Home » 2013 Issues » February 20, 2013 » ENV-08-13-00002-EP Closed Season for the Harvest and Landing of Lobster from Lobster Conservation Management Area (LMA) 4
ENV-08-13-00002-EP Closed Season for the Harvest and Landing of Lobster from Lobster Conservation Management Area (LMA) 4
2/20/13 N.Y. St. Reg. ENV-08-13-00002-EP
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 8
February 20, 2013
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-08-13-00002-EP
Filing No. 146
Filing Date. Jan. 31, 2013
Effective Date. Jan. 31, 2013
Closed Season for the Harvest and Landing of Lobster from Lobster Conservation Management Area (LMA) 4
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of Part 44 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:
Adoption of these regulations on an emergency basis are necessary for New York to come into compliance with the Fishery Management Plan (FMP) for American lobster as adopted by the Atlantic States Marine Fisheries Commission (ASMFC), to begin rebuilding the southern New England lobster stock and to avoid potential federal sanctions imposed for lack of compliance with the plan. Each member state of ASMFC is expected to promulgate regulations that comply with FMPs adopted by ASMFC. These regulations are needed to properly manage the State’s fisheries. Because of the time needed for the development and review of a proposal for alternative interpretations of the “most restrictive rule”, New York State did not have this rule in place by January 1, 2013, the implementation date set by ASMFC. The department requested this review because the ASMFC Lobster Board’s interpretation of the rule adds additional restrictions on New York’s lobster harvesters who fish in multiple LMAs. The proposal was reviewed at the Lobster Technical Committee (TC) meeting January 8, 2013. The LMA 4 Lobster Conservation Management Team (LCMT) chose a closed season of February 1 through March 31. This emergency rule making is necessary to adopt the closed season regulations by the start of the LMA 4 closed season, February 1.
Subject:
Closed season for the harvest and landing of lobster from Lobster Conservation Management Area (LMA) 4.
Purpose:
To implement ASMFC American Lobster Fishery Management Plan Addendum XVII and remain in compliance with ASMFC.
Substance of emergency/proposed rule (Full text is posted at the following State website:http://www.dec.ny.gov/):
The substantive change to 6 NYCRR Part 44 is the adoption of regulations implementing a closed fishing season for lobsters in Lobster Management Area (LMA) 4. The new rule is detailed below:
New subdivision 44.1(h) is adopted to read as follows:
(h) Season closure.
(1) The harvest and landing of lobsters from LMA 4 is prohibited from February 1 through March 31.
(2) During the February 1 through March 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. No lobster trap or pot may be in the water from February 15 to March 24, unless the lobster permit holder also holds appropriate license(s) to harvest other species from their traps or pots. Lobster permit holders may set un-baited lobster traps or pots one week prior to the end of the closed season.
(3) Permittees who designate more than one LMA in their lobster permit application shall abide by the closed seasons rules in all designated LMAs, regardless of where they are fishing. Any person who possesses more than one commercial lobster permit shall abide by the closed season rules of the LMAs designated on all of their permits, regardless of where they are fishing. Any permittee who fails to designate an LMA on their application shall abide by all the closed season rules of the LMAs 1, 2, 3, 4, 5, 6, and Outer Cape Cod (OCC). The department shall provide license holders written notice of the current closed season rules of LMAs 1, 2, 3, 4, 5, 6 and OCC annually.
(4) These regulations apply to both commercial and recreational lobstermen. The other significant change to 6 NYCRR Part 44 is the renumbering of the sections of Part 44 to create space for the new rules and make the lobster regulations more consistent with the regulations for horseshoe crabs and crabs.
The renumbering changes are summarized below:
The lobster regulations are currently numbered as sections 44.1 through 44.7. They are renumbered as subdivisions (a) through (g) in the new section 44.1 Lobsters.
Section 44.9 Crabs is renumbered as section 44.2 Crabs.
Section 44.8 Horseshoe crabs is renumbered as section 44.3 Horseshoe crabs
Sections 44.10 through 44.12 are renumbered as sections 44.4 through 44.6.
Additional edits were necessary to correct grammatical, spelling, and technical errors and to maintain numbering consistency within the new sections.
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 30, 2013.
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, (631) 444-0454, email: kamckown@gw.dec.state.ny.us
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 (the department) to establish by regulation closed season regulations for Lobster Conservation Management Areas 1, 2, 3, 4, 5, and Outer Cape Cod (OCC) for American lobsters.
