To amend surfclam regulations to provide consistency with management measures of the Fishery Management Plan.
Text of proposed rule:
Part 43 of 6 NYCRR is amended to read as follows:
Subdivision 43-2.6(b) is amended to read as follows:
(b) [Effective January 1, 2010, an] An individual fishing quota system (IFQ) [shall be] has been established which will allocate to each eligible vessel an annual individual fishing quota. The individual fishing quota shall be determined annually based on the annual harvest limit referenced in subdivision (a) of this section divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery. The IFQ assigned to an eligible vessel shall be nontransferable and each vessel can only be used to catch one quota allocation. No eligible vessel shall take or attempt to take more than one quota allocation of surfclams on any surfclam/ocean quahog Atlantic Ocean permit or take more than the cumulative equivalent of one quota allocation if identified as the eligible vessel on one or more surfclam/ocean quahog Atlantic Ocean permits when authorized pursuant to section 43-3.5 of Subpart 43-3, during any calendar year.
Subdivision 43-2.8(c) is amended to read as follows:
(c) [Effective January 1, 2010, all] All surfclam cages or individual standard bushel containers, or portions thereof, must be tagged with a cage tag prior to offloading from the vessel except as authorized by the department. Such tag must be firmly attached on or near the upper crossbar of the cage or affixed to an industry standard bushel container. A cage tag is required for every 60 cubic feet of cage volume of a standard cage, or portion thereof, or each container holding an industry standard bushel or portion thereof. Each cage tag shall indicate the state issuing the tag, the year issued, the Federal documentation number or State registration number of the vessel assigned the individual fishing quota (IFQ), and the serialized number assigned to that tag in ascending order. Cage tags shall be affixed to standard cages or containers holding industry standard bushels or portions thereof in ascending order of the serial numbers assigned to the vessel.
Subdivision 43-2.8(e) is amended to read as follows:
(e) It is unlawful to reuse, alter, sell, offer for sale or transfer any cage tag issued under this section. Once a [vessel owner’s] vessel’s allocation or cumulative equivalent of one IFQ allocation of cage tags is used, that vessel may no longer take surfclams by mechanical means from the New York State certified waters of the Atlantic Ocean. No vessel shall take or attempt to take more than one quota allocation of surfclams on any surfclam/ocean quahog Atlantic Ocean permit or take more than the cumulative equivalent of one quota allocation if identified as the eligible vessel on one or more surfclam/ocean quahog Atlantic Ocean permits when authorized pursuant to section 43-3.5 of Subpart 43-3, during any calendar year.
Subdivision 43-2.8(h) is amended to read as follows:
(h) It is unlawful to land, offer for sale or sell surfclams taken by mechanical means from New York State certified waters of the Atlantic Ocean in a standard cage or industry standard bushel container which are not properly tagged as described in this section unless authorized by the department. A cage tag or tags must not be removed from any standard cage or industry standard bushel container until the cage or standard bushel container is emptied by the processor, at which time the processor must promptly remove and retain the tag(s) for 60 days beyond the end of the calendar year, unless otherwise directed by the department or state or Federal law enforcement agents.
Existing subdivision 43-2.8(i) is renumbered 43-2.8(k) and remains unchanged.
New subdivisions 43-2.8(i) and 43-2.8(j) are adopted to read as follows:
(i) A vessel owner may apply for a temporary exemption from the cage tagging requirements of this section by submitting a written request to the department. The vessel owner must possess a valid surfclam/ocean quahog Atlantic Ocean permit and provide a copy of the cage tag order form that has been submitted to the department or department’s approved vendor for the current calendar year. Any vessel taking surfclams under this temporary cage tagging exemption shall keep a copy of the department’s written exemption onboard the vessel at all times and made immediately available to a department representative or an enforcement officer upon request.
(j) The captain/operator or owner/lessee of a vessel that has received a temporary exemption to harvest without cage tags shall notify the department prior to commencement of any and all surfclam harvest conducted under an IFQ assigned to an eligible vessel in the Atlantic Ocean surfclam fishery. Such notification must include the following information: identification of the name of the vessel to be fishing, name of captain/operator, date and time harvest will commence, expected time harvest will end, approximate location of fishing area to the nearest landmark or inlet, and identification of dockage and landing location(s). The notification must be made by email, fax or telephone prior to commencement of all surfclam harvesting activities conducted on a daily basis. The captain/operator or owner/lessee must complete and submit a surfclam vessel harvest report immediately following each surfclam harvest trip conducted without cage tags on a daily basis. All surfclam vessel harvest reports must be submitted to the department on the same day as harvest is conducted, on a form provided by the department. The permit holder shall notify the department in writing upon their receipt of cage tags from the authorized cage tag vendor and submit a written request for termination of the temporary cage tagging exemption. The permittee shall be required to surrender cage tags as directed by the department to account for the harvest conducted under the temporary cage tagging exemption based on the quantities of surfclams harvested and reported on the surfclam vessel harvest reports.
