PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Part 40 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, section 13-0333
Subject:
Management of menhaden.
Purpose:
To add menhaden and the menhaden trip limit to Table B - Commercial Fishing of 6 NYCRR subdivision 40.1(i).
Text of proposed rule:
Part 40.1(i) Table B – Commercial Fishing of 6 NYCRR is amended read as follows:
Species Striped bass through Anadromous river herring remain the same.
New species Atlantic menhaden is adopted to read as follows:
Species
Open season
Minimum length
Trip Limit
Atlantic menhaden
All year
No minimum size limit
A trip limit set by the department to be consistent with the requirements of the Interstate Fishery Management Plan for Atlantic menhaden.
Text of proposed rule and any required statements and analyses may be obtained from:
Karen Graulich, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-5636, email: karen.graulich@dec.ny.gov
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
The action is subject to SEQR as an Unlisted action and a Short EAF was completed. The Department has determined that an EIS need not be prepared and has issued a negative declaration. The EAF and negative declaration are available upon request.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) section 11-0333 authorize the Department of Environmental Conservation (DEC) to adopt regulations to prohibit or further limit menhaden fishing when required by, and consistent with, the Interstate fishery management plan for Atlantic menhaden.
2. Legislative objectives:
It is the objective of the above-cited legislation that DEC manages marine fisheries in such a way as to protect these natural resources for their intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters through the implementation of sound management practices that remain compliant with marine fisheries conservation and management policies and interstate fishery management plans.
3. Needs and benefits:
This rule making is necessary to correct a technical error and previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. This subparagraph, which deals with quota harvest and trip limits for menhaden, specifically refers to Table B, but menhaden is not included in that table. The proposed amendment will maintain compliance with the Interstate Fishery Management Plan (FMP) adopted by the Atlantic States Marine Fisheries Commission (ASMFC). Failure to adopt this regulatory amendment will result in a continuing discordance between subdivisions 40.1(i) and 40.1(x). The reference in subparagraph 40.1(x)(2)(iii) to subdivision 40.1(i) would remain meaningless and may allow for confusion on the part of commercial fishermen targeting menhaden. Menhaden also already appears in Table A – Recreational Fishing. For consistency, the commercial management measures should be included in Table B.
4. Costs:
The proposed rule does not impose any costs to the department, local municipalities, or the regulated public.
5. Local government mandates:
The proposed rule does not impose any mandates on local governments.
6. Paperwork:
None.
7. Duplication:
The proposed amendment does not duplicate any state or federal requirement.
8. Alternatives:
1. “No action” alternative: Under this alternative New York State would not amend 6 NYCRR Section 40.1 Marine Fish. This alternative was rejected because would result in a continuing discordance between subdivisions 40.1(i) and 40.1(x). The reference to subdivision 40.1(i) in subparagraph 40.1(x)(2)(iii) would remain meaningless and may allow for confusion on the part of commercial fishermen targeting menhaden.
2. Remove the phrase “as provided in Table B of subdivision (i)” from subparagraph 40.1(x)(2)(iii): Under this alternative New York State would amend 6 NYCRR subdivision 40.1(x) and remove the phrase “as provided in Table B of subdivision (i)” rather than incorporating menhaden into Table B of subdivision 40.1(i). This alternative was rejected because it would undermine the usefulness of Table B as a reference guide to commercial fisheries season, length and trip limit information. Menhaden also already appears in Table A – Recreational Fishing. For consistency, the commercial management measures should be included in Table B.
9. Federal standards:
The proposed amendment to 6 NYCRR 40.1 is in compliance with the ASMFC and Regional Fishery Management Council FMPs for Atlantic menhaden.
10. Compliance schedule:
The proposed amendment will not require any action or compliance changes for the regulated public. 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:
DEC proposes to amend existing regulations for the management of Atlantic menhaden by adding menhaden to the list of species provided in subdivision 40.1(i) Table B – Commercial Fishing. This amendment is proposed to correct a previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. This subparagraph, which deals with quota harvest and trip limits for menhaden, specifically refers to Table B, but menhaden is not included in that table.
2. Compliance requirements:
None.
3. Professional services:
None.
4. Compliance costs:
There are no costs that will be incurred by a regulated business or industry to comply with the proposed rule.
5. Economic and technological feasibility:
The proposed amendment does not require any expenditure on the part of regulated parties to comply with the proposed change.
6. Minimizing adverse impact:
This amendment is proposed to correct a previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. The changes will not have an adverse impact on the commercial fishing industry and will not require any action or compliance changes for the regulated public. The proposed regulatory change will clarify the existing regulations for the management of Atlantic menhaden and maintain compliance with the existing ASMFC Interstate Fishery Management Plan.
7. Small business and local government participation:
This amendment is proposed to correct a technical error and previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. Commercial fishermen had the opportunity to participate and comment when the rule to establish trip limits was originally proposed and adopted. Provisions of this rule making will be presented to the Marine Resources Advisory Council by DEC at the next meeting. 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. The proposed amendment also provides a clarification of the existing regulations and does not require any actions or changes by the regulatory community to comply with this amendment.
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 an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The Atlantic menhaden fishery directly affected by the proposed rule is entirely located 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 40, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
1. Nature of impact:
DEC is proposing to amend the regulations that manage Atlantic menhaden within New York State marine waters. The proposed rule will be consistent with existing federal rules and the provisions of the Atlantic States Marine Fisheries Commission Interstate Fishery Management Plan for Atlantic menhaden. The proposed rule will not have an adverse impact on New York State commercial fishermen or recreational anglers. This amendment is proposed to correct a technical error and previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. This subparagraph, which deals with quota harvest and trip limits for menhaden, specifically refers to Table B, but menhaden is not included in that table.
2. Categories and numbers affected:
DEC proposes to amend regulations that implement commercial management measures for Atlantic menhaden, a quota-managed bait species in New York. In 2014 there were 1,015 marine food fishing license holders in New York, 21 menhaden purse seine license holders, 81 marine bait permit holders and 41 lobster bait gill net permit holders, all of whom are licensed to harvest commercial quantities of menhaden.
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 portion of the Hudson River within the marine and coastal district.
4. Minimizing adverse impact:
This proposed rule is not expected to have an adverse impact on New York State commercial fishermen or recreational anglers. This amendment is proposed to correct a previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented.
5. Self-employment opportunities:
This amendment is proposed to correct a technical error and previous oversight, which failed to include menhaden in Table B when the regulatory authority to establish trip limits under subparagraph 40.1(x)(2)(iii) was implemented. Although commercial fishermen are, for the most part, small businesses, usually operated by the owner, this proposed amendment is not expected to have any impact on existing or new fishermen in the commercial marine fishing industry.
6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:
The department will conduct an initial review of the rule within three years as required by SAPA section 207.
