ENV-22-12-00004-P Recreational and Commercial Harvest of River Herring (Anadromous Alewife and Blueback Herring) in New York

5/30/12 N.Y. St. Reg. ENV-22-12-00004-P

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 22

May 30, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-22-12-00004-P

Recreational and Commercial Harvest of River Herring (Anadromous Alewife and Blueback Herring) in New York

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

Proposed Action:

Amendment of Parts 10, 11, 18, 19, 35, 36 and 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-0305, 11-0315, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 13-0105 and 13-0339

Subject:

Recreational and commercial harvest of river herring (anadromous alewife and blueback herring) in New York.

Purpose:

Reduce fishing mortality of river herring stocks in New York to achieve sustainable fisheries required by ASMFC Amendment 2.

Substance of proposed rule (Full text is posted at the following State website:www.dec.ny.gov):

1. DEC proposes to amend 6 NYCRR Part 10 "Sport fishing" as follows:

1.1 Adopt a new section 10.10 "Taking of anadromous river herring (alewife and blueback herring) in the Hudson River and its tributaries and embayments." Definitions of the Hudson River, tributaries and embayments are described.

1.2 Possession of river herring is not allowed in the Delaware River and its tributaries above Port Jervis New York.

1.3 The following restrictions apply to the Hudson River, its tributaries and embayments:

a. A season will be adopted from March 15 to June 15.

b. The daily possession limit will change from unlimited take to 10 fish per individual angler OR a maximum boat limit of 50 per day for a group of boat anglers, whichever is lower. Party or charter boat operators can qualify for possessing in excess of the individual recreational possession limit prior to their charter trips; see (e) below.

c. Manner of take will be adopted as follows: In the Hudson River, manner of take is by angling or by personal use nets; in a Hudson River tributary or embayment, manner of take is by angling only.

d. The size of personal use nets remains the same for dip nets (14 inches round or 13 inches by 13 inches square), cast net (10 feet in diameter), and seine nets (36 square feet or smaller). Scap/lift net size is reduced from 36 square feet to 16 square feet. Personal use nets must be stowed in a close container when entering a tributary or embayment.

e. To be eligible to possess more than an individual daily limit, operators of party or charter boats must register with the department and provide a copy of their U.S. Coast Guard license and period of expected operation to the NYSDEC, Hudson River Fisheries Unit, New Paltz, New York. Operators possessing a marine and coastal district party and charter boat license need to provide their permit number and the period of expected operation to the NYSDEC.

f. Registered party and charter boat operators shall display a valid Hudson River river herring decal provided by the department on their vessel, whenever the vessel is operating as a party or charter fishing boat.

2. DEC proposes to amend 6 NYCRR Part 11, "More than one species" as follows:

Possession and commercial take for sale of anadromous river herring is not allowed in the Delaware River and its tributaries above Port Jervis NY.

3. DEC proposes to amend 6 NYCRR Part 18, "Taking Bait" as follows:

Allows the taking of river herring as bait by use of nets in the Hudson River as defined in Part 10.

4. DEC proposes to amend 6 NYCRR Part 19, "Use of bait" as follows:

Indentifies the water bodies where anadromous alewife and blueback herring may be used as bait: in the Hudson River, its tributaries and embayments, as defined in Part 10.

5. DEC proposes to amend 6 NYCRR Part 35, "Licenses" to:

Remove anadromous river herring from the commercial bait list. A note indicates that the taking of anadromous river herring for all purposes is regulated pursuant to Parts 10 and 36 of Title 6.

6. DEC proposes to amend 6 NYCRR Part 36, "Gear and Operation Of Gear" as follows:

6.1 Requires that licensed commercial net gear to be marked with the licensee's permit number in visible black numbers on an orange background. A net shall have attached a marked floating buoy; a scoop, scap or dip net shall be marked on the fixed handle to the net.

6.2 Adds the Hudson River tributaries and embayments to the restricted areas where nets are not allowed to be used.

6.3 Changes the area where only a drift gill net can be used or possessed from the area between the Bear Mountain Bridge and the Newburgh-Beacon Bridge to the area between the Bear Mountain Bridge and the Castleton-on-Hudson (Interstate 90 spur and railroad) bridges.

6.4 During the Escapement period, the exception of commercially licensed fyke, scap and minnow trap nets is removed. The Escapement period will apply to all commercially licensed nets.

