ▪ Between September 1 and October 31, in the bottom trawl, the possession limit shall be 200 pounds until 90% of the Connecticut quota specified in the plan has been landed in Connecticut, at which time the possession limit shall be 50 pounds; ▪ If on or after October 1, the Connecticut quota specified in the plan is projected not to be landed in Connecticut by the end of the quota period, the commercial fishery possession limit shall for all gear types with the exception of lobster pots, be calculated as (0.07 / W) * Q, rounded up to the nearest 100 pounds, where W is the number of weeks remaining in the quota period and Q is the amount of Connecticut quota remaining, provided that when 98% of said Connecticut quota has been landed in Connecticut the possession limit shall be 100 pounds for all gear types with the exception of lobster pots; ▪ During the period May 1 through October 31, when 100% of the Connecticut quota is landed the possession limit shall be zero pounds for all gear types; and ▪ No person shall, during a fishing trip when using more than one gear type, possess any scup in excess of the largest of the gear-specific limits they are authorized to possess, and no such gear- specific trip limits shall be additive.

Compliance with Interstate Fishery Management Plans

The Commissioner may, by declaration, establish and adjust closed seasons, length limits, creel limits, trip limits, and trip limit adjustment values in order to comply with interstate fishery management plans and emergency actions adopted by the ASMFC or the U.S. Department of Commerce.

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The state’s minimum fish size is 9 inches. The commercial scup fishery possession and landing limits for 2021 include89: ▪ Winter period I: 50,000 lb dropping to 1,000 lb when 80% of the period quota has been harvested; ▪ Summer period (planned): 1,000 lb for scup endorsement holders (state quota is 251,848 lb); ▪ Winter period II (planned): 12,000 lb (may be adjusted based on Winter I fishery performance; no scup licence endorsement required).

Note: Any state may submit proposals to change its regulatory program or any mandatory compliance measure to the Commission. Changes submitted are reviewed by PRT, TC and AP members; analysis and recommendations are presented to the Board by the PRT for decision. The Board will decide whether to approve the state proposal for an alternative management program if it determines that it is consistent with the intended action’s goals and objectives.

8.4.1.4 Consultation and Decision-Making Processes

The organizational elements of the MAFMC, NOAA Fisheries and the ASMFC and their subordinate structures, and most states, that were reviewed for this assessment were found to be supported by extensive policies and guidelines that facilitate how the agencies undertake their public engagement and outreach activities with diverse groups of partners, stakeholders and the general public, and how they make decisions.

7.4.1.4.1 Atlantic States Marine Fisheries Commission

The Commission serves as a deliberative body of the 15 Atlantic coastal member states, coordinating the conservation and management of nearshore fishery resources, including marine, shell, and anadromous species. Each state is represented on the Commission by three Commissioners; the director of the state’s marine fisheries management agency; a state legislator; and an individual appointed by the state’s governor to represent fishery interests. These Commissioners participate in deliberations in the Commission’s main policy arenas: interstate fisheries management, fisheries science, habitat conservation, and law enforcement. Through these activities, the states collectively ensure the sound conservation and management of Atlantic coastal fishery resources and the resulting benefits that accrue to their fishing and non-fishing public.

The Commission’s business is governed by rules and regulations as described in its founding interstate compact. The Commission has adopted a number of administrative rules and regulations that inform its decision-making process. These are derived from provisions of Article V of the Compact as entered into by and among member states and as assented to by an Act of Congress entitled: An Act granting the consent and approval of Congress to an interstate Compact relating to the better utilization of the fisheries

89 https://portal.ct.gov/-/media/DEEP/fishing/commercial/ConnecticutCommercialTripLimitspdf.pdf

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(marine, shell and anadromous) of the Atlantic seaboard and creating the Atlantic States Marine Fisheries Commission.90 The Commission’s current version of its rules and regulations were adopted on February 4, 2016. They have been amended some 15 times since being originally adopted in 1942, and were, in fact, completely revised in 1996. The particulars provisions of Article V that guide the Commission’s decision- making process include: ▪ Article I, Section 1 (b) - Code of Conduct; Section 2 - Powers and Duties ▪ Article II, Section 1 - Meetings ▪ Article III, Section 1 - Quorum; Section 2 - Voting; Section 3 - Proxies

Its business is governed by the Interstate Fisheries Management Program (ISFMP) and overseen by the ISFMP Policy Board that is accountable to the Commission. Article II (Meetings) and Article III, Section 2 (Voting) of the Commission’s compact notes that: “Voting in any meeting of the Commission, or any of its sections, shall be by states, one vote per state, with the vote of each state being determined by the majority of that state’s delegation of Commissioners who are present. Voting in all other committees, boards or other groups shall be by individual members. The Executive Committee may approve any exceptions to this rule. Any time a Commissioner casts a vote on a body on behalf of a state, consultation should occur first, if practical, with the other Commissioners from that state.91

Consultation Process

The Commission’s consultation framework employed by its various committees and boards is formally set out in a 66-page document entitled: ‘’Technical Support Group Guidance and Benchmark Stock Assessment Process’’ of August 2019. 92 Chapter 2 updates the roles and responsibilities of the Commission’s many Boards and Committees; chapter 5 address the Commission’s meeting policies and procedures (for in-person, conference calls and webinars; meeting announcements; materials distribution; meeting records; and public participation); and chapter 6 describes its’ communications policies and guidelines (emails; recordings; reports and distribution; and presentations).

Decision-making Process

In fulfilling the Council's responsibilities and functions, the Council members may meet in plenary session, in working groups, or individually to hear statements in order to clarify issues, gather information, or make decisions regarding material before them. To provide for review and decision by the Secretary, recommendations of each of these groups must be documented and available. The documentation must include, at a minimum, a statement of the problem, recommendations for corrective action, likely impact on the affected resource, and likely impact on affected user groups.

90 Public Law 539, 77th Congress, approved by the President on May 4, 1942; and as amended by the member states, such amendment being assented to by Act of Congress Public Law 721, 81st Congress, approved by the President August 19, 1950. 91 http://www.asmfc.org/files/Meetings/2016AnnualMeeting/CompactRulesRegs_Feb2016.pdf 92 http://www.asmfc.org/files/pub/TechnicalGuidanceDocument_Aug2019.pdf

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The Commission’s Policy on Financial Disclosure and Conflict of Interest was implemented in August 2014 to ensure transparency, accountability, and integrity in the Commission’s decision-making process.93

Public Comment Guidelines

The ISFMP Policy Board approved the following guidelines for use at management board meetings that are intended to result in a fair opportunity for public input.

For issues that are not on the agenda, management boards will continue to provide opportunity to the public to bring matters of concern to the board’s attention at the start of each board meeting. Board chairs will use a speaker sign-up list in deciding how to allocate the available time on the agenda (typically 10 minutes) to the number of people who want to speak;

For topics that are on the agenda, but have not gone out for public comment, board chairs will provide limited opportunity for comment, taking into account the time allotted on the agenda for the topic. Chairs will have flexibility in deciding how to allocate comment opportunities; this could include hearing one comment in favor and one in opposition until the chair is satisfied further comment will not provide additional insight to the board; and

For agenda action items that have already gone out for public comment, it is the Policy Board’s intent to end the occasional practice of allowing extensive and lengthy public comments. Currently, board chairs have the discretion to decide what public comment to allow in these circumstances.

In addition, a timeline has been established for the submission of written comment for issues for which the Commission has not established a specific public comment period (i.e., in response to proposed management action). They include comments received 3 weeks prior to the start of a meeting week will be included in the briefing materials - otherwise, comments will be distributed electronically to Commissioners/Board members prior to the meeting and a limited number of copies will be provided at the meeting.

7.4.1.4.2 Mid-Atlantic Marine Fisheries Council

The Council’s Statement of Organization, Practices and Procedures (SOPP, February 2021)94 constitutes the procedures that are followed by the Council, except when they conflict with or are incomplete as to the requirements of the MSFCMA or 50 CFR Part 600 Subparts A, B, and C, which shall prevail.

The Council’s functions and responsibilities are defined in Chapter 1; its composition and jurisdictions are described in Chapter 2 including the mandates and responsibilities of the Council’s subordinate bodies.

93http://www.asmfc.org/files/commissionerManual/AllOtherSections/4b_FinancialDisclosureAndConflictOfInterest Policy_Aug2014.pdf 94https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/6037dc99fc433d019b5554d0/161427368 9932/2021-02-11_MAFMC-SOPP-final.pdf

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The procedures the Council is required to follow in planning and conducting meetings and hearings are detailed in Chapter 3. Information relating to the Council’s public engagement, decision-making and transparency requirements is described blow.

Public engagement ▪ Interested persons will be permitted to present oral or written statements regarding the matters on the agenda at regular meetings of the Council, within reasonable limits established by the Chair. All written information submitted to a Council by an interested person shall include a statement of the source and date of such information. Any oral or written statement shall include a brief description of the background and interests of the person in the subject of the oral or written statement (MSFCMA 302(i)(2)(D)). ▪ At any time when a Council determines it appropriate to consider new information from a state or Federal agency or from a Council advisory body, the Council shall give comparable consideration to new information offered at that time by interested members of the public. Interested parties shall have a reasonable opportunity to respond to new data or information before the Council takes final action on conservation and management measures. ▪ The Act directs the Council to hold public hearings, at appropriate times and in appropriate locations in the geographical area concerned, to provide the opportunity for all interested persons to be heard in the development of FMPs and amendments. The Chair will determine when hearings are appropriate. Hearings must follow the same procedures for announcement as for Council and advisory group meetings (see section 3.1.4). Timely public notice also should be given to the local media where the hearing is to take place. Publicity should be sufficient in time, substance, and area coverage to assure that all interested parties are aware of the opportunity to make their views known.

Decision-making

In fulfilling the Council's responsibilities and functions, Council members may meet in plenary session, in working groups, or individually to hear statements in order to clarify issues, gather information, or make decisions regarding material before them. To provide for review and decision by the Secretary, recommendations of each of these groups must be documented and available. The documentation must include, at a minimum, a statement of the problem, recommendations for corrective action, likely impact on the affected resource, and likely impact on affected user groups.

A vote is required for Council approval or amendment of a fishery management plan (including any proposed regulations), a Council finding that an emergency exists involving any fishery, or Council comments to the Secretary on fishery management plans developed by the Secretary. Decisions by consensus are permitted, except where the issue is Council approval of a FMP or amendment (including any proposed regulations), or comments for the Secretary on foreign fishing applications, or Secretarially- prepared management plans, when a vote is required.

Recordkeeping

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▪ Detailed minutes of each meeting of the Council, except for any closed session, shall be kept and shall contain a record of the persons present, a complete and accurate description of matters discussed, and conclusions reached, and copies of all statements filed. The Chairman shall certify the accuracy of the minutes of each such meeting and submit a copy thereof to the Secretary. The minutes shall be made available to any court of competent jurisdiction. ▪ Subject to the procedures established by the Council under 50 CFR § 600.405, and the regulations prescribed by the Secretary under 50 CFR § 600.130 relating to confidentiality, the administrative record (including minutes required under paragraph a of this section) of each meeting, and records or other documents which were made available to or prepared for or by the Council, SSC, or APs incident to the meeting, must be available for public inspection and copying at a single location in the offices of the Council. ▪ Each Council is required to maintain documents generally available to the public on its Internet site. The following documents shall be posted on the Council’s website: fishery management plans and their amendments for the fisheries for which the Council is responsible; drafts of fishery management plans and plan amendments under consideration; analysis of actions the Council has under review; minutes or official reports of meetings of the Council and its committees and Advisory Panels; materials provided by the Council staff to Council members in preparation for meetings; and other Council documents of interest to the public. For documents too large to maintain on the Web site, not available electronically, or seldom requested, the Council must provide copies of the Documents for viewing at the Council office during regular business hours or may provide the documents through the mail.

Combined Commission and Council Deliberations

The Commission and the Council frequently partner on the organization of public hearings on proposed changes to addenda or amendments. The decisions made by the Council and/or Commission are not final until they are approved or partially approved by the Secretary of Commerce through NMFS. The ongoing work of the two agencies is organized along very specific activities and timelines. Typically, this is organized as follows:

Annual Events ▪ TC meets in December - January to evaluate previous year’s recreational harvest by state and make recommendations on how management measures should be adjusted to achieve but not exceed the current year’s recreational harvest limit; ▪ February - March: Final commercial allocation memo sent to the Board, depending on the release of final landings numbers. Board determines whether to have coastwide recreational management measures or approve addendum allowing for different state and/or regional management measures; ▪ April - May: Final recreational harvest information from the previous year is released. The TC determines how the state-implemented recreational management measures should perform

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based on the updated information. This information is communicated to the NOAA GARFO for their consideration in setting state management measures; ▪ Compliance reports are due June 1. Prior to the next Board Meeting, the PRT considers the FMP Review which includes any compliance issues; ▪ Monitoring committee meets in July to outline recommendations for the upcoming year’s fishing regulations, including any proposed changes to the minimum fish size, mesh size, escape vent sizes, or other compliance criteria for the commercial fishery, as well as to recommend changes to the quota to account for management uncertainty. The Committee forwards recommendations to the Board and the Council; ▪ Board and Council meet jointly at the MAFMC August meeting to adopt an Acceptable Biological Catch (ABC), a commercial quota, and a recreational harvest limit, and to set commercial specifications; ▪ MC meets in November to outline recommendations for the upcoming year’s recreational measures, including minimum fish size, season, and possession limit. The MC forwards recommendations to the Board and the Council; and ▪ Board and Council meet jointly at the MAFMC December meeting to set recreational specifications.

Plan amendments95

For amendments to FMP’s (adaptive management), the Commission’s PRT monitors the status of the fishery and the resource and reports on that status to the Board annually or when directed to do so by the Board. The PRT consults with TC, the SASC, and the AP in making such review and report, if necessary.

The Board reviews the report of the PRT, and may consult further with the TC, or AP. The Board may, based on the PRT report or on its own discretion, direct the PDT to prepare an addendum to make any changes it deems necessary. The addendum contains a schedule for the states to implement the new provisions.

The PDT prepares a draft addendum as directed by the Board and distributes it to all states for review and comment. A public hearing is held in any state that requests one. The PDT also requests comment from federal agencies and the public at large. After at least a 30-day review period, staff, in consultation with the PDT, summarizes the comments received and prepares a final version of the addendum for the Board.

7.4.1.4.3 NOAA Fisheries - NMFS

Procedures on Public Comments on Fishery Management Plans96

95 http://www.asmfc.org/files/PublicInput/SF_ScupBSB_DraftAmendment_Jan2021.pdf 96 https://media.fisheries.noaa.gov/dam-migration/01-101-08.pdf

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For FMPs and FMP Amendments, a notice of availability (NOA) is published in the Federal Register as soon as possible after the transmittal of an FMP/amendment from the Council, as required in section 304(a) of the MSFCMA. The NOA requests comments on the FMP/amendment and alerts the public that comments are being solicited through the end of the 60- day comment period stated in the NOA. NMFS considers comments received by the last day of the comment period stated in the NOA. NMFS considers in the approval/disapproval decision all comments received by the end of the comment period, whether directed to the FMP/amendment or a proposed rule to implement the FMP/amendment. As a general rule, NMFS must make a decision to approve, disapprove, or partially approve the FMP/amendment within 30 days of the close of the comment period of the NOA.

For proposed Rules, NMFS reviews a proposed rule prepared under section 303(c) of the MSFCMA to determine whether it is consistent with the relevant FMP/amendment, the Act, and other applicable law. If so, NMFS publishes the proposed rule in the Federal Register and publishes a proposed rule with a request for comments. The comment period normally is 45 days or a period of time that coincides with the comment period for the NOA. To be considered in the approval/disapproval decision on the FMP/amendment, as a general rule, public comments on the proposed rule must be received by the last day of the comment period on the FMP/amendment.

Endangered species97

A handbook developed between the U.S. Fish and Wildlife Service (USFW) and the NOAA provides internal guidance and establishes national policy for conducting consultation and conferences pursuant to section 7 of the ESA of 1973, as amended. The purpose of the handbook is to promote efficiency and nationwide consistency within and between the Services. The handbook also addresses the major consultation processes, including informal, formal, emergency, and special consultations, and conferences.

Essential Fish Habitat98

The MSFCMA requires Federal agencies to consult with the NMFS on activities that may adversely affect EFH (section 305(b)(2)). The EFH regulations encourage the use of existing interagency consultation or environmental review procedures for EFH consultations. If an existing procedure allows appropriate notification to NMFS regarding proposed actions and includes an assessment of the effects of the proposed actions on EFH, then NMFS can make a finding that the existing process can be used for EFH consultation.

To streamline requirements and avoid duplication, EFH consultations are typically combined with existing environmental review procedures, such as those required under the NEPA and the ESA. Consultation requirements and the process itself are described on the agency’s website.99

97 https://media.fisheries.noaa.gov/dam-migration/esa_section7_handbook_1998_opr5.pdf 98 https://media.fisheries.noaa.gov/dam-migration/03-201-05.pdf 99 https://www.fisheries.noaa.gov/national/habitat-conservation/consultations-essential-fish-habitat

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If no appropriate procedures exist, then the consultation process outlined in 50 CFR 600.920 should be used. For all Federal actions, the lead Federal agency determines the effects of the proposed action on EFH. If the action will have no adverse effect, then no EFH consultation is necessary. If the action may have an adverse effect, then the Federal action agency must notify NMFS and provide an EFH Assessment. Once NMFS has reviewed the EFH Assessment and analysed possible adverse effects to EFH resulting from the proposed action, NMFS must develop EFH Conservation Recommendations (section 305(b)(4)(A)).

The Federal action agency must provide a detailed response in writing to NMFS regarding the EFH Conservation Recommendations within 30 days of their receipt (MSFCMA section 305(b)(4)(B)). The response must include a description of measures proposed by the Federal action agency for avoiding, mitigating, or offsetting the impact of the activity on EFH. If the response is inconsistent with NMFS’ EFH Conservation Recommendations, the Federal action agency must explain its reasons for not following the recommendations, including the scientific justification for any disagreements with NMFS over the anticipated effects of the proposed action and the measures needed to avoid, minimize, mitigate, or offset such effects. If there are future changes to the proposed action NMFS Procedure 03-201-05, January 2001 3 that may have adverse impacts on EFH, or if new information becomes available that affects the basis for NMFS’ EFH Conservation Recommendations, the Federal action agency must re-initiate EFH consultation with NMFS (50 CFR 600.920(k)).

Traditional Ecological Knowledge

NOAA Fisheries has a formal policy of “Guidance and Best Practices for Engaging and Incorporating Traditional Ecological Knowledge in Decision-Making.” 100 The policy is an extension of the agency’s commitment to consult and engage meaningfully with federally recognized Tribes, non-recognized Tribes and other indigenous people by means of its’ “Procedures for Government-to-Government Consultation with Federally Recognized Indian Tribes and Alaska Native Corporations." 101

Endangered Species

Under Section 7(a)(2) of the ESA, federal agencies must consult with NOAA Fisheries when any project or action they take might affect an ESA-listed marine species or designated critical habitat. The consultation process varies depending on the complexity of the project or action. For the New England/Mid-Atlantic Region, the different consultation types for Section 7 are detailed on NOAA’s website.102

7.4.1.4.4 Massachusetts

The state’s Department of Fish and Game, Division of Marine Fisheries, uses several mediums to engage stakeholders and the general public on a variety of fisheries management subjects, including (i) advisories

100 https://media.fisheries.noaa.gov/dam- migration/traditional_knowledge_in_decision_making_508_compliant.pdf 101 https://www.legislative.noaa.gov/policybriefs/NOAA%20Tribal%20consultation%20handbook%20111213.pdf 102 https://www.fisheries.noaa.gov/insight/section-7-types-endangered-species-act-consultations-greater-atlantic- region

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The Division’s website is easily accessed, and commercial fishery information and departmental decisions are both current and archived back several years. The Marine Fishery Advisory Commission is the lead entity responsible for stakeholder and public engagements. Proposed regulatory changes affecting the management of marine fisheries are approved or disapproved by a majority vote of the MFAC. It meets monthly and meeting agendas, documents and meeting summaries are web posted as far back as 2016.103

7.4.1.4.5 Rhode Island

The Department’s Division of Marine Resources and the Rhode Island Marine Fisheries Council (MFC) are jointly responsible for the state’s engagement activities with the commercial fishing industry, stakeholders and members of the general public. The departmental website posts a variety of information about upcoming and past meetings, MFC minutes, advisory panel agendas and minutes, public hearings, and the Director’s decisions on marine fisheries. 104 Meeting materials are provided in an electronic “ePacket,” prepared by the Division of Marine Fisheries, and made available to the public prior to the date of meeting.

The mandate of the Council and its committees are state legislated. The organization’s operations are conducted in accordance with various administrative policies and procedures.105 Examples of the rules are included below: ▪ The Chair shall follow codes of parliamentary procedure (such as Robert’s Rules of Order or the American Institute of Parliamentarians Standard Code of Parliamentary Procedure) to the extent necessary and appropriate; ▪ All Council meetings are open to the public; ▪ Announcement of meetings and agendas will be noticed with the Office of the RI Secretary of State in accordance with RIGL Section 42-46-6 (“Open Meetings”), with hard copies posted at selected locations, and also noticed via the Division’s website. In advance of Council meetings, meeting materials will be provided to the Council electronically, and made available to the public via the Division’s website;

103 https://www.mass.gov/service-details/marine-fisheries-advisory-commission-meeting-resources 104 http://www.dem.ri.gov/programs/marine-fisheries/index.php 105 http://www.dem.ri.gov/programs/bnatres/fishwild/mfapmtng/RIMFCPolPro.pdf

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▪ The Council shall deliberate and, by vote, provide recommendations to the Director on all proposed regulatory matters. The Council shall also deliberate and vote on any other matters brought before the Council for the purpose of rendering a recommendation to the Director, or another state agency. Such matters shall include, but are not limited to: commercial licensing; aquaculture lease proposals; annual plans for the allocation and use of funds from commercial license fees, tags, permits, and vessel fees; and the recreational saltwater fishing license program; ▪ Agendas for all Council meetings shall include an opportunity for any member of the public to address the Council on any matter that is not on the agenda for that meeting; and ▪ For each calendar year, the Council shall report annually, by March 1, to the Governor and the RI General Assembly with regard to: the advice it has given to state agencies, particularly DEM, on marine fisheries issues; the response it has received to such advice; any findings or position it may have with regard to the status and/or condition of marine fisheries; and any recommendations it may have for maintaining, improving, or changing laws, regulations, or management programs for marine fisheries.

The Division, on behalf of and in coordination with the Director, is responsible for conducting the regulatory (rule-making) process in accordance with the state’s Administrative Procedures Act, RIGL Chapter 42-35 The process, and the Council’s role and responsibilities relative to it, are as follows: ▪ A notice is posted by the Division advising the public of proposed regulatory action and soliciting written comments on the proposed action for a specified period of time, that being at least 30 days. All written comments received during the comment period will be included in the administrative record; ▪ The notice also states that the Division will conduct a public workshop at a specified date and time prior to the hearing, at which interested parties will be afforded the opportunity to interact with Division staff and engage in discussion concerning the proposed regulatory action. Council members are encouraged to attend and participate in the workshop; ▪ The notice also states that following the workshop, at a specified date and time, a public hearing will be held at which interested parties will be afforded the opportunity to offer oral and additional written comments concerning the proposal; said comments to be included in the administrative record; ▪ The notice also states that, for a period extending at least 5 days following the public hearing, interested parties will be afforded the opportunity to submit written commits concerning the proposed regulatory action; said comments to be included in the administrative record; ▪ At the end of the written comment period following the public hearing, the administrative record is closed. Council members shall refrain from communicating with, or considering oral or written comments offered by, members of the public after the close of the administrative record; ▪ The Council then meets to deliberate upon the administrative record and vote on a recommendation to the Director regarding the proposed regulatory action; and

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▪ After the Council meeting, the Division forwards the administrative record, the recommendation of the Council, and its own recommendation to the Director for final consideration. The Director then renders a final decision. The Director’s decision shall be provided in writing and made available to the Council and the public via the Division’s website.

A similar set of administrative and procedural guidelines exists for the Council’s Industry Advisory Committee.

7.4.1.4.6 Connecticut

The Fisheries Advisory Council (FAC) and its Committees play an active role in (i) improving communication between the public and the DEEP Fisheries Division; (i) delineating issues and problems that affect all users of marine and inland fisheries resources; (iii) advising both the Fisheries Division in developing solutions to problems and approaches to issues; (iv) providing oversight advice to the Fisheries Division on budgetary matters; and (v) advocating for fish and fisheries issues.106

The FAC has 7 committees including Marine Advisory, and Public Awareness. The former provides oversight advice for the Fisheries Division’s marine programs and projects, including how their goals, objectives, and performance meets the needs and desires of the fishing public with a focus on recreational fisheries issues, harvest management and gear conflicts, fish habitat protection and restoration, and information needs to develop new fisheries or maintain existing ones. The latter functions to keep the public informed of fisheries resource issues, Fisheries Division activities and accomplishments, and the activities and accomplishments of the FAC.

7.4.1.4.7 New Jersey

The Bureau of Marine Fisheries is responsible for the administration of marine fisheries management programs. The objective of the bureau is to protect, conserve and enhance marine fisheries resources and their habitat. The bureau conducts research and inventory projects designed to provide data on fishery resources and on the various user groups to develop and implement sound management plans. The bureau is also involved with habitat protection. Through the division's Office of Environmental Review the bureau reviews and comments on various development proposals that may impact the marine resources.

The Marine Fisheries Council (MFC) is one of several councils and committees involved in managing the state’s fish and wildlife resources. The MFC was created by the Marine Fisheries Management and Commercial Fisheries Act (Act) of 1979 (N.J.S.A.23:2B). The Act was adopted with three main goals: (i) to enhance marine fisheries management, (ii) to develop the commercial fishing industry, and (iii) to support recreational fishing. It provided the MFC with certain powers, duties, and responsibilities in order to effectively achieve these goals.

The Council advises the Commissioner of the DEP on various issues and management programs related to marine fishery resources. The MFC can veto marine fishery regulations proposed by the DEP

106 https://portal.ct.gov/DEEP/Fishing/General-Information/Fisheries-Advisory-Council

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Commissioner. Along with shared authority, the MFC also contributes to the preparation and revision of fishery management plans, holds public hearings on marine fishery issues, convenes species-related citizen panels as appropriate, and advises the commissioner on departmental policies and planning related to marine resources. The consultation process is informed by detailed administrative guidelines.107

The MFC assembles Council Advisory Committees to discuss issues for a particular species, group of species, gear type, or another fishery management topic. The Committees advise the Council on the assessments and specifications contained in each fishery within the state, current trends and developments in fishery matters, the effect of such fishery management plans on local economies and social structures, potential conflicts between user groups of a given fishery resource, enforcement problems peculiar to each fishery with emphasis on the expected need for enforcement resources. Among its duties is to hold periodic public hearings in regard to current issues affecting the operation of the marine fisheries program. All meetings where a quorum of Council members is expected to attend must be open to the public with adequate notice, as defined by the NJ Open Public Meetings Act, provided prior to the meeting. The MFC’s work is supported by a staff who prepare and distribute meeting agendas, meeting summaries and support information; arrange for meeting space; and secure materials and/or resources to facilitate meetings; and provide information and consultation regarding technical issues.

