Home » 2010 Issues » April 14, 2010 » ENV-15-10-00008-P The Management of Striped Bass, Haddock, Atlantic Cod, American Lobster, Coastal Sharks and Weakfish
ENV-15-10-00008-P The Management of Striped Bass, Haddock, Atlantic Cod, American Lobster, Coastal Sharks and Weakfish
4/14/10 N.Y. St. Reg. ENV-15-10-00008-P
NEW YORK STATE REGISTER
VOLUME XXXII, ISSUE 15
April 14, 2010
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-15-10-00008-P
The Management of Striped Bass, Haddock, Atlantic Cod, American Lobster, Coastal Sharks and Weakfish
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
The management of striped bass, haddock, Atlantic cod, American lobster, coastal sharks and weakfish.
Purpose:
Make State regulations consistent with State and Federal laws and maintain compliance with Interstate Fishery Management Plans.
Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):
The Department of Environmental Conservation (DEC) proposes to amend 6 NYCRR 40.1(f) Table A – Recreational fishing as follows:
1. The minimum length for haddock decreases from 19 inches to 18 inches.
2. The possession limit for Atlantic cod taken by recreational anglers shall be reduced from no limit to what is specified in Federal regulations for Georges Bank (GB) cod: 50 CFR 648.89.
3. The possession limit for weakfish is reduced from 6 fish to one (1) fish.
4. The portions of Table A that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are repealed. All the footnotes of Table A that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are removed.
DEC proposes to amend 6 NYCRR 40.1(i) Table B – Commercial fishing as follows:
1. The trip limit for weakfish is reduced from no limit to 100 pounds. The bycatch possession limit is reduced from 150 pounds to 100 pounds: no more than 100 pounds in the round, per vessel, and provided that at least an equal amount of other food fish species is caught during the same trip is on board the vessel.
2. The portions of Table B that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are repealed. All the footnotes of Table B that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are removed.
DEC proposes to amend subparagraphs 40.1(j)(8)(ii) through 40.1(j)(8)(v) of 6 NYCRR to read as follows:
1. Permits to take a full quota share of striped bass will be issued at no cost to persons who currently possess a valid New York State commercial food fish license and who previously held a New York State license to sell striped bass during 1984, 1985, 1990, 1991, 1992, 1993, 1994, or 1995 and who can demonstrate through Federal or New York State income tax records that at least fifteen thousand dollars of earned income resulted from their direct participation in the harvest of marine fish, shellfish, crustaceans or other marine biota in any one year during the period 1994 through 2009. Previously, 50 percent or more of their earned income had to result from direct participation in the harvest of marine biota during those years. Persons who otherwise qualify for a striped bass commercial permit, but fail to meet the fifteen thousand dollar earned income criteria will receive a partial quota share striped bass permit.
2. Any holder of a partial share permit may apply for a full share permit by demonstrating through Federal or State tax records that fifteen thousand dollars or more of his or her earned income has been derived from the direct participation in the harvest of marine biota during the preceding year. Previously, a partial share permit holder had to demonstrate 50 percent of his or her income was derived from the harvest of marine biota.
3. Beginning in 2010, and continuing at five year intervals, each striped bass commercial harvesters permit holder in the full share category must file with the department a complete copy of his or her Federal or State income tax records from one of the preceding three years. These tax records must be filed before the June 1 deadline for receipt of applications. Such tax records must demonstrate that the permit holder has maintained the fifteen thousand dollar income level in order to remain a participant in the full share category. Failure to file a timely and complete copy of Federal or State income tax records which demonstrate that the permit holder has maintained the fifteen thousand dollar income level will result in the permit holder being placed into the partial share category. The rules pertaining to partial share permit holders then apply.
DEC proposes to adopt a new section 40.7 of 6 NYCRR entitled Coastal Sharks. The purpose of adopting this new section is to promote the prudent management of coastal sharks that are landed in the State of New York. This section shall define which sharks may be taken for commercial and recreational purposes and which sharks are prohibited from harvest, size limits, possession limits, manner of taking and landing, gear restrictions and open and closed seasons will also be specified in this section. The provisions in this section are designed to promote healthy self-sustaining populations of coastal sharks and provide for the sustainable use of the shark resource for the benefit of the residents of the State of New York.
