ENV-07-15-00002-EP Revised Closed Season for the Harvest and Landing of Lobster from Lobster Management Area 4 and Repeal of Mandatory V-Notch Rule

2/18/15 N.Y. St. Reg. ENV-07-15-00002-EP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 7

February 18, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-07-15-00002-EP

Filing No. 91

Filing Date. Jan. 30, 2015

Effective Date. Jan. 30, 2015

Revised Closed Season for the Harvest and Landing of Lobster from Lobster Management Area 4 and Repeal of Mandatory V-Notch Rule

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 44.1(h) of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301, 13-0105 and 13-0329

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

This rule must be promulgated as an emergency rule to ensure that Lobster Management Area (LMA) 4 lobster harvesters are not burdened by two seasonal closures during 2015. The proposed rule will repeal the current lobster closure in LMA 4 (February 1 – March 31) and adopt a new closure (April 30 – May 31). The rule will also repeal the mandatory V-notch requirement for LMA 4. Lobster harvesters will no longer be required to snip a V on the carapace of egg bearing female lobsters they catch in LMA 4.

Addendum XVII of the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan (FMP) for American Lobster requires a ten percent reduction in lobster harvest in LMA 4. In 2013, LMA 4 did not meet its required ten percent reduction. In October 2014, the ASMFC American Lobster Management Board revised the closed season dates in LMA 4 from February 1 through March 31 to April 30 through May 31 to ensure the ten percent reduction in harvest. This revised closed season must be implemented in 2015 for New York State to remain in compliance with the ASMFC lobster FMP.

The new closed season must be adopted before February 1 to ensure that permit holders are only required to comply with the new closed season. If the rule is not adopted in a timely manner, LMA 4 lobster harvesters will be required to stop harvesting and remove their gear by February 1, resume fishing April 1, and then stop harvesting and remove their gear again by April 30.

Subject:

Revised closed season for the harvest and landing of lobster from Lobster Management Area 4 and repeal of mandatory V-notch rule.

Purpose:

To implement ASMFC American Lobster Fishery Management Plan Addendum XVII and allow the lobster stock to rebuild.

Text of emergency/proposed rule:

Part 44 of 6 NYCRR is amended read as follows:

Existing paragraph 44.1(g)(1) of 6 NYCRR is repealed.

Existing paragraphs 44.1(g)(2) and 44.1(g)(3) are renumbered 44.1(g)(1) and 44.1(g)(2).

Existing paragraphs 44.1(h)(1) and 44.1(h)(2) are amended to read as follows:

(1) The harvest and landing of lobsters from LMA 4 is prohibited from [February 1] April 30 through [March] May 31.

(2) During the [February 1] April 30 through [March] May 31 closure, lobster permit holders who use lobster traps or pots [will have a two week period to remove lobster pots from the water after the closed season begins] may set un-baited lobster traps or pots one week prior to the end of the closed season. No lobster trap or pot may be in the water from [February 15] April 30 to [March] May 24, unless the lobster permit holder also holds the appropriate license(s) to harvest other species from [their] his or her traps or pots. [Lobster permit holders may set un-baited lobster traps or pots one week prior to the end of the closed season.]

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire April 29, 2015.

Text of rule and any required statements and analyses may be obtained from:

Kim McKown, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, NY 11733, [phone], email: [e-mail]

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 negative declaration is on file with the department.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 3-0301, 13-0105 and 13-0329 authorize the Department of Environmental Conservation (DEC) to establish by regulation closed season regulations for Lobster Management Areas (LMA) 1, 2, 3, 4, 5, and Outer Cape Cod (OCC) for American lobsters.

2. Legislative objectives:

It is the objective of the above cited statutory provisions that DEC manages marine fisheries to optimize resource use for commercial and recreational harvesters consistent with marine fisheries conservation and management policies, and interstate fishery management plans.

3. Needs and benefits:

Recent stock assessment reports have indicated that the Southern New England (SNE) American lobster population is depleted and recruitment is low. In February 2012, the Atlantic States Marine Fisheries Commission’s (ASMFC) American Lobster Management Board (Lobster Board) approved an addendum to the American Lobster Fishery Management Plan (FMP) to decrease lobster harvest in SNE by ten percent and to initiate stock rebuilding (see Addendum XVII to Amendment 3 to the Interstate Fishery Management Plan for American Lobster). Each LMA in SNE adopted management measures to meet this objective. All other LMAs, except LMA 4, met the required ten percent reduction in 2013. The Lobster Board requires that alternative measures be enacted to ensure that harvest from LMA 4 meet the ten percent reduction. In October 2014, the ASMFC Lobster Board revised the closed season dates from February 1 through March 31 to April 30 through May 31 to ensure the ten percent reduction in harvest.

