PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 40 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0303 and 13-0340-f
Subject:
Management of black sea bass.
Purpose:
Redefine the term trip limit to allow two fishers aboard a single vessel to possess and land the trip limit for black sea bass.
Text of proposed rule:
Existing paragraph 40.1(a)(1) of 6 NYCRR is amended to read as follows:
A ‘trip limit’ means the maximum amount of fish that can be possessed on board or landed by a vessel during a period of time, not less than 24 hours, in which fishing is conducted, beginning when the vessel leaves port and ending when the vessel returns to port. A vessel or fisher shall not land more than a possession limit or trip limit per species in any one calendar day, except that, where a weekly limit or biweekly limit is specifically authorized by the department pursuant to subdivision (i) of this section, a fisher authorized to take the weekly or biweekly limit shall not possess or land more than the weekly limit or biweekly limit in one calendar day or; where one trip limit for each of two commercial license holders on board a single vessel is specifically authorized by the department pursuant to subdivision (i) of this section, a vessel with two or more commercial license holders on board shall not possess more than two trip limits of the authorized species in one calendar day.
Existing subdivision 40.1(c)(1)(i) of 6 NYCRR is amended to read as follows:
(c) Reporting requirements.
(1) Marine commercial food fishing license, food fish landing license and marine bait permit holders.
(i) Any person who is the holder of a marine commercial food fishing license, food fish landing license, or marine bait permit issued pursuant to section 13-0335 of the Environmental Conservation Law shall complete and submit an accurate fishing Vessel Trip Report for each commercial fishing trip, detailing all fishing activities and all species landed, on a form prescribed by the department. If more than one commercial license holder on board a single vessel is authorized to possess and land the trip limit of a regulated species pursuant to paragraph (1) of subdivision 40.1(a) of this part, then each authorized license holder shall complete and submit a separate, accurate fishing Vessel Trip Report documenting the fishing activities and species landed under the authority of the license holder’s permit. The license holder shall submit such fishing reports monthly to the department within 15 days after the end of each month or at a frequency specified by the department in writing. Fishing Vessel Trip Reports shall be completed, signed, and submitted to the department for each month; if no fishing trips were made during a month, a report must be submitted stating no trips were made for that month. Incomplete fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements. Any New York license holder who is also the holder of a federal fishing permit issued by NOAA Fisheries Service must instead satisfy the reporting requirements specified by NOAA Fisheries Service. If requested in writing by the department, New York license holders who also hold federal fishing permits shall submit to the department the state (blue) copy of the Fishing Vessel Trip Report (NOAA Form No. 88-30) for the month or months identified in the written notification.
Existing subdivision 40.1(i) of 6 NYCRR is amended to read as follows:
Species Striped bass through Scup remain the same. Species Black Sea Bass is amended to read as follows:
40.1(i) Table B – Commercial Fishing.
Species
Open Season
Minimum Length
Trip Limit
Black Sea Bass
All year
11″ TL
A trip limit set by the department to be consistent with the requirements of the Interstate Fishery Management Plan for Black Sea Bass. The department, in its discretion, may authorize up to two commercial license holders per vessel to possess the black sea bass trip limit on any one calendar day.
Species American Shad through Anadromous river herring remain the same.
Text of proposed rule and any required statements and analyses may be obtained from:
Karen Graulich, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-5636, email: karen.graulich@dec.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a short EAF is on file with the Department.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation law (ECL) section 13-0340-f authorizes the Department of Environmental Conservation to adopt regulations for the management of black sea bass, including catch and possession limits.
2. Legislative objectives:
The above-cited legislation requires that DEC manage marine fisheries in such a way as to: (i) protect these natural resources for their intrinsic value to the marine ecosystem; (ii) optimize resource use for commercial and recreational fishermen through the implementation of sound management practices; (iii) protect public safety and (iv) comply with federal marine fisheries conservation and management policies and interstate fishery management plans.