All MFC meetings are recorded and a summary capturing the major concepts, issues and decisions of the meeting are prepared as an official record of any Council meeting. Minutes of all publicly open Council meetings are compiled from recorded transcripts and posted on the MFCs website.108 Public comments may be received during the meeting at the discretion of the Chair. The public may speak on any issue at a regularly scheduled MFC meeting. For topics that are not on the agenda, the Chair uses a public sign-up list in deciding how to allocate the available time on the agenda to the number of people who want to speak.

7.4.1.4.8 New York

The state Department of Environmental Conservation (DEC) and the Marine Resources Advisory Council (MRAC) jointly undertake consultation activities with industry and stakeholder representatives and the general public. Established in 1987, the MRAC reviews proposed regulations for management of marine fisheries and makes recommendations on plans, policies, and programs affecting marine fisheries and on other issues affecting the protection and utilization of the state’s finfish and shellfish resources.

The MRAC’s meeting schedules and itineraries are posted on its website, and bulletins are equally posted in the form of summaries of the discussions and decisions.109 Public participation is encouraged for all meetings across the State; information is web-posted on how to attend virtually because of the pandemic, and how to benefit from the Department’s outreach activities.

107 https://www.nj.gov/dep/fgw/pdf/marine/mfc_guidelines.pdf 108 https://www.njfishandwildlife.com/cnclminutes.htm#marine. 109 https://you.stonybrook.edu/mrac/meetings/

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The fisheries management decision-making process in use by the DEC is enshrined in the Consolidated Laws, Title I, Section 13-0105 (Marine Fisheries Conservation and Management) which reads, in part110: ▪ 1(b) The Marine fisheries conservation and management policy shall be carried out through achievement of the following objectives: ▪ the state shall strive to obtain the best possible scientific information through research and monitoring of the resources; ▪ the state shall use the best available scientific information in managing the resources; ▪ the state recognizes that an informed public is integral to the management system and shall inform and involve constituents in management decisions; ▪ the management of the state’s transboundary and migratory species shall be consistent with any interjurisdictional management plans, interstate or state-federal; ▪ the state recognizes that adequate law enforcement services are integral to the success of any marine resource management program and shall endeavor to provide the necessary law enforcement services to ensure the protection of the resources and compliance of users with laws and regulations designed to manage and allocate those resources.

7.4.1.5 Dispute Resolution Mechanisms

Federal and state agencies reviewed for this assessment were found to have administrative and civil processes for resolving disputes outside the court system.

7.4.1.5.1 Federal Agencies

ASMFC Appeal Process

Under the Commission’s current management process, the primary policy development responsibility lies with the individual species management boards. And, in the case of development of new fishery management plans or amendments, the full Commission has final approval authority prior to implementation. The purpose of the appeals process is to provide a mechanism for a state/jurisdiction to petition for a management decision to be reconsidered, repealed or altered. The appeals process is intended to only be used in extraordinary circumstances where all other options have been exhausted. The Management Boards have the ability to go back and correct errors or address additional technical information.

While the involved states have frequently demonstrated their willingness to compromise and the overall process has proven to be very successful, there have been instances where a state/jurisdiction has expressed concern that the ISFMP Policy Board’s decisions have not been consistent with language of an FMP, resulted in unforeseen circumstances or impacts, did not follow established processes, or were based on flawed technical information. To rectify these occurrences, the Board charged the

110 https://www.nysenate.gov/legislation/laws/ENV/13-0105

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Administrative Oversight Committee to develop an Appeals Process. The policy was subsequently 111 approved by the Board in August 2004. The Board remains the deliberative body that will consider valid appeals.

Criteria have been established to guide what type of decisions can be appealed. In general, management measures established through the FMP/amendment/addendum process can be appealed. However, the appellant must use one of the following criteria to justify an appeal: ▪ Decision not consistent with FMP; ▪ Failure to follow process; ▪ Insufficient/inaccurate/incorrect application of technical information; ▪ Historical landings period not adequately addressed; and ▪ Management actions resulting in unforeseen circumstances/impacts.

The following issues cannot be appealed: ▪ Management measures established via emergency action; ▪ Out-of-compliance findings (this can be appealed but, through a separate, established process); and ▪ Changes to the ISFMP Charter.

If a state is successful in an appeal and the management program is altered, another state may be negatively impacted by the appeals decision. In order to prevent an appeal “chain reaction,” the Policy Board’s recommendation and the resulting management board’s decision will be binding on all States. All states with an interest in the fishery will be obligated to implement the changes as approved by the management board. Upon completion of the appeals process, a state is not precluded from taking further action beyond the Commission process to seek relief. If the Policy Board supports the appeal and determines that corrective action is warranted, the potential for management changes to negatively impact other states will be evaluated by the Policy Board and the species management board.

MAFMC

The operations of the Council and its many committees are informed by administrative rules that are defined in its Statement of Organization Practices and Procedures (SOPP), specifically Section 3 - Council Meetings and Hearings, sub-section 3.1.5 - Conduct of meetings.112 Decisions are by majority vote of the voting members present. Voting members who disagree with the majority on any issue to be submitted

111 http://www.asmfc.org/uploads/file/ASMFCAppealsProcess.pdf

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Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 217 of 335 SCS Global Services Report to the Secretary, including principal State officials raising federalism issues, may submit a written statement of their reasons for dissent. If any Council member elects to file a minority report, it is submitted at the same time as that of the majority. The staff shall provide statistical and clerical support as requested and as approved by the Council Chair in preparation of such a minority report. The Regional Administrator of NMFS serving on the Council, or the Regional Administrator's designee, shall submit such a statement, which shall be made available to the public upon request, if the Regional Administrator disagrees with any such matter.

7.4.1.5.2 State Agencies

The states listed in Table 26 were selected for inclusion in the report because they represented 75% of the landings from the commercial scup fishery in 2018. Their dispute resolution programs are well established and offer appellants a proven opportunity to seek redress to a claim without recourse to the legal system which can be costly, adversarial, and time consuming.

Table 26. States Dispute Resolution Processes for Commercial Fisheries. Organization Description Rhode Island A fisher can seek an adjudicatory hearing in order to contest an administrative decision (or enforcement action) by filing a request in writing with the clerk of Administrative Adjudication Division. The appeal process is subject to the provisions of the Administrative Procedures Act, Chapter 35 of Title 42. http://www.dem.ri.gov/programs/administrative New York Permit and Enforcement Hearings and Mediation Services are managed by the Office of Hearings and Mediation Services. https://www.dec.ny.gov/regulations/2398.html The public and regulated entities have the option, under Section 204 of the State Administrative Procedures Act and 6 NYCRR Part 619 to petition General Counsel of DEC for a ruling on the applicability of any regulation or statute which the Department enforces to any persons, property or state of facts, and, whether any action taken by the Department should be taken pursuant to a regulation. https://www.dec.ny.gov/regulations/29355.html Massachusetts Provisions of state law at G.L. c. 130, §§ 2 and 80, and G.L c.30A § 13 require that the Division of Marine Fisheries (DMF) provide permit holders with a fair hearing before an impartial Administrative Law Magistrate prior to suspending, revoking, not renewing or denying the transfer of any permit, license or certificate, including any regulated fishery permit endorsement issued by DMF's Director. The DMF maintains a record of all adjudication decisions back to 2003. https://www.mass.gov/service-details/learn-about-dmfs-administrative-law- process

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Connecticut The state Office of Adjudications conducts public hearings and ancillary proceedings on permit applications and enforcement actions in all matters under the commissioner's jurisdiction; and promotes negotiated settlement of disputed issues; and prepares fact finding, legal conclusions and recommendations for final decision by the commissioner. https://portal.ct.gov/DEEP/Adjudications/Office-of-Adjudications New Jersey The Office of Administrative Law provides the citizens of the state with a forum for the fair and impartial resolution of contested cases by independent administrative law judges who conduct hearings and render initial decisions. https://www.nj.gov/oal/index.shtml

7.4.1.6 Fishery-Specific Management

The scup fishery operates from Maine to Cape Hatteras, North Carolina. Scup are a migratory, schooling species found on the continental shelf of the Northwest Atlantic and are mainly caught using otter trawls, but also taken by floating trap and hand lines, paired trawl, pound nets, and pots and traps.

As noted previously, the scup fishery is managed in state and federal waters by the MAFMC, in conjunction with the ASMFC. NOAA Fisheries serves as the implementing body for rules and regulations within the fishery. The commercial fishery is managed using several measures, including minimum size, seasons, and a coastwide seasonal quota, size limit, seasonal possession limits, and gear restrictions. The fishing year runs from January 1 through December 31. NOAA Fisheries’ GARFO’s jurisdiction covers scup from Maine to Cape Hatteras, North Carolina.

7.4.1.6.1 Evolution of Commercial Scup Fishery Management Plan

The Federal Agency’s management of scup was initiated as one component of a multi-species Fishery Management Plan (FMP) addressing summer flounder, scup, and black sea bass. Following the approval of the multi-species FMP in 1996, a number of management actions were initiated and completed in response to the fishery’s evolving environment (Table 27). The list is not inclusive of all FMP amendments, framework actions, and the annual specifications setting process made during the stated period; some editing has been included for context purpose.

Table 27. Management Changes to Commercial Scup Fishery Management Plan, 1996 - 2020 (Source: https://www.mafmc.org/fisheries/fmp/sf-s-bsb) Year Federal Management Action

1996 Amendment 8. Incorporated Scup FMP into Summer Flounder FMP and established scup management measures, including commercial quotas, recreational harvest limits, size limits, gear restrictions, permits, and reporting requirements. Regulatory Amendment. Established seasonal quota periods for the commercial scup fishery.

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1998 Amendment 11. Modified certain provisions related to vessel replacement and upgrading, permit history transfer, splitting, and permit renewal regulations. 1999 Amendment 12. Revised the FMP to comply with the SFA and established framework adjustment process. 2001 Framework 1. Established quota set-aside for research for summer flounder, scup, and black sea bass. Framework 2. Established state-specific conservation equivalency measures. 2003 Framework 3. Allowed the rollover of winter scup quota and revised the start date for summer quota period for scup fishery. Framework 4. Established a system to transfer scup at sea. 2004 Framework 5. Established multi-year specification setting of quota of up to 3 years. 2007 Framework 7. Built flexibility into process to define and update status determination criteria for each plan species. Final Rule - 10/01/07. 2008 Amendment 16. Implemented standardized bycatch reporting methodology. Final Rule - 1/28/08. 2009 Addendum XX. Set policies to reconcile quota overages to address minor inadvertent quota overages. It streamlined the quota transfers process and established clear policies and administrative protocols to guide the allocation of transfers from states with underages to states with overages. 2011 Amendment 15. Omnibus amendment that implemented Acceptable Biological Catches (ABCs) and Annual Catch Limits (ACLs) to avoid overfishing and ensure accountability. 2015 Amendment 17. Omnibus amendment that implemented a new Standardized Bycatch Reporting Methodology to address a legal challenge. Final Rule - 6/30/15. Amendment 18. Omnibus Amendment to Simplify Vessel Baselines eliminated the requirement for vessel owners to submit "did not fish" reports for the months or weeks when their vessel was not fishing and removed some of the restrictions for upgrading vessels listed on Federal fishing permits. Final Rule - 8/26/15. 2016 Framework 9. Scup GRA Framework modified the southern and eastern boundaries of the Southern Scup Gear Restricted Area (in effect January 1-March 15). Final Rule - 11/9/16 2017 Framework 10. Omnibus For-Hire Electronic Trip Report Framework implemented a requirement for vessels that hold party/charter permits for Council-managed species to submit vessel trip reports electronically (eVTRs) while on a trip carrying passengers for hire. Final Rule - 9/11/17. In addition, new quota periods were established effective for the 2018 fishing season: Winter 1, January 1 - April 30 (120 days); Summer, May 1 -September 30 (153 days); Winter II, October 1 - December 31 (92 days). 2018 Framework 11. Omnibus Acceptable Biological Catch Framework established a process for setting constant multi-year Acceptable Biological Catch (ABCs) and clarified the process for setting ABCs for each of the four types of ABC control rules. Final Rule - 4/11/2018. Framework 12. Scup Quota Period Framework modified the dates of the commercial scup quota periods, moving the month of October from the Summer Period to the Winter II Period. Final Rule - 4/19/18. Framework 13. Commercial Accountability Measures Framework modified the accountability measures required for overages not caused by directed landings (i.e., discards) in the summer flounder, scup, and black sea bass fisheries. Final Rule - 10/25/18.

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2020 Framework 15. Omnibus Commercial Electronic Reporting Framework established a requirement for commercial vessels with federal permits for all species managed by the Mid- Atlantic and New England Councils to submit vessel trip reports electronically within 48 hours after entering port at the conclusion of a trip. Final Rule - 11/10/20. Framework 16. Omnibus Acceptable Biological Catch and Risk Policy Framework modified the Council’s ABC control rule and risk policy. The revised risk policy is intended to reduce the probability of overfishing as stock size falls below the target biomass while allowing for increased risk and greater economic benefit under higher stock biomass conditions. This action also removed the typical/atypical species distinction currently included in the risk policy. Final Rule - 12/15/20.

7.4.1.6.2 Federal Management Strategy

Scup stock assessments are completed by the NMFS’ Northeast Fisheries Science Centre (NEFSC). Results from the most recent stock assessment update in 2019 are used to guide management. Data are analysed from the previous year based on decisions made for the benchmark assessment. Projections based on stock assessments are used to set the coastwide quota level each year. Amendments to the FMP are undertaken as issues arise that require action.

Accountability Measures113

The MSFCMA requires that Council FMPs contain provisions for annual catch limits (ACLs) and “measures to ensure accountability.” The National Standards Guidelines state that accountability measures (AMs) “are management controls to prevent ACLs, including sector-ACLs, from being exceeded, and to correct or mitigate overages of the ACL if they occur. AMs should address and minimize both the frequency and magnitude of overages and correct the problems that caused the overage in as short a time as possible.” (50 CFR 600.310 (g)). The commercial fisheries have AMs to prevent overages of the commercial quota and the commercial ACL, as well as mechanisms for paybacks under certain circumstances if these limits are exceeded.

▪ Proactive commercial fishery AMs include in-season monitoring and closure mechanisms at various levels depending on the species and the circumstances. For scup, the commercial fishery is closed for federally permitted vessels for the remainder of the quota period if the quota allocated to the Winter I, Summer, or Winter II quota period is reached or exceeded. During the summer quota period, the Commission’s FMP specifies that 3 states must close their fisheries if their summer period commercial harvest reaches their state allocation for that period.

▪ Reactive commercial AMs include potential paybacks for landings and/or discards overages, depending on the circumstances. Landings (i.e., quota) overages must be repaid, pound for pound in a following year. For scup, any current year landings overages of a specified commercial

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quota period (Winter I, Summer, or Winter II) are deducted from the corresponding period’s quota in a following year. Under the Commission’s FMP, overages at the state level for the Summer period (the only period with state-by-state allocations) are deducted from that state’s summer quota in the following year only if the coastwide quota was exceeded.

7.4.1.6.3 Commercial Scup Fishery Management Plan

The federal FMP for scup has been in place since 1996, when scup were incorporated into the Summer Flounder FMP through Amendment 8 which established gear restrictions, reporting requirements, commercial quotas, a moratorium on new commercial scup permits, recreational possession limits, and minimum size restrictions for scup fisheries. The Council has made several adjustments to the FMP since 1996, including Amendments 10 and 13, and Addenda IX - XXXI (details available at: http://www.asmfc.org/species/scup).

The Council’s Scientific and Statistical Committee (SSC) recommends annual ABC levels for scup. The ABC is divided into commercial and recreational Annual Catch Limits (ACLs), based on the allocation percentages prescribed in the FMP (i.e., 78% commercial, 22% recreational). Both ABCs and ACLs are catch-based limits, meaning they account for both landings and discards. Projected discards are subtracted to determine the commercial quota and recreational harvest limit (RHL), which are landings- based limits. The fishery’s 2020 specifications are listed at Table 28.

Note: In January 2020, the Commission and Council released the scoping document of the Summer Flounder, Scup and Black Sea Bass Commercial/Recreational Allocation Amendment to consider potential modifications to the allocations of catch or landings between the commercial and recreational sectors for the three species. The current commercial and recreational allocation percentages for all three species do not reflect the current understanding of the recent and historic proportions of catch and landings from the two sectors. This amendment will consider whether changes to these allocations are warranted.

Table 28. Current Scup Specifications (January 1 - December 31, 2020) (Source: https://www.fisheries.noaa.gov/species/scup#commercial) Overfishing Limit (OFL) 41.17 million lb Acceptable Biological Catch (ABC) 35.77 million lb Commercial Annual Catch Limit (ACL) 27.90 million lb Commercial Annual Catch Target (ACT) 27.90 million lb Commercial Quota 22.23 million lb

The commercial scup fishery operates year-round, taking place mostly in federal waters during the winter and mostly in state waters during the summer. The FMP uses output controls (catch and landings limits) as the primary management tool. A coast-wide commercial quota is allocated between three quota periods, known as the winter I, summer, and winter II quota periods. These seasonal quota periods were established to ensure that both smaller day boats, which typically operate near shore in the summer

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 222 of 335 SCS Global Services Report months, and larger vessels operating offshore in the winter months can land scup before the annual quota is reached. The dates of the summer and winter II periods were modified in 2018 (Table 29; Table 27 - Framework 10). Both winter periods are managed under a coastwide quota while the summer period quota is divided among states according to the allocation percentages outlined in the Commission’s FMP (Table 30).

Otter trawl vessels fishing scup in federal waters are required to complete vessel trip reports (VTRs) with a record of all fishing activity for each month. The reports must be submitted to NOAA fisheries or postmarked within 15 days after the end of the reporting month. Reports can also be submitted electronically. The commercial scup fishery does not have a Vessel Monitoring System (VMS), or specific observer requirement. However, all federally permitted vessels are obligated to carry an observer if randomly selected by the National Observer Program.

Table 29. Dates, allocations, and possession limits for the commercial scup quota periods. Winter period possession limits apply in both state and federal waters. (Source: MAFMC Scup Fishery Information Document - June 2020) Quota Dates % of commercial Possession limit Period quota allocated Winter I January 1 - 45.11% 50,000 lb, until 80% of winter I allocation is reached, April 30 then reduced to 1,000 lb. Summer May 1 - 38.95% State-specific September 30* Winter II October 1 - 15.94% 12,000 lb. If winter I quota is not reached, the winter December 31* II possession limit increases by 1,500 lb for every 500,000 lb of scup not landed during winter I. Note (*) Prior to 2018, the summer period was May 1 - October 31 and the winter II period was November 1 - December 31, with the same allocations as shown above.

Table 30. State-by-state quotas for the commercial scup fishery during the summer quota period (May-September). (Source: MAFMC Scup Fishery Information Document, June 2020) State Share of summer quota Maine 0.1210% Massachusetts 21.5853% Rhode Island 56.1894% Connecticut 3.1537% New York 15.8232% New Jersey 2.9164% Maryland 0.0119% Virginia 0.1650% North Carolina 0.0249% Total 99.9908%

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Once the quota for a given period is reached, the commercial fishery is closed for the remainder of that period. If the full winter I quota is not harvested, unused quota is added to the winter II period. Any quota overages during the winter I and II periods are subtracted from the quota allocated to those periods in the following year. Quota overages during the summer period are subtracted from the following year’s quota only in the states where the overages occurred.

7.4.1.6.4 Special measure - Scup Gear Restricted Areas114

Two scup gear restricted areas (GRAs) were first implemented in 2000 with the goal of reducing scup discards in small-mesh fisheries. The GRA boundaries have been modified multiple times since their initial implementation. The current boundaries are shown in Figure 35. Trawl vessels may not fish for or possess longfin squid, black sea bass, or silver hake in the Northern GRA from November 1 - December 31 and in the Southern GRA from January 1 - March 15 unless they use mesh which is at least 5 inches in diameter.

Although discards decreased by about 41% in 2019 compared with the record high discards in 2017, they still remain well above average.

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Figure 35. Scup Gear restricted Areas (Source: https://www.fisheries.noaa.gov/species/scup#commercial)

7.4.1.6.5 States Fishery Management Measures

State-level FMPs for the commercial scup fishery in their waters take the form of management measures supported by regulatory and administrative provisions as provided for in state legislation. As such, individual states may set different regulations for the commercial fishery. Where state measures differ from federal regulations, federally-permitted fishery participants must adhere to the more restrictive measures. 115 States with a declared interest in the Scup FMP are Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, and North Carolina.

Note: The Assessment team has focused the reporting of state-specific management measures for the commercial scup fishery to 5 states - Rhode Island, New York, New Jersey, Massachusetts, and Connecticut. They represented the top 5 states with the highest reported landings of scup in 2018 (approximately 75% of the total commercial landings) and in 2019 (approximately 85% of the total commercial landings).

115 However, vessels with federal permits must abide by the federal regulations regardless of where they are fishing.

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Commercial Catch and Landings Reporting

The reporting requirements for the scup commercial fishery vary by state. Weekly landings information including species landed by gear and state are submitted by the Atlantic coastal states through the Standard Atlantic Fisheries Information System (SAFIS). Landings information assembled in the SAFIS database include both state and federal landings data. ACCSP’s standard for commercial catch and effort statistics requires mandatory, trip-level reporting of all commercial harvested marine species, with fishermen and/or dealers required to report standardized data elements for each trip by the 10th of each month. Of note, the following required measures are not subject to annual adjustment:

Vessel and dealer permitting requirements: States are required to implement a permit for fishermen fishing exclusively in state waters, and for dealers purchasing exclusively from such fishermen. In addition, states are expected to recognize federal permits in state waters and are encouraged to establish a moratorium on entry into the fishery.

Vessel and dealer reporting requirements: States are required to implement reporting requirements for state permitted vessels and dealers and to report landings from state waters to NMFS.

Quota management requirements:

Winter I and II: States are required to implement landing limits as specified annually. States are required to notify state and federal permit holders of initial period landing limits, in-period adjustments, and closures. States are required to prohibit fishing for, and landing of, scup when a period quota has been landed, based on projections by NMFS. States must report landings from state waters to NMFS for counting toward the quota.

Summer: States are required to implement a plan of trip limits or other measures to manage their summer share of the scup quota. States are required to prohibit fishing for, and landing of, scup when their quota share is landed. States may transfer or combine quota shares. States must report all landings from state waters to NMFS for counting toward the state shares.

Reporting: States are required to submit an annual compliance report to the Chair of the ASMFC Scup Plan Review Team (PRT) by June 1 of each year. This report should detail the state’s management program for the current year and establish proof of compliance with all mandatory management measures. It should include landings information from the previous year, and the results of any monitoring or research programs. Weekly quota updates can be accessed from the GARFO webpage at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/reports_frame.htm

7.4.1.6.6 Status of Implementation of FMP Requirements

Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, and North Carolina are required to comply with the provisions of the Scup FMP. The Commission’s annual review of the Interstate Fishery Management Plan for Scup for the 2019 fishing year (document approved in October 2020) indicated that all states had implemented regulations in compliance with the

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7.4.1.6.7 Objectives for the Fishery

The Scup fishery’s FMP of 1996 included the following objectives: ▪ Reduce fishing mortality in the scup fishery to assure that overfishing does not occur; ▪ Reduce fishing mortality on immature scup to increase spawning stock biomass; ▪ Improve the yield from the fisheries; ▪ Promote compatible management regulations between State and Federal jurisdictions; ▪ Promote uniform and effective enforcement of regulations; and ▪ Minimize regulations to achieve the management objectives stated above.

Although a significant number of regulatory and policy additions have been incorporated into the FMP since its introduction in 1996, these fishery-specific objectives continue to be cited in official documents dated December 2020.

7.4.1.6.8 Federal Fisheries Regulations to Meet Objectives

Federal regulations (current to April 2021) for the commercial Scup fishery that occurs in federally- managed waters are set out in the Code of Federal Regulations, Title 50, Chapter VI, Part 648, subpart H.116 Subparts of relevance to this assessment are listed in Table 31; some descriptions were edited for context.

116 https://ecfr.federalregister.gov/current/title-50/chapter-VI/part-648/subpart-H

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Table 31. Code of Federal Regulations of the Commercial Scup Fishery. (Source: https://ecfr.federalregister.gov/current/title-50/chapter-VI/part-648/subpart-H)

Subpart Description § 648.120 Scup Annual Catch Limit The scup commercial and recreational sector ACLs may be (ACL) established on an annual basis for up to 3 years at a time, dependent on whether the SSC provides single or multiple § 648.121 Scup Annual Catch Target year ABC recommendations. (ACT) The Scup Monitoring Committee shall conduct a detailed review of fishery performance relative to the sector ACLs at least every 5 years. Performance reviews shall not substitute for annual reviews that occur to ascertain if prior year ACLs have been exceeded but may be conducted in conjunction with such reviews. The Scup Monitoring Committee shall identify and review the relevant sources of management uncertainty to recommend ACTs for the commercial and recreational fishing sectors as part of the scup specification process. Commercial specific ACTs shall be less than or equal to the sector-specific ACLs. The Scup Monitoring Committee shall conduct a detailed review of fishery performance relative to ACTs in conjunction with any ACL performance review.

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§ 648.122 Scup specifications The Scup Monitoring Committee shall recommend to the Demersal Species Committee of the MAFMC and the ASMFC, various measures including: ▪ Research and commercial quotas; ▪ possession limits for the winter I and II periods; ▪ minimum mesh size; ▪ restrictions on gear; ▪ season and area closures; ▪ total annual allowable landings for a period not to exceed 3 years; ▪ changes as appropriate to the SBRM including at-sea observer sea days; and ▪ Modification of existing AM measures and ACT control rules. The distribution of the annual commercial quota will be allocated into 3 periods (below) and distributed to the coastal states from Maine through North Carolina on a coastwide basis: ▪ Winter I (January - April): 45.11% ▪ Summer (May - September): 38.95% ▪ Winter II (October - December): 15.94% In any year that the Regional Administrator determines that the landings of scup during Winter I are less than the Winter I quota for that year, he shall increase, through publication of a notification in the Federal Register, provided such rule complies with the requirements of the Administrative Procedure Act, the Winter II quota for that year by the amount of the Winter I under-harvest. The Regional Administrator shall also adjust, through publication of a notification in the Federal Register, the Winter II possession limits consistent with the amount of the quota increase, based on the possession limits established through the annual specifications- setting process. § 648.123 Scup accountability This subpart requires that the Regional Administrator measures inform the NMFS of the date when the commercial quota for a period will be harvested; determine if the annual ACL has been exceeded, and, if so, arrange for a quota repayment; and, in the event that the commercial ACL has been exceeded and the overage has not been accommodated through the landings-based AM, then oversee the implementation of the management measure as set out in (b) (1) (2) (3). In the event that the total catch, the allowable landings, or the commercial quotas adopted by the ASMFC Summer Flounder, Scup and Black Sea Bass Management Board and the MAFMC differ for a given fishing year (in other words,

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a state/federal disconnect), then administrative action will be taken as soon as possible to revisit the respective recommendations of the two groups. The intent of this action shall be to achieve alignment through consistent state and federal measures such that no differential effects occur on federal permit holders.

