Canada Gazette, Part I, Volume 154, Number 41: Regulations Amending the Atlantic Fishery Regulations, 1985

October 10, 2020

Statutory authority
Fisheries Act

Sponsoring department
Department of Fisheries and Oceans

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

The Atlantic mackerel recreational fishery is currently unregulated. This creates significant conservation and enforcement challenges for Fisheries and Oceans Canada (DFO).

The lack of an established daily fishing limit in the Atlantic mackerel recreational fishery allows recreational fishers to land unlimited amounts of mackerel. Some commercial licence holders, including bait licence holders, use this current loophole to land significant quantities of mackerel using gear not permitted under their commercial licence, as well as to avoid having to report landings and the associated costs of dockside monitoring (as required for commercial fishing operations). According to DFO, it is not uncommon for some “recreational” Atlantic mackerel fishing vessels to land at port with amounts of more than 500 kg of Atlantic mackerel per day.

The lack of an established yearly close time in the Atlantic mackerel recreational fishery also creates a loophole allowing some recreational fishers to exploit the lack of a closed season to fish after the commercial fishery is closed as well as target other recreational species that are closed (e.g. Atlantic salmon, trout, striped bass) by claiming that they are fishing for Atlantic mackerel.

Background

Atlantic mackerel (Scomber scombrus L.) is found in the waters of the northwest Atlantic from North Carolina to Newfoundland and Labrador. During spring and summer, Atlantic mackerel is found in inshore waters. From late fall and in winter, it is found far from the coast, deep in warmer waters at the edge of the continental shelf. In the Maritime provinces, Newfoundland and Labrador, and Quebec, several thousand commercial fishers participate in the Atlantic mackerel fishery. They fish mainly inshore using gillnets, jiggers, handlines, seines, and traps, depending on the region and the time of year, while recreational fishers mostly use jiggers or handlines. Since 2005, the spawning stock biomass index for Atlantic mackerel has declined significantly and is now approximately one twentieth of the levels observed in the 1980s.

While subsection 43(1) of the Fisheries Act provides authority for the Governor in Council to make regulations respecting the management of the Atlantic mackerel recreational fishery, such as the imposition of quotas and size limits, no regulatory tools are currently in place to manage those aspects of this fishery. Therefore, the Atlantic mackerel recreational fishery, which occurs mostly in the summer months, is currently unregulated. There is no mechanism for catch reporting, and there are no fishing limits or seasons. The activity of recreational fishing for Atlantic mackerel is practised throughout Eastern Canada by many people, including tourists, at wharves or aboard chartered vessels. The lack of a daily fishing limit in the Atlantic mackerel recreational fishery allows recreational fishers to land unlimited amounts of mackerel. This also creates the potential for commercial harvesters to fish Atlantic mackerel for bait under the guise of a recreational fishery to avoid reporting requirements and associated costs. For these reasons, the actual Atlantic mackerel catches may be much higher than current reported landings suggest. It has been estimated by DFO Science that there could be between 2 000 and 5 000 metric tons of unreported catches per year, which includes fishing mortality from various sources, notably recreational and some unreported commercial (including bait) harvests, discards and other mortalities. These unreported catches have been flagged as a concern for stock assessment purposes for several years by the Atlantic Mackerel Advisory Committee (AMAC).

According to the most recent stock assessment conducted in 2019, Atlantic mackerel is currently in the critical zone (about 77% of the Limit Reference Point — the stock level below which productivity of the resource is sufficiently impaired to cause serious harm) based on the Precautionary Approach Framework, with limited chance for rebuilding in the near future. Given the critical status of the stock, it is important to impose measures to regulate the Atlantic mackerel recreational fishery so that it remains truly recreational in nature.

In recent years, where the commercial Atlantic mackerel total allowable catch (TAC) has been lowered and the commercial fishery was closed early because the TAC had been reached (in 2016, 2018, and 2019), there was no mechanism to close the recreational fishery concurrently with the closing of the commercial fishery. Moreover, because there is no recreational fishing limit, this creates the potential for commercial-scale fishing to continue under the guise of a recreational fishery, after the commercial fishery has been closed. While this practice is contrary to the Regulations, it has proven challenging to document instances of unauthorized sales and lay charges under the Fisheries Act.