3. Needs and benefits:
This rule making is proposed at the request of New York’s commercial marine fishery industry. It is intended to maximize black sea bass commercial marine fishing opportunities while improving safety and fuel efficiency. Implementation of the proposed amendments will provide an economic benefit from decreased fuel and maintenance costs. The proposed amendments will remain in compliance with the Interstate Fishery Management Plan (FMP) adopted by the Atlantic States Marine Fisheries Commission (ASMFC). Failure to adopt these regulatory amendments will result in the continued practice of commercial black sea bass fishermen working individually on separate vessels to harvest their trip limits under the current regulatory definition, placing them at a higher risk of injury or death.
4. Costs:
The proposed rule does not impose any costs to the department, local municipalities, or the regulated public. In fact, commercial black sea bass fishers are likely to receive an economic benefit from reduced fuel and maintenance costs.
5. Local government mandates:
The proposed rule does not impose any mandates on local governments.
6. Paperwork:
None.
7. Duplication:
The proposed amendment does not duplicate any state or federal requirement.
8. Alternatives:
Alternative 1: “No action” alternative. Under this alternative New York State would not amend 6 NYCRR Section 40.1 Marine Fish. This alternative is more protective of the affected fishery stocks by strictly limiting the amount of fish that can be possessed on board or landed by a vessel to one trip limit during a single fishing trip. However, this alternative was rejected because it fails to mitigate the safety concerns raised by the affected commercial fishers.
Alternative 2: No limit on the number of commercial fishers. Under this alternative New York State would amend 6 NYCRR Section 40.1 Marine Fish but not limit the number of commercially licensed fishers who could possess or land the authorized trip limit on one vessel during a single fishing trip. This alternative would mitigate the safety concern of a single commercial fisher on board one vessel. However, this alternative was rejected because it would be likely to result in an uncontrolled increase in the commercial landings of the affected species and would greatly reduce the effectiveness of the trip limit as a management tool. Although commercial black sea bass landings are closely monitored, there is a delay between actual and reported landings. The substantial increase in black sea bass landings that would be expected under this alternative would prohibit effective management of the species and would likely result in quota exceedances and fishery closures.
Alternate 3: Apply change to all commercial marine fisheries. Under this alternative New York State would amend 6 NYCRR Section 40.1 Marine Fish but not limit the exception to fisheries specifically authorized by the department pursuant to 40.1(i). As a result, two licensed fishers could possess or land the authorized trip limit for any regulated finfish species on one vessel during a single fishing trip. This alternative was rejected because there are some regulated species where the status of the stock (e.g., overfished or experiencing overfishing) warrants a more protective approach to trip limits. Some species are also more difficult to monitor for commercial landings since a large portion of the harvest is kept for bait or sold privately. For these species, allowable commercial catch limits are more likely to be exceeded, resulting in fishery closures. In other fisheries, trip limits are relatively high and exceed the capacity of smaller vessels. In these fisheries, the change would only benefit larger vessels where the safety issue for a single fisher is not a factor.
9. Federal standards:
The proposed amendments to 6 NYCRR 40.1 are in compliance with the ASMFC and Regional Fishery Management Council FMPs for black sea bass.
10. Compliance schedule:
Regulated parties will be notified by mail, through appropriate news releases and via DEC’s website of the changes to the regulations. The proposed regulations will take effect upon filing with the Department of State after the 45-day public comment period.
Regulatory Flexibility Analysis
1. Effect of rule:
DEC proposes to adopt regulations that amend the current regulatory management measures for black sea bass. The proposed regulations will amend the definition of ‘trip limit’ for commercial fishers to allow two licensed commercial fishers on board a single vessel during a single fishing trip to possess the trip limit for black sea bass. The proposed rule will be consistent with the Atlantic States Fisheries Management Commission (ASMFC) and regional fishery management plans (FMPs) for black sea bass.
2. Compliance requirements:
None.
3. Professional services:
None.
4. Compliance costs:
There are no initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule. Commercial fishers will not be required to implement the proposed increase in trip limit for black sea bass. Those who do will receive an economic benefit through reduced fuel and vessel maintenance costs.
5. Economic and technological feasibility:
The proposed regulations do not require any expenditure on the part of regulated parties in order to comply with the proposed changes. Commercial fishers will not be required to implement the increase in trip limit for black sea bass. Those who do will receive an economic benefit through reduced fuel and vessel maintenance costs. There is no additional technology required for small businesses, and this action does not apply to local governments.
