Purpose

In 1972 the federal government passed the Marine Mammal Protection Act to protect marine mammal species that may be in danger of extinction or depletion due to anthropogenic activity and to keep populations levels at sustainable levels. In 1973 the federal government passed the Endangered Species Act to provide a program for the conservation of threatened and endangered plants and animals and the habitats in which they are found. As marine mammals and sea turtle species may interact with fishing gear and fishing activity, and are protected under the Marine Mammal Protection Act or the Endangered Species Act, fisheries are managed at the state and federal level to address the risk posed to these protected species. For the waters under the jurisdiction of the Commonwealth, the management of fisheries for protected species is accomplished by the Division of Marine Fisheries pursuant to its authorities at M.G.L. c. 130. Management measures have evolved over time, but currently include certain restrictions on the use and configuration of fixed gear (i.e., traps and gillnets) designed to reduce the risk of protected species becoming entangled in the gear and make any entanglements that may occur less injurious, as well as certain rules governing vessel conduct in areas where protected species may be present. The regulations at 322 CMR 12.00 are particularly focused on minimizing the risk of interaction between fisheries, vessel activity, and North Atlantic right whales ("right whale"). The right whale is a critically endangered species. There are estimated to be approximately 400 known individuals in the population, as of 2019, and the population has been declining since 2010. Large numbers of these whales migrate into Commonwealth waters during the winter period and aggregate in Cape Cod Bay to feed on zooplankton before migrating out of the area during the early spring. Commercial fishery interactions with large whales, including the right whale, are principally managed by the federal government under the Marine Mammal Protection Act through NOAA Fisheries and their Take Reduction Teams and Take Reduction Plans. Federal regulations adopted as part of Take Reduction Plans applyto affected commercial fisheries within both state and federal waters. It is at the discretion of the state to further regulate fishing activity to protect large whales, including managing recreational fisheries and adopting additional measures affecting commercial fisheries. Massachusetts actively regulates its commercial fixed gear fisheries and recreational lobster and crab trap fishery to further protect right whales and has adopted a series of conservation regulations at 322 CMR 12.00. This includes: (1) seasonal fixed gear closures and speed limits, which may be extended based on the continued observed presence of right whales in waters under the jurisdiction of the Commonwealth; (2) fixed gear modifications designed to reduce the risk of entanglement and the risk of serious injury or mortality should an entanglement occur; (3) buoy line marking requirements specific to Commonwealth fisheries; (4) prohibitions on abandoning gear; and (5) guidelines related to vessel conduct if interacting with a right whale. This establishes a portfolio of measures designed to minimize the impact fishing and vessel activity may have on protected species when in the waters under the jurisdiction of the Commonwealth and improving management moving forward. As a result of the state's extensive regulatory program affecting trap gear, NOAA Fisheries has listed the commercial trap fisheries operating in Massachusetts state waters as the "Massachusetts Mixed Species Trap/Pot Fishery"on its 2022 List of Fisheries. This distinguishes (Mass. Register #1547, 5/9/2025) Massachusetts commercial lobster and crab trap fishery from the broader Northeast Lobster and Jonah Crab Trap/Pot Fishery and its commercial scup, black sea bass, and whelk pot fisheries from the broader Atlantic Mixed Species Trap/Pot Fishery. As a result, Massachusetts manages these commercial trap fisheries as a single unit and in a manner that is more restrictive than the regulations adopted to implement the Atlantic Large Whale Take Reduction Plan.