7. DEC proposes to amend 6 NYCRR Part 40, "Marine Fish" as follows:

7.1 Adds the new species Anadromous river herring to 40.1(f) Table A Recreational Fishing. Possession of anadromous river herring is prohibited, except north of the George Washington Bridge at river mile 11 in the Hudson River. The general provisions in subdivision 40.1(b) apply; anadromous river herring may not be possessed in the waters anywhere inland from such shores (of the marine and coastal district of New York) in the counties of Suffolk, Nassau, Queens, Kings, Richmond, New York, Bronx, and those portions of Westchester County within the marine and coastal district bordering on Long Island Sound.

7.2 Adds the new species Anadromous river herring to 40.1(i) Table B Commercial Fishing. No open season is allowed. No possession of anadromous river herring is allowed except that vessels fishing exclusively in the federal ocean waters of the Exclusive Economic Zone, while operating under a valid federal permit for Atlantic mackerel and/or Atlantic herring, may possess river herring up to a maximum of five percent, by weight, of all species possessed. A person shall not barter, sell, offer for sale, or expose for sale, any river herring so possessed.

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

Kathryn A. Hattala, Department of Environmental Conservation, 21 S. Putt Corners Road, New Paltz, NY 12561, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 3-0301, 11-0303,11-0305, 11-0306, 11-0315, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 11-1501, 11-1503, 11-1505 and 13-0105 authorize the Department of Environmental Conservation (DEC or the department) to establish, by regulation, the open season, size and catch limits, possession and sale restrictions and manner of taking for river herring (anadromous alewife and blueback herring).

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries to optimize resource use for commercial and recreational harvesters, consistent with marine fisheries conservation and management policies and interstate Fishery Management Plans (FMPs).

3. Needs and benefits:

The department is adopting amendments to 6 NYCRR Parts 10, 11, 18, 19, 35, 36 and 40 which will implement a creel limit, gear and area restrictions for the recreational fishery and implement gear and fishing restrictions for the commercial fishery for river herring in the Hudson River and its tributaries. In addition, fishery closures will be implemented for all river herring runs in the Delaware River and its tributaries, Bronx, Kings, Manhattan, Nassau, Richmond, Suffolk, and Queens Counties and Westchester County streams that empty into the East River or Long Island Sound. These regulations are necessary to protect river herring and therefore are a part of DEC's stewardship responsibilities over the state's natural resources.

River herring of the Hudson River are anadromous. They spawn in the Hudson River its tributaries and most all streams in New York that empty into the Atlantic Ocean. Most of their life is spent in the near shore Atlantic Ocean from Virginia to Maine. They are caught by recreational and commercial fishermen while they are in New York State rivers and streams and by commercial fishing operations while they are in the ocean.

In May 2009, the Atlantic States Marine Fisheries Commission (ASMFC) adopted Amendment 2 to the Shad and River Herring Interstate Management Plan. This amendment requires that a state prove any river herring fishery is sustainable based on available data- e.g. the stock is increasing or stable and not declining. The alternative is to implement a moratorium. In response, DEC staff completed a stock status update for New York river herring.

Two species make up the generic "river herring" stock in New York. The two species are considered a single stock for management purposes because the two species, anadromous (sea-run) alewife and blueback herring are very similar in appearance and most fishers do not differentiate between the two species. DEC has a consistent ten year time series of data for the Hudson River stock of river herring beginning in 2000, along with sporadic data back to the 1936 Biological Survey. A few years of run size data are available for the Peconic River on Long Island. However this time series is not sufficient to allow determination of stock sustainability. No data are available for anadromous river herring in the remaining waters of New York State.

Data on Hudson River stock of river herring provide a mixed picture of status. Catch-per-unit-effort (number of fish per net hours fished) from the commercial gill net fishery has increased over the past ten years. However, fishery data on length indicate that mean size of spawning adults has been slowly declining over the same time period. Limited fishery independent data from the late 1980s and early 1990s confirms that fish are now smaller than they were in the past. Juvenile abundance has been variable for both species; increasing for alewife and slightly declining for blueback herring.

River herring are caught in both recreational and commercial fisheries for use as bait in the spring striped bass recreational fishery. This fishery allows unlimited take for both fishery components. Given that current stock status indicators are in disagreement, a full closure of the Hudson fisheries is not warranted. However, the current unlimited take is not sustainable and current data would not support continuation of the current fishery.

Under ECL 11-0303, it is DEC's responsibility to act in behalf of the natural resources of the state. New York will implement measures which will achieve the sustainable definition required by the ASMFC Amendment 2. To allow for a sustainable fishery on the Hudson River stock, it is necessary to reduce the currently allowed unlimited harvest. In order to accomplish this reduction, the department will implement actions to: 1) create recreational fishing restrictions of a season, creel limits, closed and restricted areas and personal use gear sizes; 2) implement additional area closures and gear size and use restrictions for the commercial fishery; and 3) implement fishing moratoriums in areas of New York where lack of data do not allow for a sustainable fishery. Failure by New York to adopt these amendments would jeopardize any fishery for the Hudson River river herring stock.