For recreational anglers, it is unlawful to take or possess any shark other those listed below: Atlantic sharpnose ("Rhizoprionodon terraenovae"); blacknose ("Carcharhinus acronotus"); blacktip ("Carcharhinus limbatus"); blue ("Prionace glauca"); bonnethead ("Sphyrna tiburo"); bull ("Carcharhinus leucas"); common thresher ("Alopias vulpinus"); finetooth ("Carcharhinus isodon"); great hammerhead ("Sphyrna mokarran"); scalloped hammerhead ("Sphyrna lewini"); smooth hammerhead ("Sphyrna zygaena"); lemon ("Negaprion brevirostris"); nurse ("Ginglymostoma cirratum"); oceanic whitetip ("Carcharhinus longimanus"); porbeagle ("Lamna nasus"); shortfin mako ("Isurus oxyrinchus"); smooth dogfish ("Mustelus canis"); spiny dogfish ("Squalus acanthias"); spinner ("Carcharhinus brevipinna"); and tiger ("Galeocerdo cuvier").
1. The minimum size limit for the shark species listed above is 54 inches fork length. There is no minimum size limit for Atlantic sharpnose, finetooth, blacknose, bonnethead, smooth dogfish and spiny dogfish.
2. Recreational anglers may not take sharks using any means other than handlines that are retrieved by hand, not mechanical means, or by rod and reel.
3. Recreational anglers may not sell, trade or barter sharks or shark pieces.
4. Shore anglers may take or possess no more than one shark, regardless of species, except that one additional Atlantic sharpnose may be taken and possessed, one additional bonnethead may be taken and possessed; and there shall be no limit to the number of spiny dogfish and smooth dogfish that can be taken or possessed.
5. Recreational anglers fishing from a vessel may take or possess no more than one shark, regardless of species, except that one additional Atlantic sharpnose may be taken and possessed per angler, one additional bonnethead may be taken and possessed per angler and there shall be no limit to the number of spiny dogfish and smooth dogfish that can be taken or possessed per angler.
For commercial fishing in New York and for the purposes of these regulations and for consistency with Federal rules and the fishery management plan for coastal sharks developed by the Atlantic States Marine Fisheries Commission, coastal sharks shall be classified as follows:
7. There is no closed season for the shark commercial fishery.
8. No person shall take, possess or land any shark species listed as Prohibited or Research Species without first obtaining and possessing a valid special license in accordance with Part 175.
9. There is no possession limit for sharks listed as Smooth dogfish, Small coastal species, Pelagic species, and Non-sandbar large coastal species.
10. No person shall take possess or land more than thirty-three sharks, regardless of species in any 24-hour period.
11. Sharks harvested for commercial purposes shall be taken by the following methods and gears only: rod and reel; handline, which shall be retrieved by hand, not mechanical means, and shall be attached to or in contact with a vessel; small mesh gillnet; large mesh gillnet; trawl; shortline; pound net; and weir. A maximum of two shortlines per vessel may be used. The use of any other gear to take sharks for commercial purposes is prohibited.
12. The following bycatch reduction measures must be practiced by any person taking, possessing or landing sharks using shortlines or large mesh gillnets:
(a) All hooks attached to shortline gear must be corrodible circle hooks;
(b) All persons participating in the commercial shark fishery shall practice the protocols and possess the Federally-required release equipment for pelagic and bottom longlines for the safe handling, release and disentanglement of sea turtles and other non-target species;
(c) All captains and vessel owners must be certified in using handling and release equipment through workshops offered by National Oceanic and Atmospheric Administration's National Marine Fisheries Service;
(d) Large mesh gillnets shall be no longer than 2.5 kilometers (1.55 miles).
13. No person shall possess or land a shark listed in 6 NYCRR 40.7 without the tails and fins naturally attached to the carcass. Fins may be cut as long as they remain attached to the carcass by natural means with at least a small portion of uncut skin. Finning is prohibited. Sharks may be eviscerated and have the heads removed. Sharks may not be filleted or cut into pieces at sea.