The current management approach is inconsistent with responsible management practices used by the Department to ensure stock sustainability of all species. Better knowledge of catches, including putting limits on recreational catches, will support rebuilding of the stock into the healthy zone. Better accounting of removals has become more important in recent years when the commercial TAC has been fully utilized. A rebuilding plan for Atlantic mackerel is currently under development and controlling recreational catches is an important component of that plan.

Objective

The proposed amendments would help ensure a sustainable recreational harvest and contribute to conservation objectives.

The proposed amendments would also support the rebuilding of the stock of Atlantic mackerel and would have overall positive benefits for the future sustainability of the resource.

Description

The regulatory amendments to the Atlantic Fisheries Regulations, 1985 would establish a yearly close time from January 1 to March 31 so that no person can fish Atlantic mackerel for recreational purposes during that time. The regulatory amendments would also set a daily limit of 20 Atlantic mackerel that a person can catch and retain in any given day when fishing recreationally. It would also increase the size minimum for possession of Atlantic mackerel to 26.8 cm for commercial and recreational fishing to protect juvenile fish.

Regulatory development

Consultation

Since 2017, DFO has consulted on the proposed regulatory amendments with Indigenous groups, commercial industry representatives, conservation groups, as well as the Atlantic provinces and Quebec, through a number of DFO-led advisory meetings. Indigenous groups, commercial industry representatives, provinces, and conservation groups have supported DFO’s effort to amend these Regulations as they recognize that the proposed amendments would eliminate the existing loophole, which is used by some commercial harvesters to fish under the guise of recreational fishing (sometimes when the commercial fishery is closed) and avoid reporting significant catches.

The proposed Regulations were discussed with the AMAC and the Atlantic Mackerel Rebuilding Plan Working Group several times between 2017 and 2019. The consultations included commercial and Indigenous participants as well as provincial government representatives from the Atlantic provinces and Quebec. Recreational fishery participants were not included as they are not currently members of the Atlantic Mackerel Advisory Committee.

There was no opposition from industry stakeholders, Indigenous groups or the provinces during consultations. Participants expressed support for these amendments going forward and urged the Department to do so as soon as possible due to the negative impact that unlimited catches in the recreational fishery are likely having on the Atlantic mackerel stock.

Between 2016 and 2019, consultations with the recreational fishery sector took place through annual recreational fisheries advisory committees, as well as regional small pelagic/mackerel or other regional advisory meetings in New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador. There was no opposition from recreational fishery stakeholders during consultations.

DFO also established an informal online recreational fishing survey for the collection of Atlantic mackerel catch and participation data in Atlantic Canada and Quebec, which was online and available for access in the fall of 2018 and 2019. Three questions in the survey requested participants to provide their views on the proposed regulatory changes, including an appropriate length of season and potential daily limits for this fishery. Publicity for the survey took place through social media, email distribution through mackerel and pelagic advisory committee members, as well as through contacts in the recreational fishery sector.

Results from the survey have been used to inform the development of seasons and daily fishing limits. Three hundred seven responses to the questionnaire show that the majority of respondents (approximately 65%) were in favor of a daily fishing limit, and 73% of respondents indicated that if a daily limit was to be established, they would support a daily possession limit of 25 or less mackerel per person per day. In addition, with respect to the fishing season, according to the survey’s results, the peak Atlantic mackerel fishing for recreational purposes appears to be from June to October.

The proposed new size of 26.8 cm for possession of Atlantic mackerel was supported by all commercial harvesters at the March 2019 AMAC meeting and consistent with the most recent scientific advice.

Modern treaty obligations and Indigenous engagement and consultation

In March 2018, the proposed amendments were discussed at a supplementary session (within the advisory committee process) after the AMAC meeting to ensure that First Nations and Indigenous groups had a forum to share views about the Atlantic mackerel fishery. There was no opposition to the proposed amendments. Further, it was communicated that the cultural significance of mackerel to Indigenous communities in Eastern Canada is important. It was felt that harvesting at the current level on a stock that is in the critical zone was neither appropriate nor responsible. Some Indigenous communities that hold commercial communal licences for Atlantic mackerel are choosing not to partake in the commercial fishery because of concerns over stock status and a desire to leave fish in the water for food, social and ceremonial purposes (FSC).