§ 648.124 Scup commercial season From January 1 through March 15, all trawl vessels in the and commercial fishery area Southern Gear Restricted Area that fish for or possess non- restrictions exempt species as specified in paragraph (a)(2) of this section must fish with nets that have a minimum mesh size of 5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net. For trawl nets with codends (including an extension) of fewer than 75 meshes, the entire trawl net must have a minimum mesh size of 5.0 inches (12.7 cm) throughout the net.

From November 1 through December 31, all trawl vessels

in the Northern Gear Restricted Area 1 that fish for or

possess non-exempt species as specified in paragraph (b)(2) of this section must fish with nets of 5.0-inch (12.7- cm) diamond mesh, applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net. For trawl nets with codends (including an extension) of fewer than 75 meshes, the entire trawl net must have a minimum mesh size of 5.0 inches (12.7 cm) throughout the net. § 648.125 Scup gear restrictions No owner or operator of an otter trawl vessel that is issued a scup moratorium permit may possess more than 1,000 lb (454 kg) of scup from October 1 through April 14, more than 2,000 lb (907 kg) from April 15 through June 15, or more than 200 lb (91 kg) of scup from June 16 through September 30, unless fishing with nets that have a minimum mesh size of 5.0-inch (12.7-cm) diamond mesh, applied throughout the codend for at least 75 continuous meshes forward of the terminus of the net, and all other nets are stowed and not available for immediate use. The owner or operator of an otter trawl vessel retaining 1,000 lb (454 kg) or more of scup from October 1 through April 14, 2,000 lb (907 kg) or more of scup from April 15 through June 15, or 200 lb (90.7 kg) or more of scup from June 16 through September 30, and subject to the minimum mesh requirements in paragraph (a)(1) of this section, and the owner or operator of a midwater trawl or other trawl vessel subject to the minimum size requirement in § 648.126, may not have available for immediate use any net, or any piece of net, not meeting

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the minimum mesh size requirement, or mesh that is rigged in a manner that is inconsistent with the minimum mesh size. § 648.126 Scup minimum fish sizes The minimum size for scup is 9 inches (22.9 cm) TL for all vessels issued a moratorium permit. § 648.130 Scup framework The MAFMC shall develop and analyze appropriate adjustments to management management actions over the span of at least two MAFMC measures meetings. The MAFMC must provide the public with advance notice of the availability of the recommendation(s), appropriate justification(s) and economic and biological analyses, and the opportunity to comment on the proposed adjustment(s) at the first meeting and prior to and at the second MAFMC meeting. The MAFMC's recommendations on adjustments or additions to management measures must come from one or more of the following categories: Adjustments within existing ABC control rules; adjustments to the existing MAFMC risk policy; introduction of new AMs, including sub-ACTs; minimum fish size; maximum fish size; gear restrictions; gear restricted areas; gear requirements or prohibitions; permitting restrictions; recreational possession limits; recreational seasons; closed areas; commercial seasons; commercial trip limits; commercial quota system including commercial quota allocation procedure and possible quota set asides to mitigate bycatch; recreational harvest limits; annual specification quota setting process; FMP Monitoring Committee composition and process; description and identification of EFH (and fishing gear management measures that impact EFH); description and identification of habitat areas of particular concern; regional gear restrictions; regional season restrictions (including option to split seasons); restrictions on vessel size (LOA and GRT) or shaft horsepower; operator permits; changes to the SBRM, including the CV-based performance standard, the means by which discard data are collected/obtained, fishery stratification, the process for prioritizing observer sea-day allocations, reports, and/or industry-funded observers or observer set aside programs; any other commercial or recreational management measures; any other management measures currently included in the FMP; and set aside quota for scientific research.

Section 301 of the MSFCMA requires that FMPs contain conservation and management measures that are consistent with the ten National Standards. The Council continues to meet the obligations of National Standard 1 by adopting and implementing conservation and management measures that will continue to

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 231 of 335 SCS Global Services Report prevent overfishing, while achieving, on a continuing basis, the optimum yield (OY) for scup, black sea bass, and the U.S. fishing industry. To achieve OY, both scientific and management uncertainty are addressed when establishing catch limits. The Council developed recommendations that do not exceed the ABC recommendations of the SSC, which explicitly address scientific uncertainty. The Council considered management uncertainty and other social, economic, and ecological factors, when recommending ACTs. The Council uses the best scientific information available (National Standard 2) and manages scup and black sea bass throughout their range (National Standard 3). These management measures do not discriminate among residents of different states (National Standard 4) and they do not have economic allocation as their sole purpose (National Standard 5). The measures account for variations in the fisheries (National Standard 6) and avoid unnecessary duplication (National Standard 7). They take into account the fishing communities (National Standard 8) and they promote safety at sea (National Standard 10). The proposed actions are consistent with National Standard 9, which addresses bycatch in 153 fisheries. The Council has implemented many regulations that have indirectly reduced fishing gear impacts on EFH (section 6.2.3). By continuing to meet the National Standards requirements of the MSA through future FMP amendments, framework actions, and the annual specification setting process, the Council will insure that cumulative impacts of these actions will remain positive overall for the managed species, the ports and communities that depend on these fisheries, and the Nation as a whole.

7.4.1.6.8 State Fisheries Regulations to Meet Objectives

The fishery objectives that were available to the Assessment team were first incorporated in the MAFMC’s 1996 Summer Flounder, Scup and Black Sea Bass FMP. They were intended to: ▪ Reduce fishing mortality in the scup fishery to assure that overfishing does not occur; ▪ Reduce fishing mortality on immature scup to increase spawning stock biomass; ▪ Improve the yield from the fisheries; ▪ Promote compatible management regulations between state and federal jurisdictions; ▪ Promote uniform and effective enforcement of regulations; and ▪ Minimize regulations to achieve the management objectives stated above.

Today’s state management measures and enabling regulations have evolved well beyond the objectives of the mid-1990s. The passage of the Sustainable Fisheries Act (for example) and the adoption and implementation over time of numerous FMP amendments and frameworks (Table 31) have fundamentally strengthened the strategic goal of assuring the long-term sustainability and viability of the resource.

The regulatory frameworks of the 5 select states presented previously are comprehensive in their support of the commercial scup fishery’s fisheries management objectives. While the frameworks differ in style, they are remarkably similar in content which likely reflects the high degree of collaboration and cooperation that has existed between federal and state agencies for many years. In their representative forms, all state regulations that were examined have common provisions for the management measures that regulate the conduct of the commercial scup fishery in state-managed waters. These include, inter

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All states have a vested interest in ensuring their management measures are current and reflective of the coast wide measures adopted by the key federal agencies of which they are members in good standing. A state will be found out of compliance if (i) its regulatory and management programs for scup have not been approved by the Management Board, (ii) it fails to meet any implementation schedule established for the FMP or any addendum prepared under adaptive management, (iii) it fails to implement a change to its program when determined necessary by the Management Board; or (iv) it fails to adequately enforce any aspect of its regulatory and management programs.

7.4.1.7 Compliance and Enforcement

Along the U.S. East Coast, in waters where Lund’s Fisheries’ otter trawl fleet is permitted to operate, enforcement activities (often referred to as MCS - Monitoring, Control and Surveillance - are performed at two levels: (i) federal-states planning and coordination, and (ii) federal-states operations, usually in accordance with the provisions of a Cooperative Enforcement Agreement (CEA) where one exists. Aside from a CEA, state agencies are mandated by state laws and regulations to carry out MCS activities within their respective maritime boundaries (0-3 nm or 0-9 nm).

7.4.1.7.1 Coordination Mechanisms and Roles

Federal-States Law Enforcement Coordination

The Law Enforcement Committee (LEC) is a standing committee appointed by the ASMFC Commission. It carries out assignments at the specific request of the Commission, the ISFMP Policy Board, the management boards/sections, the PDTs, and the PRTs. In general, the Committee provides information on law enforcement issues, brings resolutions addressing enforcement concerns before the Commission, coordinates enforcement efforts among states, exchanges data, identifies potential enforcement problems, and monitors enforcement of measures incorporated into the various interstate fishery management plans.

The LEC is comprised of law enforcement representatives from each member state, the US Fish and Wildlife Service, NOAA Fisheries, the US Coast Guard, and US Department of Justice. It convenes working meetings in the spring, meets in conjunction with the Commission's Annual Meeting, and convenes other meetings as needed. The Committee’s last posted meeting summary took place from April 30 to May 1, 2019. While there were no issues raised in regard to the scup commercial fishery, the minutes indicate that LEC members initiated some general discussion about ways to measure the effectiveness of enforcement activities. The discussion centered on developing methodologies for analyzing available data to better target field enforcement work in the face of lower staffing levels, and on the use of uniform

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Among its ISFMP duties, the LEC: ▪ Provides advice to PDTs regarding the enforceability of measures contemplated for inclusion in FMPs; analysis of the enforceability of the proposed measures; and, if the FMP provides for conservation equivalency, enforcement procedures for alternative management measures; ▪ Provides advice to each PRT at least annually or as provided in a given FMP regarding the adequacy and effectiveness of states' enforcement of the measures implemented pursuant to the FMP; ▪ Coordinates, among law enforcement personnel, the preparation of reports concerning state law enforcement and compliance in order to ensure these analyses are comparable; and ▪ Upon request or on its own initiative, provide enforcement advice and information regarding any FMP to any committee, team, board/section, or advisory panel.

The MAFMC’s LEC did not meet in 2019 and 2020, hence there are no meeting reports on file. The Assessment team was informed that the committee meets whenever the Council decides that an issue has arisen that the committee could help address; moreover, the committee does not have regularly scheduled annual meetings. It last met by webinar in February and April 2017, and jointly with other Council committees in September 2018.

State Enforcement Obligations

All states are responsible for the full and effective implementation and enforcement of FMPs within areas subject to their jurisdiction. Each state is required to submit a written report on compliance with required measures of a specific FMP in conformance with reporting requirements and schedules specified in the plan, which includes submission of copies of relevant laws and regulations for the Commission's record. At any time, the Commission may determine a state is not fully and effectively implementing and enforcing the required provisions of an FMP and is therefore not in compliance with that plan. The Commission is empowered to compel states to bring their MCS activities into compliance with the requirements of the FMP.

7.4.1.7.2 Federal Marine Enforcement Programs

NOAA Law Enforcement118

The Office of Law Enforcement (OLE) investigates violations of marine resource protection laws; the Office of the General Counsel - Enforcement Section is NOAA’s civil prosecutor. Together, the two offices make

117 http://www.asmfc.org/files/LEC/LEC_MeetingSummary_Spring2019.pdf 118 http://www.nmfs.noaa.gov/ole/docs/2017/ole_ar_fy16_web.pdf

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NOAA’s Cooperative Enforcement Program (CEP) aims to increase living marine resource conservation, endangered species protection, and critical habitat enforcement while strengthening state and territorial enforcement resources. Under the CEP, OLE has signed approximately 30 Joint Enforcement Agreements (JEAs), which deputize state and US territorial marine law enforcement agencies to enforce federal laws and regulations. Agreements have signed with all 15 Atlantic States with the possible exception of North Carolina. OLE agents and officers leverage JEA partnerships to conduct joint operations to carry out OLE’s mission.

Two NOAA OLE divisional offices are involved in enforcement in areas that overlap with the scup fishery.

They are the Southeast Division covering Federal waters from the Gulf to North Carolina (7 states have JEAs in place) and the Northeast Division covering Federal waters off Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland and Virginia (10 states have formal JEAs in place). For the purpose of this assessment, only the enforcement outcomes from the Northeast Division are reported here (Table 32).

Table 32. NOAA Fisheries’ Northeast Division of the Office of Law Enforcement - MCS Program Outcomes by Reporting Period for 2019 - 2020 (Source: NOAA Reports to MAFMC, summarized by Assessment team) Reporting Patrol Incidents by Law/Regulation Period Hours ACFCMA ESA HMS LA MMPA MSFCMA Other Oct - Dec 2019 875 26 7 41 14 8 143 21 Additional Information

• 22 cases were forwarded to the Office of General Counsel, Enforcement Section. • 4 Summary Settlements were issued totalling $2,250. • 17 Summary Settlements were paid totalling $18,400. • The Northeast Observer Program deployed on 1,130 trips for 2,544 sea days (with 8 enforcement-related incidents received). • A NOVA for $15,000. was issued by NOAA GCES in an investigation into observer interference and failure to notify the observer program. Reporting Patrols Incidents by Law/Regulation Period ACFCMA ESA HMS LA MMPA MSFCMA Other Jan - Jun 2020 25 23 10 14 9 27 193 25 Additional Information

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• 87 Summary Settlements were issued totalling $63,033. • None of the settlements involved violations of the regulations of the commercial scup fishery. • The Northeast Observer Program deployed on 705 trips for 2,117 sea days (with 6 enforcement-related incidents received). Reporting Patrols Incidents by Law/Regulation Period ACFCMA ESA HMS LA MMPA MSFCMA Other Jun - Sep 2020 6 16 19 124 19 8 127 17 Additional Information • 17 cases were forwarded to the Office of General Counsel, Enforcement Section. • 42 Summary Settlements were issued totalling $37,400. • None of the settlements involved violations of the regulations of the commercial scup fishery. • The Northeast Observer Program deployed on 127 trips for 442 sea days (with 1 enforcement-related incidents received). There were no deployments between March 13 and August 13 due to COVID-19 concerns. Reporting Patrols Incidents by Law/Regulation Period ACFCMA ESA HMS LA MMPA MSFCMA Other Sep - Dec 2020 16 4 2 72 6 7 111 5 Additional Information • 8 cases were forwarded to the Office of General Counsel, Enforcement Section. • 13 Summary Settlements were issued totalling $13,804. • None of the settlements involved violations of the regulations of the commercial scup fishery. • The Northeast Observer Program deployed on 164 trips for 565 sea days (with 1 enforcement-related incidents received).

USCG Law Enforcement

The Coast Guard (USCG) is the principal Federal agency responsible for maritime safety, security, and environmental stewardship in U.S. ports and waterways. In this capacity, the USCG protects and defends more than 100,000 miles of U.S. coastline and inland waterways and safeguards an Exclusive Economic Zone (EEZ) encompassing 4.5 million square miles stretching from North of the Arctic Circle to South of the equator, from Puerto Rico to Guam, encompassing nine time zones - the largest EEZ in the world.

The USCG manages six major operational mission programs, including Maritime Law Enforcement (MEL) Program. The MLE program protects America’s maritime borders from encroachment, defends the Nation’s maritime sovereignty from illicit activity, facilitates legitimate use of the waterways, and suppresses violations of federal law on, under and over the high seas and waters subject to the jurisdiction of the United States. The agency is the lead federal maritime law enforcement agency and the only agency with both the authority and capability to enforce national and international law on the high seas, outer continental shelf, and inward from the U.S. Exclusive Economic Zone (EEZ) to inland waters. Its

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A component of the MLE Program includes Living Marine Resources (LMR) Law which is an obligation under the MSFCMA, the ESA, and several other federal laws focused on the protection of marine resources. The core objective of these efforts is to provide effective and professional enforcement to advance national goals for the conservation, management, and recovery of living marine resources, marine protected species, and national marine sanctuaries and monuments. This includes the enforcement of LMR regulations in addition to numerous other activities that strengthen both domestic and international fisheries management regimes.

Two Coast Guard Districts - the 1st and the 5th - carry out MCS operations within the UoA for the commercial scup fishery. The 1st District is responsible for activities in Northern New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, Vermont and Maine. The 5th District is responsible for activities from South Carolina to New Jersey.

Table 33 and Table 34 represent operational summaries of MCS activities undertaken by both USCG Districts in 2020 as reported to MAFMC and NEFMC. Only the agency’s fishing inspection activities are reported here (i.e., vessel safety and outreach activities are excluded).

Table 33. USCG 5th District MCS Program Outcomes by Reporting Period for 2020 (Source: USCG Reports to MAFMC, summarized by Assessment team) Report Period Boarding Statistics Violation Summary

Nov 2019 - Jan Fisheries boardings - 112 Vessels targeting HMS without federal permits 2020 Fisheries boarding with violations - 3 (2). Crew manning requirements (1). Violation rate - 2.6% Observations Major cutters, patrol boats and stations conducted fisheries patrols in the Mid- Atlantic in an effort to curtail illegal fishing and promote safety of life at sea within D5’s AOR. Throughout this period, units conducted 178 boardings. Report Period Boarding Statistics Violation Summary

Feb - May 2020 Fisheries boardings - 87 Violations were issued for failure to maintain Fisheries boarding with violations - 9 required turtle mitigation gear, fishing with Violation rate - 10.3% more than 25% of crew on work visa’s, failure to mark sea bass pots/buoy lines, use of unauthorized hooks when fishing with hook

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and line gear, and possession of oversized Atlantic Blue Fin Tuna.

Observations Throughout this period, units conducted 87 boardings. The agency did not meet its targeted boardings as a result of a reduction of at-sea enforcement due to COVID-19. Report Period Boarding Statistics Violation Summary

Jun - Jul 2020 Fisheries boardings - 120 Violations were issued for retaining undersize Fisheries boarding with violations - 2 HMS species aboard a recreational vessel and Violation rate - 1.6% targeting HMS without a federal fisheries permit. Observations Throughout this period, units conducted 120 boardings. The agency did not meet its targeted boardings as a result of a reduction of at-sea enforcement due to COVID-19. Report Period Boarding Statistics Violation Summary

Aug - Sep 2020 Fisheries boardings - 83 Violations were issued for targeting HMS Fisheries boarding with violations - 3 without a federal fisheries permit, and HMS Violation rate - 3.6% catch overage. Observations Throughout this period, units conducted 83 boardings. The agency did not meet its targeted boardings as a result of a reduction of at-sea enforcement due to COVID-19. Report Period Boarding Statistics Violation Summary

Oct - Nov 2020 Fisheries boardings - 43 Violations were issued for possessing Atlantic Fisheries boarding with violations - 14 striped bass within the EEZ, and fishing Violation rate - 32.5% without a federal fisheries permit onboard. Observations Throughout this period, units conducted 83 boardings. The agency did not meet its targeted boardings as a result of a reduction of at-sea enforcement due to COVID-19. Table 34. USCG 1st District MCS Program Outcomes by Reporting Period for 2020 (Source: USCG Reports to NEFMC, summarized by Assessment team) Report Period Boarding Statistics Violation Summary

Dec 2019 - Jan Fisheries boardings - 195 (may include Violations were issued for trip limit overage 2020 safety inspections) (1), prohibited species (5), undersized catch Fisheries boarding with violations - 10 (3), and undersized net mesh (1). Compliance rate - 99% Observations Comments were not included in the report. Report Period Boarding Statistics Violation Summary

Feb - Mar 2020 Fisheries boardings - 180 (may include Violations were issued for species overage (2), safety inspections) species retention (2), and sector LOA. Fisheries boarding with violations - 5 Compliance rate - 97%

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Observations Comments were not included in the report. Report Period Boarding Statistics Violation Summary

Apr - May 2020 Fisheries boardings - 151 (may include Violations were issued for federal fishing, HMS safety inspections) and operator permit (7), species overage (4), Fisheries boarding with violations - 18 fishing closed area (2), crew requirements (2), Compliance rate - 88% possession of ASB (2), filleting tuna at sea (1). Observations Comments were not included in the report. Report Period Boarding Statistics Violation Summary

Jun - Sep 2020 Fisheries boardings - 516 (may include Violations were issued for species retention safety inspections) (22), federal fishing permit/operator permit Fisheries boarding with violations - 42 (7), filleting tuna at sea (6), VMS (3), Compliance rate - 92% undersized net mesh (2), crew requirements (2). Observations Comments were not included in the report. Report Period Boarding Statistics Violation Summary

Sep - Nov 2020 Fisheries boardings - 252 (may include Violations were issued for species retention safety inspections) including scup (9), federal fishing Fisheries boarding with violations - 15 permit/operator permit (5), ALWTRP (1). Compliance rate - 94% Observations Comments were not included in the report. Report Period Boarding Statistics Violation Summary

Nov 2020 - Jan Fisheries boardings - 193 (may include Violations were issued for species retention 2021 safety inspections) including scup (7), Canadian EEZ incursions (3), Fisheries boarding with violations - 16 federal fishing permit/operator permit (2), Compliance rate - 92% ALWTRP (2), undersized net mesh (1), VMS (1). Observations Comments were not included in the report.

7.4.1.7.3 Federal Civil Administrative Penalties and Sanctions Framework

When pursuing civil administrative actions against violators of federal statutes and regulations for fisheries or fisheries-related activities, decisions by NOAA’s OGC lawyers are guided by the provisions of the Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions (June 2019).119

The purpose of the policy is to continue to ensure that: (i) civil administrative penalties and permit sanctions are assessed in accordance with the laws that NOAA enforces in a fair and consistent manner;

119 https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf

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(ii) penalties and permit sanctions are appropriate for the gravity of the violation; (iii) penalties and permit sanctions are sufficient to deter both individual violators and the regulated community as a whole from committing violations; (iv) economic incentives for noncompliance are eliminated; and (v) compliance is expeditiously achieved and maintained to protect natural resources.

The policy reflects the most recent adjustments to the maximum civil monetary penalties authorized under statutes administered and enforced by NOAA, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (83 Fed. Reg. 706 (January 8, 2018)). The policy is informed by three appendices for use in its implementation: (a) Appendix 1 is a preliminary penalty assessment worksheet; (b) Appendix 2 consists of six penalty matrixes, for the eight statutes most commonly enforced by NOAA; and (c) Appendix 3 consists of eight offense level schedules, corresponding to one of the six matrixes listed in Appendix 2. The matrix example for the MSFCMA is shown in Table 35.

Table 35. Penalty Matrix for the Magnuson-Stevens Fishery Conservation and Management Act (Source: https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf)

Culpability Level

A Unintentional B Negligent C Reckless D Intentional

Written warning - Written warning - $2,500 - $7,000 $7,000 - $10,000 I $2,500 $5,000 $2,500 - $4,500 $4,500 - $7,000 $7,000 - $12,000 $12,000 - $24,000 II $5,000 - $12,000 $12,000 - $18,000 $18,000 - $24,000 $24,000 - $48,000 Permit sanction of III 5 - 20 days for subsequent violations* $12,000 - $18,000 $18,000 - $30,000 $24,000 - $48,000 $48,000 - $72,000

Permit sanction of Permit sanction of

IV 10 - 20 days for 20 - 60 days*

L,,,, Levdel

Level subsequent

Gravity Offense Le violations* $18,000 - $30,000 $30,000 - $48,000 $48,000 - $72,000 $72,000 - $120,000

Permit sanction of Permit sanction of Permit sanction of V 10 - 20 days for 20 - 60 days* 60 - 180 days* subsequent violations* $30,000 - $48,000 $48,000 - $72,000 $72,000 - $120,000

Permit sanction of Permit sanction of Permit sanction of $120,000 - statutory VI 5 - 20 days for 20 - 60 days* 60 - 180 days* maximum; Permit subsequent sanction of violations* 180 - 365 days* (*) Permit sanctions may be assessed in conjunction with a civil penalty, in lieu of a civil penalty, or may be not assessed, depending on the facts and circumstances of a given case. Where permits allow for a certain amount of fishing quota per year (instead of fishing days), permit sanctions will be assessed as a percentage of the quota, at a rate based on days in the fishing season.

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Under the policy, penalties and permit sanctions are based on two criteria: (a) A “base penalty” calculated by adding (i) an initial base penalty amount and permit sanction reflective of the gravity of the violation and the culpability of the violator and (ii) adjustments to the initial base penalty and permit sanction upward or downward to reflect the particular circumstances of a specific violation; and (b) an additional amount added to the base penalty to recoup the proceeds of any unlawful activity and any additional economic benefit of noncompliance. Accordingly, NOAA has developed a penalty matrix using the two factors that constitute seriousness of the violation for the eight statutes that NOAA most commonly enforces: the gravity of the violation and the degree of culpability.

7.4.1.7.4 States Marine Enforcement Programs

This section of the report presents the MCS systems of those states featured previously in regard to the commercial scup fisheries occurring within their waters where permitted by law. The Assessment team reviewed the information provided by these states in their annual scup compliance reports to the ASMFC in which major violations are to be reported. None of the states reported having encountered major violations in 2019 and 2020.

Massachusetts

Marine enforcement in state-managed waters is carried out by officers of the Massachusetts Environmental Police Coastal Bureau. Activities include investigations of illegal fishing practices, marine theft, enforcement of boat registration, titling requirements, dispute mediation between competing interests, and monitoring of seafood establishments. The enforcement powers granted to police officers are itemized in various Sections of Chapter 130 (Marine Fish and Fisheries), Title I, Part XIX of the General Laws of Massachusetts, including: ▪ Section 4A - Administrative inspections ▪ Section 8A - Powers of police officers ▪ Sections 9 and 12 - Searches, seizures and arrests without warrant

Marine law enforcement perspectives are presented at regular meetings of the MFAC by representatives of the Law Enforcement Sub-committee. 120 Meeting summaries examined by the Assessment team indicated that discussions included a broad range of fishery-specific issues, compliance concerns, and regulatory and policy changes. Absent from the records examined were operational statistics targeting the commercial fisheries, the disposition of violations, and program performance outcomes.

Connecticut

120 https://www.mass.gov/service-details/marine-fisheries-advisory-commission-meeting-resources

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Marine fisheries enforcement activities in state waters are assigned to the Division of Environmental Conservation Police within the Bureau of Outdoor Recreation of the DEEP.121 The division’s mission is to provide natural resource protection and public safety through education, outreach and enforcement in the areas of fish and game, boating, commercial fishing, wildlife management, parks and forests. Personnel also assist and act as back up for State and Municipal Police Departments in narcotics enforcement, domestic disputes, assaults and many other law enforcement functions and are the primary response units to assist the USCG.

As Deputy Special Agents of the NMFS, Police Officers may enforce Federal Codes concerning the harvest of marine fish and shellfish. This may include assisting neighboring states in special investigations involving commercially harvested fish.