14. Quotas, trip limits and directed fishery thresholds may be set by the Atlantic States Marine Fisheries Commission Spiny Dogfish & Coast Sharks Management Board (Sharks Board) for the smooth dogfish, small coastal, non-sandbar large coastal and pelagic species groups for each commercial fishing year. DEC will establish trip limits and directed fishery thresholds within the fishing year consistent with those established by the Sharks Board. Such trip limits and thresholds will be enforceable upon 72 hours notice to license holders of the vessel trip limit allowed.
15. If DEC determines that the maximum allowable harvest of sharks has been taken or is projected to be taken before the end of the fishing year, DEC may prohibit the take and possession of a shark species for commercial purposes upon 72 hours notice to license holders.
16. If DEC closes a fishery, but determines that the quota will not be harvested by the projected date, then DEC may reopen the fishery for a specified time at a specified trip limit up to the maximum allowed upon 72 hours notice to license holders.
17. No person shall take, possess or land sharks for commercial purposes when the Federal commercial fishery for that species is closed.
18. No harvester shall sell sharks taken in state waters for commercial purposes except to a holder of a Federal Commercial Shark Dealer Permit. A Federal Commercial Shark Dealer Permit shall be required to buy and sell sharks taken in state waters.
DEC proposes to amend 6 NYCRR section 44.3 to read as follows:
1. Subdivision 44.3(a) is repealed. Subdivisions 44.3(b), 44.3(c) and 44.3(d) are renumbered 44.3(a), 44.3(b) and 44.3(c).
2. Effective June 1, 2010, all lobster pots or traps in use shall contain escape vents that are either one or more unobstructed rectangular openings not less than five and three quarter inches by not less than two inches or two or more unobstructed circular openings not less than two and five-eighths inches in diameter each.
Text of proposed rule and any required statements and analyses may be obtained from:
Stephen W. Heins, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-0435, email: swheins@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 11-0303 and 13-0347 authorize the Department of Environmental Conservation (DEC) to establish by regulation measures for the management of striped bass including requirements for permits and eligibility for such permits, provided that such regulations are consistent with the compliance requirements of applicable fishery management plans (FMPs) adopted by the Atlantic States Marine Fisheries Commission (ASMFC).
ECL sections 11-0303, 11-1303, 13-0105, 13-0339-a, and 13-0340-a authorize DEC to establish by regulation management measures for Atlantic cod and weakfish including size limits, catch and possession limits, provided that such regulations are consistent with the compliance requirements of the applicable FMP adopted by ASMFC.
ECL section 13-0329(11) authorizes DEC to establish by regulation escape panels and vents consistent with the ASMFC Interstate FMP for American Lobster.
ECL section 13-0338 authorizes DEC to establish by regulation measures for the management of sharks, including size limits, catch and possession limits, open and closed seasons, closed areas, restrictions on the manner of taking and landing, requirements for permits and eligibility for such permits, recordkeeping requirements, requirements on the amount and type of fishing effort and gear, and requirements relating to transportation, possession and sale, provided that such regulations are consistent with the compliance requirements of applicable fishery management plans adopted by the ASMFC and with applicable provisions of FMPs adopted pursuant to the Federal Fishery Conservation and Management Act.
2. Legislative objectives:
It is the objective of the above-cited legislation that DEC manages marine fisheries in such a way as to protect this natural resource for its intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters. The ECL stipulates that management and use of State fish and wildlife resources must be consistent with marine fisheries conservation and management policies and interstate fishery management plans.
3. Needs and benefits:
Promulgation of this amendment is necessary to ensure that the regulatory requirements for the commercial striped bass permit income qualifications are more consistent with those requirements for the commercial food fish license as stipulated in the ECL. This amendment has the approval of the Marine Resources Advisory Council.