During the Assessment of Modern Treaty Implications process, DFO identified that the northern limit of occurrence of Atlantic mackerel is in Canadian fisheries waters adjacent to the Province of Newfoundland and Labrador, where one modern treaty was identified: the Labrador Inuit Land Claims Agreement. The Nunatsiavut Government is a member of the AMAC where consultation on this regulatory change took place in March 2017 and March 2018.

The occurrence of Atlantic mackerel in the Labrador Inuit Settlement Area (LISA) is rare due to the cold water temperatures, which are below the thermal tolerances of that species. In consultation with the Nunatsiavut Government, DFO confirmed that there had been no reports of mackerel in the LISA and its appearance is rare. DFO also confirmed that Atlantic mackerel is not an important food source for the Labrador Inuit and there are no concerns that there would be negative impacts on the Labrador Inuit stemming from the proposed regulatory change for the recreational fishery.

At this time, the Labrador Inuit do not have a major interest in Atlantic mackerel. However, as stated in the Final Agreement, the Treaty Partners have a right to fish Atlantic mackerel for commercial and for FSC purposes. In the future, a well-managed stock could move into the LISA and the Treaty Partners could avail themselves of these rights. Therefore, the proposed amendments have the potential to benefit the Labrador Inuit Land Claims Agreement by supporting the sustainable management of Atlantic mackerel.

As per the 2015 Cabinet Directive on the Federal Approach to Modern Treaty Implementation, an assessment was conducted on this proposal. This assessment concluded that implementation of this proposal has no negative impact on the rights, interests and/or self-government provisions of the Labrador Inuit Land Claims Agreement and, in fact, has a potential positive impact in the future. DFO would continue with its engagement with Labrador Inuit treaty partners on policy and program changes as part of the implementation of this regulatory proposal.

Instrument choice

Following a risk assessment of the Atlantic mackerel fishery, a lack of information on harvests and controls in the recreational mackerel fishery was identified as a key risk to the sustainable management of the fishery.

The Department has a successful model where a similar regulatory option was chosen. In 2001, a daily possession limit of 20 fish was added to the Maritime Provinces Fishery Regulations for the recreational gaspereau (alewife) fishery. Similar to Atlantic mackerel, gaspereau is also used as bait in commercial fisheries, previously had no possession limit, and was being heavily fished under the guise of the recreational fishery and allegedly illegally sold. The addition of the possession limit has been very beneficial to the conservation, control and proper management of the gaspereau fishery.

If the Department does not take action with respect to management and control of the recreational Atlantic mackerel fishery, it has the potential to affect Indigenous groups’ access to mackerel for FSC purposes.

Regulatory analysis

Benefits and costs

Costs

The direct costs of the proposed Regulations cannot be quantified as there is no recreational fishing licence for Atlantic mackerel and actual landings of Atlantic mackerel for recreational purposes are not reported. However, costs are expected to be negligible for legitimate Atlantic mackerel recreational fishers engaging in the recreational fishery for their personal consumption as recreational catches cannot be legally sold. Therefore, the incremental impacts on recreational fishers would primarily be from a loss in consumer surplus due to reduced fishing time and daily fishing limit. However, most recreational fishers are likely to shift recreational fishing activities to other species rather than cease recreational fishing activities. In addition, the majority of recreational fishers supported a daily fishing limit similar to that outlined in this proposal during the consultations on the proposed amendments. As there are other similar recreational fisheries, the cost impact on businesses providing recreational services (such as lodges and charters) is also anticipated to be negligible. Further, consultations confirmed that there is very low recreational fishing for Atlantic mackerel during the proposed seasonal closure, and no concerns were raised regarding lodges and charters during consultations. The minimum size for possession of Atlantic mackerel currently required by all harvesters through the issuance of a variation order is 26.3 cm. Putting a minimum size of 26.8 cm into regulations should not have a negative effect on recreational fishers, nor on their ability to reach the daily fishing limit.

Benefits

By limiting the total amount of landings in the Atlantic mackerel recreational fishery, the proposed amendments would support improving the health of the fish stock and the associated recreational and commercial mackerel fisheries over time. It would also reduce the amount of unreported catches, which would allow DFO to manage the stock with more reliable data. The socio-economic benefits from a healthy Atlantic mackerel fishery include protecting a way of life, maintaining intergenerational employment opportunities, and maintaining a healthy ecosystem. For example, commercial mackerel in Atlantic Canada and Quebec averaged $7.4 million in annual landed value between 2013 and 2017.