The goal of the DEEP’s enforcement programs is to improve and protect the environment of the State by accomplishing the following: ▪ Prevention and prompt cleanup of pollution and its sources; ▪ Protection and restoration of natural resources at the site where a violation occurs and at other sites; ▪ Protection of public health and safety; ▪ Prompt compliance with legal requirements that have been violated; ▪ Deterrence (specifically the violator) and (generally the regulated community as a whole); ▪ Removal of any economic advantage or savings realized by noncompliance; ▪ Punishment of violators, with an escalation of the punishment for recurrent violations or repeat violators; ▪ Satisfaction of federal funding and program authorization requirements; and ▪ Increased public awareness, understanding and support and increased regulated community's knowledge of environmental requirements.

The DEEP’s goal is informed by a number of enforcement policies and plans of relevance to the state’s commercial fisheries, such as a Civil Penalty Policy - CPP (2001), an Enforcement Coordination Plan - ECP (2016), and an Enforcement Response Plan - ERP (1999).122 The CPP specifies the method of calculating penalties once it has been determined that a penalty is warranted in a particular case. It is to be used in conjunction with the ERP, which sets forth enforcement response procedures, including a system for classifying violations which are used to determine the cases in which penalties will be assessed. The purpose of the CPP is to assure that penalties for violations of the Department's programs are assessed in

121 https://portal.ct.gov/DEEP/Environmental-Conservation-Police/Connecticut-Environmental-Conservation- Police-Home-Page 122 https://portal.ct.gov/DEEP/Enforcement/Policies/Enforcement-Policies

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The penalty calculation system of the CPP consists of (i) calculating the amount of economic benefit associated with each violation (i.e., the amount of money which the violator saved and/or gained by either noncompliance or delayed compliance with the law), (ii) determining a basic gravity-based penalty for each violation, (iii) adding a “continuing violation” gravity-based penalty to account for the duration of a violation, and (iv) adjusting, upward or downward, the sum of the two gravity-based components in light of case-specific circumstances.

The purpose of the ECP is to encourage (i) coordination on inspections, violations and environmental problems that fall within the responsibility of more than one program, (ii) coordination on compliance and enforcement actions and possible multi-media enforcement actions, (iii) coordination on corrective actions that involve activity that is regulated by other programs; (iv) coordination on staff trainings; and (v) coordination with EPA and other agencies.

The ERP sets forth a violation classification system, various enforcement response procedures, and general guidelines governing responses to enforcement actions, all of which are solely for the employees of the DEEP.

New York

The Department of Environmental Conservation (DEC) enforces environmental laws through a number of means, including traditional police-type law enforcement, as well as administrative and civil actions. DEC enters into legally binding agreements, called Orders on Consent, with parties that have violated environmental laws or regulations. These agreements typically entail a fine and/or a Schedule of Compliance, which outlines actions that parties must undertake to remedy any given violation(s). DEC is also authorized to assess injuries to natural resources and seek damages to restore those resources from responsible parties. Recovered damages are used to restore the injured natural resources and compensate the public.

Environmental Conservation Police Officers (ECOs) of the Division of Law Enforcement are sworn Police Officers authorized to enforce all state laws, with special emphasis on enforcing New York's environmental conservation laws, including those relating to environmental quality, hunting, fishing and trapping and protection of natural resources. Fishery-related enforcement issues include addressing complaints of poaching, the illegal sale of endangered species, and checking commercial fishermen for compliance.

The DEC has a number of formal enforcement policies that inform its enforcement strategy for violations of the Environmental Conservation Law, the implementing regulations, Orders and Permits. Examples include:

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The Civil Penalty Policy - CPP (1990) is applicable to all administrative enforcement actions, whether adjudicated or settled by consent orders, civil compromise or stipulation. It is also applicable to civil enforcement referrals to the Department of Law. The primary purpose of the policy is to articulate the Department's policies for assessing and collecting penalties in a manner that will assist DEC in efficiently and fairly deterring and punishing violations and to provide the public with an understanding of Department policy in this area. Another purpose is to establish a systematic, statewide approach to assessing penalties. This policy is applicable to all administrative enforcement actions, whether adjudicated or settled by consent orders, civil compromise or stipulation. It is also applicable to civil enforcement referrals to the Department of Law.

The Record of Compliance Policy - ROC (1993) ensures that persons who are unsuitable to carry out responsibilities under Department permits, certificates, licenses or grants, are not authorized to do so. Under current law, Persistent or significant violators of the Environmental Conservation Law should not have permits renewed or be allowed to obtain new permits after committing breaches of law directly relating to their ability to carry out the authorized activities in a lawful and environmentally responsible manner.

The Order on Consent Policy - OOC (2020) provides detailed guidance to DEC staff on when Orders on Consent are required and the content of such Orders. Orders on Consent are settlement documents and are legally enforceable and binding under the law, pursuant to various provisions of Environmental Conservation Law, Article 71 as well as other legal authorities. They are principally aimed at enforcing violations, gaining compliance, and deterring and punishing violators. DEC policy discourages resolution of violations by informal agreements and commitments made to the Department by a violator because informal agreements are typically not enforceable.

Rhode Island

The Rhode Island Administrative Code, Title 250 encompasses various programs attributed to and managed by the DEM. Chapter 80 refers specifically to the Law Enforcement Program and Part 6 deals with Rules and Regulations Governing the Suspension/Revocation of Commercial and Recreational Fishing Licenses (§§ 6.1 - 6.6).123 For commercial fishing licences,

1. Any individual who has violated the provisions of R.I. Gen. Laws Chapters 20-1, 20-2, 20-2.1, 20-2.2, 20-3, 20-4, 20-4.1, 20-5, 20-6, 20-7, 20-8.1, and 20-10; or who has violated any Rule or Regulation adopted pursuant thereto, may have their commercial fishing license and the privileges to participate in the commercial fisheries suspended or revoked as the Director or his/her designee in his/her discretion determines, for the time periods listed as follows unless otherwise addressed in R.I. Gen. Laws § 20-7-7:

123 https://casetext.com/regulation/rhode-island-administrative-code/title-250-department-of-environmental- management/chapter-80-law-enforcement/subchapter-00-na/part-6-rules-and-regulations-governing-the- suspensionrevocation-of-commercial-and-recreational-fishing-licenses

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▪ First violation - up to thirty (30) days' suspension; ▪ Second violation - up to ninety (90) days' suspension; ▪ Third violation - up to three hundred and sixty-five (365) days’ suspension; ▪ Fourth and successive violations - revocation.

2. No new license conferring said privileges shall be issued during the period of suspension or revocation.

3. Any person aggrieved by an order of suspension or revocation may appeal therefrom (in accordance with R.I. Gen. Laws Chapter 42-35 and the Rules and Regulations adopted pursuant thereto) by requesting a hearing, in writing, within twenty (20) days of receipt of said order.

The provisions of Chapter 130 (Compliance and Inspection) provide statutory direction for available enforcement options as well as rules and regulations for assessing penalties.

Enforcement Options

The Director may pursue any combination of administrative and judicial enforcement actions depending upon the circumstances and gravity of each case. Any combination of enforcement actions are not mutually exclusive and may be cumulative:

1. Letter of Deficiency (LOD), Notice of Noncompliance (NON), Notice of Intent to Enforce (NOI) or Notice of Responsibility (NOR) - written warning or notification concerning a suspected or threatened violation of a legal requirement which, in the Director's judgement, does not justify further enforcement action at that time, but may require the party cited to take such actions necessary to achieve compliance.

2. Notice of Violation (NOV) - formal notice of a suspected violation.

3. Cease and Desist Order - immediate compliance order issued either upon discovery of a suspected violation or in combination with a Notice of Violation.

4. Immediate Compliance Order - emergency order issued.

6. Court Action - civil or criminal.

Assessment of Administrative Penalties

These provisions are for the purpose of: ▪ Assuring the protection of public health, safety, and welfare and the environment by promoting compliance and deterring noncompliance with the laws administered by the Director, and the Rules, Regulations, permits, licenses and orders adopted pursuant to the Director's authority;

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▪ Assuring that the Department assesses administrative penalties, and otherwise implements its Regulations, lawfully, fairly, and consistently; and ▪ Clarifying the Department's authority to enforce the laws administered by the Director and the Rules, Regulations, permits, licenses, and orders adopted pursuant to the Director's authority.

They establish the penalty ceiling, the calculation involved, offer a resolution prior to a hearing, the conduct of the hearing itself, and non-compliance with direction given to the violator.

New Jersey

The Bureau of Law Enforcement of the Division of Fish and Wildlife for the DEP is mandated to enforce fish and wildlife laws of the state. Marine fisheries enforcement is carried out by a corps of Environmental Conservation Police Officers typically those who are assigned to the unit’s coast-wide marine district. In addition to their state authority, Conservation Officers are also appointed as special deputy agents for the U.S. Fish and Wildlife Service and the NMFS so they may enforce federal wildlife and fisheries laws. Each month, Conservation Police Officers average about 7,000 hours of duty time, conduct 3,500 inspections and initiate 315 enforcement actions. This equates to approximately 84,000 hours, 42,000 inspections and 3,780 enforcement actions per year.124

Violations carry different penalties as prescribed by law. Sometimes there is a range of penalty amounts and the defendant may be required to appear in court. Amounts may vary for a variety of reasons, including whether it is a first-time offense or a repeat violation. Some violations can lead to a temporary, or even permanent, loss of hunting and fishing privileges. A list of monetary penalties for violations of the the state’s marine fisheries is presented at section C.6 of the Statewide Violations Bureau Schedule (pg.42).125 Not all violations are subject to adjudication in a municipal court, and additional penalties can be applied.

7.4.1.8 Recognized Interest Groups

7.4.1.8.1 Access Rights

The initial commercial scup FMP was incorporated in Amendment 8 of 1996 by the MAFMC in cooperation with the ASMFC and the NMFS of NOAA Fisheries. The Plan’s objectives (then and now) include to: ▪ Reduce fishing mortality in the scup fishery to assure that overfishing does not occur; ▪ Reduce fishing mortality on immature scup to increase spawning stock biomass;

124 https://www.state.nj.us/dep/fgw/lawhome.htm

125 https://njcourts.gov/attorneys/assets/directives/dir_15_20.pdf

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▪ Improve the yield from the fisheries; ▪ Promote compatible management regulations between state and federal jurisdictions; ▪ Promote uniform and effective enforcement of regulations; and ▪ Minimize regulations to achieve the management objectives stated above.

The Council and the Commission jointly adopted a fishing mortality rate reduction strategy that required minimum fish sizes and commercial gear regulations in Year 1 (1996), and, beginning in Year 2 (1997), exploitation rates reductions until a level of 19% (the exploitation rate associated with the current estimate of FMAX) is reached in Year 7. The strategy was further informed by a number of management measures for all years such as: ▪ Operator and vessel permits for commercial vessels under a moratorium on entry; vessels with documented landings of scup for sale between 26 January 1988 and 26 January 1993 qualified for moratorium permit to land and sell scup under the moratorium program; ▪ Permitted vessels may only sell to permitted dealers and permitted dealers may only buy from permitted vessels; ▪ A 9" total length (TL) minimum fish size in the commercial fishery in federal and state waters; Scup less than 9" TL could not be sold; ▪ A 4.0" minimum mesh size for vessels retaining more than 4,000 pounds of scup; ▪ A coastwide quota with federal permit holders being prohibited from landing (selling) after the quota had been landed. Quota overruns would be deducted from the quota for the subsequent year. All states would need to prohibit scup sales following Federal sales prohibition (Year 2 and subsequent). A framework for time/area closures to reduce bycatch and prevent quota overruns.

The adoption and implementation of Amendment 13 to the FMP in 2002 was for the purpose of managing the summer flounder, scup, and black sea bass fisheries pursuant to the MSFCMA of 1976 as amended by the Sustainable Fisheries Act of 1996. For scup, the management unit was defined as the western Atlantic Ocean from Cape Hatteras, NC northward to the US-Canadian border. Federal agencies also agreed to a federal coastwide quota to facilitate the state-by-state allocation system implemented by the Commission.

The winter I period ran from January 1 through April 30, the summer period ran from May 1 through October 31, and the winter II period ran from November 1 through December 31.

Addendum X (2003) introduced a rollover quota strategy of Scup from Winter I to Winter II and defined the summer period start date. Addendum XIII (2004) modified the FMP so that, within a given year, Total Allowable Limits (TALs) for the summer flounder, scup, and/or black sea bass could be specified for up to three years. Addendum XVI (May 2005) adopted a species-specific mechanism of ensuring that a state met its obligations under the plan in a way that minimized the probability that a state's delay in complying did not adversely affect other states' fisheries or conservation of the resource. These measures were

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Addendum XXIX (May 2017) established new start and end dates for the scup commercial quota periods.

7.4.1.9 Arrangements for On-going Consultations

The Assessment team is not aware of any planned education and training activities for interest groups or any details of other non-MSC fishery users or activities, which could affect the UoA, and arrangements for liaison and co-ordination.

7.4.1.10 Review and Audit of the Management Plan

All federal and state agencies covered in this report are required by their enabling legislation, mandates and/or policies to review those FMPs they develop, modify, and implement. Within the UoA for this fishery, the review of the scup FMP is undertaken by federal and state representatives who are typically members of committees or teams either of the Commission or the Council or both. For example, the Council and ASMFC’s Summer Flounder, Scup, and Black Sea Bass Management Board meet jointly each year to consider the recommendations of the Scientific and Statistical Committee (SSC) and the Summer Flounder, Scup, and Black Sea Bass Monitoring Committee (MC), as well as input from Advisory Panel (AP) members, and other information, before making recommendations for ABCs, ACLs, commercial quotas, RHLs, and other commercial and recreational management measures for all three species (i.e., annual specifications). The Council submits these recommendations to the NMFS’ GARFO Administrator to consider for implementation. The Administrator then reviews the recommendations and may revise them, if necessary, to achieve FMP objectives and to meet statutory requirements.

Summer flounder, scup, and black sea bass catch and landings limits are established on an annual basis for up to three years at a time, based on stock size projections for upcoming years and advice from the SSC and MC. The MSFCMC requires that the Council's SSC provide recommendations for ABC, prevention of overfishing, and maximum sustainable yield (MSY). The Council's catch limit recommendations cannot exceed the ABCs recommended by the SSC. The MC is responsible for developing recommendations to the Council on management measures, including ACLs and ACTs, to achieve the recommended catch limits for each species. The ACTs may be set equal to or less than the ACLs to account for management uncertainty. Sector-specific landings limits are implemented in the form of a commercial quota and RHL after deducting projected dead discards from the sector-specific ACLs.

Section 301 of the MSFCMA requires that FMPs contain conservation and management measures that are consistent with the ten National Standards. By continuing to meet the National Standards requirements of the MSA through future FMP amendments, framework actions, and the annual specification setting process, the Council ensures that cumulative impacts of these actions remain positive overall for the ports and communities that depend on these fisheries, and for the resource.

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Audits of FMPs are not undertaken as regularly as reviews; in the case of the MAFMC, the audit is undertaken biennially and involves matters like cooperative agreements, property and space management systems, accounting systems, and procurement practices.

7.4.1.10.1 Federal Agencies

MAFMC Review of FMP

Each of the Council’s FMPs has a Monitoring Committee that is responsible for annually reviewing the best available data and recommending commercial (and recreational) measures designed to assure that the target mortality level for each fishery managed under the FMP is not exceeded. As pointed out, the Council and its Committees consider Monitoring Committee recommendations (along with input from the SSC, advisory panels, and the public) during the annual specification-setting process for each fishery.

Monitoring Committees consider a wide range of data, including commercial (and recreational) catch/landing statistics, current estimates of fishing mortality, stock status, the most recent estimates of recruitment, VPA results or length-based stock projection models, target mortality levels, beneficial impacts of size/mesh regulations, as well as the level of noncompliance by fishermen or states.

The Council's advisory panels develop Fishery Performance Reports (FPR) each year to provide the Council and SSC with an annual description of the factors that influenced fishing effort and catch within each of the Council’s fisheries. These reports are intended to summarize fishermen's "on-the-water" perspectives, including information about fishing effort, market trends, and environmental changes, and other factors that may not be fully accounted for in the stock assessment process. Each FPR is accompanied by a Fishery Information Document (FID) for each species managed under the fishery management plan. The purpose of the FID is to summarize the most recent catch, landings, and effort data. (Note: Data Sources for Fishery Information Documents are generally from unpublished NMFS Survey, Dealer, VTR, Permit, and MRFSS databases and should be considered preliminary). The June 2020 FPR for scup is available at: SFSBSB_FPR_June_2020_FINAL.pdf (squarespace.com); the supporting FID is available at: Scup_info_doc_2020.pdf (squarespace.com).

According to Section 6.6. of the Council’s SOPP,

(a) an independent audit is required at least biennially by the Department of Commerce’s (DOC) Office of the Inspector General auditors or an independent public accountant (IPA). The Council is subject to audit by the Office and the General Accounting Office; and

(b) The scope of the audit may include: (i) conduct of financial operations; (ii) compliance with applicable laws and regulations; (iii) economy and efficiency of administrative procedures; and (iv) and achievement of results.

NOAA Fisheries - NMFS Review of FM System

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The agency has a number of policies that inform what program elements are subject to review, how the reviews are to be conducted, and by whom including personnel of other agencies.

A. Fisheries Management

The NMFS’ review of the commercial scup FMP is a statutory requirement under the MSFCMA, and is undertaken collaboratively by federal and state representatives of various agencies through the established Council or Commission structure. The agency’s program review procedures include the following:

Procedure for Initiating Secretarial Review of Fisheries Management Plans and Amendments126

This procedure describes the process NMFS uses to initiate Secretarial review and the documents that must be submitted by the Councils to NMFS to initiate Secretarial review. The procedure itself is to be reviewed by October 2023.

Guidelines for Economic Review of National Marine Fisheries Service Regulatory Actions127

The guidelines provide guidance on understanding and meeting the procedural and analytical requirements of Executive Order (E.O.) 12866 and the Regulatory Flexibility Act for regulatory actions promulgated by the NMFS.

Criteria for Initiating Fisheries Allocation Reviews128

This document provides recommended practices and guidance on allocation factors that a regional fishery management council should consider when making allocation decisions. The Council Coordinating Committee created a companion document that describes triggers that can be used to determine when to review allocation decisions.

Recommended Practices and Factors to Consider When Reviewing and Making Allocation Decisions129

The procedure provides guidance on allocation factors that a Council should consider when making allocation (initial or reallocation) decisions.

B. Protected Resources - Endangered Species Act

Procedures for Conducting 5-Year Reviews Under the Endangered Species Act130

126 https://media.fisheries.noaa.gov/dam-migration/01-101-01.pdf 127 https://media.fisheries.noaa.gov/dam-migration/01-111-05.pdf 128 https://media.fisheries.noaa.gov/dam-migration/01-119-02.pdf 129 https://media.fisheries.noaa.gov/dam-migration/01-119-02.pdf 130 https://media.fisheries.noaa.gov/dam-migration/guidance_5_year_review_2006.pdf

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The guidance promotes a consistent nationwide approach to 5-year reviews and to clarify the scope and role of the reviews in relationship to other requirements under the ESA. The 5-year review is required by section 4(c)(2) of the ESA.

Policy for Peer Review in Endangered Species Act Activities131

The USFWS and the NMFS announce interagency policy to clarify the role of peer review in activities undertaken by the Services under authority of the ESA, as amended, and associated regulations in Title 50 of the Code of Federal Regulations. This policy is intended to complement and not circumvent or supersede the current public review processes in the listing and recovery programs.

C. Habitat Conservation and Restoration

Assessment of Impacts of Fishery Management Actions on Essential Fish Habitat132

NMFS must analyze impacts on EFH and comply with the EFH consultation requirements for every fishery management action taken under the authority of the MSA for which a final agency decision has not yet been made. For those fishery management actions that have been submitted to NMFS by a Council, the regional Sustainable Fisheries Division (SF) should review the proposed action and assess whether the proposed action in the context of the fishery as a whole may have an adverse impact on EFH. If SF determines that the proposed action in the context of the fishery as a whole may have an adverse impact on EFH, then a separate determination to that effect must appear in the decision memo, or information memo if a decision memo is not required, and SF must initiate an EFH consultation with the regional Habitat Conservation Division (HC).

ASMFC FMP Scup Reviews133

The Commission’s PDT for scup coordinates and oversees the production of formal reviews of all aspects of the commercial (and recreational) fishery throughout the UoA. Reviews are published on the Commission’s website and are available for the following fishing seasons: 2019, 2017, 2016, 2015, 2013, 2012, 2005, 2004, 2001 and 1999. The reviews are thorough and include the following topics: ▪ Status of the FMP; ▪ Status of the Stock; ▪ Status of the Fishery; ▪ Status of the Assessment Advice; ▪ Status of Research and Monitoring;

131 https://www.fws.gov/endangered/laws-policies/policy-peer-review.html 132 https://media.fisheries.noaa.gov/dam-migration/03-201-01.pdf 133 http://www.asmfc.org/species/scup

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▪ Management Measures and Developing Issues; ▪ Scup FMP Compliance Criteria (with management measures); ▪ Scup FMP Compliance Criteria (with other measures); and ▪ States Status of Implementation of FMP Requirements

7.4.1.10.2 Select States Agencies

Rhode Island

The State’s MFC reports annually to the Governor and the RI General Assembly for the preceding calendar year with regard to: ▪ The advice it has given to state agencies, including specifically the Department of Environmental Management, on marine fisheries issues; ▪ The response it received to the advice it gave; ▪ Any findings or position it may have with regard to the status and/or condition of marine fisheries; and ▪ Any recommendations it may have for maintaining, improving, or changing laws, regulations, or management programs for marine fisheries.

New York

The responsibilities of the MRAC include to review DEC allocations and expenditures for the care, management, protection and enlargement of marine resources, and to review and provide recommendations to DEC on any proposed regulations for the management of marine fisheries.

Connecticut

The FAC’s MAC provides oversight advice for the DEEP Fisheries Division’s marine programs and projects, including how their goals, objectives, and performance meets the needs and desires of the fishing public, such as stock abundance, health, and distribution; harvest management and gear conflicts; fish habitat protection and restoration; and information needs to develop new fisheries or maintain existing ones. The Council itself is responsible for delineating issues and problems that affect all users of marine and inland fisheries resources and advising the Fisheries Division in developing solutions to problems and approaches to issues.

Massachusetts

The MFAC holds public hearings relative to matters within the jurisdiction of the Marine Fisheries Division and makes recommendations to the director for the proper management and development of the marine fisheries of the Commonwealth. The commercial scup fishery within state waters could be reviewed by members of the Commission at their discretion.

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New Jersey

The MFC is active in the management of the commercial fisheries in state waters. It contributes to the preparation and revision of fishery management plans. The Council has the authority to convene Council Committees when necessary to discuss issues for a particular species, group of species, gear type or other fishery management topic. These Committees consist of three to five Council members who advise the Council on the assessments and specifications contained in each fishery within the state; current trends and developments in fishery matters; the effect of such fishery management plans on local economies and social structures; potential conflicts between user groups of a given fishery resource; enforcement problems peculiar to each fishery. The Assessment team did not locate information to indicate that a committee had been formed specifically to examine and review the commercial scup fishery in state- managed waters.

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8.4.2 Principle 3 Performance Indicator scores and rationales

PI 3.1.1 The management system exists within an appropriate legal and/or customary framework which ensures that it: - Is capable of delivering sustainability in the UoA(s); - Observes the legal rights created explicitly or established by custom of people dependent on fishing for food or livelihood; and - Incorporates an appropriate dispute resolution framework Scoring Issue SG 60 SG 80 SG 100 a Compatibility of laws or standards with effective management

Guide There is an effective national There is an effective national There is an effective post legal system and a legal system and organised national legal system and framework for cooperation and effective cooperation binding procedures with other parties, where with other parties, where governing cooperation with necessary, to deliver necessary, to deliver other parties which delivers management outcomes management outcomes management outcomes consistent with MSC consistent with MSC consistent with MSC Principles 1 and 2 Principles 1 and 2. Principles 1 and 2.

Met? Yes Yes Yes

Rationale:

MSC Principle 1 states that: “A fishery must be conducted in a manner that does not lead to over-fishing or depletion of the exploited populations and, for those populations that are depleted, the fishery must be conducted in a manner that demonstrably leads to their recovery.” The assessors note that the Atlantic scup fishery is not overfished nor is overfishing occurring. MSC Principle 2 states that: “Fishing operations should allow for the maintenance of the structure, productivity, function, and diversity of the ecosystem (including habitat and associated dependent and ecologically related species) on which the fishery depends.” All facets of the management of the U.S. fishery management system, including the Atlantic commercial scup fishery for the UoA, are overseen by a suite of federal (and state) laws, supporting measures, and policies that collectively establish an effective national legal system and a framework for cooperation that are capable of delivering management outcomes consistent with both MSC Principles. This includes clearly defined “rule making” processes at the federal and state levels. SG 60 is likely met. For example:

▪ the objectives of the MSFCMA include to prevent overfishing, rebuild overfished stocks, and increase long-term economic and social benefits;

▪ the SFA and the re-authorized MSFCMA include a number of important principles and regulatory provisions of relevance to the national governance regime, including establishing

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10 national standards for fishery and habitat conservation and management, recognizing state jurisdiction, and creating regional fishery management councils;

▪ the ESA provides for the listing and subsequent protection of plant and animal species that are threatened or endangered;

▪ the MMPA prohibits, with certain exceptions, the take of marine mammals in U.S. waters and by U.S. citizens on the high seas, and the importation of marine mammals and marine mammal products into the U.S.;

▪ the NEPA requires that all branches of government give proper consideration to the environment in the course of their decision-making prior to undertaking any major federal action that significantly affects the environment; and

▪ the CZMA encourages coastal states to develop and implement coastal zone management plans thereby allowing states and the federal government to work together for the protection of U.S. coastal zones. Moreover, there is organised and effective cooperation with other parties, where necessary, to deliver management outcomes consistent with MSC Principles 1 and 2. This feature is a longstanding practice amongst federal and state agencies that are members of the MAFMC and the ASMFC and their many subordinate bodies. Both the IJFA and the ACFCMA are important federal statutes that promote and encourage state activities in the management of interjurisdictional fishery resources throughout their range including research in the preparation for the implementation of the use of ecosystems and interspecies approaches to their conservation and management. Administratively, the ASMFC carries out an Interstate Fisheries Management Program in accordance with Article IV of the Commission’s Rules and regulations. The program’s Policy Board is responsible for promoting the cooperative management of the Commission’s fishery management programs including priorities in coastal state waters and providing an efficient structure for the timely, cooperative administration of the ISFMP. At the individual agency level, the importance of cooperation is acknowledged in legislation, operational practices and policies, multi-year strategic plans, and annual workplans. SG 80 is likely met. This cooperative framework is informed by binding procedures that serve to re-enforce the interactions between and amongst federal and state member agencies. Section 5104 of the ACFCMA addresses the statutory obligations of states to implement and enforce the measures of coastal FMPs that are proposed and adopted by the ASMFC within the timeframe set out in the plan. Failure to do so could lead to a finding of non-compliance by the Commission and the imposition of a moratorium on fishing for the species in state waters. SG 100 is likely met. b Resolution of disputes

Guide The management system The management system The management system post incorporates or is subject by incorporates or is subject by incorporates or is subject by law to a mechanism for the law to a transparent law to a transparent resolution of legal disputes mechanism for the mechanism for the arising within the system. resolution of legal disputes resolution of legal disputes which is considered to be that is appropriate to the effective in dealing with context of the fishery and

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most issues and that is has been tested and proven appropriate to the context of to be effective. the UoA. Met? Yes Yes Yes

Rationale:

Legal disputes arising within the management system for U.S. commercial fisheries are subject to federal and state civil and criminal legal mechanisms at the district, state and federal levels. Aggrieved parties can petition the Courts to have their concerns resolved. SG 60 is likely met.