This proposed rule is also necessary to make New York State regulations for Atlantic cod and haddock consistent with Federal rules. Both species are managed by the Federal government and are not usually caught in New York waters. However, Atlantic cod and haddock are often landed in New York from fishing trips to Exclusive Economic Zone (Federal) waters. This rule is necessary to prevent confusion for recreational anglers as they seek to land in New York cod caught in Federal waters by synchronizing New York's regulations with the Federal rules.
The following paragraphs describe rule makings that are necessary for New York State to remain in compliance with ASMFC FMPs. All member states of ASMFC and the Mid-Atlantic Fishery Management Council (MAFMC) must comply with the provisions of FMPs and management measures adopted by ASMFC and MAFMC. These FMPs and management measures are designed to promote the long-term sustainability of quota managed marine species, preserve the States' marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate any regulations necessary to implement the provisions of the FMPs and remain compliant with the FMPs. New York State must promulgate the proposed rules to comply with management measures and FMPs adopted by ASMFC and MAFMC.
The proposed regulations are necessary to increase the size of lobster trap escape vents on all lobster traps used in New York State waters within Lobster Conservation Management Area 6 (Long Island Sound) to harvest lobsters. This increase in vent size corresponds to the increased minimum size limit which became effective January 1, 2010. New York's minimum size limit for lobsters increased to three and three-eighths inches carapace length and there must be a correlated increase in escape vent size. Addendum IV of Amendment 3 of the ASMFC American Lobster FMP requires corresponding escape vent size increases for any increase in minimum lobster size limit. The escape vent size increase is necessary to ensure that all sublegal size lobsters are able to get out of the trap and avoid being preyed upon by larger lobsters. Failure to implement this regulation in a timely fashion may result in a determination of non-compliance by ASMFC and by the Secretary of Commerce. New York State may then be subject to the imposition of a moratorium on the harvest of lobster within the State, which may result in significant adverse impacts to the State's economy.
The proposed regulations are also necessary to ensure New York State adopts measures to protect coastal sharks that are consistent with provisions of the ASMFC FMP for coastal sharks and with Federal regulations. Failure to adopt these regulations may result in a finding of non-compliance with the recommendations of the FMP for coastal sharks and subject New York State to the imposition of a moratorium on the harvest of coastal sharks.
Lastly, the proposed rule is necessary to adopt fishery management measures that would reduce fishing pressure on the depleted weakfish stock. Furthermore, New York State must comply with the recent recommendations of the ASMFC Weakfish Management Board and provisions in the ASMFC FMP for weakfish. Failure to comply with the FMP could result in a determination of non-compliance against New York State and possible weakfish fishery sanctions imposed by the Secretary of Commerce.
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 are no new costs to regulated parties resulting from this proposed amendment. There may be some significant loss of income to any commercial striped bass full share category permit holders who fail to continue to qualify as full share holders and are reduced to part share category.
There may be minor costs associated with complying with gear modifications for lobster license holders. Lobster license holders in lobster conservation management area (LCMA) 6 will need to replace the escape vents on their traps if the vents are too small. The proposed rule may constrain the number of lobsters that commercial fishers may catch and may significantly reduce the number of weakfish that commercial fishers may keep. Consequently, the proposed rule may cause some reduction in the earnings of some commercial fishermen.
(d) Costs to the regulating agency for implementation and continued administration of the rule:
DEC will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying commercial and recreational anglers of the new 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:
Striped bass: No Action Alternative - If this regulation is not amended, all full share category commercial striped bass permit holders will continue to qualify using the 50 percent earned income criteria which is now inconsistent with the commercial food fish license criteria set in law. The proposed rule reflects the recommendations of the Marine Resources Advisory Council, and would make the income eligibility requirements for striped bass permit holders consistent with the income requirements stated in the ECL for new commercial food fish license holders.
Atlantic cod and haddock: No Action Alternative - If the regulations are not changed, then New York rules will remain less restrictive than the Federal rules for recreational cod fishing. This will promote confusion and noncompliance with Federal rules in New York because nearly all cod landed in New York are caught in Federal waters, but this cannot be proven at the dock.