The proposed amendments would close the loophole currently exploited by some commercial licence holders, including bait licence holders, to conduct commercial fishing operations under the guise of a recreational fishery.

Distributional impacts

The socio-economic benefits of a healthy commercial Atlantic mackerel fishery may accrue in rural coastal communities where other opportunities are limited.

Although Atlantic mackerel is not one of the top recreational species caught in Canada overall, DFO’s Survey of Recreational Fishing in Canada, 2015 found it was one of the top three species caught recreationally in Prince Edward Island and Nova Scotia. Limits on recreational fishing for this species may have a greater local impact in these provinces. However, ensuring the long-term sustainability of the species should positively affect the same population.

Small business lens

Atlantic mackerel caught in the recreational fishery cannot be legally sold. The daily individual limit of 20 fish per recreational fisher allows for the continued operation of businesses providing recreational services (such as lodges and charters). There would be minimal recreational harvesting traditionally taking place during the proposed closure period, and no concerns regarding lodges or charters were raised during consultations. Therefore, it is not expected that the proposed amendments would have a cost impact on these businesses. Therefore, the small business lens does not apply to this proposal as there are no expected impacts associated with the proposed amendments.

One-for-one rule

The one-for-one rule does not apply, as this regulatory amendment proposal is not expected to increase administrative costs for commercial entities.

Regulatory cooperation and alignment

The proposal is not related to a work plan or commitment under a formal regulatory cooperation forum.

Strategic environmental assessment

This regulatory proposal fulfills targets and key priorities of the Federal Sustainable Development Strategy. It contributes to the sustainable fisheries targets and it helps achieve progress towards the 2020 biodiversity goals and targets for Canada for healthy coasts and oceans and healthy wildlife populations. This is accomplished through different means, including by moving forward on ensuring that fish stocks are managed and harvested sustainably, legally and applying ecosystem-based approaches, and by ensuring that species that are secure remain secure, and populations of species at risk listed under federal law exhibit trends that are consistent with recovery strategies and management plans.

In accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals, a preliminary scan concluded that a strategic environmental assessment is not required, as the proposal is not likely to result in important environmental effects.

Gender-based analysis plus (GBA+)

As outlined in the distributional section of benefits and costs, the proposed amendments are expected to limit harvests to a true recreational nature and provide for improved catch reporting in other fisheries to reduce uncertainty in stock assessment. This would result in improved sustainability of the resource for the benefit of rural coastal communities that depend on the Atlantic mackerel fishery for their livelihoods and food sources. For these communities, ensuring a profitable fishing industry that supports community, society and culture by maintaining biodiversity and ensuring food security is another key argument in support of the proposed amendment.

Overall, rebuilding the Atlantic mackerel fishery, for which closing the unregulated recreational harvest loophole is an important component, would contribute to protecting a way of life and to maintaining intergenerational employment opportunities in rural coastal communities that depend on continued access to the fishery over the long term.

Rationale

Adding a daily limit of 20 mackerel per fisher for the recreational Atlantic mackerel fishery would limit the total amount of landings in this fishery and ensure that harvests are of a recreational nature. There was majority support for a daily limit of 25 fish or less expressed through consultations. Based on this, legitimate recreational fishers would have sufficient access to the Atlantic mackerel resource for their recreational fishing purposes even with the 20-fish daily limit. It was also determined that a 20-fish daily limit would be important to support the health of the stock and this level could be varied based on stock status in the future.

Closing the loophole, which was used by some commercial licence holders who are harvesting significant quantities of Atlantic mackerel under the guise of a recreational fishery, would significantly facilitate enforcement by fisheries officers.

The proposed amendments would establish a yearly close time from January 1 to March 31 that would align with other existing recreational fisheries closures in the marine environment where Atlantic mackerel is found. Based on consultations and availability of the Atlantic mackerel resource, the proposed closed time is a period when Atlantic mackerel is not traditionally fished recreationally. Establishing a close time in regulations would allow for seasons and/or harvest levels to be varied in accordance with the health of the stock. In addition, it would provide a mechanism to close the recreational fishery for Atlantic mackerel at other periods of time, if justified for conservation reasons, through variation orders.