The Assessment Team did not find evidence to indicate that the Atlantic scup commercial fishery is subjected to ongoing legal disputes through the judicial system. The consultation and engagement practices managed by the lead federal agencies and to which all states participate allow for nearly unfettered access by stakeholders and the general public to all fishery discussions and debates either through the committee structures or at public hearings. These transparent practices have been shown to be effective in maintaining open lines of communication and responding to concerns that might otherwise lead to legal challenges and user conflicts). When legal disputes do arise, the U.S. legal system at all levels is acknowledged to be transparent and effective in dealing with most issues and that is appropriate to the context of the UoA. SG 80 is likely met.

The past two decades have seen a number of legal challenges to the statutory and regulatory framework that underpins the Federal fishery management system. Several of these have implicated the SFA’s 10 National Standards. Arguably, the processes were tested and proven to be effective and conclusive. SG 100 is likely met. Some case law examples include:

▪ National Coalition for Marine Conservation v. Evans (2002

▪ North Carolina Fisheries Assoc. v. Gutierrez (2007)

▪ Yakutat, Inc. v. Gutierrez (2005)

▪ NRDC v. Daley (2000)

▪ Ace Lobster Co., Inc. v. Evans (2001)

▪ Ocean Conservancy and Oceana v. Gutierrez (2005) c Respect for rights

Guide The management system has The management system has The management system post a mechanism to generally a mechanism to observe the has a mechanism to formally respect the legal rights legal rights created explicitly commit to the legal rights created explicitly or or established by custom of created explicitly or established by custom of people dependent on fishing established by custom of people dependent on fishing for food or livelihood in a people dependent on fishing for food or livelihood in a manner consistent with the for food and livelihood in a manner consistent with the objectives of MSC Principles manner consistent with the 1 and 2.

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objectives of MSC Principles objectives of MSC Principles 1 and 2. 1 and 2. Met? Yes Yes Yes

Rationale:

SA4.3.5 of the MSC Fisheries Standard states that the [Assessment] team shall not make their own judgements or unilateral decisions about whether or not custom or national treaties relating to aboriginal or indigenous people have conferred rights upon any particular group or individual.” That said, the U.S. Supreme Court has affirmed, on several occasions, that Native Americans hold legal rights to hunt and fish wildlife for food and livelihood purposes both within and, in some cases, beyond their reservations. Many tribes have developed their own harvest plans and accompanying regulations based on resource sustainability principles. There is evidence that the management system has a mechanism to generally respect and observe the legal rights in question thus SG 60 and 80 are likely met. For example:

▪ Section 106 of the SFA established 10 National Standards that are to be reflected in federal FMPs; Standard 8 states that “Conservation and management measures shall, consistent with the conservation requirements of this Act (including the prevention of overfishing and rebuilding of overfished stocks), take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities; and

▪ NOAA Fisheries has a formal policy of “Guidance and Best Practices for Engaging and Incorporating Traditional Ecological Knowledge in Decision-Making.” The policy is an extension of the agency’s commitment to consult and engage meaningfully with federally recognized Tribes, non-recognized Tribes and other indigenous people by means of its’ “Procedures for Government-to-Government Consultation with Federally Recognized Indian Tribes and Alaska Native Corporations."

▪ Fishery management plans that establish a limited access system for the fishery in order to achieve optimum yield require the Council and the Secretary of Commerce to take into account, inter alia:

▪ historical fishing practices in, and dependence on, the fishery;

▪ the economics of the fishery;

▪ the cultural and social framework relevant to the fishery and any affected fishing communities; and

▪ the fair and equitable distribution of access privileges in the fishery. While these legal provisions do not guarantee that existing legal or customary rights will be incorporated into a management plan but they allow FMPs to formally commit to the legal rights created explicitly or established by custom of people dependent on fishing for food and livelihood in a

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References

Magnusen-Stevens Fishery Conservation and Management Act: https://media.fisheries.noaa.gov/dam-migration/msa-amended-2007.pdf Sustainable Fisheries Act: https://www.govinfo.gov/content/pkg/BILLS-104s39enr/pdf/BILLS-104s39enr.pdf

NOAA Handbook: Overview of the Fishery Management Process: https://media.fisheries.noaa.gov/dam-migration/c3-msa-handbook.pdf

Interjurisdictional Fisheries Act: https://legcounsel.house.gov/Comps/Interjurisdictional%20Fisheries%20Act%20Of%201986.pdf

Atlantic Coastal Fisheries Cooperative Management Act: https://media.fisheries.noaa.gov/2020- 09/Atlantic%20Coastal%20Fisheries%20Cooperative%20Management%20Act%20RTC_2017-2018.pdf

Marine Protection, Research, and Sanctuaries Act: https://www.epa.gov/enforcement/marine- protection-research-and-sanctuaries-act-mprsa-and-federal-facilities

Coastal Zone Management Act: https://definitions.uslegal.com/c/coastal-zone-management-act-of- 1972/

Endangered Species Act: http://www.nmfs.noaa.gov/pr/laws/esa/

National Environmental Policy Act: https://www.epa.gov/laws-regulations/summary-national- environmental-policy-act

Marine Mammal Protection Act: https://www.fws.gov/international/laws-treaties-agreements/us- conservation-laws/marine-mammal-protection-act.html

Atlantic Coastal Fisheries Management Act, Section 5104 - State implementation of coastal fishery management plans: http://asmfc.org/files/Legislation/ACFCMA.pdf Charlton, G., The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada, 39 Can.-U.S. L.J. 69 (2015); at: http://scholarlycommons.law.case.edu/cuslj/vol39/iss/5

Refer to Section 7.4.1.2 of the report for additional background information.

Draft scoring range and information gap indicator added at Announcement Comment Draft Report

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Draft scoring range ≥80

Information gap indicator Information sufficient to score PI.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.1.2 The management system has effective consultation processes that are open to interested and affected parties The roles and responsibilities of organisations and individuals who are involved in the management process are clear and understood by all relevant parties

Scoring Issue SG 60 SG 80 SG 100 a Roles and responsibilities

Guide Organisations and Organisations and Organisations and post individuals involved in the individuals involved in the individuals involved in the management process have management process have management process have been identified. Functions, been identified. Functions, been identified. Functions, roles and responsibilities are roles and responsibilities are roles and responsibilities are generally understood. explicitly defined and well explicitly defined and well understood for key areas of understood for all areas of responsibility and responsibility and interaction. interaction. Met? Yes Yes Yes

Rationale:

The federal and state organizations described in this assessment have formal consultation and engagement processes in place to support the full range of activities of their management system, consistent with the scale, intensity, and cultural context of the UoA. At the federal level, the ASMFC, MAFMC and NOAA have comprehensive organizational structures consisting of standing committees and numerous subordinate bodies that provide scientific, socio-economic, technical, operational and advisory services on a continuous basis. The management systems of the states reviewed by the team were found to have comparable but fewer organizational units to support their particular consultation and engagement processes. The roles and responsibilities of the federal and state organizations and the identity of the individuals involved were easily located on the main internet websites. SG 60 is likely met.

The mandates, authorities and, in some cases, the governance regimes of the main federal and state agencies are explicitly defined in statutes and regulations. The administrative processes that inform the decision-making, recording and reporting, and public input activities also are explicitly defined in legislation. Several of the federal organizations reviewed by the team were found to have enabling practices and policies that complemented the statutory authorities, all of which were easily accessible to stakeholders and the general public (e.g., MAFMC’s Statement of Organization, Practices and Policies). SG 80 is likely met.

The terms of office of elected or appointed committee representatives often span several years, thus ensuring that their roles and responsibilities are well understood for all areas of responsibility and interaction.

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In its 2021 Action Plan, one of the ASMFC’s stated goals is to strengthen stakeholder and public support for the Commission. Examples of the proposed strategies include (i) maximizing the use of current and new technologies, (ii) facilitation stakeholder participation, and (iii) media relations and networking. SG 100 is likely met. b Consultation processes

Guide The management system The management system The management system post includes consultation includes consultation includes consultation processes that obtain processes that regularly seek processes that regularly seek relevant information from and accept relevant and accept relevant the main affected parties, information, including local information, including local including local knowledge, knowledge. The knowledge. The to inform the management management system management system system. demonstrates consideration demonstrates consideration of the information obtained. of the information and explains how it is used or not used. Met? Yes Yes Yes

Rationale:

All federal and state agencies with mandates and roles that directly impact the management system have longstanding consultation processes that are either required by legislation and/or are overseen by agency executives as part of their roles and responsibilities. The importance that agencies attach to this function is regularly referenced in multi-year strategic plans and annual workplans. The processes encourage and facilitate stakeholder and public input in matters before the various committees and subordinate bodies. Meeting agendas include time slots for the public to raise concerns or ask questions. Some committees have formal guidelines as to how non-members may interact with committees, and how they can derive maximum value from the interactions. SG 60 is likely met.

The committees and their supporting bodies are all active throughout the year. Meetings schedules, venues, agendas and materials are regularly posted on agency websites thereby giving stakeholder groups and members of the public ample opportunity to familiarize themselves with meeting subjects and to participate either in person or via webinar. These interactions allow for local knowledge to be factored into the decision-making process. SG 80 is likely met.

Meeting minutes reviewed by the team from the federal-led consultation processes are frequently verbatim recorded, and the evidence shows that questions and issues presented by non-members were written into the responses for members. SG 100 is likely met. c Participation

Guide The consultation process The consultation process post provides opportunity for all provides opportunity and interested and affected encouragement for all parties to be involved. interested and affected

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parties to be involved, and facilitates their effective engagement. Met? Yes Yes

Rationale:

The federal and state consultation processes are longstanding and well established; they are required by either statute or regulations and are operationalized by practices and procedures that promote transparency, participation, meaningful interactions, and accountability. The vast majority of consultation fora are open to any interested and affected party who can participate either in person, by email, or by webinar format. SG 80 is likely met.

Current federal and state consultation processes are inclusive by providing opportunities to all affected stakeholders and organizations by design. Administrative rules are formally defined; there is no evidence to indicate that the rules are arbitrary or not honoured. Moreover, all interested and affected parties are generally known to officials, and their participation is encouraged and recognized. In some cases, opportunities are provided to the parties to contribute to the formulation of meeting agendas and to make presentations. Effective engagement is further facilitated through easily accessible web- based applications which allow parties to comment of the various initiatives that inform the fishery’s management systems.

An example of this requirement is currently in play with the issuance of a January 2021 public document by the ASMFC and the MAFMC in respect of a proposed allocation amendment to the Summer Flounder, Scup and Black Sea Bass fisheries. Chapter 2 of the document provides detailed instructions for providing public comments at any of 5 planned virtual public hearings. All comments regardless of submission method, will be compiled for review and consideration by the ASMFC and the MAFMC. SG 100 is likely met.

References

For SI a and b, refer to Section 7.4.1.2.2 (federal agencies) and Section 7.4.1.3.3 (state agencies) for detailed background information.

For SI c, refer to Section 7.4.1.4 for detailed background information. ASMFC/ISFMP Consultation Framework: http://www.asmfc.org/files/Meetings/2016AnnualMeeting/CompactRulesRegs_Feb2016.pdf; and http://www.asmfc.org/files/pub/TechnicalGuidanceDocument_Aug2019.pdf

MAFMC Statement of Organization, Practices and Procedures (2021): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/6037dc99fc433d019b5554d0/ 1614273689932/2021-02-11_MAFMC-SOPP-final.pdf

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MAFMC Public Comment Process: https://www.mafmc.org/public-comment

NOAA Fisheries/NMFS Procedures for Public Comment on FMPs: https://media.fisheries.noaa.gov/dam-migration/01-101-08.pdf

ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf

ASMFC and MAFMC Public Hearing Document (January 2021): Mid-Atlantic Fishery Management Council — Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment (mafmc.org)

For state consultation mechanisms, refer to Sections 7.4.1.4.4 to 7.4.1.4.8 of the report.

Draft scoring range and information gap indicator added at Announcement Comment Draft Report

Draft scoring range ≥80

Information gap indicator Information sufficient to score PI.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.1.3 The management policy has clear long‐term objectives to guide decision‐making that are consistent with MSC Fisheries Standard, and incorporates the precautionary approach

Scoring Issue SG 60 SG 80 SG 100 a Objectives

Guide Long-term objectives to Clear long-term objectives Clear long-term objectives post guide decision-making, that guide decision-making, that guide decision-making, consistent with the MSC consistent with MSC consistent with MSC Fisheries Standard and the Fisheries Standard and the Fisheries Standard and the precautionary approach, are precautionary approach are precautionary approach, are implicit within management explicit within management explicit within and required policy. policy. by management policy. Met? Yes Yes Yes

Rationale:

MSC Guidance from the MSC Fisheries Standard v2.01 used to score this Performance Indicator included the following:

SA4.2.1. The term “explicit” is not applicable solely to formally codified or documented management measures and mechanisms.

SA4.2.2. The term shall also refer to informal management measures and mechanisms that are well established and understood.

SA4.5.1. The team shall interpret management policy to mean outside the specific UoA (i.e., at a higher level or within a broader context that the fishery-specific management system).

Long-term objectives at the broader management level to guide decision-making are implicit within management policy for federally-managed fisheries. The following objectives were adopted in 1996 when the Scup FMP was incorporated into the Summer Flounder FMP and included management measures such as commercial quotas, size limits, gear restrictions, permits and reporting requirements. SG 60 is likely met.

▪ Reduce fishing mortality to assure that overfishing does not occur;

▪ Reduce fishing mortality on immature scup to increase spawning stock biomass;

▪ Improve the yield from the fisheries;

▪ Promote compatible management regulations between State and Federal jurisdictions;

▪ Promote uniform and effective enforcement of regulations; and

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▪ Minimize regulations to achieve the management objectives stated above. Significant revisions to the MSA in 1996 (with the passage of the SFA) and, in 2007, to the MSFCMA introduced greater scope and depth to the next iteration of long-term objectives that were to guide the decision-making processes in the development of federal FMPs. Ten National Standards (NS) were included in the legislation, and they must be considered when developing or amending FMPs. SG 80 is likely met. For the scoring of this Performance Indicator, the following standards are of particular relevance and are required by management policy :

▪ National Standard (NS) 1 - Optimum Yield

Conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing ▪ National Standard (NS) 2 - Scientific Information Conservation and management measures shall be based upon the best scientific information available industry.

▪ National Standard (NS) 9 - Bycatch

Conservation and management measures shall, to the extent practicable, (a) minimize bycatch and (b) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.

The federal management policy framework is informed by statute-based guidance to assist in the development and review of FMPs, amendments, and regulations prepared by a Regional Council. For example:

▪ NS 1 Guidance: In general, Councils should adopt a precautionary approach to specification of Optimum Yield; preventing overfishing and achieving OY; incorporation of scientific and management uncertainty in control rules, and adaptive management using annual catch limits (ACL) and measures to ensure accountability (i.e., accountability measures (AMs)). ▪ NS 2 Guidance: Management measures and reference points to implement NS1 must be based on the best scientific information available. When data are insufficient to estimate reference points directly, Councils should develop reasonable proxies to the extent possible.

▪ NS 3 Guidance: Reference points should generally be specified in terms of the level of stock aggregation for which the best scientific information is available.

▪ NS 6 Guidance: Councils must build into the reference points and control rules appropriate consideration of risk, taking into account uncertainties in estimating harvest, stock conditions, life history parameters, or the effects of environmental factors.

▪ NS 9 Guidance: Evaluation of stock status with respect to reference points must take into account mortality caused by bycatch. In addition, the estimation of catch should include the mortality of fish that are discarded.

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SG 100 is likely met.

References

NOAA National Standards Guidance: https://www.fisheries.noaa.gov/national/laws-and- policies/national-standard-guidelines

Magnuson-Stevens Fishery Conservation and Management Act: https://media.fisheries.noaa.gov/dam-migration/msa-amended-2007.pdf

Code of Federal Regulations, Title 50, Part 600, Subpart D - National Standards: https://www.ecfr.gov/cgi- bin/retrieveECFR?gp=&SID=6b0acea089174af8594db02314f26914&mc=true&r=SECTION&n=se50.12. 600_1305

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.2.1 – Fishery-specific objectives

PI 3.2.1 The fishery‐specific management system has clear, specific objectives designed to achieve the outcomes expressed by MSC’s Principles 1 and 2 Scoring Issue SG 60 SG 80 SG 100 a Objectives

Guide Objectives, which are Short and long-term Well defined and measurable post broadly consistent with objectives, which are short and long-term achieving the outcomes consistent with achieving objectives, which are expressed by MSC’s the outcomes expressed by demonstrably consistent with Principles 1 and 2, are MSC’s Principles 1 and 2, are achieving the outcomes implicit within the fishery- explicit within the fishery- expressed by MSC’s Principles specific management specific management 1 and 2, are explicit within the system. system. fishery-specific management system. Met? Yes Partial No

Rationale:

The fishery’s objectives were formally set out in the 1996 FMP to include (i) reducing fishing mortality to assure that overfishing does not occur, (ii) reducing fishing mortality on immature scup to increase spawning stock biomass, (iii) improving the yield from the fishery, (iv) promoting compatible management regulations between State and Federal jurisdictions, (v) promoting uniform and effective enforcement of regulations, and (vi) minimizing regulations to achieve the management objectives stated above.

Although a significant number of regulatory and policy changes have been introduced since the plan’s inception (refer to Table 31 of section 7.4.1.6.5.1), these objectives continue to be cited in documentation as recently as December 2020. An argument can be advanced that they are broadly consistent with achieving the outcomes expressed by Principles 1 and 2, and are implicit within the fishery-specific management system. SG 60 is likely met.

However, while they are equally both short and long-term, there lacks sufficient evidence to conclude that they are fully explicit within the fishery-specific management system in respect of the statutory principles of the 10 National Standards that are required to be considered in federal FMPs, notably those that support the outcomes of Principle 2 (e.g., protection of essential fish habitat; protection of endangered species). SG 80 is likely partially met.

A similar finding has been applied to the scup commercial fishery in state-managed waters.

Note: If the requirements for SG 80 are not met, those for SG 100 cannot be considered.

References

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Amendment 10 to the Summer Flounder, Scup and Black Sea Bass FMP (January 1997): http://www.asmfc.org/uploads/file/summerFlounder_Scup_BSB_Amendment10_1997.pdf

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range 60-79

Information gap indicator Scup management plan’s short and long-term objectives of the MAFMC and ASMFC are consistent with achieving the outcomes for Principles 1 and 2.and are explicit within the fishery-specific management system.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.2.2 The fishery‐specific management system includes effective decision‐making processes that result in measures and strategies to achieve the objectives, and has an appropriate approach to actual disputes in the fishery

Scoring Issue SG 60 SG 80 SG 100 a Decision-making processes

Guide There are some decision- There are established post making processes in place decision-making processes that result in measures and that result in measures and strategies to achieve the strategies to achieve the fishery-specific objectives. fishery-specific objectives. Met? Yes Yes

Rationale:

GSA4.8 defines “established” to mean that decision-making processes should be understood to mean that there is a process that can be immediately triggered for fisheries-related issues, the process has been triggered in the past and has led to decisions about sustainability in the fishery.

The management of commercial fisheries in U.S. federal waters is informed by a number of statutes, chief amongst them is the MSFCMA. This act is responsible for the creation of regional councils like the MAFMC with a committee structure that includes species committees (including for Summer Flounder, Scup and Black Sea Bass) and functional committees for ecosystem and ocean planning, protected resources, law enforcement, highly migratory species, and science and statistics. Other fora also include APs, FMATs, MCs, and an SSC that provide guidance and advice on fisheries management issues. For example, the SSC provides ongoing scientific advice for fishery management decisions, including recommendations for ABCs, OY, MSY and reports on stock health, bycatch, habitat status, social and economic impacts, and sustainability of fishing practices. These entities have defined roles and responsibilities which they exercise throughout the fishing season with guidance from well-defined organizational plans, practices, and policies.

The management of commercial nearshore fisheries along the U.S. Atlantic coast is the mandate of the ASMFC, an organization created by an Interstate Compact in 1942. The Commission’s main policy areas include (i) interstate fisheries management, (ii) fisheries science, (iii) habitat conservation, and (iv) law enforcement. Like the MAFMC, the Commission’s mandate and governance framework are informed by the specific roles and responsibilities of its committees and subordinate bodies as prescribed in their terms of reference. The Commission’s Summer Flounder, Scup, and Black Sea Bass Management Board oversees the activities of the PDT, the PRT, the TC, the SAS and the AP, and it considers and approves the development and implementation of coastal FMPs. This collective work is undertaken within

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Accordingly, the administrative practices and rules of the Commission and Council serve to guide the decision-making processes across the fishery-specific objectives throughout the fishing season. Their strategies and workplans are operationalized through collaborative actions including with other agencies in achieving their respective fishery-specific objectives. NOAA-NMFS’s decision-making process is centered on its rule-making role that is triggered when the Council’s and Commission’s FMP decisions require regulatory status.

State-level decision-making processes are closely linked to those of the Council’s and the Commission’s by virtue of the fact that state agency officials are members in good standing on most of the federal committees and sub-committees. All Atlantic coast states that are included in a Commission FMP must implement required conservation provisions of the plan. There is evidence to that effect due largely to the strong and effective partnership the parties have nurtured and maintained over many years. SG 60 is likely met.

The decision-making processes are “established” within the meaning of the MSC Standard in that the resulting measures and strategies occur before, during and following the fishing season based on a pre- determined work schedule that is web-posted and available to, and understood by, interested parties. SG 80 is likely met. b Responsiveness of decision-making processes

Guide Decision-making processes Decision-making processes Decision-making processes post respond to serious issues respond to serious and respond to all issues identified in relevant other important issues identified in relevant research, monitoring, identified in relevant research, monitoring, evaluation and research, monitoring, evaluation and consultation, in a evaluation and consultation, consultation, in a transparent, timely and in a transparent, timely and transparent, timely and adaptive manner and take adaptive manner and take adaptive manner and take some account of the wider account of the wider account of the wider implications of decisions. implications of decisions. implications of decisions. Met? Yes Yes No

Rationale:

The ASMFC carries out an annual review and assessment of the ISFMP for scup under the direction of the PRT. The report addresses a number of parameters such as the status of the FMP, the stock, the fishery, assessment advice, research and monitoring, management measures and developing issues, FMP compliance criteria, and state compliance with FMP requirements. SG 60 is likely met.

The MAFMC’s decision-making process targets similar issues of consequence for federal waters in accordance with all legal requirements and its internal administrative rules and procedures. The 10

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National Standards require that the decision-making processes of federal agencies address and take account of the wider implications of decisions. SG 80 is likely met.

While the management agencies described in this report might well aspire to meet the requirements of SG 100, doing so would represent a significant challenge. Decision-making processes associated with such initiatives as responding to climate change impacts on the fishery and dependent communities, the conservation and protection of essential fish habitat, the designation of marine protected areas, and the development of alternative sources of ocean-based energy require extensive long-term research, funding, and strategic policy development. They are complex and include numerous human and natural processes and interactions. This has been shown to lead to ocean use conflicts and legal pursuits between competing interests that are not easily resolved on a timely basis. For these reasons, SG 100 is likely not met. c Use of precautionary approach

Guide Decision-making processes post use the precautionary approach and are based on best available information. Met? Yes

Rationale:

National Standards (NS) 1, 2, 4, part of 5, and 6 are phrased as absolute requirements, whereas the remaining NSs indicate they must be addressed to the extent “practicable.” Thus, while NS 1, 2, 4, 5 and 6 must be adhered to, the Council has discretion in weighing the various policy priorities set forth in the remaining standards. The key requirement for these standards is that they are discussed on the record and the Council’s rationale for its treatment of them is explained.

NS 1 guidelines are based on the Precautionary Approach, which means:

▪ Target reference points, such as OY, should be set safely below limit reference points, such as the catch level associated with the fishing mortality rate or level defined by the status determination criteria. Because it is a target reference point, OY does not constitute an absolute ceiling, but rather a desired result.

▪ A stock or stock complex that is below the size that would produce MSY should be harvested at a lower rate or level of fishing mortality than if the stock or stock complex were above the size that would produce MSY.

▪ Criteria used to set target catch levels should be explicitly risk averse, so that greater uncertainty regarding the status or productive capacity of a stock or stock complex corresponds to greater caution in setting target catch levels. Part of the OY may be held as a reserve to allow for factors such as uncertainties in estimates of stock size and domestic annual

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harvest. If an OY reserve is established, an adequate mechanism should be included in the FMP to permit timely release of the reserve to domestic or foreign fishermen, if necessary.

NS 2 requires that FMPs be based on the “best available scientific information.”

▪ Incomplete Information. The fact that scientific information concerning a fishery is incomplete does not prevent the preparation and implementation of an FMP (MSA section 301(a)(2); 50 CFR 600.315).

▪ Conflicting Opinions. If there are conflicting facts or opinions relevant to a particular point, the Council and Secretary may choose among them, but should justify the choice (50 CFR 600.315).

▪ New Information. FMPs must take into account the best scientific information available at the time of preparation. Between the initial drafting of an FMP and its submission for final review, new information often becomes available. This new information should be incorporated into the final FMP where practicable. It is not necessary to start the FMP process over again, unless the information indicates that drastic changes have occurred in the fishery that might require revision of the management objectives or measures, or unless it changes the factual basis for making necessary determinations under the MSA or other applicable law (50CFR 600.315(b)(2)).

▪ SAFE Report. The SAFE Report (Stock Assessment/Fishery Evaluation) is a regularly updated product that summarizes the most current scientific information on the fishery (50 CFR 600.315(e)).

For example, the Council’s Statistical and Scientific Committee (SSC) is responsible for developing a range of science-based stock recommendations for the council. The Guidelines state that: “The SSC is expected to take scientific uncertainty into account when making its ABC recommendation (§600.310(f) (4)).” Other management requirements include use of the precautionary approach when setting AMs, HCRs and other parameters.

