The management of Atlantic cod, American lobster, coastal sharks and weakfish.
Purpose:
Ensure regulations are consistent with State and Federal laws and maintain compliance with Interstate Fishery Management Plans.
Substance of final rule:
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 10 fish, except that anglers fishing on board federally permitted party or charter vessels may possess any number.
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 The portions of Table A that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are repealed.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 The portions of Table B that apply to Large and small coastal sharks, Pelagic sharks and Prohibited sharks are repealed.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 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.
Final rule as compared with last published rule:
Nonsubstantive changes were made in Part 40.
Text of 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
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the Department of Environmental Conservation.
Revised Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) sections 11-0303, 11-1303, 13-0105, 13-0339-a, and 13-0340-a authorize the Department of Environmental Conservation (DEC or department) 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 fishery management plans (FMPs) adopted by the Atlantic States Marine Fishery Commission (ASMFC).
ECL section 13-0329 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:
This proposed rule is 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 EEZ (Federal) waters. Under current regulations, it is unclear to recreational anglers what rules apply when they seek to land in New York cod caught in Federal waters. This rule will prevent confusion 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 regulations 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 New York State being found non-compliant with the recommendations of the FMP for coastal sharks and subject to the imposition of a moratorium on the harvest of coastal sharks in New York State.
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 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 will 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 fishers.
(d) Costs to the regulating agency for implementation and continued administration of the rule:
The department 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:
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, the State will be not in compliance with the management measures put into place by ASMFC. Failure to implement these measures will result in New York being 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 be not 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 for fishing for weakfish in New York. Consequently, this alternative was rejected.
9. Federal standards:
The amendments to 6 NYCRR Parts 40 and 44 are in compliance 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.
Revised Regulatory Flexibility Analysis
1. Effect of rule:
The Department of Environmental Conservation (DEC) has proposed a rule that will allow recreational anglers to fish for and land Atlantic cod in New York in accordance with Federal rules for the Atlantic 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 recreational anglers taking Atlantic cod taken from State waters. However, there is a 10-fish limit for cod taken from Federal waters. This proposed rule will specify a 10-fish limit for recreational anglers and specify that anglers on board Federally permitted party or charter vessels may possession any number. Once adopted, this rule will make New York State regulations for Atlantic cod and haddock consistent with Federal rules and clarify for recreational anglers the possession limits for cod. 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. This rule will reduce the number of weakfish that may be taken by commercial fishers and 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 for lobster license holders associated with the modification of lobster pot vents in compliance with the proposed rule.
5. Economic and technological feasibility:
For the most part, the proposed regulations do not require any additional expenses for regulated parties or the adoption of new business techniques. 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:
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 ASMFC may request the Secretary of Commerce to impose a moratorium on 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. 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. 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. Lastly, failure to take actions required to protect the State's marine resources could cause the catastrophic collapse of a stock and have a severe impact on the commercial and recreational fishing industries dependent on that species. Any positive effect of adopting proper management measures may not be apparent for several years, not until the fishery stocks recover from depletion and become sustainable.
7. Small business and local government participation:
Provisions of the rule making have been presented to the Marine Resources Advisory Council by DEC at recent meetings. Members of the local fishing communities have had opportunities 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.
Revised 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 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 Revised Rural Area Flexibility Analysis is not required.
Revised Job Impact Statement
1. Nature of impact:
DEC is 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 Atlantic 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 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 provisions of the proposed rule regulation are already in effect as a Federal rule and is referenced in current New York State regulations.
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 land and may reduce the income of fishers who target weakfish.
Lastly, 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.
2. Categories and numbers affected:
The proposed rule will allow recreational anglers to fish for and land Atlantic cod in New York in accordance with Federal rules for the Atlantic cod fishery. This will result in placing a 10-fish limit on the possession of cod; currently is no State 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.
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.
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).
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.