American lobster: No Action Alternative - The ASMFC American Lobster FMP requires an increase in vent sizes for Southern New England. If New York does not implement this increase in vent size, the Secretary of Commerce may find the State non-compliant with the American lobster FMP and subject to fishery sanctions imposed by the Secretary of Commerce. Furthermore, the State may be subject to delayed implementation measures, which impose fishery closures based on the length of time the regulations are delayed. Any fishery sanctions imposed on New York State would cause significant economic hardship on State lobster harvesters. The estimated dollar value of New York's commercial lobster harvest was approximately $4.1 million in 2008 which is the last year of estimated value. This alternative was rejected.
Coastal sharks: No Action Alternative - ASMFC has adopted new management measures for coastal sharks. If New York State fails to amend 6 NYCRR Part 40 and to implement the recommendations of ASMFC, New York State will be out of compliance with the Fishery Management Plan for Coastal Sharks. The Secretary of Commerce may then implement a moratorium for fishing for coastal sharks in the State of New York. Consequently, this alternative was rejected.
Weakfish: No Action Alternative – The ASMFC Weakfish Management Board adopted new management measures that significantly reduced the amount of weakfish that could be harvested by commercial and recreational fishermen. If New York State fails to amend 6 NYCRR Part 40 and implement the recommendations of ASMFC, the State will not be in compliance with the management measures put into place by ASMFC and the FMP for Weakfish. ASMFC may then request the Secretary of Commerce to implement a moratorium on fishing for weakfish in New York. Consequently, this alternative was rejected.
9. Federal standards:
The amendments to 6 NYCRR Parts 40 and 44 are necessary to comply with the ASMFC and the Mid-Atlantic Fishery Management Council FMPs.
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:
The Department of Environmental Conservation (DEC) has proposed a rule that will modify the striped bass commercial permit income qualifications to be more consistent with the income qualifications stated in the Environmental Conservation Law for the commercial food fish license. In 2009, there were 473 commercial striped bass permit holders in New York State. Of these, 372 permit holders were in the full share category and each received 241 tags. The remaining 101 permit holders were in the part share category and each received 39 tags. There is a potential that some of the full share permit holders will no longer qualify as full share once the rule is adopted and will become part share permit holders. This may indicate a possible reduction in their income from striped bass fishing. It is unknown how many permit holders would have a change in their full share or part share status once this amendment is adopted.
The proposed rule will allow recreational anglers to fish for and land Atlantic cod in New York in accordance with Federal rules for the Georges Bank cod fishery. The rule making will also propose to reduce the recreational minimum size limit for haddock from 19 inches to 18 inches. Currently, there is no possession limit for Atlantic cod taken from State waters. However, there is a 10-fish limit for cod taken from Federal waters. This proposed rule will make New York State regulations for Atlantic cod and haddock consistent with Federal rules. The proposed rule will insure that recreational anglers must comply with regulations that are consistent in State and Federal waters. The number of recreational anglers in New York who could be affected by this rule making is unknown by DEC at this time, but the National Marine Fisheries Service has estimated that there were just over 1 million recreational anglers in New York in 2007.
The proposed rule will amend Part 44 and increase the size of lobster trap escape vents to correspond to the increased lobster minimum size limit which became effective January 1, 2010. This rule will allow sublegal lobsters to escape lobster traps and avoid predation by larger lobsters caught in the trap. In 2009 there were 329 New York State licensed commercial lobster harvesters who harvested lobsters in LMA 6.
DEC proposes to adopt regulations that implement management measures for coastal sharks. The proposed rule will identify which shark species are allowed to be taken in the commercial and recreational fisheries and which species are prohibited; specify size limits, possession limits, seasons and authorized fishing gear; detail landing requirements, requirements for harvest, dealer and display licenses and permits; define by-catch reduction measures; and specify an annual process for quota and trip limit determination. The proposed rule will implement current or proposed Federal rules for the management of sharks and will be consistent with the Federal rules.
The proposed rule making will reduce the recreational possession of weakfish to one (1) fish per angler per day, reduce the commercial daily trip limit to 100 pounds, reduce the commercial bycatch limit to 100 pounds during closed seasons, and will specify a 100 undersized fish per trip allowance for the finfish trawl fishery. The income of commercial fishers who target weakfish may be reduced.
