ENV-15-15-00001-E Extend Bay Scallop Open Season for 2015
4/15/15 N.Y. St. Reg. ENV-15-15-00001-E
NEW YORK STATE REGISTER
VOLUME XXXVII, ISSUE 15
April 15, 2015
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY RULE MAKING
I.D No. ENV-15-15-00001-E
Filing No. 226
Filing Date. Mar. 27, 2015
Effective Date. Mar. 27, 2015
Extend Bay Scallop Open Season for 2015
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 49 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 13-0327
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
Promulgating this regulation on an emergency basis is necessary to extend the bay scallop season by one month before the season closes on March 31. The extremely harsh winter and freezing temperatures made most of the areas in Peconic Bays and adjacent waters inaccessible for scallop harvest for up to 5 weeks, causing commercial harvesters to lose a significant portion of their income potential during the winter. This regulation would provide additional economic opportunities for commercial harvesters to make up revenues lost during the winter months while still providing for the conservation of viable bay scallop resources in State waters. It is in the best interests of the general welfare of New York State’s commercial shellfish industry to implement these regulations before the closure of the current bay scallop season on March 31.
New York’s bay scallop resource is primarily located in the waters of Peconic and Gardiners Bays in eastern Suffolk County and situated within the five east end townships of Riverhead, Southold, Shelter Island, Southampton and East Hampton. The open season for bay scallop harvest is the first Monday in November (opened on November 3, 2014) through March 31. Bay scallop harvest has been increasing in the past few years, providing a new source of income for commercial shellfishermen during the late fall/winter months. In 2014, bay scallop landings were just over 100,000 pounds with a dockside value of $1.5 million dollars as compared to 2013 landings of 32,000 pounds. The 2014 bay scallop landings represent the highest annual harvest reported since 1985. The current bay scallop season opened in November with more than one hundred boats working in the Peconic Bays and was expected to be another banner year for bay scallop harvest.
Bay scallop harvest in Peconic Bays historically averaged about 300,000 pounds per year and provided commercial harvesters with a significant portion of their income in the late fall and winter months. The bay scallop population on the east end was decimated in 1985 and through 1994 due to the occurrence and repeated blooms of the harmful algal bloom known as the Brown Tide. State law was amended in 2005 and subsequently DEC adopted regulations in 2006, with the support of commercial harvesters and east end towns, to delay the opening date of the bay scallop season by 3 weeks to allow for growth, maturity and spawning potential to be maximized before scallops could be harvested. Additionally, bay scallop restoration efforts have been undertaken in Peconic Bays to help restore this commercially important fishery.
The record cold temperatures this winter have caused widespread freezing of creeks, bays and harbors, preventing commercial harvesters from harvesting bay scallops in most areas since early February. Some of these areas remain inaccessible due to ice, which leaves very little opportunity to harvest bay scallops in these areas before the season closes on March 31.
Bay scallops are short-lived and only live about two years. Because of the bay scallop’s short lifespan, legal-sized adult scallops will likely die before the summer spawning period and will not survive for the opening of the next season in November. This will be an unnecessary loss of a valuable marine resource and source of income potential for commercial fishery participants while providing only minimal conservation results toward ensuring the long-term viability of the bay scallop population. The juvenile “bug” scallops would not be affected by a one month extension of the open season since they are not large enough to be legally taken this season and will represent the spawning and adult population for next year’s harvest.
The promulgation of this regulation on an emergency basis is necessary because the normal rule making process would not promulgate these regulations in the time frame necessary to provide for additional harvesting opportunities before the end of the open season on March 31.
Subject:
Extend bay scallop open season for 2015.
Purpose:
To provide additional harvesting opportunities to commercial bay scallop harvesters due to extreme winter conditions this year.
Text of emergency rule:
New paragraph 6 NYCRR 49.1(b)(1) is adopted to read as follows:
(1) For 2015, bay scallops may be taken during the period from January 1 to April 30, both inclusive.
New subparagraph 49.1(f)(1)(i) is adopted to read as follows:
(i) For 2015, no person shall possess bay scallops for sale for food purposes from May 1 to the first Monday in November. For 2015, the provisions of this section shall not prohibit the possession of bay scallops, or sale of such bay scallops, which have been taken from approved areas during the period from January 1 to April 30, both inclusive, shucked and packed in approved packages and frozen, and thereafter kept in a frozen state.