2. Legislative objectives:
It is the objective of the above-cited legislation that the department 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. The Atlantic States Marine Fisheries Commission (ASMFC) American Lobster Management Board approved Addendum XVII to Amendment 3 of the American Lobster Fishery Management Plan (FMP) with the objective of decreasing lobster harvest in Southern New England (SNE) by 10 percent as the first step towards stock rebuilding. Lobster Conservation Management Teams (LCMT) met and determined implementation measures. These measures include a closed season for Lobster Conservation Management Area (LMA) 4 (waters off the south shore of Long Island). The LMA 4 Lobster Conservation Management Team (LCMT) chose a closed season of February 1 through March 31.
Because of the time needed for the development and review of a proposal for alternative interpretations of the “most restrictive rule” New York State did not have this rule in place by January 1, 2013, the implementation date set by ASMFC. The department requested this review because the ASMFC Lobster Board’s interpretation of the rule adds additional restrictions on New York’s lobster harvesters who fish in multiple LMAs. The proposal was reviewed at the Lobster Technical Committee (TC) meeting January 8, 2013. The TC did not approve the alternatives due to their concern that the alternatives could result in increases or shifts in effort which could negatively affect local lobster population rebuilding. The LMA 4 Lobster Conservation Management Team (LCMT) chose a closed season of February 1 through March 31. This emergency rule making is necessary to adopt the closed season regulations by the start of the LMA 4 closed season, February 1.
Pursuant to section 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission (ASMFC). ASMFC facilitates the cooperative management of marine, shell and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish is ASMFC’s Interstate Fishery Management Plans for individual species or groups of fish. The Fisheries Management Plans (FMPs) are designed to promote the long-term health of these species, preserve resources, and protect the interests of both commercial and recreational fishers.
Under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), ASMFC determines if states have implemented provisions of FMPs with which they are required to comply. If ASMFC determines that a state is non-compliant with an FMP, it so notifies the U.S. Secretary of Commerce. If the Secretary concurs in the non-compliance determination, the Secretary promulgates and enforces a complete prohibition on all fishing for the subject species in the waters of the non-compliant state until the state comes into compliance with the FMP.
Environmental Conservation Law section 13-0329(16), authorizes the department to adopt regulations for the management of lobster in LMAs 1, 2, 3, 4, 5 and Outer Cape Cod (OCC), provided that such regulations must be consistent with the fishery management plans for lobster adopted by ASMFC.
Failure to adopt rules for LMA 4 could lead to the determination of delayed implementation, and the fishery may be shut down for an equal number of days the following year. It may also result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York. During 2010, New York’s 360 resident commercial lobster license holders harvested almost 800,000 pounds of lobsters for a value of approximately $3.4 million. In addition, there were 1,095 non-commercial lobster license holders. A fishery closure would impact all New York commercial and non-commercial lobster permit holders.
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:
The proposed rule will impose costs to commercial lobster permit holders who fish in LMA 4. The objective of Addendum XVII is to decrease harvest by 10 percent. We estimate the addendum would cost New York’s lobster industry as a whole approximately $45,000 annually using 2010 lobster harvest data. There will be additional costs to lobster permit holders who fish in both LMA 4 and 6 due to the most restrictive rule.
(d) Costs to the regulating agency for implementation and continued administration of the rule:
The department will incur costs associated with both the implementation and administration of these rules, including the costs relating to notifying permit holders of the new rules and enforcement of the closed season and most restrictive rules.
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:
Alternative measures: Addendum XVII to the Atlantic States Marine Fisheries Commission (ASMFC) American lobster Fishery Management Plan adopted a 10 percent reduction in harvest to help rebuild the depleted Southern New England lobster stock. The addendum recommended size limits and seasonal and area closures as management measures to promote the reduction in lobster harvest. LCMT 4 proposed a closed season as part of the management measures to reduce harvest. Alternative measures would need to be proposed by the Area LCMT and approved by the ASMFC Lobster Management Board.
“Most Restrictive Rule”: Alternative interpretations of the “most restrictive rule” where proposed to the ASMFC American Lobster TC. The proposal would have allowed multi-area permit holders some flexibility to fish multiple areas without incurring full multiple season closures. The TC did not approve the alternatives due to their concern that the alternatives could result in increases or shifts in effort which could negatively affect local lobster population rebuilding.
No action: This alternative is rejected because New York State must abide by the ASMFC American Lobster FMP required 10% reduction in harvest, implemented in part by a closed season for LMA 4.
9. Federal standards:
The amendments to Part 44 are in compliance with the ASMFC fishery management plan for American lobster.
10. Compliance schedule:
The regulation must be implemented on February 1, 2013. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via the department’s website and electronic mailing list.