Section 3 of Article IV of the Commission’s ISFMP Charter “provides that fishery management plans, and any actions taken according thereto, promote conservation, use the best scientific information available, and provide adequate opportunity for public input. The Commission and member agencies also embrace the use of the precautionary approach in establishing the suite of management measures for their fisheries. SG 80 is likely met. d Accountability and transparency of management system and decision-making process

Guide Some information on the Information on the fishery’s Formal reporting to all post fishery’s performance and performance and interested stakeholders management action is management action is provides comprehensive generally available on available on request, and information on the fishery’s request to stakeholders. explanations are provided performance and for any actions or lack of management actions and action associated with describes how the findings and relevant management system

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recommendations emerging responded to findings and from research, monitoring, relevant recommendations evaluation and review emerging from research, activity. monitoring, evaluation and review activity. Met? Yes Yes Yes

Rationale:

The Commission’s and the Council‘s fishery performance reports are routinely posted on their organization’s website along with the technical information that is relied upon in developing management actions and other components of the reports. When FMP revisions are under consideration, both organizations trigger their public consultation process which is both accountable and transparent, and encourages and facilitates public input. Once finalized, those revisions that require a regulatory amendment are assigned to NOAA whose rule-making process is equally accountable, transparent, and open to public comment. The States included in this assessment follow a similar course of action within their jurisdictions. SG 60 is likely met.

Accountability and transparency of the management system is required by Federal and State laws, and is embedded within the management system itself. The NS Guidelines for NS 2 specifically require transparency in the provision of scientific information for fishery management. Under the heading “Transparency and openness,” the NS Guidelines state that: “The Magnuson-Stevens Act provides broad public and stakeholder access to the fishery conservation and management process, including access to the scientific information upon which the process and management measures are based. Public comment should be solicited at appropriate times during the review of scientific information. Communication with the public should be structured to foster understanding of the scientific process.” In addition, “Scientific information products should describe data collection methods, report sources of uncertainty or statistical error, and acknowledge other data limitations. Such products should explain any decisions to exclude data from analysis. Scientific products should identify major assumptions and uncertainties of analytical models. Finally, such products should openly acknowledge gaps in scientific information.”

The management actions that are operationalized by the ASMFC and the MAFMC for the commercial scup fishery are supported by an extensive range of biological, economic, social, and sociological information and data that are generated by various sub-committees. For example, the products are central to the production and publication of annual fishery performance reviews, fishery information documents, draft amendments to the ISFMP, and fishery specifications. With very few exceptions, all of the information and data in these documents are available to any interested person, either online or by request. SG 80 is likely met.

ISFMP amendments and Fishery Specifications typically include detailed analyses based upon the information and data noted in the preceding paragraph. The former specifically includes comments

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Guide Although the management The management system or The management system or post authority or fishery may be fishery is attempting to fishery acts proactively to subject to continuing court comply in a timely fashion avoid legal disputes or challenges, it is not with judicial decisions rapidly implements judicial indicating a disrespect or arising from any legal decisions arising from legal defiance of the law by challenges. challenges. repeatedly violating the same law or regulation necessary for the sustainability for the fishery. Met? Yes Yes Yes

Rationale:

There have been several legal challenges to the management system or fishery over the course of the past two decades involving the 10 National Standards (See PI 3.1.1.SI b). However, there is no evidence that the challenges signified a disrespect or defiance of the law by repeatedly violating the same law or regulation necessary for the sustainability for the fishery. SG 60 is likely met.

Typically, judicial decisions become binding on the management system or fishery once all avenues of appeal at the federal or state level have been either abandoned or exhausted by one of the litigating parties. Regardless, it is reasonable to assume that the management system and fishery would comply with judicial decisions in a timely manner once the legal process has concluded.

MSC Guidance to the Fisheries Standard indicates that assessment of fisheries against this issue may consider the extent to which there may be other or higher authorities to whom fishers or other stakeholders may appeal if they are dissatisfied with fishery rules or their implementation in the fishery by local managers. In that regard, all federal and state agencies examined for this assessment offer administrative dispute resolution opportunities to individuals who are dissatisfied with certain agency decisions.

The ASMFC’s Administrative Oversight Committee developed an internal appeals process in 2004 that can be triggered when a state expresses a concern over an ISFMP Policy Board decision. The MAFMC’s SOPP governs its decision-making process; it does not appear to have an internal appeals process per se other than that a member agency can file a minority report that is on the record (see section 7.4.1.5 Dispute Resolution Mechanisms for further information). Fishers or other stakeholders either can

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The states identified in this report have dispute resolution programs that are well established, and which offer appellants an opportunity to seek redress to a claim without recourse to the legal system which can be costly, adversarial, and time consuming. The state processes are highlighted below (from Table 26). SG 80 is likely met.

Organization Description Rhode Island A fisher can seek an adjudicatory hearing in order to contest an administrative decision (or enforcement action) by filing a request in writing with the clerk of Administrative Adjudication Division. The appeal process is subject to the provisions of the Administrative Procedures Act, Chapter 35 of Title 42. http://www.dem.ri.gov/programs/administrative New York Permit and Enforcement Hearings and Mediation Services are managed by the Office of Hearings and Mediation Services. https://www.dec.ny.gov/regulations/2398.html The public and regulated entities have the option, under Section 204 of the State Administrative Procedures Act and 6 NYCRR Part 619 to petition General Counsel of DEC for a ruling on the applicability of any regulation or statute which the Department enforces to any persons, property or state of facts, and, whether any action taken by the Department should be taken pursuant to a regulation. https://www.dec.ny.gov/regulations/29355.html Massachusetts Provisions of state law at G.L. c. 130, §§ 2 and 80, and G.L c.30A § 13 require that the Division of Marine Fisheries (DMF) provide permit holders with a fair hearing before an impartial Administrative Law Magistrate prior to suspending, revoking, not renewing or denying the transfer of any permit, license or certificate, including any regulated fishery permit endorsement issued by DMF's Director. The DMF maintains a record of all adjudication decisions back to 2003. https://www.mass.gov/service-details/learn-about-dmfs-administrative-law- process Connecticut The state Office of Adjudications conducts public hearings and ancillary proceedings on permit applications and enforcement actions in all matters under the commissioner's jurisdiction; and promotes negotiated settlement of disputed issues; and prepares fact finding, legal conclusions and recommendations for final decision by the commissioner. https://portal.ct.gov/DEEP/Adjudications/Office-of-Adjudications New Jersey The Office of Administrative Law provides the citizens of the state with a forum for the fair and impartial resolution of contested cases by independent administrative law judges who conduct hearings and render initial decisions. https://www.nj.gov/oal/index.shtml

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There is sufficient evidence to indicate that the management system or fishery acts proactively to avoid legal disputes or rapidly implements judicial decisions arising from legal challenges. MSC guidance states that “CABs may consider collective, participative and publicly accountable involvement in management of the fishery by a broad spectrum of local stakeholders of the fishery as potential evidence of the presence of proactive avoidance of legal disputes.” (GSA4.8). Public participation in the decision-making processes at the federal and state levels for the fishery is encouraged, facilitated and required, including as a component of various multi-year strategic plans and annual plans (refer to information for PI 3.1.2). The transparent and accountable consultation processes are supported by federal and state outreach programs that seek to create greater public and stakeholder awareness and understanding of the management measures and regulations. These programs are known to assist in minimizing the potential for legal disputes. SG 100 is likely met.

References

ASMFC/ISFMP Consultation Framework: http://www.asmfc.org/files/Meetings/2016AnnualMeeting/CompactRulesRegs_Feb2016.pdf; and http://www.asmfc.org/files/pub/TechnicalGuidanceDocument_Aug2019.pdf

MAFMC Statement of Organization, Practices and Procedures (2021): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/6037dc99fc433d019b5554d0/16142736 89932/2021-02-11_MAFMC-SOPP-final.pdf

MAFMC Public Comment Process: https://www.mafmc.org/public-comment

NOAA Fisheries/NMFS Procedures for Public Comment on FMPs: https://media.fisheries.noaa.gov/dam- migration/01-101-08.pdf

ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf

ASMFC and MAFMC Public Hearing Document (January 2021): Mid-Atlantic Fishery Management Council — Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment (mafmc.org)

NOAA National Standards Guidance: https://www.fisheries.noaa.gov/national/laws-and-policies/national- standard-guidelines

ASMFC Review of ISFMP for scup (2019 fishing season): http://www.asmfc.org/uploads/file/5f99d0112019_Scup_FMP_Review_approved.pdf MAFMC/NMFS. 2020. 2020-2021 Scup and Black Sea Bass Specifications: Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. March 2020: https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5f3d812abdb0ad033733d64b/ 1597866286497/FINAL_SBSB_2020-2021_specs_EA+Signed.pdf

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MAFMC Scup Fishery Information Document (June 2020): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ef2556b49622f07741782cb/159293988 4646/Scup_info_doc_2020.pdf

NOAA Fisheries Rule-Making Process: https://www.fisheries.noaa.gov/insight/understanding-how-federal- fishing-regulations-are-made

NOAA National Standard Guidelines: https://www.fisheries.noaa.gov/national/laws-and-policies/national- standard-guidelines

ASMFC Administrative Oversight Committee: http://www.asmfc.org/files/commissionerManual/AllOtherSections/8_OrgChart_ChairMemo_StandingCommM erged.pdf

Example: ASMFC Bluefish Board and Summer Flounder, Scup and Black Sea Bass Board & MAFMC Webinar August 11 - 12, 2020: http://www.asmfc.org/files/Meetings/ASMFC_Bluefish_SFlounderScupBSBBoard_MAFMCMtgSummary_Aug20 20.pdf

MAFMC SSC Meetings: https://www.mafmc.org/ssc-meeting

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information sufficient to score PI.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.2.3 – Compliance and enforcement

PI 3.2.3 Monitoring, control and surveillance mechanisms ensure the management measures in the fishery are enforced and complied with

Scoring Issue SG 60 SG 80 SG 100 a MCS implementation

Guide Monitoring, control and A monitoring, control and A comprehensive post surveillance mechanisms surveillance system has been monitoring, control and exist, and are implemented implemented in the fishery surveillance system has been in the fishery and there is a and has demonstrated an implemented in the fishery reasonable expectation that ability to enforce relevant and has demonstrated a they are effective. management measures, consistent ability to enforce strategies and/or rules. relevant management measures, strategies and/or rules. Met? Yes No No

Rationale:

Along the U.S. East Coast, enforcement activities (referred to as MCS - Monitoring, Control and Surveillance) are performed at two levels: (i) federal-states planning and coordination, and (ii) federal- states operations, usually in conjunction with the provisions of NOAA-OLE’s Cooperative Enforcement Program (CEP) through formal Joint Enforcement Agreements (JEAs) with state agencies. The USCG’s 1st and 5th Districts are equally active in monitoring fishing activities and enforcing federal fisheries regulations throughout the UoA .The state agencies featured in this report (NY, NJ, RI, CT and MA) have had enforcement and compliance programs in place for decades, including annual JEAs. . Aside from the JEAs, state agencies are mandated by state laws and regulations to carry out MCS activities within their respective maritime boundaries (0-3 nm or 0-9 nm). Both federal and state law enforcement programs extend well beyond the fishing activities associated with the commercial scup fishery to include the enforcement of wildlife, boating safety and environmental provisions as set out in enabling statutes and regulations. As a minimum, there is a reasonable expectation that the MCS mechanisms currently in place are effective. SG 60 is likely met.

The Federal and States MCS programs are well-established, consists of multi-faceted asset mixes for the most part (air, land and sea), have operational practices and policies to ensure fair and consistent enforcement actions, are linked to penalty frameworks supported by statutes, and are managed by experienced and professional staff.

There is sufficient evidence that the Federal and State MCS programs constitute a system within the meaning of the PI in that:

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▪ the ASMFC and the MAFMC have standing Law Enforcement Committees that are fully integrated within the structures of both organizations, and with specific mandates and accountabilities;

▪ the Federal and States programs are informed by operational policies, enforcement strategies and tactics, and penalty frameworks, and implemented by a corps of professional and accountable agents and managers;

▪ the Federal and some States programs are guided by strategic plans with operational goals and strategies; and

▪ the Federal and States enforcement agencies are equipped with a mix of assets that enable their personnel to enforce relevant management measures, strategies and/or rules.

For example, in their 2021 Action Plan, one of the ASMFC’s strategic goals is to promote compliance with FMPs to ensure sustainable use of Atlantic coast fisheries. Some of the listed strategies to achieve the goal include (i) annually review and comment on (as needed) NOAA Fisheries enforcement priorities to ensure they support the enforceability and effectiveness of Commission management programs, (ii) engage and support NOAA Fisheries and USFWS Offices of Law Enforcement, U.S. Department of Justice, and U.S. Coast Guard to facilitate the enforceability of Commission FMPs, and (iii) work to sustain financial support for JEAs.

The ASMFC’s operational policies and practices require that states take adequate measures to enforce aspects of their regulatory and management programs, and to report any major violations through the annual compliance reporting process. A state that fails to act accordingly runs the risk of being found out-of-compliance with the fisheries adopted management measures. While the Assessment team’s review of the compliance reports for 2019 and 2020 from all Atlantic states did not indicate the presence of major violations by the scup otter trawl fleets, the absence of state information on their marine enforcement activities in 2019 and 2020, and resulting outcomes, hampers the team’s ability to conclude that the program demonstrated the ability to enforce relevant fishery management measures, strategies and/or rules. SG 80 is not likely met.

The principal federal agencies have demonstrated a consistent ability to enforce relevant management measures, strategies and/or rules by virtue of their long-standing association with the commercial fisheries of the U.S. East Coast. While the Assessment team opted to focus the MCS statistics from the USCG and NOAA - OLE to the period immediately preceding this fishery assessment, there has been continuous reporting of MCS operational outcomes to the ASMFC and the MAFMC for an extended period of time. However, the absence of MCS operational outcomes for the 5 principal states hampers the team’s ability to draw a similar conclusion at this time. We conclude that SG 100 is likely not met.

Note: During a spring meeting of the ASMFC’s LEC in 2019, members discussed ways to measure the effectiveness of enforcement activities and methods to better target field enforcement work in the face of lower staffing levels and equipment requirements relative to metrics like fishing activity, population,

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Guide Sanctions to deal with non- Sanctions to deal with non- Sanctions to deal with non- post compliance exist and there is compliance exist, are compliance exist, are some evidence that they are consistently applied and consistently applied and applied. thought to provide effective demonstrably provide deterrence. effective deterrence. Met? Yes Yes No

Rationale:

A range of punitive measures, including sanctions, are prescribed in relevant federal and state statutes and administrative codes. They serve to guide decisions by law enforcement staff and prosecutors as to when to impose penalties, what the penalties should be, and whether to proceed with civil or criminal charges (for the more serious non-compliance situations).

At the federal level, NOAA’s Policy for the Assessment of Civil Administrative Penalties and Sanctions (June 2019) is intended to ensure that: (i) civil administrative penalties and permit sanctions are assessed in accordance with the laws that NOAA enforces in a fair and consistent manner; (ii) penalties and permit sanctions are appropriate for the gravity of the violation; (iii) penalties and permit sanctions are sufficient to deter both individual violators and the regulated community as a whole from committing violations; (iv) economic incentives for noncompliance are eliminated; and (v) compliance is expeditiously achieved and maintained to protect natural resources. The policy reflects the most recent adjustments to the maximum civil monetary penalties authorized under statutes administered and enforced by NOAA, pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (83 Fed. Reg. 706 (January 8, 2018)).

At the states level, policy or statutory frameworks are in place and they serve purposes similar to the federal scheme, For example,

▪ Connecticut: Civil Penalty Policy (2001), Enforcement Coordination Plan (2016), Enforcement Response Plan (1999);

▪ New York: Civil Penalty Policy (1990), Record of Compliance Policy (1993), Order on Consent Policy (2020);

▪ Rhode Island: Administrative Code, Title 250, Chapter 80, Part 6, and Chapter 130 (compliance and inspection);

▪ New Jersey: Statewide Violations Bureau Schedule, Section C.6.

The principal Federal and State agencies frequently disclose publicly the names of individuals whose commercial (or recreational) fishing privileges have been suspended or revoked, including any monetary fines that have been levied. Print and social media outlets do the same. The various sanction

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The SG 80 level requires that sanctions to deal with non-compliance exist, are consistently applied and thought to provide effective deterrence. Sanctions do exist as described. Enforcement officials and prosecutors are guided by statutes and policies when deciding if/when sanctions are warranted, and what type of sanction is the most appropriate for each offence. These tools ensure that when sanctions are levied, their application is fair, consistent and intended to dissuade others from engaging in unauthorized activities. They also serve to support the management system’s conservation objectives of marine resources and their habitat. It is logical to conclude that sanctions are designed to have a positive deterrence impact when applied. SG 80 is likely met.

However, while federal and state sanctions exists, are consistently applied, and thought to provide effective deterrence, there lacks sufficient information or supporting analyses to establish that they demonstrably provide effective deterrence. Accordingly, SG 100 is likely not met at this time. c Compliance

Guide Fishers are generally thought Some evidence exists to There is a high degree of post to comply with the demonstrate fishers comply confidence that fishers management system for the with the management comply with the fishery under assessment, system under assessment, management system under including, when required, including, when required, assessment, including, providing information of providing information of providing information of importance to the effective importance to the effective importance to the effective management of the fishery. management of the fishery. management of the fishery. Met? Yes Yes No

Rationale:

It is common knowledge that fishers have a vested interest in ensuring conservation and sustainability of marine fisheries and habitat. They are known to contribute their traditional knowledge, experience, and time to assist resource management and science staff through the auspices of formal and informal collaborative arrangements. This extends to participating in various federal and state agency-led committee deliberations including as members of advisory panels of the Council and Commission where management measures for the fishery are under consideration.SG 60 is likely met.

The U.S. commercial scup fishery of the UoA includes a range of federal and state regulations and administrative processes that fishers are required to comply with. For example, fishers are required to complete and provide information to authorities when applying for permits, or to accurately complete and submit on a timely basis Vessel Trip Reports of their catch and discards, to facilitate the onboard work of observers who may be deployed to their vessels, and to comply with instructions given by law enforcement agents. Fishers are also known to give of their time and lend their knowledge and experience in support of the fisheries management activities and workings of the ASMFC and the

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MAFMC as well as local state agencies. Their contributions are regularly sought out by the agencies. SG 80 is likely met.

Currently, information is lacking that would enable the team to have a high degree of confidence that fishers comply with the management system under assessment. The team will endeavor to acquire additional information during the site visits phase of the assessment. Therefore, at this time, SG 100 is likely not met.

d Systematic non-compliance

Guide There is no evidence of post systematic non-compliance. Met? Yes

Rationale:

“Systemic” within the MSC Fisheries Standard is understood to mean occurring on a regular or ongoing basis. There is no quantitative evidence (e.g., level of recidivism) at this stage in the assessment process to indicate that the commercial scup fishery within the UoA is the subject of systemic non-compliance. However, emailed information provided to the team by the ASMFC indicated that there have been very few commercial fishery violations, that they tended to be for minor trip limit violations, and were inadvertent or unintentional. SG 80 is likely met.

References

ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf

Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions NOAA Office of General Counsel - Enforcement Section: https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN- June242019.pdf

Email from ASMFC’s Interstate Scup FMP Coordinator, May 7, 2021.

ASMFC LEC Meeting Summary (April 30 - May 1, 2019): http://www.asmfc.org/files/LEC/LEC_MeetingSummary_Spring2019.pdf

Refer to section 7.4.1.7 of the report for additional background information.

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range 60-79 Information gap indicator Information to demonstrate a consistent ability to enforce relevant management measures, strategies and/or rules for the scup fishery; information of a high degree of confidence that fishers comply with the management system under assessment; information

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that sanctions demonstrably provide effective deterrence.

Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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PI 3.2.4 – Monitoring and management performance evaluation

PI 3.2.4 There is a system of monitoring and evaluating the performance of the fishery‐specific management system against its objectives There is effective and timely review of the fishery‐specific management system

Scoring Issue SG 60 SG 80 SG 100 a Evaluation coverage

Guide There are mechanisms in There are mechanisms in There are mechanisms in post place to evaluate some parts place to evaluate key parts of place to evaluate all parts of of the fishery-specific the fishery-specific the fishery-specific management system. management system. management system. Met? Yes Yes Yes

Rationale

MSC Guidance to the Fisheries Standard (v2.01, August 2018) stipulates that this PI is focused on whether the management system has a process of monitoring and evaluating management performance … relevant to the fishery-specific management and supporting structures that are able to effect change. It is not intended to re-assess the efficacy of the previous PIs. Further guidance (GSA4.10) assists assessors in determining which parts of the fishery-specific management system “may” be reviewed. The parts and associated mechanisms selected by the Assessment team include: (i) the decision-making process, (ii) data collection, (iii) scientific research, (iv) compliance and enforcement, and (v) responding to feedback and responses. The ASMFC-led review of the ISFMP’s commercial scup fishery component is a statutory requirement under the MSFCMA, and as authorized by Article IV of the Commission’s Rules and Regulations. The review is overseen by the Commission’s Summer Flounder, Scup and Black Sea Bass Management Board under the authority of the Atlantic Coastal Fisheries Cooperative Management Act. Two of the ISFMP program’s 5 major objectives require that the Board (i) develop, monitor and review FMPs, and (ii) monitor compliance with approved FMPs. SG 60 is likely met. The Management Board establishes and oversees the activities of the PDT, PRT, TC and AP. It also makes changes to the management program under adaptive management, reviews state programs implementing an amendment, and approves alternative state programs through conservation equivalency. The following units participate in the annual plan review process, consistent with their assigned roles and responsibilities as described at Section 7.4.1.2.2.

▪ PD and PR Teams are comprised of personnel from federal and state agencies who have scientific and management ability and knowledge of the scup resource, and who provide annual advice concerning the implementation, review, monitoring, and enforcement of amendments.

▪ AP for scup includes traditional stakeholders as well as individuals with a broader range of interests. Its’ role is to provide input throughout the entire fishery management process from plan initiation through development and into implementation.

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▪ TC for scup consists of representatives from federal and state agencies, the Council and Commission, and academia or other specialized personnel with scientific and technical expertise and knowledge. Its’ role is to assess the specie’s population, provide scientific advice concerning the implications of proposed or potential management alternatives.

▪ SAS for scup reports to the TC and consists of members from the TC with appropriate expertise in stock assessment and fish population dynamics for the species under assessment.

▪ MSC provides advice to the Management Board concerning fisheries management and the science of coastal marine fisheries. It oversees the ASMFC’s stock assessment peer review process, reviews and provide advice on species-specific issues, and evaluates and provides guidance to fisheries managers on multi-species and ecosystem issues.

▪ ASC reviews and recommends changes to the update and benchmark stock assessment schedule, and provides stock assessment advice and guidance to the TC and Board.

▪ HC develops the habitat components of FMP, and advises the Board on approaches to enhance and cooperatively manage vital fish habitat for conservation, restoration and protection.

▪ LEC responds to specific requests from the Board and any of the Commission’s committees; brings resolutions to address enforcement concerns, coordinates enforcement efforts among states, exchanges data, identifies potential enforcement problems, and monitors enforcement of measures incorporated into the FMP.

▪ CESS provides technical oversight for both the ISFMP and the ACCSP by developing and implementing mechanisms to make economic and social science analysis a functioning part of the decision- making process, and undertaking technical reviews for social and economic analyses conducted by the ASMFC and the ACCSP program. There is sufficient information to indicate that these longstanding committees are a highly functional and effective mechanism for evaluating the key parts of the fishery-specific management system. SG 80 is likely met. Within the UoA for the scup fishery, both the MAFMC and, to a lesser extent, the NEFMC participate in the annual review of the plan’s management measures that apply in federally-managed waters (3-200 nm). The tasks are supported by standing committees like the Fishery Management Action Teams (FMATs), Monitoring Committees (MCs), Scientific and Statistical (SSC), Advisory Panels (APs), and other fora, all of which have defined roles and responsibilities as described at Section 7.4.1.2.2. Officials with NOAA Fisheries also contribute to specific components within their areas of responsibility. For example, NOAA Fisheries reviews all regulatory proposals advanced by the ASMFC (and MAFMC) based upon its rule-making mechanism prior to formal ratification, and the NEFSC reviews various biological, population and ecological parameters inherent within the fishery’s management system. The agency’s contribution to the review process is informed by a series of policies and supporting guidelines as described at Section 7.4.1.10.1 of this report.

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The direct participation of these agencies in the review process, with their additional internal policy review guidelines, is sufficient evidence to indicate that the collective involvement of all agencies is capable of evaluating all parts of the fishery-specific management system. SG 100 is likely met. Supplementary rationale in support of scoring Sia. Collectively, the aforementioned agencies constitute the required supporting structures whose organizational elements consist of well-established committees and other forums with defined roles and responsibilities. It bears repeating that while the annual review is a process onto itself, the organizational structures of the parties are active throughout the year in monitoring and evaluating the performance of various parts of the management system, including amendments and adaptive measures as required. The evidence of this is provided by the range of topics that are discussed at regular meetings of the Commission and Council. Officials work in close partnership to inform the decision-making part of the interstate’s management system based on established administrative and operational procedures and policies. An important by- product of this work is the requirement to respond to feedback and responses from interested or affected parties as also stipulated in the procedures and policies. NOAA’s Northeast Fisheries Science Centre (NEFSC) maintains a close working partnership with staff of the ASMFC, the MAFMC, Atlantic states from Maine to Cape Hatteras, NC., the fishing industry, and stakeholders. Its mission is based heavily on scientific research. As such, it is the lead agency for undertaking benchmark assessments of the scup population in the UoA’s geographical area, and providing science-based advice in support of various FMPs including scup. It also carries out important environmental monitoring and analyses activities in regard to advancing species conservation and protecting their habitat, contributing to the possible establishment of new marine protected areas, contributing to the development of ecosystem-based fisheries management models, participating directly in the protection of species conservation and habitat, and researching climate changes impacts The data collection component captures a range of fishery-specific information throughout the fishing season from federal and state agencies, fishers and permitted dealers The data is used in support of in- season decisions regarding harvesting activities, quota monitoring, and allocation transfers between states and licenced fishers. Effective management depends on quality fishery-dependent data (e.g., information collected from commercial fisheries, such as landings, effort, or discards) and fishery-independent data (e.g., information collected through monitoring programs and research surveys) to inform stock assessments and fisheries management decisions. The focal point for coordinating the fishery-dependent data that are generated by the 23 agencies responsible for fisheries management on the Atlantic falls to the Atlantic Coastal Cooperative Statistics Program (ACCSP), a full-fledged program overseen by the ASMFC. It is reported that data utility has been strengthened through the program’s achievements of developing and implementing coastwide data standards, integrating and sharing partner data on a coastwide basis, and facilitating fisheries data access while protecting confidentiality. The review considers information derived from the MAFMC’s SAFE Report (Stock Assessment/Fishery Evaluation), a regularly updated product that summarizes the most current scientific information on

Version 6-0 (September 2020) | © SCS Global Services | MSC V1.2 Atlantic Scup Trawl Fishery Assessment Page 286 of 335 SCS Global Services Report the fishery (50 CFR 600.315(e)). Its advisory panels develop Fishery Performance Reports (FPR) each year to provide the Council and the SSC with an annual description of the factors that influenced fishing effort and catch within each of the Council’s fisheries. These reports are intended to summarize fishermen's "on-the-water" perspectives, including information about fishing effort, market trends, and environmental changes, and other factors that may not be fully accounted for in the stock assessment process. The contextual information provided in these reports can become particularly important during the process of setting quotas for data-poor stocks. Listed below each FPR is a Fishery Information Document (FID) for each species managed under the fishery management plan. The purpose of the FID is to summarize the most recent catch, landings, and effort data. (Note: Data Sources for Fishery Information Documents are generally from unpublished NMFS Survey, Dealer, VTR, Permit, and MRFSS databases and should be considered preliminary.) The ASMFC’s and MAFMC’s Law Enforcement Committees are well-suited to monitor and evaluate the performance of the fishery’s compliance and enforcement if requested by the Commission’s ISFMP Policy Board. States are already required to file annual compliance reports of the management measures that were adopted by the Commission. The team understands that only major violations are required to be included in the reports. The team’s review of the compliance reports from all states for 2019 and 2020 indicated that no major violations were reported. b Internal and/or external review

Guide The fishery-specific The fishery-specific The fishery-specific post management system is management system is management system is subject to occasional subject to regular internal subject to regular internal internal review. and occasional external and external review. review. Met? Yes Yes No

Rationale:

As indicated, the management system for the commercial scup fishery undergoes regular pre-season, in-season and post-season internal reviews by the standing and supporting committees of the ASMFC and the MAFMC (with contributions from NOAA Fisheries which has its own internal review process). New initiatives and a broad cross-section of current programs are regularly discussed at public meetings of both agencies, and these serve to inform the review process.