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). The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. ASMFC's Interstate Fishery Management Plans (FMP) for individual species or groups of fish are the principal mechanism for implementation of cooperative management of migratory fish. The FMPs are designed to promote the long-term health of these species, preserve resources and protect the interests of both commercial and recreational fishers.

The department prepared a Sustainable Fishery Plan (SFP) for New York River Herring Stocks. This SFP was reviewed and approved by the Hudson River Estuary Management Advisory Committee, then reviewed and approved by the ASMFC Shad and River Herring Management Board. The deadline for Amendment 2 compliance was January 1, 2012. If New York is moving forward in the regulatory process ASMFC may consider this a good faith effort to comply with Amendment 2. The fishing mortality reductions in the SFP must be implemented prior to the 2012 fishing season.

4. Costs:

Cost to private regulated parties:

Certain regulated parties may experience some adverse economic effects due to the area and gear size and gear use restrictions. The targeted party is the commercial fishers who will not be allowed to fish in the Hudson River's tributaries. There may be some economic loss to these businesses. Furthermore, river herring are now only in the river in harvestable numbers for up to eight weeks each spring. Therefore, commercial fishing constitutes by nature a short part-time job that provides supplemental income to fishermen and a few helpers.

Over the last 15 years, the demand for bait for the Hudson's spring striped bass fishery has skyrocketed. River herring quickly became the primary target and fisheries quickly developed in the Hudson River's tributaries where river herring concentrate to spawn. The proposed rule lessens the ability of licensed fishers to harvest river herring; however the price of commercially caught bait may rise.

Over the long term, however, the maintenance of sustainable river herring fisheries will have a positive effect on small businesses in the Hudson River fishery. Any short-term losses will be offset by an increase in yield from well-managed resources. These regulations are designed to allow fisheries to continue, and allow some rebuilding of the stock for future utilization.

Costs to the regulating agency for implementation and continued administration of the rule:

The DEC will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying recreational and commercial harvesters and other support industries of the new rules.

Cost to state government as a whole:

Minor costs will be incurred by the regulating agency. See above.

Cost to local government:

There will be no costs to local governments.

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:

The following significant alternatives have been considered by the department and rejected for the reasons set forth below:

(1) Complete statewide closure of commercial and recreational fisheries for river herring.

Given the inconsistent measures of stock status described above, department staff does not feel that the data warrant a complete closure of the Hudson River fishery at this time. In the Sustainable Fishing Plan for New York River Herring Stocks, the department proposed a five year restricted fishery in the main-stem Hudson River, a partial closure of the fishery in tributaries, annual stock monitoring, and closures for all other waters areas where anadromous river herring could occur. Since the Plan was approved by ASMFC to allow continued fishing on the Hudson River stock, this alternative was rejected.

(2) No Action (no amendment to regulations).

The "no action" alternative would leave current regulations in place and jeopardize any fishery for river herring in New York State. Compliance to the ASMFC Amendment 2 is mandatory. If New York does not implement the Sustainable Fishing Plan as proposed, the State most likely will be found out of compliance with Amendment 2. The consequence of non-compliance is a state wide moratorium for river herring fishing. For this reason, this alternative was rejected.

9. Federal standards:

The amendments to Parts 10, 11, 18, 19, 35, 36 and 40 are in compliance with the ASMFC Fishery Management Plan for River Herring.

10. Compliance schedule:

The regulations will take effect when published by the Department of State. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via the department's website.

Regulatory Flexibility Analysis

1. Effect of rule:

These amendments to 6 NYCRR Parts 10, 11,18, 19, 35, 36 and 40 will implement a creel limit, gear and area restrictions for the recreational fishery and implement gear and fishing restrictions for the commercial fishery for river herring in the Hudson River and its tributaries. In addition, fishery closures will be implemented for all anadromous river herring runs in all other waters of New York State. Because this rule making addresses recreational and commercial fishing, the businesses that will be directly affected are commercial fishers. These regulations do not apply directly to local governments, and will not have any direct effects on local governments.

The season of March 15th to June 15th spans 13 weeks, which spans the limited time river herring are present in harvestable quantities. This gives commercial fishers only a short time opportunity for operation. The Department of Environmental Conservation (DEC or the department) will implement measures which will create closed areas to fishing in Hudson River tributaries, and implement several gear size and use restrictions.

The river herring commercial fishery provides only part time employment for those individuals who actually run a commercial (harvest and sale) operation. Many participants in the "commercial" fishery are actually recreational anglers purchasing commercial gear licenses to catch bait for their own personal use beyond what is allowed for the recreational fishery.