DEC’s Division of Fish, Wildlife and Marine Resources proposes amendments to 6 NYCRR Part 44 to meet the ten percent harvest reduction in LMA 4. The proposed rule will repeal the original lobster closure in LMA 4 (February 1 – March 31) and adopt a new closure (April 30 – May 31). The rule will also repeal the mandatory V-notch regulations for LMA 4. Lobster harvesters will no longer be required to snip a V on the carapace of egg bearing female lobsters that they caught in LMA 4.

The closed season must be implemented during 2015 for New York State to remain in compliance with the ASMFC lobster FMP. The rule must be in effect before February 1 to ensure that LMA 4 lobster permit holders are not unnecessarily burdened with two closed seasons.

4. Costs:

The proposed closed season rule will not impose any costs on local governments, but may increase the workload of DEC enforcement. It is estimated that the proposed season closure may cost LMA 4 permit holders in total approximately $27,000 more annually than the current season closure, based on 2013 lobster harvest data.

5. Local government mandates:

The proposed rule does not impose any mandates on local government.

6. Paperwork:

None.

7. Duplication:

The proposed amendment does not duplicate any State or Federal requirement.

8. Alternatives:

Ten percent trap reduction alternative: The Lobster Conservation Management Team for LMA 4 proposed to reduce the number of traps fishing for lobsters in LMA 4 by ten percent as an alternative management option to the ASMFC Lobster Board. The Lobster Board rejected this alternative because it found it was unlikely to meet the required ten percent harvest reduction. Trap reductions do not necessarily translate into an equal reduction in harvest.

No action alternative: The ASMFC Interstate FMP for Lobster requires that states adopt management measure to reduce harvest in LMA 4 by ten percent. If DEC does not adopt this proposed rule, a determination of delayed implementation by ASMFC may be imposed. Upon such a finding, the lobster fishery could be shut down in 2016 for an equal number of days the implementation of the management measures was delayed this year. New York could also be judged out of compliance with the ASMFC American Lobster FMP. This could lead to a total closure of the New York commercial and recreational lobster fisheries. The total closure of the lobster fishery in New York would cause a more significant impact on commercial and recreational harvesters than the proposed rule. Any closure of the lobster fishery would cause significant hardship on lobster harvesters and the associated fishing industries. The estimated dollar value of New York’s commercial lobster harvest was approximately $1 million in 2013.

9. Federal standards:

The amendments to Part 44 are in compliance with the ASMFC FMP for American lobster.

10. Compliance schedule:

The rule making must be implemented before February 1, 2015 to ensure that New York LMA 4 lobster harvesters are not unduly burdened by two closed seasons in 2015. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases, and via DEC website and electronic mailing list.

Regulatory Flexibility Analysis

1. Effect of rule:

The amendment of 6 NYCRR Part 44 revises the closed season dates for lobster harvesters in Lobster Management Area (LMA) 4, as required by the Atlantic States Marine Fisheries Commission (ASMFC). The rule will affect both commercial and recreational lobster harvesters. The regulations do not apply directly to local governments, and will not have any direct effects on local governments.

The objective of Addendum XVII to ASMFC American Lobster Fishery Management Plan (FMP) is to reduce harvest of lobster in Southern New England (SNE) by 10 percent to initiate stock rebuilding. Management measures implemented in 2013 did not meet the required reduction in LMA 4; therefore. The Lobster Conservation Management Team (LCMT) met and developed revised measures. The amended management approach calls for revised closed season dates for LMA 4 (waters off the south shore of Long Island). The 2013 management measures included a closed season from February 1 through March 31, while the revised closed season is from April 30 through May 31. An emergency rule is necessary to ensure that New York’s LMA 4 lobster harvesters are not burdened with two closed seasons during 2015. In 2013, there were 326 licensed resident commercial lobster fishers in New York; most were self-employed. The objective of Addendum XVII is to decrease harvest by 10 percent. We estimate the proposed closure may cost New York’s lobster harvesters $27,000 annually, using 2013 lobster harvest data. Lobster harvesters who fish in both LMAs 4 and 6 may incur additional costs due to implementation of the most restrictive rule which requires them to observe the closed season rules for both of the LMAs. The regulatory changes also apply to non-commercial harvesters. There were 750 non-commercial lobster harvesters in 2013. In 2013, approximately sixty-five percent of the non-commercial permit holders fished in areas that would be impacted by the rule.

In the long-term, the maintenance of sustainable fisheries will have a positive effect on small businesses in the lobster fishery. Any short-term losses in participation, harvest, and sales will be offset by the restoration of lobster stocks and an increase in yield from well-managed resources. Protection of the lobster resource is essential to the survival of the commercial and recreational lobster fisheries. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest and to continue to rebuild lobster stocks for future utilization.