The ASMFC’s internal annual review of the ISFMP for scup typically is initiated by the PRT. The review includes status updates to the FMP, the stock, the fishery, assessment advice, research and monitoring, management measures and developing issues, compliance criteria, and compliance reporting by states (including implementation of FMP requirements). The internal review is carried out with participation from the membership of the MAFMC, NOAA Fisheries (NMFS and NEFMC), and stakeholders.

This particular review is mandated by statutes and informed by the practices and policies of both organizations. States participate in the review by virtue of their membership on the contributing committees. SG 60 is likely met.

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There are some examples of occasional external review of the management system by agencies that are deemed to be “external” as defined by MSC Guidance to the Fisheries Standard (v2.01, GSA4.10.1). Qualifying agencies could be:

▪ Another department within an agency;

▪ Another agency or organization within the country;

▪ A government audit that is external to the fisheries management agency;

▪ A peer organization nationally or internationally, and;

▪ External expert reviewers. Occasional external reviews of parts of the management system thus include:

▪ U.S. Congressional and State Senate or House reviews/public hearings by select committees;

▪ Federal and State Offices of Inspectors General in accordance with statutory exigencies;

▪ Independent peer reviews of scientific research prior to publication; and

▪ District, State or Federal Courts in the case of management measures or regulations.

SG 80 is likely met.

However, there is insufficient evidence at this juncture to demonstrate that the management system is subject to “regular” external review. For this reason, SG 100 is likely not met.

References

ASMFC Review of ISFMP for scup (2019 fishing season): http://www.asmfc.org/uploads/file/5f99d0112019_Scup_FMP_Review_approved.pdf

MAFMC Scup Fishery Information Document (June 2020): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ef2556b49622f07741782cb/159293988 4646/Scup_info_doc_2020.pdf

Meeting agendas, minutes and backgrounders - MAFMC and ASMFC Committees and Sub- committees.

Atlantic Coastal Cooperative Statistic Program: http://www.asmfc.org/data/program-overview

Refer to sections 7.4.1.2.2 and 7.4.1.10 of the report for additional background information.

Draft scoring range and information gap indicator added at Announcement Comment Draft Report Draft scoring range ≥80

Information gap indicator Information that the management system is subject to regular external review.

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Overall Performance Indicator scores added from Client and Peer Review Draft Report Overall Performance Indicator score

Condition number (if relevant)

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9 Appendices

9.1 Assessment information

9.1.1 Small-scale fisheries Table 36. Small-scale fisheries Unit of Assessment (UoA) Percentage of Percentage vessels with length of fishing <15m activity completed within 12 nautical miles of shore All licensed demersal otter trawl vessels with Federal and/or State Approx.. 20% Not permits to land scup harvested from North Carolina through dosclosed Maine, subject to management by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC) . Table 37. Audit Plan: Key Meetings and Locations

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9.2.3 Evaluation techniques

Scoring Methodology

The assessment team followed guidelines in MSC FCP v2.2 Section 7.10 “Scoring the fishery”. Scoring in the MSC system occurs via an Analytical Hierarchy Process and uses decision rules and weighted averages to produce Principle Level scores. There are 28 Performance Indicators (PIs), each with one or more Scoring Issues (SIs). Each of the scoring issues is considered at the 60, 80, and 100 scoring guidepost levels. The decision rule described in Table 38 determines the Performance Indicator score, which must always be in an increment of 5. If there are multiple ‘elements134’ under consideration (e.g. multiple main primary species), each element is scored individually for each relevant PI, then a single PI score is generated using the same set of decision rules described in Table 38.

Table 38. Decision Rule for Calculating Performance Indicator Scores based on Scoring Issues, and for Calculating Performance Indicator Scores in Cases of Multiple Scoring Elements. (Adapted from MSC FCPV2.2 Table 4) Score Combination of individual SIs at the PI level, and/or combining multiple element PI scores into a single PI score. <60 Any scoring element/SI within a PI which fails to reach SG60 shall not be assigned a score as this is a pre-condition to certification. 60 All elements (as scored at the PI level) or SIs meet SG60 and only SG60. 65 All elements/SIs meet SG60; a few achieve higher performance, at or exceeding SG80, but most do not meet SG80. 70 All elements/SIs meet SG60; half* achieve higher performance, at or exceeding SG80, but some do not meet SG80 and require intervention action to make sure they get there. 75 All elements/SIs meet SG60; most achieve higher performance, at or exceeding SG80; only a few fail to achieve SG80 and require intervention action. 80 All elements/SIs meet SG80, and only SG80. 85 All elements/SIs meet SG80; a few achieve higher performance, but most do not meet SG100. 90 All elements/SIs meet SG80; half achieve higher performance at SG100, but some do not. 95 All elements/SIs meet SG80; most achieve higher performance at SG100, and only a few fail to achieve SG100. 100 All elements/SIs meet SG100. *MSC FCPV2.2 uses the word ‘some’ instead of half. SCS considers ‘half’ a clearer description of the methodology utilized.

134 MSC FCPV2.1 7.10.7: In Principle 1 or 2, the team shall score PIs comprised of differing scoring elements (species or habitats) that comprise part of a component affected by the UoA.

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When calculating the Principal Indicator scores based on the results of the Scoring Issues (SI), SCS interprets the terms in Table 2 as follows: ▪ Few: Less than half. Ex: if there are a total of three SIs, one SI out of 3 is considered few. ▪ Some: Equal to half. Ex: if there are a total of four SIs, two SIs out of 4 is considered some. ▪ Most: More than half. Ex: if there are a total of three SIs, two SIs out of 3 is considered most.

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9.3 Peer Review reports To be drafted at Public Comment Draft Report stage.

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9.4 Stakeholder input

To be included at the Client and Peer Review Draft Stage. Stakeholder input at the ACDR stage will be posted on the MSC database.

Table 39. Summary of Stakeholder Submissions

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9.5 Conditions

9.5.1 New conditions & Client Action Plan To be added at the Client and Peer Review Draft stage.

Table 40 Condition X NEW

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9.6 Client Action Plan

To be drafted at Public Comment Draft Report stage.

9.7 Surveillance

To be drafted at Client and Peer Review Draft Report stage.

Table 41. Fishery surveillance audit Table 42. Timing of surveillance audit

Table 43. Surveillance level rationale

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9.8 NEFOP dataset

Table 44. Catch summary of all species observed in bottom trawls from 2015 to 2020 (NEFOP data). Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Stenotomus Scup 6,370,909 38.566 23.1 Target MAFMC chrysops Dogfish, Squalus NEFMC / 1,430,063 8.657 97.3 Primary- main Spiny acanthias MAFMC Skate, Little Raja eriancea 1,055,124 6.387 98.1 Primary- main MAFMC Skate, Raja ocellata 998,133 6.042 75.1 Primary- main MAFMC Winter Flounder, Paralichthys 944,624 5.718 15.8 Primary- main MAFMC Summer dentatus Sea Bass, Centropristis MAFMC/ 746,294 4.518 36.4 Primary-minor Black striata ASMFC Squid, Atl Loligo pealei 740,906 4.485 5.9 Primary-minor MAFMC Long-Fin Merluccius Hake, Silver 613,993 3.717 33.0 Primary-minor MAFMC bilinearis Sea Robin, Prionotus 523,174 3.167 99.8 Secondary-minor N/A Northern carolinus Lophius Monkfish 513,068 3.106 63.9 Primary-minor MAFMC americanus Peprilus Butterfish 421,661 2.553 72.1 Primary-minor MAFMC triacanthus Skate, Nk Rajidae 218,028 1.320 46.6 Primary-minor MAFMC Dogfish, Mustelus canis 214,569 1.299 77.3 Primary-minor ASMFC/NOAA Smooth Urophycis Hake, Red 170,328 1.031 85.4 Primary-minor MAFMC chuss Skate, Raja 145,587 0.881 98.1 Primary-minor MAFMC Clearnose eglanteria Hake, Urophycis 141,205 0.855 92.8 Secondary-minor N/A Spotted regia Sea Robin, Prionotus 138,704 0.840 97.7 Secondary-minor N/A Striped evolans Skate, Raja laevis 126,900 0.768 99.8 Primary-minor MAFMC Barndoor Fish, Nk Osteichthyes 115,408 0.699 93.6 Secondary-minor N/A

135 This column includes the management agency responsible for setting reference points when a species has been classified as Primary. Note: some shark species managed by the ASMFC do not have reference points because they are catch prohibited or status unknown. agency responsible for setting reference points

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Squid, Short- Illex 102,882 0.623 80.2 Primary-minor MAFMC Fin illecebrosus Flounder, Paralichthys 101,885 0.617 99.8 Secondary-minor N/A Fourspot oblongus Patinopecten, Scallop, Sea 55,682 0.337 81.1 Primary-minor MAFMC placopecten sp Mackerel, Scomber 54,619 0.331 29.0 Primary-minor MAFMC Atlantic scombrus Urophycis, Hake, Nk merluccius, 48,878 0.296 43.5 Secondary-minor N/A physicis sp Pomatomus MAFMC/ Bluefish 48,096 0.291 5.4 Primary-minor saltatrix ASMFC Flounder, Pleuronectes MAFMC/NEF 46,519 0.282 82.3 Primary-minor Winter ( americanus MC Skate, Little/Winter Leucoraja 43,719 0.265 93.9 Primary-minor MAFMC , Nk Flounder, Sand Dab Scophtalmus 31,402 0.190 98.9 Primary-minor MAFMC (Windowpan aquosus e) Starfish, Asteroidea 26,835 0.162 100.0 Secondary-minor N/A Seastar,Nk Ovalipes Crab, Lady 24,034 0.145 100.0 Secondary-minor N/A ocellatus Mustelus, Dogfish, Nk 21,568 0.131 100.0 Secondary-minor N/A squalus sp Cynoscion Weakfish 20,052 0.121 59.2 Primary-minor ASMFC regalis Croaker, Micropogonias 19,746 0.120 9.3 Primary-minor ASMFC Atlantic undulatus Morone Bass, Striped 15,499 0.094 93.5 Primary-minor ASMFC saxatilis Shad, Alosa 14,017 0.085 99.6 Secondary-minor N/A American sapidissima Cancer Crab, Jonah 13,844 0.084 95.8 Secondary-minor N/A borealis Stingray, Dasyatis 13,619 0.082 100.0 Secondary-minor N/A Roughtail centroura Alosa Alewife pseudohareng 13,220 0.080 99.5 Secondary-minor N/A us

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Dory, Zenopsis Buckler 12,038 0.073 17.1 Secondary-minor N/A conchifera (John) Herring, Clupea 10,277 0.062 86.4 Primary-minor NEFMC Atlantic harengus Ray, Torpedo 9,199 0.056 100.0 Secondary-minor N/A Torpedo nobiliana Melanogramm Haddock 8,938 0.054 97.8 Primary-minor MAFMC us aeglefinus Flounder, Pleuronectes 6,947 0.042 25.9 Primary-minor MAFMC Yellowtail ferrugineus Shark, Cetorhinus 6,080 0.037 100.0 Primary-minor ASMFC/NOAA Basking maximus Shell, Nk Shell 5,883 0.036 93.7 Secondary-minor N/A Cancer Crab, Rock 5,510 0.033 99.1 Secondary-minor N/A irroratus Menhaden, Brevoortia 5,492 0.033 91.2 Primary-minor ASMFC Atlantic tyrannus Squid, Nk Loliginidae 5,187 0.031 30.9 Secondary-minor N/A Shark, Carcharhinus 4,661 0.028 100.0 Primary-minor ASMFC/NOAA Sandbar plumbeus Sponge, Nk Porifera 4,603 0.028 100.0 Secondary-minor N/A Crab, Spider, Libinia pelia sp 4,480 0.027 100.0 Secondary-minor N/A Nk Shark, Atl Rhizoprionodo 4,477 0.027 100.0 Primary-minor ASMFC/NOAA Sharpnose n terraenova Lobster, Homarus 4,378 0.027 79.3 Primary-minor ASMFC American americanus Shark, Alopias 4,338 0.026 84.4 Primary-minor ASMFC/NOAA Thresher vulpinus Flounder, Glyptocephalu Witch (Grey 4,271 0.026 98.3 Primary-minor MAFMC s cynoglossus Sole) Sea Robin, Triglidae sp 4,125 0.025 95.5 Secondary-minor N/A Nk Tautog Tautoga onitis 3,608 0.022 86.9 NA ASMFC Skate, Raja garmani 3,473 0.021 99.7 Primary-minor MAFMC Rosette Herring, Etrumeus teres 3,299 0.020 100.0 Secondary-minor N/A Round Herring, Nk Clupeidae 3,099 0.019 78.3 Secondary-minor N/A Sea Robin, Peristedion 2,810 0.017 100.0 Secondary-minor N/A Armored miniatum Urophycis Hake, White 2,665 0.016 87.3 Primary-minor MAFMC tenuis

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Lopholatilus Tilefish, chamaeleontic 2,485 0.015 37.0 Primary-minor MAFMC Golden eps Flounder, Citharichthys 2,191 0.013 100.0 Secondary-minor N/A Gulfstream arctifrons Crab, Limulus 2,096 0.013 81.3 Secondary-minor N/A Horseshoe polyphemus Kingfish, Menticirrhus 1,992 0.012 40.1 Secondary-minor N/A Northern saxatilis Mola, Ocean Mola mola 1,625 0.010 100.0 Secondary-minor N/A Sunfish Herring, Alosa 1,492 0.009 100.0 Secondary-minor N/A Blueback aestivalis Mytilus Mussel, Nk 1,202 0.007 100.0 Secondary-minor N/A modiolus sp Macrozoarces Ocean Pout 1,182 0.007 99.3 Primary-minor MAFMC americanus Prohibited Galeocerdo Shark, Tiger 1,124 0.007 100.0 Primary-minor under cuvier ASMFC/NOAA Shark, Lamna nasus 1,074 0.007 82.0 Primary-minor ASMFC/NOAA Porbeagle Conger Eel, Conger 1,071 0.006 32.8 Secondary-minor N/A oceanicus Ray, Myliobatis 1,044 0.006 100.0 Secondary-minor N/A Bullnose freminvillei Whelk, Nk, Melongenidae 1,025 0.006 4.2 Secondary-minor N/A Conch Quahog, Artica 967 0.006 100.0 Primary-minor MAFMC Ocean islandica Leiostomus Spot 914 0.006 99.9 Primary-minor ASMFC xanthurus Stingray, Nk Dasyatidae 897 0.005 100.0 Secondary-minor N/A Boarfish, Antigonia 844 0.005 100.0 Secondary-minor N/A Deepbody capros Moonfish, Selene 775 0.005 100.0 Secondary-minor N/A Atlantic setapinnis Tilefish, Caulolatilus 715 0.004 24.3 Primary-minor MAFMC Blueline microps Shark, Nk Squaliformes 670 0.004 100.0 Primary-minor ASMFC/NOAA Polymixia Beardfish 608 0.004 100.0 Secondary-minor N/A lowei Sculpin, Myoxocephalu 602 0.004 100.0 Secondary-minor N/A Longhorn s

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 octodecimspin osus Hake, Red/White Urophycis sp 600 0.004 0.0 Secondary-minor N/A Mix Whelk, Busycon carica 582 0.004 16.3 Secondary-minor N/A Knobbed Ray, Gymnura Butterfly, 578 0.003 100.0 Secondary-minor N/A altavela Spiny Cod, Atlantic Gadus morhua 569 0.003 22.1 Primary-minor NOAA/NEFMC Stingray, Dasyatis 551 0.003 100.0 Secondary-minor N/A Southern americana Kingfish, Menticirrhus 548 0.003 23.7 Secondary-minor N/A Southern americanus Scorpionfish, Scorpaenidae 543 0.003 90.8 Secondary-minor N/A Nk Starfish, Ophiuroidea 524 0.003 100.0 Secondary-minor N/A Brittle,Nk Scallop, Nk Pectinidae 473 0.003 17.5 Secondary-minor N/A Herring, Alosa 468 0.003 100.0 Secondary-minor N/A River Squid Eggs, Loligo paelei 466 0.003 100.0 Secondary-minor N/A Atl Long-Fin (eggs) Shark, Carcharhinus Carcharhinid 430 0.003 100.0 Primary-minor ASMFC/NOAA sp ,Nk Shark, Blue Prionace 400 0.002 100.0 Primary-minor ASMFC/NOAA (Blue Dog) glauca Shark, Hammerhea Sphyrna lewin 400 0.002 100.0 Primary-minor ASMFC/NOAA d, Scalloped Shell, n/a 399 0.002 100.0 Secondary-minor N/A Scallop Crab, Spider, Libinia 397 0.002 100.0 Secondary-minor N/A Portly emarginata Sea Urchin, Strongylocentr 391 0.002 100.0 Secondary-minor N/A Nk otus sp Flounder, Hippoglossoid American 367 0.002 100.0 Primary-minor MAFMC es platessoides Plaice Trachurus Scad, Rough 366 0.002 100.0 Secondary-minor N/A lathami Swordfish Xiphias gladius 361 0.002 8.3 Secondary-minor N/A Bone, Nk Bones 342 0.002 100.0 Secondary-minor N/A

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Pleuronectifor Flounder, Nk 316 0.002 100.0 Secondary-minor N/A mes Bonito, Sarda sarda 315 0.002 25.8 Secondary-minor N/A Atlantic Jellyfish, Nk Scyphozoa 310 0.002 100.0 Secondary-minor N/A Prohibited Carcharhinus Shark, Dusky 300 0.002 100.0 Primary-minor under obscurus ASMFC/NOAA Whiting, Merluccius Black (Hake, 291 0.002 23.5 Primary-minor MAFMC albidus Offshore) Prohibited Carcharodon Shark, White 280 0.002 100.0 Primary-minor under carcharias ASMFC/NOAA Triggerfish, Balistidae 270 0.002 60.2 Secondary-minor N/A Nk Shark, Isurus Mako, 260 0.002 100.0 Primary-minor ASMFC/NOAA oxyrinchus Shortfin status Shark, Lamniformes 250 0.002 100.0 Primary-minor unknown by Pelagic ASMFC/NOAA Mola, Nk Molidae 250 0.002 100.0 Secondary-minor N/A Synodontidae Lizardfish 242 0.001 100.0 Secondary-minor N/A sp Tetraodontida Puffer, Nk 217 0.001 98.2 Secondary-minor N/A e Prohibited Shark, Sand Odontaspis 207 0.001 100.0 Primary-minor under Tiger taurus ASMFC/NOAA Stingray, Dasyatis say 206 0.001 100.0 Secondary-minor N/A Bluntnose Prohibited Shark, Atl Squatina 196 0.001 100.0 Primary-minor under Angel dumerili ASMFC/NOAA Crab, Paguroidea sp 188 0.001 100.0 Secondary-minor N/A Hermit, Nk Clapper, n/a 182 0.001 100.0 Secondary-minor N/A Scallop Cusk-Eel, Nk Ophidiidae 162 0.001 100.0 Secondary-minor N/A Shrimp, Haliotidae 155 0.001 100.0 Secondary-minor N/A Mantis

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 status Carcharhinus Shark, Silky 150 0.001 100.0 Primary-minor unknown by falciformis ASMFC/NOAA Flounder, Bothidae 143 0.001 100.0 Secondary-minor N/A Lefteye, Nk Hagfish, Myxine 141 0.001 100.0 Secondary-minor N/A Atlantic glutinosa Shad, Alosa 128 0.001 100.0 Secondary-minor N/A Hickory mediocris Hake, Urophycis 114 0.001 100.0 Secondary-minor N/A Southern floridana Hemitripterus Raven, Sea 113 0.001 93.3 Secondary-minor N/A americanus Anemone, Anthozoa 110 0.001 100.0 Secondary-minor N/A Nk Whelk, Busycon 108 0.001 50.0 Secondary-minor N/A Channeled canaliculatium Mollusca n/a 107 0.001 100.0 Secondary-minor N/A Eggs, Nk Menticirrhus Kingfish, Nk 105 0.001 89.6 Secondary-minor N/A sp Echinarachnius Sand Dollar 104 0.001 100.0 Secondary-minor N/A parma Rachycentron Cobia 103 0.001 100.0 Primary-minor ASMFC canadum Callinectes Crab, Blue 91 0.001 99.7 Secondary-minor N/A sapidus Orthopristis Pigfish 90 0.001 100.0 Secondary-minor N/A chrysoptera Mackerel, Atlantic Scomber colias 90 0.001 92.1 Secondary-minor N/A Chub Redfish, Sebastes 87 0.001 72.3 Primary-minor MAFMC Acadian fasciatus Malacanthida Tilefish, Nk 83 0.001 7.0 Secondary-minor N/A e Ray, Gymnura sp 75 <0.001 100.0 Secondary-minor N/A Butterfly, Nk Cunner Tautogolabrus (Yellow 75 <0.001 86.3 Secondary-minor N/A adspersus Perch) Eggs, Elasmobranc n/a 71 <0.001 100.0 Secondary-minor N/A h, Nk

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Mackerel, Scomberomor 69 <0.001 79.8 Secondary-minor N/A King us cavalla Snail, Moonshell, Naticidae 66 <0.001 100.0 Secondary-minor N/A Nk Mackerel, Scomber 65 <0.001 0.0 Secondary-minor N/A Nk scombrus Cutlassfish, Trichiurus 63 <0.001 75.2 Secondary-minor N/A Atl lepturus Crab, Cancer sp 57 <0.001 64.7 Secondary-minor N/A Cancer, Nk Ray, Rhinoptera 55 <0.001 100.0 Secondary-minor N/A Cownose bonasus Snipefish, Macrorampho 54 <0.001 100.0 Secondary-minor N/A Longspine sus scolopax Drum, Larimus 53 <0.001 100.0 Secondary-minor N/A Banded fasciatus Hake, Urophycis 53 <0.001 100.0 Secondary-minor N/A Longfin chesteri Puffer, Sphoeroides 52 <0.001 100.0 Secondary-minor N/A Northern maculatus Crytacanthode Wrymouth 50 <0.001 100.0 Secondary-minor N/A s maculatus Crab, True, Brachyura 50 <0.001 100.0 Secondary-minor N/A Nk Clapper, Nk n/a 49 <0.001 100.0 Secondary-minor N/A Runner, Blue Caranx crysos 47 <0.001 100.0 Secondary-minor N/A Clapper, n/a 43 <0.001 100.0 Secondary-minor N/A Clam Invertebrate n/a 41 <0.001 100.0 Secondary-minor N/A , Nk Skate, Raja radiata 41 <0.001 100.0 Primary-minor MAFMC Thorny Rosefish, Helicolenus 39 <0.001 100.0 Secondary-minor N/A Black Belly dactylopterus Whelk, True Buccinidae 38 <0.001 42.0 Secondary-minor N/A Unc Shrimp, Nk Caridea 38 <0.001 38.8 Secondary-minor N/A Snail, Nk Gastropoda 37 <0.001 96.5 Secondary-minor N/A Pollachius Pollock 36 <0.001 10.6 Primary-minor MAFMC virens Amberjack, Seriola sp 34 <0.001 35.7 Secondary-minor N/A Nk Eel, Nk Anguilliformes 34 <0.001 61.5 Secondary-minor N/A

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Skate, Raja senta 33 <0.001 100.0 Primary-minor MAFMC Smooth Octopus, Nk Octopus sp 32 <0.001 95.6 Secondary-minor N/A Filefish, Nk Balistidae 31 <0.001 100.0 Secondary-minor N/A Trinectes Hogchocker 30 <0.001 100.0 Secondary-minor N/A maculatus Clapper, Ocean n/a 29 <0.001 100.0 Secondary-minor N/A Quahog Brosme Cusk 28 <0.001 96.4 Secondary-minor N/A brosme Euthynnus Tuna, Nk 27 <0.001 100.0 Secondary-minor N/A thunnus sp status Shark, Carcharhinus 25 <0.001 100.0 Primary-minor unknown by Spinner brevipinna ASMFC/NOAA Tuna, Thunnus 24 <0.001 0.0 Secondary-minor N/A Albacore alalunga Jack, Nk Carangidae 23 <0.001 87.0 Secondary-minor N/A Snipefish, Nk Centriscidae 21 <0.001 100.0 Secondary-minor N/A Chaetodipteru Spadefish 19 <0.001 78.7 Secondary-minor N/A s faber Stargazer, Astroscopus 19 <0.001 100.0 Secondary-minor N/A Northern guttatus Euthynnus Tuna, Little 15 <0.001 66.2 Secondary-minor N/A alletteratus Mollusk, Nk Mollusca 13 <0.001 100.0 Secondary-minor N/A Eel, Sand Ammodytidae 12 <0.001 100.0 Secondary-minor N/A Lance, Nk Squirrelfish, Holocentridae 11 <0.001 100.0 Secondary-minor N/A Nk Petromyzontid Lamprey, Nk 10 <0.001 100.0 Secondary-minor N/A ae Crab, Jonah Cancer (Market 10 <0.001 0.0 Secondary-minor N/A borealis Claws) Chionoecetes Crab, Snow 9 <0.001 100.0 Secondary-minor N/A opilio Worm, Nk Annelida 8 <0.001 100.0 Secondary-minor N/A Mackerel, Scomberomor 8 <0.001 9.1 Secondary-minor N/A Spanish us maculatus Hyperoglyphe Barrelfish 7 <0.001 100.0 Secondary-minor N/A perciformis

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Lagondon Pinfish 6 <0.001 100.0 Secondary-minor N/A rhomboides Gephyroberyx Roughy, Big 5 <0.001 0.0 Secondary-minor N/A darwini Centropristis Sea Bass, Nk 5 <0.001 100.0 Secondary-minor N/A anthias sp Kingfish, Menticirrhus 5 <0.001 100.0 Secondary-minor N/A Gulf littoralis Remora, Nk Echeneidae 5 <0.001 100.0 Secondary-minor N/A Clam, Nk Bivalvia 4 <0.001 100.0 Secondary-minor N/A Halibut, Hippoglossus 4 <0.001 100.0 Primary-minor MAFMC Atlantic hippoglossus Crab, Northern Lithodes maja 4 <0.001 100.0 Secondary-minor N/A Stone Rockling, Enchelyopus 3 <0.001 100.0 Secondary-minor N/A Fourbeard cimbrius Ribbonfish, Trachipteridae 3 <0.001 100.0 Secondary-minor N/A Nk Cyclopterus Lumpfish 3 <0.001 100.0 Secondary-minor N/A lumpus Porgy, Nk Sparidae 3 <0.001 100.0 Secondary-minor N/A Seatrout Cynoscion (Weakfish), 3 <0.001 0.0 Secondary-minor N/A nebulosus Spotd Eggs, Nk n/a 2 <0.001 100.0 Secondary-minor N/A Sculpin, Nk Cottidae 2 <0.001 100.0 Secondary-minor N/A Argentine, Argentina silus 1 <0.001 100.0 Secondary-minor N/A Atlantic Stargazer, Uranoscopidae 1 <0.001 100.0 Secondary-minor N/A Nk sp Scad, Decapterus 1 <0.001 100.0 Secondary-minor N/A Mackerel macarellus Sea Squirt, Ascidiacea 1 <0.001 100.0 Secondary-minor N/A Nk Eel, Rock Pholis 1 <0.001 100.0 Secondary-minor N/A (Gunnel) gunnellus Selar Scad, Bigeye crumenophtha 1 <0.001 100.0 Secondary-minor N/A lmus Herring, Opisthonema Atlantic 1 <0.001 100.0 Secondary-minor N/A oglinum Thread Shrimp, Pleoticus 1 <0.001 100.0 Secondary-minor N/A Royal Red robustus

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Management agency Catch % of Common Scientific % responsible for weight total MSC Classification name name Discarded setting (Lbs) catch reference points135 Peprilus Harvestfish < 1 <0.001 100.0 Secondary-minor N/A alepidotus Pompano, < 1 Alectis ciliaris <0.001 100.0 Secondary-minor N/A African Saury, Scomberesox < 1 <0.001 100.0 Secondary-minor N/A Atlantic saurus Barracuda, Sphyraenidae < 1 <0.001 100.0 Secondary-minor N/A Nk sp Drum, Nk Sciaenidae < 1 <0.001 100.0 Secondary-minor N/A Mackerel, < 1 Gempylidae <0.001 100.0 Secondary-minor N/A Snake, Nk Needlefish, Strongylura < 1 <0.001 100.0 Secondary-minor N/A Atlantic marina Sea < 1 Cucumber, Holothuroidea <0.001 100.0 Secondary-minor N/A Nk Spisula < 1 Clam, Surf <0.001 100.0 Primary-minor MAFMC solidissima Pipefish/Sea < 1 Syngnathidae <0.001 100.0 Secondary-minor N/A horse,Nk TOTAL catch 16,519,332 weight (lbs)

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9.9 Harmonised fishery assessments

9.9.1.1 Principle 1

There are no other MSC certified fisheries that have the same P1 species (stocks). Harmonisation is not required for Principle 1.