Regulatory Flexibility Analysis
1. Effect of rule:
The amendment of 6 NYCRR Part 44 implements a closed season for lobster harvesters in Lobster Conservation Management Area (LMA) 4, as required by the Atlantic States Marine Fisheries Commission (ASMFC). The rule will affect both commercial and non-commercial 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. Lobster Conservation Management Teams (LCMT) met and determined implementation measures. These measures include a closed season for Lobster Conservation Management Area (LMA) 4 (waters off the south shore of Long Island). Because of the time needed for the development and review of a proposal for alternative interpretations of the “most restrictive rule” New York State did not have this rule in place by January 1, 2013, the implementation date set by ASMFC. The department requested this review because the ASMFC Lobster Board’s interpretation of the rule adds additional restrictions on New York’s lobster harvesters who fish in multiple LMAs. The proposal was reviewed at the Lobster Technical Committee (TC) meeting January 8, 2013. The TC did not approve the alternatives due to their concern that the alternatives could result in increases or shifts in effort which could negatively affect local lobster population rebuilding. The LMA 4 Lobster Conservation Management Team (LCMT) chose a closed season of February 1 through March 31. This emergency rule making is necessary to adopt the closed season regulations by the start of the LMA 4 closed season, February 1.
In 2010, there were 360 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 addendum would cost New York’s lobster harvesters $45,000 annually using 2010 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 1,095 non-commercial lobster harvesters in 2010. In 2010, approximately 30 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 fisheries in question. Any short-term losses in participation, harvest and sales will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. Protection of the lobster resource is essential to the survival of the commercial and non-commercial fisheries. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest, and to continue to rebuild or maintain the stocks for future utilization.
2. Compliance requirements:
Lobster harvesters who fish in LMA 4 must observe the February 1 through March 31 season closure. Harvesters have a two week period to remove lobster pots from the water after the closed season begins and they 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 expenditures on the part of affected businesses in order to comply with the changes. The changes required by this proposed rule have been determined to 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. Therefore, there are no economic or technological impacts for any such bodies.
6. Minimizing adverse impact:
The promulgation of this regulation is necessary for the department to become in compliance with the FMP for lobster as soon as possible. The regulations are intended to protect the lobster resource and avoid the adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP.
Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, as well as wholesale and retail outlets and other support industries. Failure to comply with an FMP and take required actions to protect a marine fishery could hinder the rebuilding of the SNE lobster stock and have an adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. 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 where all resident commercial lobster license holders were invited. In addition, the LMA 4 Lobster Conservation Management Team met to decide on 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 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.
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 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 implement the closed season measures 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 10 percent to initiate stock rebuilding. This rule establishes a closed season for lobster harvesters in Lobster Conservation Management Area (LMA) 4 (waters off the south shore of Long Island), as required by the addendum to the FMP. The rule prohibits the harvest and landing of lobsters from LMA 4 from February 1st through March 31st. During the February 1 through March 31 closure, lobster harvesters who use lobster traps or pots will have a two week period to remove lobster pots from the water after the closed season begins and 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 “most restrictive rule” which requires them to abide by the closed season rules for all the LMAs listed on their permit.
Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York. These rules will affect both commercial and non-commercial permit holders.
2. Categories and numbers affected:
In 2010, there were 360 licensed resident commercial lobster fishers in New York, most are self-employed. Approximately 100 of these permit holders have trap tag allocations in LMA 4. Less than a dozen of these 2010 lobster permit holders fished in both LMA 4 and 6. These permit holders may incur additional impacts 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 1,095 non-commercial lobster permit holders in 2010. In 2010, approximately 30 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 the Marine District of New York 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 100 percent rather than the 10 percent reduction of the addendum. During 2010, New York’s 360 resident commercial lobster license holders harvested almost 800,000 pounds of lobsters for a value of approximately $3.4 million. In addition, there were 1,095 non-commercial lobster license holders.
Thus, the restrictions minimize the potential for job loss 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 will be offset by rebuilding of fishery stocks. Protection of the lobster resource is important to the survival of the lobster fishers and the businesses that support in these fisheries.
The department brought a proposal to the ASMFC American Lobster Technical Committee (TC) with alternative interpretations of the “most restrictive rule” to minimize the adverse impact of the application of the “most restrictive rule” to closed seasons. The rule requires that lobster harvesters cease fishing in all LMAs listed on their lobster permit should any LMA listed there be closed. The department’s proposals would have allowed multi-area harvesters some flexibility to continue to fish in alternative LMAs when a specific one is closed. The TC did not approve these alternatives due to the concern that these alternatives could result in increases or shifts in effort which could negatively affect local population rebuilding.