2. Compliance requirements:

Lobster harvesters who fish in LMA 4 must observe the April 30 through May 31 season closure. Harvesters may set un-baited lobster traps or pots one week prior to the end of the closed season. Harvesters who designate multiple LMAs on their permit must abide by the closed season rules for all the LMAs listed on their permit.

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. Lobster industry costs involve the potential loss of harvest due to the closed season (details in section 1). Lobster harvesters who fish in multiple LMAs may incur additional costs due to implementation of the most restrictive rule.

5. Economic and technological feasibility:

The proposed regulations do not require any expenditure on the part of affected businesses in order to comply with the changes. The changes required by this proposed rule will be economically feasible for the majority of the affected parties.

There is no additional technology required for small businesses, and this action does not apply to local governments.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for New York to remain in compliance with the FMP for lobster. The regulations are intended to protect the lobster resource and avoid the adverse impacts that would be associated with closure of the fishery due to non-compliance with the FMP.

Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment in the lobster fishery, as well as wholesale and retail outlets and other support industries. Failure to comply with the FMP and to take required actions to protect the lobster fishery could hinder the rebuilding of the SNE lobster stock and have an adverse impact on the commercial and recreational lobster fisheries, as well as supporting industries.. These regulations are being adopted in order to initiate stock rebuilding while allowing for some harvest.

7. Small business and local government participation:

ASMFC had public hearings on Addendum XVII to which all resident commercial lobster license holders were invited. In addition, the LMA 4 LCCMT met to decide on revised implementation measures for this Addendum.

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 lobster resource. Cure periods for the illegal taking of lobster are neither desirable nor recommended. Immediate compliance is required to ensure the general welfare of the public and that the resource is protected.

Rural Area Flexibility Analysis

The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. The lobster fisheries directly affected by the proposed rule are entirely located within the marine and coastal district, and are 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 44, a Rural Area Flexibility Analysis is not required.

Job Impact Statement

1. Nature of impact:

The amendment of 6 NYCRR Part 44 will revise the closed season for lobster harvesters in Lobster Management Area (LMA) 4 (waters off the south shore of Long Island). This closed season is an alternative management measure to meet the objective of the Atlantic States Marine Fisheries Commission (ASMFC) American Lobster Fishery Management Plan (FMP) Addendum XVII. The objective of this addendum is to reduce the harvest of lobster in Southern New England (SNE) by ten percent to initiate stock rebuilding. In 2013, LMA 4 did not meet the ten percent harvest reduction goal; therefore, the current management measures are being revised at the direction of ASMFC. The proposed rule repeals the current closed season in LMA 4, from February 1 through March 31, and adopts a new closure from April 30 through May 31. The harvest and landing of lobsters from LMA 4 during April 30 through May 31 will be prohibited. Lobster harvesters who use lobster traps or pots may set un-baited lobster traps or pots one week prior to the end of the closed season.

Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce, as well as the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York. These rules will affect both commercial and recreational permit holders.

2. Categories and numbers affected:

In 2013, there were 326 resident commercial lobster permit holders in New York; most are self-employed. Approximately 90 of these permit holders have trap tag allocations in LMA 4. These permit holders may incur additional impacts due to implementation of the most restrictive rule, which requires them to observe the most restrictive rules in all LMAs in which they fish. The regulatory changes also apply to non-commercial harvesters. There were 750 non-commercial lobster permit holders in 2013. In 2013, approximately sixty-five percent of the non-commercial permit holders fished in areas that would be impacted by the rule.

3. Regions of adverse impact:

This rule making will impact lobster harvesters fishing in LMA 4 which is located in the near shore Atlantic Ocean off the south shore of Long Island.

4. Minimizing adverse impact:

Should New York fail to adopt this measure, ASMFC may find determination of non-compliance and the Secretary of Commerce may impose a lobster fishery closure for the State of New York. This rule making will prevent this punitive closure of the lobster fishery in New York. If the fishery were to close, it would reduce harvest by one hundred percent rather than the ten percent reduction objective of the addendum. During 2013, New York’s 326 resident commercial lobster permit holders harvested almost 250,000 pounds of lobsters for a value of approximately $1 million. In addition, there were 750 non-commercial lobster permit holders who harvested approximately 2,300 pounds.

Thus, the proposed season closure minimizes the potential for loss of existing jobs due to a closure of the fishery. In the long-term, the maintenance of sustainable fisheries will have a positive effect on lobster harvesters. Any short-term losses in participation, harvest, and sales are anticipated to be offset by the rebuilding of fishery stocks. Protection of the lobster resource is important to the survival of the lobster industry and the businesses that support it.

5. Self-employment opportunities:

The lobster industry as a whole is self-employed. This rule is not expected to result in additional opportunities for self-employment.