9.9.1.2 Principle 2

The UoAs evaluated in this assessment is not identical in scope to any other certified fishery, harmonization is required only partially for some PIs:

Table 45. Fisheries in the MSC System Considered for Harmonization for Principle 2. Required PI Guidance to Justification harmonize PI For stocks that are ‘main’ in Partially See Table 46, 2.1.1a both UoAs, harmonise status Table 47, and Table 48 below for details on relative to PRI (at SG60,80 and harmonisation of main primary species. 100), and if below PRI, harmonise cumulative impacts at SG80 (not at SG60). PI For stocks that are ‘main’ in Partially No main secondary species were identified 2.2.1a both UoAs, harmonise status in this assessment. relative to Biologically Based See Table 46, Limits (at SG60, 80, and 100), Table 47, and Table 48 below for details on and if below Biologically Based harmonisation of main primary species. Limits, harmonise cumulative impacts at SG80 (not at SG60). PI Harmonise recognition of any Partially Cumulative effects accounted for as the 2.3.1a limits applicable to both UoAs team assessed outcome of ETP species, (at SG60, 80 and 100), and weighting impact of the UoA and status of cumulative effects of the UoAs the ETP species. at SG80 and SG100 (not at SG60). PI Harmonise recognition of Partially Recognized coral reefs as VME. Sponges 2.4.1b VMEs where both UoAs being considered as VME. operate in the same ‘managed area(s)’ (see Guidance to the MSC Fisheries Standard). PI Harmonise scoring at Partially 2.4.2 SG100 since all fishery a, c impacts are considered (not at SG60 or 80).

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Table 46. Harmonisation of PI 2.1.1a for Little Skate

Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 U.S. Northeastern SCS June 2025 PCR Yes Yes Yes Assessment used the Coast Longfin Inshore Global (June 2020) same stock assessment Squid and Northern Services time series data, but Shortfin Squid Bottom came to a different

Trawl Fishery conclusion. US Northeast Squid SCS Nov 2023 PCR Yes Yes Yes Assessment used the

Bottom Trawl Fishery Global (May 2018) 2013-2015 NEFSC Services average of the spring survey biomass index of 6.75 kg/tow to make determination. US Gulf of Maine and Lloyds Nov 2023 PCR Yes Yes No Assessment did not say Georges Bank Register (2018) why SG100 was not met, haddock, pollock and but scoring was based on

redfish trawl NEFSC autumn 2015/spring 2016 survey data. Scup Assessment SCS Under ACDR Yes Yes No For little skate, the 2017- Global Assessment (2021) 2019 NEFSC spring Services average biomass index of 5.32 kg/tow is above the biomass threshold reference point (3.07 kg/tow) but below the BMSY proxy (6.15 kg/tow). The last four annual data points from the stock assessment are all below Bmsy proxy, except one that is at Bmsy proxy.

Table 47. Harmonisation of PI 2.1.1a for Winter Skate

Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 U.S. Northeastern SCS June 2025 PCR Yes Yes No Assessment uses the Coast Longfin Inshore Global (June 2020) 2016-2018 NEFSC autumn Squid and Northern Services average biomass index of Shortfin Squid Bottom 7.22 kg/tow which is

Trawl Fishery above the biomass threshold reference point (2.83 kg/tow) and above the BMSY proxy (5.66 kg/tow). However,

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Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 scoring places the stock indices below the target.

US Northeast Squid SCS Nov 2023 PCR (May Yes Yes No Assessment used the

Bottom Trawl Fishery Global 2018) 2012-2014 NEFSC Services average of the Fall survey biomass index of 5.06 kg/tow to make determination. US Gulf of Maine and Lloyds Nov 2023 PCR (May Yes Yes No Assessment did not say Georges Bank Register 2018) why SG100 was not met, haddock, pollock and but scoring was based on

redfish trawl NEFSC autumn 2015/spring 2016 survey data. Scup Assessment SCS Under ACDR (July Yes Yes Yes For winter skate, the Global Assessment 2021) 2017-2019 NEFSC fall Services average biomass index of 8.61 kg/tow is above the biomass threshold reference point (2.83 kg/tow) and above the BMSY proxy (5.66 kg/tow). The 2017- 2019 average index is above the 2016-2018 index by 19.2%. The last 6 annual data points are consistently above Bmsy.

Table 48. Harmonisation of PI 2.1.1a for Spiny Dogfish

Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 U.S. Northeastern SCS June 2025 PCR Yes Yes Yes It appears that the SG100 Coast Longfin Inshore Global (June 2020) determination for SI 2.1.1 Squid and Northern Services (a) was made using a Shortfin Squid Bottom 2011 stock assessment

Trawl Fishery

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Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 US Northeast Squid SCS Nov 2023 PCR Yes Yes Yes It appears that the SG100

Bottom Trawl Fishery Global (May 2018) determination for SI 2.1.1 Services (a) was made using a 2011 stock assessment US Gulf of Maine and Lloyds Nov 2023 PCR Yes Yes Yes The scoring rational Georges Bank Register (2018) within this PCR document haddock, pollock and does not appear to

redfish trawl support the conclusion that SG100 is met for Spiny Dogfish in 2.1.1 (a). As stated: "The SG 100 requirements are only met for any primary main species that are also P1 species, all other primary main species do not meet the SG100 level requirement as there is no evidence with a high degree of certainty that these species are both above the PRI and are fluctuating around a level consistent with MSY". Also, Spiny dogfish is split into regional GOM and GB elements. Under both elements, it says the following: "As of the 2015 update, the stock remains rebuilt, is not overfished, and overfishing is not occurring (NEFSC, 2015). The spiny dogfish stock is highly likely to be above PRI and therefore meet the SG80 level requirements." There is no mention of SG100 being met. However, the "MET?" column for SG100 includes a "No" for GOM stocks and a "Yes" for GB stocks.

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Standard v2.0/2.01 PI 2.1.1 Expiration Report a Comments/Team Fishery Name CAB Date Version 60 80 100 Scup Assessment SCS Under ACDR Yes Yes No SI 2.1.1 (a): To score a Global Assessment (2021) SG100, there has to be a Services high degree of certainty that primary main species are above PRI and are fluctuating around a level consistent with MSY. In the most recent spiny dogfish stock assessment (NEFSC 2018), Bmsy (proxy) is the spawning stock biomass that maximizes recruitment (SSBmax) in a Ricker type (dome-shaped) stock- recruitment model. SSBmax is estimated to be 351 million pounds. SSB has been below this level since 2015 and was estimated to be at 253.84 million pounds in 2018 (ASMFC 2020). It was also noted that biomass had declined in recent years requiring a significant reduction in the 2019- 2020 quota to ensure overfishing did not occur, and that ultimately, a 46% reduction in quota was allocated for the 2019-2020 fishing season (NEFSC 2018). ,These factors led the P2 Auditor for the Scup Assessment to conclude that SG 100 was not met because it could not be said with a high degree of certainty that the MSY (using the Bmsy proxy = SSBmax ) was fluctuating around a level consistent with MSY.

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Table 49. Fisheries in the MSC System Considered for Harmonization. Fishery Status Principles for Harmonization 1 U.S. Atlantic spiny dogfish, winter skate and little skate (Winter Skate added Certified P2 in 2018 and Little Skate added in 2020 to the initial Spiny Dogfish assessment) 2 U.S. Southern New England winter and little skate Certified P2 3 U.S. Acadian redfish, pollock and haddock otter trawl fishery Certified P2 4 U.S. Gulf of Maine and Georges Bank haddock, pollock and redfish trawl P2 5 US Northeast Squid Bottom Trawl Fishery (Lund’s and Town Dock) Certified P2 6 U.S. Northeastern Coast Longfin Inshore Squid and Northern Shortfin Squid Certified P2 Bottom Trawl Fishery (Seafreeze – Seafresh) 7 U.S. Atlantic Sea Scallop fishery Certified P2 8 U.S. Atlantic Surfclam and Ocean Quahog fishery Certified P2

Table 50. Overlapping fisheries Supporting information

Describe any background or supporting information relevant to the harmonisation activities, processes and outcomes.

Was either FCP v2.2 Annex PB1.3.3.4 or PB1.3.4.5 applied when harmonising? Yes / No

Date of harmonisation meeting DD / MM / YY

If applicable, describe the meeting outcome

e.g. Agreement found among teams or lowest score adopted.

Table 51. Alignment of Scores for Harmonization PI U.S. U.S. U.S. U.S. Gulf U.S. S U.S. U.S. U.S. Comments Atlantic Southern Acadian of Maine Northeast Northeastern Atlantic Atlantic spiny New redfish, and Squid Coast Longfin Sea Surfclam dogfish, England pollock Georges Bottom Inshore Squid Scallop and winter winter and Bank Trawl and Northern Fishery Ocean skate and little haddock haddock, Fishery Shortfin Squid Quahog and skate otter pollock Bottom Trawl Fishery little trawl and Fishery skate Fishery redfish trawl PI Text Text Text Text Text Text Text Text Text

PI Text Text Text Text Text Text Text Text Text

PI Text Text Text Text Text Text Text Text Text

PI Text Text Text Text Text Text Text Text Text

Table 52. Scoring differences Performance U.S. U.S. U.S. U.S. Gulf U.S. S U.S. U.S. U.S. Atlantic Indicators Atlantic Southern Acadian of Maine Northeast Northeastern Atlantic Surfclam and (PIs) spiny New redfish, and Squid Coast Sea Ocean

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dogfish, England pollock Georges Bottom Longfin Scallop Quahog winter winter and Bank Trawl Inshore Fishery Fishery skate and little haddock haddock, Fishery Squid and and skate otter pollock Northern little trawl and Shortfin skate Fishery redfish Squid trawl Bottom Trawl Fishery PI Score Score Score Score Score Score Score Score

PI Score Score Score Score Score Score Score Score

PI Score Score Score Score Score Score Score Score

Table 53. Rationale for scoring differences If applicable, explain and justify any difference in scoring and rationale for the relevant Performance Indicators (FCP v2.1 Annex PB1.3.6)

If exceptional circumstances apply, outline the situation and whether there is an agreement between or among teams on this determination

9.9.1.3 Principle 3

Table 54. Fisheries in the MSC System Considered for Harmonization for Principle 3. PI Guidance Required to harmonize Justification

PIs Both UoAs are part of the same larger Situation dependent These PIs were 3.1.1 fishery or fleet or have stocks in either harmonised given that 3.1.2 P1 and P2 that are at least partially the management 3.1.3 managed by the same jurisdiction(s) arrangements as set out (nation states, RFMOs, or others) or in the PIs and as under the same agreements. described in the report Harmonisation may sometimes be are applicable to both possible for those management fisheries. arrangements that apply to both UoAs (noting the limitations accepted in GPB1.3). The MSC accepts that it may be impractical to attempt full harmonisation, due to the large number of fisheries that may be managed under the relevant policy framework, and the differences in application between them.

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PI Guidance Required to harmonize Justification

PIs Both UoAs have stocks within either Situation dependent The management 3.2.1 P1 or P2 that are at least partially arrangements 3.2.2 managed by the same jurisdiction(s) described in these PIs 3.2.3 (nation states, RFMOs, or others) or are different from 3.2.4 under the same agreements. those of other Harmonisation is needed for those fisheries, making management arrangements that apply harmonisation to both UoAs, e.g. at the RFMO level impractical given the but not the national level in the case multi-level of of 2 separate national fleets both management across fishing the same regional stock. the certified fisheries. For example, the fishery under assessment is managed by the ASMFC, whereas others are managed by a Regional Council with different objectives, policies, practices, and regulations.

Table 55. Fisheries in the MSC System Considered for Harmonization. Fishery Status Principles for Harmonization 1 Click here to enter text. Click here to enter text. Click here to enter text. 2 Click here to enter text. Click here to enter text. Click here to enter text. 3 Click here to enter text. Click here to enter text. Click here to enter text. 4 Click here to enter text. Click here to enter text. Click here to enter text. 5 Click here to enter text. Click here to enter text. Click here to enter text.

Table 56. Overlapping fisheries Supporting information

Describe any background or supporting information relevant to the harmonisation activities, processes and outcomes. Discussions with other CABs have been initiated.

Was either FCP v2.2 Annex PB1.3.3.4 or PB1.3.4.5 applied when harmonising? Yes / No

Date of harmonisation meeting DD / MM / YY

If applicable, describe the meeting outcome

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e.g. Agreement found among teams or lowest score adopted.

Table 57. Alignment of Scores for Harmonization PI Fishery 1 Fishery 2 Fishery 3 Fishery 4 Fishery 5 Comments PI Text Text Text Text Text Text PI Text Text Text Text Text Text PI Text Text Text Text Text Text PI Text Text Text Text Text Text

Table 58. Scoring differences Performance Fishery name Fishery name Fishery name Fishery name Indicators (PIs) PI Score Score Score Score PI Score Score Score Score PI Score Score Score Score

Table 59. Rationale for scoring differences If applicable, explain and justify any difference in scoring and rationale for the relevant Performance Indicators (FCP v2.1 Annex PB1.3.6)

If exceptional circumstances apply, outline the situation and whether there is an agreement between or among teams on this determination

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9.10 Objection Procedure

To be added at Public Certification Report stage

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9.11 Certificate Sharing Mechanism August 10, 2021

Ms. Gabriela Anhalzer Program Director SCS Global Services 2000 Powell Street, Ste. 600 Emeryville, CA 94608

RE: Certificate Sharing – MSC Atlantic Scup Trawl Fishery Assessment

Dear Gabriela:

This letter is to provide you with the agreement of Lund’s Fisheries, Inc. and Seafreeze, Ltd. (the Client Group), that only product received by client group members, as listed on the fishery certificate, is eligible for use of the MSC certification claim.

The Unit of Assessment (UoA) consists of all federal and state licensed demersal otter trawl vessels permitted to land Atlantic Scup. Only landings from these vessels, at locations operated by client group members, may be landed as MSC certified.

Product originating from the UoA and landed at processors that are not included in the certificate addendum, are considered ‘other eligible fishers’. Other eligible fishers may sell their product as MSC certified product, provided they comply with policies, terms, and conditions of the certificate holder and product is sold to the processors approved by the certificate holder, Lund’s Fisheries, Inc. and Seafreeze, Ltd.

Thank you for your attention to this agreement.

Wayne Reichle James Barbera Lund’s Fisheries, Inc. Seafreeze, Ltd. 08/11/2021 08/11/2021

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10 References

Principle 1

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Dery, L., and C. Rearden. 1979. Report of the state-federal scup (Stenotomus chrysops) age and growth workshop. National Marine Fisheries Service, Northeast Fisheries Center, Woods Hole Laboratory Reference Document No. 79-57.

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MAFMC. 1996. Amendment 8 to the summer flounder Fishery Management Plan: Fishery Management Plan and final environmental impact statement for the scup fishery. January 1996. MAFMC. [Dover, DE.] 162 p. + appendices.

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Penttila, J.A, G.A. Nelson, and J.M. Burnett, III. 1989. Guidelines for estimating lengths at age for 18 northwest Atlantic finfish and shellfish species. NOAA Tech. Mem. NMFS-F/NEC-66. 39 p.

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Steimle, Frank. W., Christine A. Zetlin, Peter L. Berrien, Donna L. Johnson, and Sukwoo Chang. 1999. Essential Fish Habitat Source Document: Scup, Stenotomus chrysops, Life History and Habitat Characteristics. NOAA Technical Memorandum NMFS-NE-149. 42 pp.

Wilk, S.J., W.W. Morse, and D.E. Ralph. 1978. Length-weight relationships of fishes collected in the New York Bight. Bull. NJ Acad. Sci. 23(2): 58-64.

Principle 2

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Hatch, Joshua. 2017. Comprehensive estimates of seabird-fishery interactions for the US Northeast and mid-Atlantic. Aquatic Conservation: Marine and Freshwater Ecosystems. 10.1002/aqc.2812.

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Link, JS; Bell, RJ; Auster, PJ; Smith, BE; Overholtz, WJ; Methratta, ET; Pranovi, F; Stockhausen, WT. 2012. Food Web and Community Dynamics of the Northeast U.S. Large Marine Ecosystem. Northeast Fisheries Science Center Reference Document 12-15.

MAFMC (Mid-Atlantic Fishery Management Council). 2002. Amendment 13 to the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan. 552 p. + append. Available at: https://www.mafmc.org/s/SFSCBSB_Amend_13_Vol_1compressed.pdf.

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NEFMC (New England Fishery Management Council). 2011a. OMNIBUS ESSENTIAL FISH HABITAT (EFH) AMENDMENT 2 FINAL ENVIRONMENTAL IMPACT STATEMENT. Appendix D: The Swept Area Seabed Impact (SASI) approach: a tool for analyzing the effects of fishing on Essential Fish Habitat. Online at: https://s3.amazonaws.com/nefmc.org/Appendix_D_Swept_Area_Seabed_Impact_approach_171011_0 91330.pdf.

NEFMC (New England Fishery Management Council). 2011b. ESSENTIAL FISH HABITAT (EFH) OMNIBUS AMENDMENT “THE SWEPT AREA SEABED IMPACT (SASI) MODEL: A TOOL FOR ANALYZING THE EFFECTS OF FISHING ON ESSENTIAL FISH HABITAT”. Online at: http://archive.nefmc.org/habitat/sasi_info/110121_SASI_Document.pdf.

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12. Charlton, G., The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada, 39 Can.-U.S. L.J. 69 (2015); at: http://scholarlycommons.law.case.edu/cuslj/vol39/iss/ 13. ASMFC/ISFMP Consultation Framework: http://www.asmfc.org/files/Meetings/2016AnnualMeeting/CompactRulesRegs_Feb2016.pdf; and http://www.asmfc.org/files/pub/TechnicalGuidanceDocument_Aug2019.pdf 14. MAFMC Statement of Organization, Practices and Procedures (2021): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/6037dc99fc433d019b5554d0/16142736899 32/2021-02-11_MAFMC-SOPP-final.pdf 15. MAFMC Public Comment Process: https://www.mafmc.org/public-comment 16. NOAA Fisheries/NMFS Procedures for Public Comment on FMPs: https://media.fisheries.noaa.gov/dam-migration/01-101-08.pdf 17. ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf 18. ASMFC and MAFMC Public Hearing Document (January 2021): Mid-Atlantic Fishery Management Council — Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment (mafmc.org) 19. NOAA National Standards Guidance: https://www.fisheries.noaa.gov/national/laws-and-policies/national-standard-guidelines 20. Magnuson-Stevens Fishery Conservation and Management Act: https://media.fisheries.noaa.gov/dam-migration/msa-amended-2007.pdf 21. Code of Federal Regulations, Title 50, Part 600, Subpart D - National Standards: https://www.ecfr.gov/cgi- bin/retrieveECFR?gp=&SID=6b0acea089174af8594db02314f26914&mc=true&r=SECTION&n=se50.12.600_13051. 22. Amendment 10 to the Summer Flounder, Scup and Black Sea Bass FMP ( January 1997): http://www.asmfc.org/uploads/file/summerFlounder_Scup_BSB_Amendment10_1997.pdf 23. ASMFC/ISFMP Consultation Framework: http://www.asmfc.org/files/Meetings/2016AnnualMeeting/CompactRulesRegs_Feb2016.pdf; and http://www.asmfc.org/files/pub/TechnicalGuidanceDocument_Aug2019.pdf 24. MAFMC Statement of Organization, Practices and Procedures (2021): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/6037dc99fc433d019b5554d0/16142736899 32/2021-02-11_MAFMC-SOPP-final.pdf 25. MAFMC Public Comment Process: https://www.mafmc.org/public-comment 26. NOAA Fisheries/NMFS Procedures for Public Comment on FMPs: https://media.fisheries.noaa.gov/dam- migration/01-101-08.pdf 27. ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf 28. ASMFC and MAFMC Public Hearing Document (January 2021): Mid-Atlantic Fishery Management Council — Summer Flounder, Scup, and Black Sea Bass Commercial/Recreational Allocation Amendment (mafmc.org) 29. NOAA National Standards Guidance: https://www.fisheries.noaa.gov/national/laws-and-policies/national- standard-guidelines 30. ASMFC Review of ISFMP for scup (2019 fishing season): http://www.asmfc.org/uploads/file/5f99d0112019_Scup_FMP_Review_approved.pdf 31. MAFMC/NMFS. 2020. 2020-2021 Scup and Black Sea Bass Specifications: Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. March 2020: https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5f3d812abdb0ad033733d64b/1597866286 497/FINAL_SBSB_2020-2021_specs_EA+Signed.pdf 32. MAFMC Scup Fishery Information Document (June 2020): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ef2556b49622f07741782cb/15929398846 46/Scup_info_doc_2020.pdf 33. NOAA Fisheries Rule-Making Process: https://www.fisheries.noaa.gov/insight/understanding-how-federal- fishing-regulations-are-made

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34. NOAA National Standard Guidelines: https://www.fisheries.noaa.gov/national/laws-and-policies/national- standard-guidelines 35. ASMFC Administrative Oversight Committee: http://www.asmfc.org/files/commissionerManual/AllOtherSections/8_OrgChart_ChairMemo_StandingCommMer ged.pdf 36. Example: ASMFC Bluefish Board and Summer Flounder, Scup and Black Sea Bass Board & MAFMC Webinar August 11 - 12, 2020: http://www.asmfc.org/files/Meetings/ASMFC_Bluefish_SFlounderScupBSBBoard_MAFMCMtgSummary_Aug2020. pdf 37. MAFMC SSC Meetings: https://www.mafmc.org/ssc-meeting 38. ASMFC Action Plan 2021: http://www.asmfc.org/files/pub/2021ActionPlan.pdf 39. Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions NOAA Office of General Counsel - Enforcement Section: https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf 40. Email from ASMFC’s Interstate Scup FMP Coordinator, May 7, 2021. 41. ASMFC LEC Meeting Summary (April 30 - May 1, 2019): http://www.asmfc.org/files/LEC/LEC_MeetingSummary_Spring2019.pdf 42. ASMFC Review of ISFMP for scup (2019 fishing season): http://www.asmfc.org/uploads/file/5f99d0112019_Scup_FMP_Review_approved.pdf 43. MAFMC/NMFS. 2020. 2020-2021 Scup and Black Sea Bass Specifications: Environmental Assessment, Regulatory Impact Review, and Regulatory Flexibility Act Analysis. March 2020: https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5f3d812abdb0ad033733d64b/1597866286 497/FINAL_SBSB_2020-2021_specs_EA+Signed.pdf 44. MAFMC Scup Fishery Information Document (June 2020): https://static1.squarespace.com/static/511cdc7fe4b00307a2628ac6/t/5ef2556b49622f07741782cb/15929398846 46/Scup_info_doc_2020.pdf 47. Meeting agendas, minutes and backgrounders - MAFMC and ASMFC Committees and Sub-committees. 48. Atlantic Coastal Cooperative Statistic Program: http://www.asmfc.org/data/program-overview

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11 Template information and copyright This document was drafted using the ‘MSC Reporting Template v1.2’.

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1.0 17 December 2018 Date of first release

1.1 29 March 2019 Minor document changes for usability

1.2 25 March 2020 Release alongside Fisheries Certification Process v2.2

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