This notice is intended
to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires June 24, 2015.
Text of rule and any required statements and analyses may be obtained from:
Debra Barnes, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, NY 11733, (631) 444-0477, email: debra.barnes@dec.ny.gov
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a short environmental assessment form is on file at NYSDEC.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) Section 13-0327 authorizes the Department of Environmental Conservation (DEC) to fix by regulation measures for the management of scallops including size limits, catch and possession limits, open and closed seasons, closed areas, restrictions on manner of taking and landing, requirements for permits and eligibility, recordkeeping and identification requirements, and requirements relating to transportation, possession and sale.
2. Legislative objectives:
It is the objective of the above cited statutory authority that DEC establishes conservation measures necessary to promote and restore the viability of sustainable bay scallop populations in Peconic Bays and other waters of the marine district.
3. Needs and benefits:
The extraordinary record cold temperatures this winter have caused widespread freezing of the creeks, harbors and bays, preventing shellfish harvesters from harvesting bay scallops in State waters since early February. Some areas in the Peconic bays are still inaccessible due to ice, creating a significant financial hardship for commercial harvesters that rely on this important fishery for a significant portion of their income during the winter months. The bay scallop season opened on November 3, 2014 and landing reports for November and December projected a significantly productive harvest for this year’s season. This emergency rule is needed to extend the bay scallop season for one month from March 31 to April 30, 2015 for the current season only. The extension will provide increased harvesting opportunities for harvesters to make up income lost during the season due to extreme winter icing conditions which prevented harvesting in Peconic Bays and other areas of the marine district for about 5 weeks this winter.
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 costs to regulated parties resulting from this action. The rule will provide additional economic opportunities for the regulated parties to make up for revenues lost during the winter months in 2015.
(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 this rule.
5. Local government mandates:
The proposed rule does not impose any mandates on local government.
6. Paperwork:
None.
7. Duplication:
The proposed rule does not duplicate any state or federal requirement.
8. Alternatives:
A “no action” alternative was considered. If this rule is not adopted by March 31, 2015, the bay scallop season will close. Because of the bay scallop’s short lifespan (about 2 years), legal-sized adult scallops will likely die before the summer spawning period and will not survive for the opening of the season in November. Failure to adopt this rule as a one-time extension of the bay scallop season would result in an unnecessary loss of a valuable marine resource and income potential for commercial shellfish harvesters and would serve as a minimal protection or conservation measure for ensuring the long-term viability of the bay scallop population. This alternative was rejected because it does not provide any economic relief and compensation to the fishery participants and affords only minimal conservation of bay scallop resources.
A “15 day extension” of the open season for this year was considered. The record cold temperatures this winter caused extensive freezing of local waters making them inaccessible to bay scallop harvest for up to 5 weeks. Some areas in the western portion of Peconic Bays are still frozen and inaccessible to harvest. Commercial harvesters have lost a significant portion of their income this winter due to the severe weather conditions that prevented harvesting in state waters. A one-time extension of the open season for 15 days would only provide minimal economic relief to fishermen who were out of work for more than one month. This alternative was rejected as not providing the greatest practicable economic benefit to the shellfish industry.
9. Federal standards:
None.
10. Compliance schedule:
The emergency regulations will take effect upon filing of the rule with the Department of State. Compliance with the rule would be required immediately. DEC will provide electronic and mail notifications to regulated parties to advise them of the extension of the open season, and dates for legal possession and sale of bay scallops. DEC will update its public website to reflect these changes and also anticipates issuing a press release to provide additional notification to the public and regulated parties.
Regulatory Flexibility Analysis
1. Effect of rule:
Small businesses affected by this rule will include shellfish harvesters, shippers, and bay scallop shucker/packers. The number of shellfish harvesters engaged in the commercial harvest of bay scallops varies each year based on availability of the resource. For 2014, there were a total of 1,859 shellfish digger permit holders, 197 shellfish shipper permit holders and 41 bay scallop shipper permit holders (shucker/packer). In an average year, the number of commercial scallop harvesters landing bays scallops ranges from 125 to 150 at the beginning of the season in November and decreases to about 20 to 30 full-time harvesters in the winter months.
