Specific reasons underlying the finding of necessity:
The Department is adopting amendments to 6 NYCRR Parts 10, 35 and 36 which will implement a catch and release recreational fishery for American shad in the Hudson River; and gear limit and fishing restrictions for the Hudson River commercial fishery. These regulations are necessary in order for New York to comply with the Department's mandate of stewardship of the state's natural resource.
American shad of the Hudson River are anadromous. They spawn in the river, but spend most of their life in the near shore Atlantic Ocean from Virginia to Maine. They are caught by recreational and commercial fishermen while they are in the Hudson and by commercial fishermen while they are in the ocean.
Recently, DEC staff completed a stock assessment of the Hudson River American shad as part of a coast-wide assessment of American shad stocks under the coordination of the Atlantic States Marine Fisheries Commission (ASMFC). Abundance of Hudson River American shad has declined since the early 1990's and it is now at a historic low. Moreover, fish in the spawning stock (adult fish) became smaller and younger, mortality increased to excessive and unacceptable levels, and production of young dropped more than 70 percent to an all time low in 2002. The primary cause of these changes was over-fishing. Through the ASMFC, New York worked toward, and achieved closure of ocean harvest of Hudson shad in commercial fisheries that targeted shad in 2005. This closure substantially reduced losses of Hudson River American shad, but it did not solve the problem in the face of continued low production of juveniles and continued excessive mortality. The few fish produced in 2002 to 2007 are now returning as adults and are what remains to recover the stock. These fish need substantial protection if the shad stock is to recover. Our analysis indicates that if river harvest could be maintained at 2004–2006 levels mortality would be a bit above that required to maintain the stock at low levels. However, mortality and harvest would still be more than twice the levels needed to allow the stock to begin recovery. The DEC recognizes that this is a serious problem which needs immediate attention.
Under ECL 11-0303, it is the DEC's responsibility to act in behalf of the natural resources of the state. New York will implement measures which will achieve a reduction in adult mortality and will also account for the recent recruitment failure (lack of young fish) in the stock. To allow for stock recovery, it is necessary to reduce recent levels of harvest by approximately 50 percent. In order to accomplish this reduction, the Department will implement actions to: 1) create a catch and release recreational fishery to eliminate recreational harvest 2) implement seasonal restrictions, from March 15th to June 15th, on the commercial fishery to include an increased escapement period (a period of no fishing each week), gear limits, and closed and restricted areas.
The promulgation of this regulation is necessary in order for the Department to protect and restore the Hudson River American shad stock. Failure by New York to adopt these amendments would jeopardize recovery of the Hudson River American shad stock.
Hickory shad are managed under the Atlantic States Marine Fisheries Commission Fisheries Management Plan (FMP) for Shad and River Herring. Regulations for recreational take limits in the Hudson River are necessary to comply with the interstate FMP and to be consistent with limits existing in New York's Marine District.
Subject:
Recreational and commercial harvest of American shad (Hudson and Marine waters), Hudson River recreational harvest of hickory shad.
Purpose:
To reduce harvest of Hudson River American shad and hickory shad consistent with protecting the resource.
Text of emergency/revised rule:
Part 10 of Title 6 of the Official Compilation of New York Codes, Rules and Regulations, entitled “Sportfishing Regulations” is amended as follows:
(Section 10.1(a) through paragraph 10.1(b)(12) remains unchanged)
Subdivision 10.1(b)(13) is amended to read as follows:
(b) “Table A. Sportfishing regulations”
Species
Open Season
Minimum Length
Daily Limit
(13)
American shad-in the Hudson River
[Catch and release only]
and tributaries north of the George Washington Bridge
All year
Any size
1
American shad — all other inland waters
All year
Any size
6
(19)
Hickory shad
August 1 to November 30
Any size
5
(Section 10.2 through Section 10.9 remain unchanged)
Amendment of Part 35 of Title 6 NYCRR.