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

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.

5. Economic and technological feasibility:

The proposed regulations do not require any expenditure on the part of affected businesses in order to comply with the changes. The restriction may reduce harvest and may reduce income from commercial fishing activities. However, river herring are in short supply coast wide and reduced harvest may lead to higher prices and some recoupment of income.

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

6. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for the department to be in compliance with the Amendment 2 of the Interstate Fishery Management Plan for Shad and River Herring. The regulations are intended to provide sustainability of the fishery and the resource and avoid the adverse impacts that would be associated with closure of the fishery, the alternative under Amendment 2. 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 take action could result in the consequence of non-compliance to the ASMFC plan which is a Federal sanction of a total fishing moratorium in state waters. A moratorium would have a more severe adverse impact on the commercial and recreational fisheries, as well as the supporting industries for those fisheries. These regulations are being adopted in order to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

7. Small business and local government participation:

The department consulted the Hudson River Estuary Management Advisory Committee regarding the proposed action. The Committee is comprised of representatives from recreational and commercial fishing interests, local government, educational and research institutions. The Committee approved the Sustainable Fishing Plan (SFP) for New York's River Herring Stocks. The department has maintained a regular dialogue with many fishers through public information meeting, telephone conversations and e mail regarding the implementation of the SFP. The department has and will provide a notice of the rulemaking to affected fishers through mailings, newspapers and other media outlets. Local governments were not contacted because the 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 that could have on the river herring population. Immediate compliance is required to ensure the general welfare of the public and the resource is protected. Cure periods for the illegal taking of fish or wildlife are neither desirable nor recommended.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

Nine Hudson River watershed (includes the Hudson and Mohawk River valleys) counties fall into the rural area category: Columbia, Greene, Herkimer, Montgomery, Putnam, Rensselaer, Saratoga, Schenectady, and Ulster counties. Two Delaware River counties are also in the rural area category: Delaware and Sullivan counties. The proposed regulations will affect individuals who participate in the river herring fisheries. Some of these individuals are residents of other areas in New York, generally downstate.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

All commercial licensed fishers, as part of their mandatory report to the department, are required to maintain daily fishing records of catch and effort expended.

3. Costs:

There will be no initial capital or annual costs to comply with the new regulations.

4. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for the department to comply with the Atlantic States Marine Fisheries Commission Amendment 2 to the Shad and River Herring Interstate Fishery Management Plan. The regulations are intended to create a sustainable fishery in the Hudson River watershed and avoid the adverse economic and social impacts that would be associated with closure of the fishery in this area. Other downstate counties and the Delaware River and its tributaries in New York will be closed to fishing. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect for the fisheries in question, as well as wholesale and retail outlets and other support industries. These regulations are being adopted in order to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

5. Rural area participation:

The department met with affected parties at two public meetings to inform them of the river herring stock status and initiate discussions of potential fishing restrictions necessary to meet the ASMFC Amendment 2 requirement of a sustainable fishery. The department has maintained a regular dialogue with fishermen by phone, mail and e-mail regarding changes needed. Moreover, the department has and will continue to provide notice to affected fishers through mailings, newspapers and other media outlets, including those in rural counties and towns.

Job Impact Statement

1. Nature of impact:

The river herring commercial fishery has only provided part-time employment for fishers since the late 1980s. Generally, these commercial fishing operations are very small businesses that operate for a short-time (eight to ten weeks) each year. Most fishers work alone with only a few hiring short-term assistants. The proposed rule may lessen the ability of licensed fishers to harvest river herring in certain areas and some individuals may stop fishing.

2. Categories and numbers affected:

Over the past five years, an average of 476 individuals, from Hudson Valley counties, purchased commercial fishing permits to target river herring for harvest. However, only 38%, or 162 individuals actually reported using the permit to harvest fish. Most of the fishers are recreational anglers seeking to use commercial fishing gear rather than the allowed recreational gear to harvest river herring.

3. Regions of adverse impact:

The fishery is unique to the state and only occurs in the Hudson River and its tributaries, including the Mohawk River.

4. Minimizing adverse impact:

The intent of the proposed rule is to provide for a continued sustainable fishery for future years following the guidelines of the Atlantic States Marine Fisheries Commission Amendment 2 to the Shad and River Herring Fishery Management Plan. In the long-term, the maintenance of a sustainable fishery will have a positive effect on employment for the continuation of the river herring fishery. Any short-term losses in participation will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources.

5. Self-employment opportunities:

Nearly all of the permitted fishers are essentially self employed individuals, with the exception of a few individuals that may work with or for local bait supply shops or marinas.