No local governments are affected by these proposed regulations.
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. There may be minor costs associated with complying with gear modifications for lobster license holders.
5. Economic and technological feasibility:
For the most part, the proposed regulations do not require any expenditure on the part of regulated parties in order to comply with the changes. There may be some loss of income for any commercial striped bass full share category permit holders who fail to continue to qualify as full share holders and are reduced to the part share category. There may be minor costs associated with complying with gear modifications for lobster license holders. The changes required by the proposed regulations may reduce the income of commercial food fish harvesters by reducing the amount of weakfish they may harvest.
There is no additional technology required for small businesses, and this action does not apply to local governments.
6. Minimizing adverse impact:
Prior to the commercial striped bass permit re-qualifying date, all striped bass commercial permit holders will be sent a letter from DEC explaining the requalification process and the forms and records necessary for them to be placed in the full share category. Those who fail to submit records or who cannot meet the income qualifications will be placed in the part share category. Thereafter, permit holders in the part share category may apply for full share status if they meet the full share income requirements in future years.
Licensed lobster harvesters may reduce the costs of the required gear modification by modifying the vent size themselves rather than having it done by the trap manufacturer.
The failure to promulgate the proposed rules will result in New York not complying with the management measures adopted by MAFMC and ASMFC. New York may be found non-compliant with the FMPs for American lobster, coastal sharks or weakfish and subject to sanctions; ASMFC may request the Secretary of Commerce to implement a moratorium for fishing for any of the affected species in the State of New York. Protection of the State's shark and weakfish resources is essential to the long-term benefit of commercial fishers and recreational anglers. Any short-term losses in harvest and angler participation as a result of the promulgation of the proposed rules will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. These regulations are designed to protect the coastal shark and weakfish stocks from overfishing, allow the stock to rebuild and achieve long-term sustainability of the fisheries for future use. Failure to comply with FMPs and take required actions to protect the State's marine resources could cause the catastrophic collapse of a stock and have a severe adverse impact on the commercial and recreational fishing industries dependent on that species, as well as on the supporting industries for those fisheries. Any positive effect of adopting proper management measures may not be apparent for several years, not until the stocks recover from depletion and become sustainable.
7. Small business and local government participation:
Striped bass commercial fishers have participated in Marine Resources Advisory Council (MRAC) meetings. This regulatory amendment has received the approval of MRAC and they are awaiting enactment of the these provisions. Further, other provisions of the rule making will be presented to MRAC by DEC at the next meeting. 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.
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 commercial striped bass, American lobster, Atlantic cod, haddock, coastal shark and weakfish fisheries that are 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 40, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
1. Nature of impact:
The Department of Environmental Conservation (DEC) has proposed a rule that will modify the striped bass commercial permit income qualifications to be more consistent with the income qualifications stated in the Environmental Conservation Law (ECL) for the commercial food fish license. Some commercial striped bass full share permit holders may no longer qualify as full share permit holders under the proposed rule and may be reclassified as partial share permit holders. The income derived from fishing for striped bass of those reclassified as partial share permit holders will likely be reduced. It is also likely that some partial share permit holders may qualify as full share permit holders once the proposed rule is adopted. Their income derived from striped bass fishing may increase.
DEC is also proposing to implement a rule that will allow recreational anglers to fish for and land Atlantic cod in New York in accordance with Federal rules for the Georges Bank cod fishery. The rule making will also propose to reduce the recreational minimum size limit for haddock from 19 inches to 18 inches. This rule applies to only recreational anglers.
DEC is proposing to amend Part 44 and increase the size of lobster trap escape vents on all lobster traps used in New York State waters within Lobster Conservation Management Area 6 (Long Island Sound) to harvest lobsters. This increase in vent size will allow sublegal lobsters to exit lobster traps and avoid predation by larger lobsters in the trap. This proposal is unlikely to impact jobs because New York State lobster harvesters are already subject to the increased minimum size for LCMA 6 (since January 1, 2010). This rule will merely require modification of gear already in use by the lobster harvesters.