The imposition of a daily fishing limit would dissuade the retention of large amounts of recreationally caught mackerel and discourage the inappropriate use of the recreational rules to conduct commercial fishing activities. The resulting actual impact of reduction in unreported catch would have to be evaluated by DFO Science after implementation and with the collection of additional data over subsequent years.

The minimum size change of 26.8 cm was recommended by DFO Science during the March 2019 stock assessment. The size is based on the calculated length at which 50% of Atlantic mackerel would be considered sexually mature as the minimum fish size to be followed. The minimum size of 25 cm that used to be in place was the previously calculated size when the minimum size was put into the Atlantic Fishery Regulations, 1985. The size has been set to a minimum of 26.3 cm, by variation order, since 2014.

This new size was supported by all commercial harvesters, and to avoid confusion, the same length will be required for the commercial and recreational fishery of Atlantic mackerel.

Implementation, compliance and enforcement, and service standards

Implementation

DFO would undertake education and outreach activities to ensure that recreational and commercial fishers are aware of the new Regulations. Information about the new regulatory requirements would be posted online and shared via social media to expand common knowledge on the changes and to reduce the learning curve for stakeholders. Departmental officials would share information about the new regulatory requirements directly with key stakeholders during meetings whenever possible. Following publication of the amended Regulations, enforcement activities would be prioritized based on risk and severity of the violation. Fishery officers may conduct outreach activities as needed.

Compliance and enforcement

Regulations pertaining to the recreational fishery of Atlantic mackerel would be enforced by fishery officers through routine compliance monitoring, including regular inspections on the water and on shore. These activities are part of a fishery officer’s existing duties, hence no additional training or resources would be required.

The new Regulations would facilitate enforcement of the Fisheries Act and regulations because they will provide clarity for both fishers and enforcement personnel. Currently, enforcement in the recreational mackerel fishery is limited as fishery officers are only able to enforce the size requirements (e.g. possession of undersized mackerel). Once the new Regulations are in place, fishery officers could enforce the close time and daily limit provisions. These enforcement efforts are expected to dissuade the improper retention of large amounts of mackerel under the guise of the recreational fisheries while the commercial fishery is closed.

Fishery officers will use established departmental approaches and procedures to monitor compliance and to address violations.

Contact

Brian Lester
Assistant Director
Integrated Resource Management
Fisheries Resources Management
Fisheries and Oceans Canada
200 Kent Street
Ottawa, Ontario
K1A 0E6
Email: brian.lester@dfo-mpo.gc.ca

PROPOSED REGULATORY TEXT

Notice is given that the Governor in Council, pursuant to subsection 43(1) footnote a of the Fisheries Act footnote b, proposes to make the annexed Regulations Amending the Atlantic Fishery Regulations, 1985.

Interested persons may make representations concerning the proposed Regulations within 30 days after the date of publication of this notice. All such representations must cite the Canada Gazette, Part I, and the date of publication of this notice, and be addressed to Brian Lester, Assistant Director, Integrated Resource Management, Fisheries and Oceans Canada, 200 Kent Street, Ottawa, Ontario K1A 0E6 (tel.: 613‑990‑5045; email: brian.lester@dfo-mpo.gc.ca).

Ottawa, October 5, 2020

Julie Adair
Assistant Clerk of the Privy Council

Regulations Amending the Atlantic Fishery Regulations, 1985

Amendments

1 Subsection 3(4) of the Atlantic Fishery Regulations, 1985 footnote 1 is replaced by the following:

(4) Subject to paragraph 49.01(c) and subsections 49.3(2) and 91(1), the close times set out in these regulations do not apply with respect to recreational fishing in accordance with subsection 15(1) or (2).

2 (1) Subsection 48(1) of the Regulations is replaced by the following:

48 (1) Subject to subsections (2) and (4), no person shall fish for, buy, sell or have in his possession any mackerel that is less than 26.8 cm in length.

(2) The portion of subsection 48(2) of the Regulations before paragraph (a) is replaced by the following:

(2) Subsection (1) does not apply with respect to mackerel that are less than 26.8 cm in length if

(3) Paragraph 48(2)(b) of the English version of the Regulations is replaced by the following:

3 The Regulations are amended by adding the following after section 49:

Recreational Mackerel Fishing

49.01 No person engaged in recreational fishing for mackerel in Mackerel Fishing Areas 1 to 21 shall

Coming into Force

4 These Regulations come into force on the day on which they are registered.