4. Minimizing adverse impact:
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 ASMFC may request the Secretary of Commerce to impose a moratorium on 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. 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. 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. Lastly, failure to take actions required to protect the State's marine resources could cause the catastrophic collapse of a stock and have a severe impact on the commercial and recreational fishing industries dependent on that species. Any positive effect of adopting proper management measures may not be apparent for several years, not until the fishery stocks recover from depletion and become sustainable.
Assessment of Public Comment
The Department of Environmental Conservation proposed several amendments to 6 NYCRR Part 40 and Part 44. The department received public comment on the proposal to revise 6 NYCRR paragraph 40.1(j)(8) to change the income criteria for qualification for a full share of striped bass tags in the striped bass commercial fishery. No comments were received on any other portion of the regulatory proposal.
There were written comments from 34 persons, including a Member of the New York State Assembly and a U.S. Congressman representing fishermen in their districts. Comments were received orally either over the phone or in person from seventeen persons officially, though many others made unofficial comments to department staff. Of these comments, five were either in favor of the proposal or recommended a slightly different version of the proposal, while 43 were opposed to the proposal. Two others made suggestions that could not be interpreted as either for or against the proposal.
Comments in favor:
• The proposal is fair, and would give full shares to fishermen who work full-time;
• Active fishermen should get more tags.
Comments in opposition:
• It is difficult or impossible to meet the $15,000 income criterion because of disability or age-related inability to catch enough fish;
• The rule change would result in financial hardship from the loss of full shares of tags;
• There should be consideration given to older fishermen;
• Fish prices fluctuate, so no guarantees of specific amount of fishing income;
• The rule change allows people with jobs other than fishing to get a full share of tags;
• It discriminates against those seniors on a fixed income, relying on Social Security and fishing income alone;
• It disadvantages one sector of the fishing community, the aged;
• Older fishermen with full shares should be "grandfathered" into the program even though they may not make the $15,000;
• The proposal favors off-shore fishermen over small inshore operators and baymen;
• The proposal would force some fishermen to seek other employment;
• The department should get the non-legitimate fishermen out of the striped bass fishery;
• Fishermen 70 years and older should get a full share of tags, if they can fill them in person;
• Those fishermen without their own boat have to share their earnings with the boat owners, reducing their take and making $15,000 an impossible target;
• There should be an exemption for fishermen who make 100 percent of their income from fishing but do not make $15,000;
• The limits placed by the department on other fisheries make it difficult to make enough money from fishing to meet the $15,000 requirement.
Other comments:
• Income from party and charter businesses should not be qualifying income from fishing;
• Part-time fishermen should be excluded from the striped bass fishery;
• The current management system is flawed and there should not be two classes of permits, only one;
• The proposal should be for either $15,000 or 80 percent of income;
• The proposal should be for either $15,000 or 75 percent of income.
Department's response: The department was strongly advised by the Attorney General of the State of New York to do away with a specific percentage of income as a criterion for determining eligibility for a full-share permit in the striped bass limited entry commercial fishery. This advice was given pursuant to a determination that the analysis of all the required tax documentation by department staff was problematic. Hence, this proposal substituted a simple fixed dollar amount of $15,000 of income for 50 percent as the criterion. The proposal was developed through consultation with the department's Marine Resources Advisory Council, certain members of which presumably represent the needs of the commercial fishermen of New York State.
There is no conservation benefit to using one criterion or the other. Strictly from an administrative standpoint, it would be simpler for the department to do away with the differential shares system and simply give all permit holders an equal share of tags. The department maintains this system as a means of addressing the needs of the fishing industry as articulated to it through the Marine Resources Advisory Council.
This information notwithstanding, the department believes it was not the intent of this rule to deprive commercial fishermen of a means of making their living. From the nature and volume of comment in the negative, it is apparent that, for a significant portion of striped bass permit holders, the rule may do just that. There may be some significant detrimental economic impacts to some fishermen, and those impacts may affect older fishermen disproportionately.