Existing subdivision 43-3.3(e) is renumbered 43-3.3(f) and remains unchanged.
New subdivision 43-3.3(e) is adopted to read as follows:
(e) ‘Individual fishing quota’ means the annual allocation of surfclam quota that is assigned to each eligible surfclam vessel based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery.
New subdivision 43-3.5(d) is adopted to read as follows:
(d) No vessel in the Atlantic Ocean surfclam fishery which has been subject to and identified in the sale, transfer or replacement of an eligible vessel by the vessel owner or lessee under this section shall take more than one individual fishing quota (IFQ) or take more than the cumulative equivalent of one IFQ in any calendar year when identified on one or more Atlantic Ocean surfclam owner/lessee permit(s).
Text of proposed rule and any required statements and analyses may be obtained from:
Debra Barnes, NYSDEC, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-0477, email: debra.barnes@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:
The action is subject to SEQR as an Unlisted action and a Short EAF was completed. The Department has determined that an EIS need not be prepared and has issued a negative declaration. The EAF and negative declaration are available upon request.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) Section 13-0309 (12) authorizes the Department of Environmental Conservation (the department or DEC) to fix by regulation open seasons, harvest areas, size limits, catch limits, manner of taking and possession, transportation, identification, sale and permit requirements for surfclams and sea, hen, and skimmer clams.
2. Legislative objectives:
It is the objective of the above cited statutory authority that the department implements management measures necessary to protect the sustainability of the surfclam resource and assure the economic viability of the fishery consistent with a comprehensive long-term fishery management plan for this important resource.
3. Needs and benefits:
The New York State (NYS) waters of the Atlantic Ocean have supported an important surfclam fishery for more than sixty years. This fishery has been subject to limited entry of additional surfclam vessels since the early 1990s as a management measure to conserve the surfclam resource and prevent an increase in fishing effort until a comprehensive surfclam management plan was adopted for the Atlantic Ocean surfclam fishery. The department initially adopted a Fishery Management Plan (FMP) for the Mechanical Harvest of the Atlantic Surfclam in NYS waters of the Atlantic Ocean in 2003. The department, working in collaboration with the former Surfclam/Ocean Quahog Management Advisory Board, developed an amendment to the FMP (referred to as Amendment 1) that established an Individual Fishing Quota (IFQ) to be allocated equally to all eligible surfclam vessels in the fishery. The IFQs are nontransferable and each eligible surfclam vessel can only be used to catch one quota allocation in a calendar year.
Amendment 1 to the FMP was adopted in 2009 and the regulations implementing IFQs and other management measures in the surfclam fishery became effective January 1, 2010. However, the regulations in 6 NYCRR Subpart 43-3 which control vessel eligibility and procedures for replacement of eligible vessels were not amended in 2009 to provide consistency with 6 NYCRR Subpart 43-2, Atlantic Ocean.
The department proposes to amend 6 NYCRR Subparts 43-2 and 43-3 to include the following management measures:
The proposed rule making will authorize any eligible surfclam vessel in the Atlantic Ocean fishery, regardless of the Atlantic Ocean surfclam permit they are assigned to, to be used to catch one Individual Fishing Quota (IFQ) or the cumulative equivalent of one IFQ in any given year. This is needed so that harvest activities remain consistent with New York State’s FMP for the Atlantic Ocean Surfclam Fishery to minimize the potential for monopolization of the State’s annual surfclam quota by a few vessels.
The proposed rule making will amend the container and tagging requirements section to allow a permit holder to obtain a temporary exemption to authorize a surfclam vessel to take surfclams by mechanical means in the certified waters of the Atlantic Ocean without cage tags. This temporary exemption may be authorized provided that the vessel owner has a valid Atlantic Ocean surfclam permit and has placed an order for cage tags for the year but is waiting for the order to be processed. The specific requirements for the temporary exemption to take surfclams without cage tags will be specified in regulation. This is necessary to provide an exception to allow vessels to fish on a temporary basis without cage tags to minimize any potential burden on the surfclam industry to comply with the regulations for cage tagging requirements and prevent any loss of fishing opportunities by permit holders while providing a mechanism for tracking and enforcement of the harvest regulations for the fishery.
The proposed rule making will clarify and amend the vessel replacement rules for eligible vessels in 6 NYCRR Subpart 43-3.5 to be consistent with the regulations for harvest restrictions in 6 NYCRR Subpart 43-2.6 and the provisions of Amendment 1 of the State’s FMP for the Atlantic Ocean surfclam fishery. This will allow increased tracking of individual quota allocations assigned to vessels and ensure that vessels, regardless of the surfclam permit they are assigned to, will only be used to catch no more than one individual quota allocation or cumulative equivalent of one quota allocation for the calendar year.