6. Minimizing adverse impact:
The proposed rule has been requested by commercial black sea bass fishers to mitigate at sea safety concerns for individual fishers working alone on smaller vessels. The changes will not have an adverse impact on the commercial fishing industry. The proposed rule may result in an increase in commercial black sea bass landings in the short term. However, black sea bass is a quota-managed species. Commercial landings are closely monitored. An increase in commercial landings under the proposed rule is not expected to result in an exceedance of the annual black sea bass quota or to have an adverse impact on the long-term sustainability of the resource or the fishery.
7. Small business and local government participation:
The proposed rule was requested by black sea bass fishers at a January 2015 meeting with commercial industry members on quota managed species. Provisions of the rule making will be presented to the Marine Resources Advisory Council by DEC at the next meeting. Additional members of the local fishing communities will have the opportunity to discuss the ramifications of the rule making at that meeting. There was no special effort to contact local governments because the proposed rule does not affect them.
8. Cure period or other opportunity for ameliorative action:
Pursuant to SAPA 202-b (1-a)(b), no such cure period is included in the rule because of the potential adverse impact on the resource. Cure periods for the illegal taking of fish or wildlife are neither desirable nor recommended. Immediate compliance is required to ensure the general welfare of the public and the resource is protected. Current regulations also require a more stringent definition of trip limit than the proposed change.
9. Initial review of rule:
DEC will conduct an initial review of the rule within three years as required by SAPA section 207.
Rural Area Flexibility Analysis
The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The black sea bass fishery directly affected by the proposed rule is entirely located within the marine and coastal district, and is not located adjacent to any rural areas of the state. Further, the proposed rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 40, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
1. Nature of impact:
DEC is proposing to amend the regulations that manage black sea bass within New York State marine waters. The proposed rule will be consistent with existing federal rules and the provisions of the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Black Sea Bass. The proposed rule will not have an adverse impact on New York State commercial fishermen or recreational anglers. Changing the definition of trip limit to allow up to two licensed commercial fishers on board one vessel to possess the trip limit for black sea bass during a single fishing trip will mitigate safety concerns of the commercial industry who believe the current regulations may inadvertently require black sea bass fishers to work alone aboard separate vessels in order to harvest the legally allowable trip limit. Allowing two licensed commercial fishers to harvest the trip limit during a single fishing trip will provide increased fishing opportunities for some commercial black sea bass fishers while reducing costs associated with a single fishing trip. Increased commercial landings of black sea bass associated with this rule change could result in temporary closures of the fishery but will not have a long term impact on the New York commercial quota.
2. Categories and numbers affected:
DEC proposes to amend regulations that implement commercial management measures for black sea bass, a popular quota-managed species in New York. In 2014 there were 1,006 state food fishing license holders in New York.
3. Regions of adverse impact:
The regions most likely to receive any adverse impact are within the marine and coastal district of the State of New York. This area included all the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the state, including Long Island Sound. Although a portion of the Hudson River is within the marine and coastal district, the Hudson River is not a usual habitat of black sea bass.
4. Minimizing adverse impact:
This proposed rule is not expected to have an adverse impact on New York State commercial fishers or recreational anglers. Commercial black sea bass fishers may receive an economic benefit from reduced fuel and vessel maintenance costs. Increased commercial landings of black sea bass resulting from this change may result in temporary closures of the commercial fishery if period allotments are reached more quickly. However, the annual quota allotment of black sea bass will not be affected. Black sea bass landings are closely monitored and annual quota exceedances are not expected to result from this change.
5. Self-employment opportunities:
Commercial black sea bass fishers are, for the most part, small businesses, usually operated by the owner. Changes in regulations managing fishery resources may have direct effect on the business opportunities and income of these small businesses. Since black sea bass are managed under a quota system, annual landings are limited and the amount available for harvest will not change as a result of this proposed rule. However, the costs associated with a fishing trip for individual license holders may be reduced.
6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:
The department will conduct an initial review of the rule within three years as required by SAPA section 207.