The record cold temperatures this winter caused widespread freezing of the creeks, harbors and bays, preventing commercial harvesters from harvesting bay scallops in State waters of the Peconic Bays since early February. Commercial scallop harvesters expect some of these areas to be inaccessible for at least several weeks leaving very little opportunity to harvest and make up for lost income before the season closes on March 31. This emergency rule will extend the open bay scallop season by one month from March 31 to April 30, 2015 for the current season only. Commercial harvesters will be afforded additional harvest opportunities to make up income lost due to the extraordinary icing and inaccessibility of the bay scallop resource this season. It is expected that this rule will provide increased revenues to shellfish harvesters, bay scallop shippers (shucker/packers) and local seafood markets, allowing them to take advantage of increased harvesting opportunities and availability of scallop resources by an extension of the open season for bay scallop harvest, possession, and sale.
2. Compliance requirements:
The rule would extend the open season for bay scallops in state waters by one month from March 31 to April 30, 2015. The provisions of the rule would impose no additional compliance requirements on the industry and would provide for additional income to be made by harvesters, shippers and local seafood markets.
3. Professional services:
None.
4. Compliance costs:
There are no capital costs that will be incurred by the regulated business or industry to comply with the 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. This action has been determined to be economically feasible for all affected parties. The rule will provide additional economic opportunities for the regulated parties to make up for revenues lost during the winter months in 2015.
6. Minimizing adverse impact:
The rule would not impose any adverse impacts on the regulated shellfish industry and businesses. The extension of the bay scallop open season, and legal possession and sale provisions will have a positive effect on the shellfish industry as well as wholesale and retail markets for these food products. The rule is designed to afford adequate protection of bay scallop resources, while at the same time allow for additional harvest to be undertaken at levels that do not adversely impact the long term viability of the resource.
7. Small business and local government participation:
The rule is supported by commercial harvesters, shippers and local seafood markets. The rule is in response to several requests received from shellfishermen from the east end towns of Southold and Southampton who were significantly impacted by the harsh winter conditions which prevented harvest of bay scallops and resulted in the loss of income from this important commercial fishery.
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 Department of Environmental Conservation has determined that this rule will not impose any adverse impact on rural areas. There are no rural areas within the marine and coastal district. The bay scallop fishery which is directly affected by the proposed rule is primarily located in the waters of Peconic and Gardiners Bays in eastern Suffolk County and situated within the five east end townships of Riverhead, Southold, Shelter Island, Southampton and East Hampton. The bay scallop fishery is located entirely within the marine and coastal district, and is not located adjacent to any rural areas of the state. Further, the proposed rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 49, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
The Department of Environmental Conservation (DEC) 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 emergency rule is needed to extend the bay scallop season for one month from March 31 to April 30, 2015 for the current season only. The rule also extends the legal possession and sale provisions of regulations for the same time period to be consistent with the extension of the open season. The rule is intended to have a positive impact on commercial scallop harvesters, shippers and local seafood markets by providing additional opportunities to harvest bay scallops and make up for income lost as a result of the extensive icing of marine embayments this winter. Approximately 125 to 150 commercial shellfish harvesters participate in bay scallop harvest during a portion of the season and about 20 to 30 are likely to be actively engaged in commercial harvest during the winter months. These permit holders are expected to benefit from the rule which provides for additional harvesting opportunities and increased income potential by the extension of the bay scallop season by one month for this year.
This rule making will impact bay scallop harvesters working in State waters primarily located in Peconic and Gardiners Bays in eastern Suffolk County and situated within the five east end townships of Riverhead, Southold, Shelter Island, Southampton and East Hampton. This rule making will have a positive impact on the shellfish industry by providing additional harvesting opportunities for commercial harvesters and increasing availability of seafood products for shippers and local seafood markets. Failure to adopt this rule will result in lost income for commercial permit holders and loss of revenues to the local economy. In 2014, commercial bay scallop landings were just over 100,000 pounds with a dockside value of approximately $1.5 million.
The open season extension is intended to maximize the potential income by commercial harvesters and mitigate financial hardship caused by loss of shellfishing opportunities due to extensive icing of local embayments this winter. The extension of the open season by one month will provide for increased revenues by commercial harvesters and shippers while providing protection for the viability of bay scallop resources in the Peconic Bays.
Based on the above and DEC’s knowledge of similar regulations in other states, DEC has concluded that there will not be any substantial adverse impacts on jobs or employment opportunities to shellfish harvesters or shellfish shippers as a consequence of this rule.