4. Costs:
(a) Cost to State government:
There are no new costs to state government resulting from this action.
(b) Cost to local government:
There will be no costs to local governments.
(c) Cost to private regulated parties:
There will be no additional costs to private regulated parties in the surfclam industry.
(d) Costs to the regulating agency for implementation and continued administration of the rule:
There will be no costs to DEC for implementation and administration of the rule. The rule is designed to reduce administrative costs to DEC.
5. Local government mandates:
The proposed rule making does not impose any mandates on local government.
6. Paperwork:
The proposed rule making will not impose any new paperwork requirements for the surfclam industry.
7. Duplication:
The proposed rule does not duplicate any state or federal requirement.
8. Alternatives:
The “no action alternative” was considered and rejected. The broad language in the surfclam regulations would remain inadequate in preventing the cross replacement of vessels to be used as a mechanism to allow a vessel to take more than one individual quota allocation in a year. This alternative would allow for certain vessels to control a greater share of the quota leading to monopolization of the State’s surfclam resource. Failure to reject this alternative will negatively impact the economic viability of small businesses in this fishery. Additionally, the no action alternative would likely force independently owned vessels (traditional New York-based commercial surfclam fishermen) to drop out of the fishery due to economic hardship from lack of markets for sale of surfclams. This is due to their inability to compete in the market with the vessels having access to more than one quota.
A “Denial of Vessel Replacement Requests” alternative was considered and rejected. Under this alternative, DEC would deny all requests for vessel replacement that are submitted for cross replacement of vessels in the fishery. Vessel replacement requests submitted to replace an unworkable vessel with one not presently in the fishery would be exempt as this is consistent with the intent of the regulations. This alternative was rejected because it fails to properly address the inconsistency in regulations for surfclam harvest and vessel replacement.
9. Federal standards:
Although there are Federal government standards (regulations) for the surfclam and ocean quahog fisheries for the Federal waters of the Exclusive Economic Zone (3-200 miles off shore), there are no federal standards for the surfclam fishery in NYS waters (0-3 miles of the coastline).
10. Compliance schedule:
Compliance with the proposed regulation is required upon the effective date of the rule. DEC would provide electronic and regular mail notifications to regulated parties in the surfclam fishery. Since this is a relatively small limited-entry fishery, there is only a fraction of the shellfish industry that is affected by this rule.
Regulatory Flexibility Analysis
1. Effect of rule:
Small businesses that will be affected by the proposed rule making include shellfish harvesters involved with the mechanical harvest of surfclams from the New York State (NYS) waters of the Atlantic Ocean (within three miles of shore). New York’s Atlantic Ocean surfclam fishery is subject to limited entry and there are currently 17 vessels eligible to participate in this fishery. These vessels typically harvest with three persons onboard the vessel (captain and two crew members). In 2014, there were 16 permits issued to captains involved with the mechanical harvest of surfclams in the Atlantic Ocean surfclam fishery. Of the 17 vessels, only about 6 vessels were actively fishing during any part of the year in 2014.
The proposed rule making is designed to close a loophole in regulations for replacement of eligible surfclam vessels and assignment of Individual Fishing Quotas (IFQs) to prevent any single vessel from catching more than one IFQ or cumulative equivalent of one IFQ in a calendar year. This will minimize the potential for an inequitable share of the State’s annual individual fishing quota to be held by a few vessels. The Individual Fishing Quota system, which allocates to each eligible surfclam vessel an individual fishing quota (IFQ) based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery, was adopted by regulation in 2010 as the most equitable management measure implemented to protect the viability of small businesses engaged in a highly complex and diverse fishery.
This rule making is expected to have a positive impact on small businesses associated with this fishery by reducing the potential for monopolization of the surfclam quota by a few vessels and minimizing any inequitable market advantages to those vessels which adversely impacts the economic viability of New York’s traditional-based commercial surfclam fishermen.
2. Compliance requirements:
The proposed rule making would impose no additional compliance requirements on the industry. This rule is also designed to provide a mechanism for surfclam fishermen to temporarily take surfclams without cage tags provided that the vessel owner has a valid Atlantic Ocean surfclam permit and has placed an order for cage tags for the year but is still waiting for the order to be processed. This will minimize the burden on small businesses for compliance with the cage tagging requirements and prevent any lost fishing opportunities due to the timeframe necessary for processing cage tag orders.
3. Professional services:
No professional services will be needed for small businesses to comply with the proposed rule making.
4. Compliance costs:
There will be no costs incurred by small businesses and local government for this rule.
5. Economic and technological feasibility:
There is no additional technology required for small businesses or local governments, so there are no economic or technological impacts for these entities.