DEC is also proposing to adopt regulations to protect coastal sharks that are consistent with provisions of the Atlantic States Marine Fisheries Commission (ASMFC) Fishery Management Plan (FMP) for coastal sharks and with Federal regulations. The proposed rule will be consistent with existing or proposed Federal rules. Jobs and incomes are not as likely to be impacted by this rule because most of the regulation is already in effect as a Federal rule and is referenced to in New York State regulations.
Lastly, DEC is proposing to adopt fishery management measures that would reduce fishing pressure on the depleted weakfish stock. The rule will significantly reduce the amount of weakfish commercial fishers will be able to take and land and may reduce income derived from fishing for weakfish.
2. Categories and numbers affected:
DEC has proposed a rule that will modify the striped bass commercial permit income qualifications to be consistent with the income qualifications stated in the ECL for the commercial food fish license. In 2009, there were 473 commercial striped bass permit holders in New York State. Of these, 372 permit holders were in the full share category and each had received 241 tags. The remaining 101 permit holders were in the part share category and each received 39 tags. It is unknown at this time how many permit holders would be reclassified as full share or part share permit holders once this amendment is adopted.
The proposed rule will allow recreational anglers to fish for and land Atlantic cod in New York in accordance with Federal rules for the Georges Bank cod fishery. This will result in placing a 10-fish limit on the possession of cod, whereas there currently is no limit. The number of recreational anglers in New York who could be affected by this rule making is unknown by DEC at this time, but the National Marine Fisheries Service has estimated that there were just over 1 million recreational anglers in New York in 2007.
The proposed rule will increase the size of lobster trap escape vents to correspond to the increased lobster minimum size limit which became effective January 1, 2010. In 2009, there were 329 New York State licensed commercial lobster harvesters who harvested lobsters in Lobster Conservation Management Area 6 (Long Island Sound).
DEC proposes to adopt regulations that implement management measures for coastal sharks and weakfish that will impact both commercial fishers and recreational anglers. In 2009, there were 1,049 State- licensed food fish harvesters in New York. The number of recreational anglers in New York who could be affected by this rule making is unknown by DEC at this time.
This Job Impact Statement does not include recreational anglers in this analysis, since fishing is recreational for them and not related to employment.
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 and the Hudson River up to the Tappan Zee Bridge. The Hudson River is not a usual habitat of Atlantic cod, American lobster, coastal sharks or adult weakfish. The commercial striped bass fishery is limited to portions of the marine and coastal district.
4. Minimizing adverse impact:
Prior to the commercial striped bass permit re-qualifying date, all striped bass commercial permit holders will be sent a letter from DEC explaining the requalification process and the forms and records necessary for them to be placed in the full share category. Those who fail to submit records or who cannot meet the income qualifications will be placed in the part share category. Thereafter, permit holders in the part share category may apply for full share status if they meet the full share income requirements in future years. Licensed lobster harvesters may reduce the costs of the required gear modification impacts by modifying the vent size themselves rather than having it done by the trap manufacturer.
The failure to promulgate the proposed rules will result in New York not complying with the management measures adopted by MAFMC and ASMFC. New York may be found non-compliant with the FMPs for American lobster, coastal sharks or weakfish and subject to sanctions; ASMFC may request the Secretary of Commerce to implement a moratorium for fishing for any of the affected species in the State of New York. Protection of the State's marine resource is essential to the long-term benefit of commercial fishers and recreational anglers. Any short-term losses in harvest and angler participation will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. These regulations are designed to protect the coastal shark and weakfish stocks from overfishing, allow the stock to rebuild and achieve long-term sustainability of the fisheries for future use. Failure to comply with FMPs and take required actions to protect the State's marine resources could cause the catastrophic collapse of a stock and have a severe adverse impact on the commercial and recreational fishing industries dependent on that species, as well as on the supporting industries for those fisheries. Any positive effect of adopting proper management measures may not be apparent for several years, not until the stocks recover from depletion and becomes sustainable.