6. Minimizing adverse impact:
The proposed rule making will not have any adverse impact on small businesses involved in the Atlantic Ocean Surfclam fishery or local governments. The rule making is designed to address inconsistencies in the current regulations and the provisions of the State’s FMP for the Atlantic Ocean surfclam fishery in order to promote the sustainability of the surfclam resource and enhance the economic viability of participants in this commercially important fishery. The rule making is intended to reduce the administrative burden on the department by reducing the number of vessel replacement requests submitted each year. It will also simplify the tracking and enforcement of individual fishing quotas assigned to each vessel. The proposed rule making will address inequities in the quota share available to fishery participants and minimize the unfair market advantage held by a certain sector of the fishery.
7. Small business and local government participation:
The former Surfclam/Ocean Quahog Management Advisory Board (Surfclam Board), now repealed, which was established by the New York State Legislature by Chapter 512 of the Laws of 1994 under Environmental Conservation Law 13-0308, assisted the department with the development of a comprehensive long-term management plan for the protection of surfclams and ocean quahogs in NYS waters. The department worked with the Surfclam Board, which consisted of small business representatives involved in the surfclam industry, since 2005 in order to develop an amendment to the FMP that was designed to address the long-term sustainability of the surfclam resource and economic viability of the Atlantic Ocean surfclam fishery. This rule making is needed to eliminate a loophole in regulations to allow for consistency with the State’s FMP. The small businesses in this fishery (independent vessel owners) are in support of this rule making. The rule making does not have any impact on local governments so their direct participation was not solicited by the department.
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 shellfish is neither desirable nor recommended. Immediate compliance is required to ensure the general welfare of the public and the resource is protected.
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 proposed rule involves the implementation of management provisions for the mechanical harvest of surfclams in the New York State (NYS) waters of the Atlantic Ocean. The commercial harvest of surfclams in this fishery is entirely located within NYS waters of the Atlantic Ocean that border the counties of Suffolk, Nassau, Queens and Kings and is not located adjacent to any rural areas of the State. There are no rural areas within the marine and coastal district. The majority of the surfclam resource harvested for human consumption in this fishery is shipped out-of-state for processing and sale. 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 rule, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
The Department of Environmental Conservation (department) has determined that the proposed rule will not have a substantial adverse impact on jobs and employment opportunities. Therefore, a job impact statement is not required.
The participation in the New York State (NYS) Atlantic Ocean surfclam fishery is limited to 17 eligible vessels and is closed to new entrants (6 NYCRR Subpart 43-3). There were 17 licensed surfclam/ocean quahog Atlantic Ocean owner/lessees and 16 licensed surfclam/ocean quahog Atlantic Ocean captains/operators in New York’s Atlantic Ocean fishery in 2014. Of the 17 licensed surfclam Atlantic Ocean owner/lessee permit holders, only 6 surfclam vessels reported taking surfclams from New York state waters of the Atlantic Ocean. Additionally, there were an estimated 12 surfclam crew members employed by this fishery; the estimated number assumes a crew of 2 for each surfclam fishing vessel since there is no special surfclam permit required other than the possession of a valid shellfish diggers permit to work as a crew member on a surfclam boat in the Atlantic Ocean. In 2013, there were 19 licensed surfclam/ocean quahog Atlantic Ocean captains/operators in New York’s Atlantic Ocean fishery. The proposed regulations are not expected to significantly impact existing jobs or employment opportunities in this fishery which are estimated to be at less than 50 licensed participants.
The proposed regulations are intended to address certain deficiencies and inconsistencies in the regulations so that harvest activities and vessel replacement procedures remain consistent with the provisions of the State’s Fishery Management Plan for the Atlantic Ocean surfclam fishery. The amendments to 6 NYCRR Part 43 will maintain the economic viability of all fishery participants and reduce the administrative burden on the industry and department. The proposed rule making will allow any eligible vessel in the fishery, regardless of the Atlantic Ocean surfclam permit they are assigned to, to be used to catch only one Individual Fishing Quota (IFQ) or cumulative equivalent of one IFQ or portion thereof in any given calendar year. The proposed amendments are expected to have a positive impact on the economic viability of fishery participants by preventing the potential for the inequitable allocation of the State’s surfclam quota to be held by a few vessels in the fishery. The equal distribution of individual fishing quotas amongst the fishery participants will protect existing jobs and create potential employment opportunities in this fishery. The proposed regulations are expected to increase the number of vessels that are actively taking surfclams in the Atlantic Ocean surfclam fishery.
Based on the above and the department’s knowledge of similar regulations in the Federal Surfclam fishery, the department has concluded that there will not be any substantial adverse impacts on jobs or employment opportunities in this fishery as a consequence of this rule making.