Part 35 of Title 6 of the Official Compilation of New York Codes, Rules and Regulations, entitled “Licenses” is amended as follows:
Paragraph 35.1(a) is amended to read as follows:
Gear or operation
Residents
Nonresidents of the State
Scoop, Dip and Scap Nets 10 feet square or under
$1.00
$3.00
Scoop, Dip and Scap Nets Over 10 feet square
2.00
6.00
Fyke Nets In Lakes Erie and Ontario
15.00
30.00
Fyke Nets In Hudson River 1- to 3-foot hoop
1.00
3.00
Fyke Nets In Hudson River Over 3-foot hoop
2.00
6.00
Fyke Nets Elsewhere 1- to 3-foot hoop
2.00
3.00
Fyke Nets Elsewhere Over 3-foot hoop
3.00
6.00
Seines Per lineal foot
0.05
0.15
Seines 100 lineal feet of stake net or part thereof
3.00
9.00
Gill Nets Per lineal foot
0.05
0.15
Gill Nets In Hudson and Delaware Rivers from March 15 to June 15, [2,000] 600 feet or under
10.00
100.00
Gill Nets In Chaumont Bay and waters of Jefferson County within one-half mile of the shore between Horse Island and Tibbet's Light, 2,500 feet or under
15.00
45.00
Trap Nets In Lakes Erie and Ontario
20.00
45.00
Trap Nets Elsewhere 4 feet or under
3.00
12.00
Trap Nets Elsewhere Over 4 feet and up to 6 feet
5.00
15.00
Trap Nets Elsewhere Over 6 feet and up to 8 feet
7.00
21.00
Trap Nets Elsewhere Over 8 feet
10.00
30.00
Sturgeon Line
5.00
15.00
Tide Line
3.00
9.00
Eel Pot
0.50
1.50
Eel Weir
20.00
60.00
Rowboat or sailboat in Lakes Erie and Ontario
20.00
60.00
10 h.p. or under outboard motor in Lakes Erie and Ontario
20.00
60.00
Over 10 h.p. outboard motor in Lakes Erie and Ontario
40.00
120.00
Inboard motor boat under 10 tons in Lakes Erie and Ontario
40.00
120.00
Inboard motor boat 10 to 15 tons in Lakes Erie and Ontario
50.00
150.00
Inboard motor boat over 15 tons in Lakes Erie and Ontario
60.00
180.00
Amendment of Part 36 of Title 6 NYCRR.
Part 36 of Title 6 of the Official Compilation of New York Codes, Rules and Regulations, entitled “Gear and operation of gear” is amended as follows:
Subdivision 36.1(a), paragraphs (1) through (3) remain unchanged.
Addition of paragraph 36.1(4) reads as follows:
(4) It is unlawful for any person to take American shad for commercial purposes without having in possession either a valid gill net or shad and herring gill net Marine permit. Only one valid licensed gill net per fisher may be used to take American shad.
Section 36.2 remains unchanged.
Subdivision 36.3(a) remains unchanged.
Subdivision 36.3(b) is amended to read as follows:
(b) No net shall be staked, anchored or otherwise fixed in position in the waters of the Hudson River within 1,500 feet upriver or down river of any other licensee's net. No net shall exceed [1,200] 600 feet in length.
Paragraphs 36.3(c)(1) through 36.3(c)(7) are amended to read as follows:
(1) Seasonal restrictions. During the period December 1st-March 14th, both dates inclusive, no person shall set, place, possess or draw a [gill] net of any kind in or on that section of the Hudson River between the Troy Dam and the George Washington Bridge.
(2) Restricted [area] areas. From March 15th to June 15th, both dates inclusive:
i) [no] No nets of any kind shall be set, placed, drawn or in any way used on the shoals or flats in the Hudson River known as “The Flats” beginning at the red buoy north of Kingston point and continuing in a northerly direction to the red buoy opposite the Village of Barrytown.
ii) No gill nets shall be possessed in or on that section of the Hudson River between the Federal dam at Troy and the Castleton-on-Hudson (Interstate 90 spur and railroad) bridges.
iii) Gill nets having a stretched mesh of a maximum of 3 ½ inches stretched mesh, inside measure, through the net, may be possessed and used in or on that section of the Hudson River between the Castleton-on-Hudson (Interstate 90 spur and railroad) bridges and the George Washington Bridge.
iv) Gill nets having a stretched mesh equal to 5 ½ inches stretched mesh, inside measure, through the net, may be possessed and used in or on that section of the Hudson River between the Rip VanWinkle Bridge and the George Washington Bridge.
v) No person shall set a gill net other than a drift gill net in the waters of the Hudson River lying between the Bear Mountain Bridge and the Beacon-Newburgh Bridge nor possess any gill net other than a drift gill net while on the shores or waters of that portion of the Hudson River. For the purposes of this subdivision a drift gill net is defined as a gill net that is not anchored or staked and is free to move with water currents.
(3) Mesh restrictions. From March 15th through June 15th [gill nets with bar mesh size greater than 1 ¾ inches and less than 2 ½ inches must not be set in the Hudson River from George Washington Bridge north to the Federal Dam at Troy, nor possessed while on those waters. Gill nets of less than 1 ⅛ inch bar mesh must not be used at any time except that gill nets for taking Atlantic tomcod not less than ⅞ inch bar mesh may be used.]:
(i) gill nets having a maximum of 3 ½ inches stretched mesh, inside measure, through the net, may be used to take river herring (alewife or blueback herring). Any American shad taken must be immediately returned to the water.
(ii) gill nets equal to 5 ½ inches stretched mesh, inside measure, through the net, may be used to take American shad.
(4) Escapement period. During the shad and herring season, from March 15th to June 15th, both dates inclusive, no nets shall be set, placed or drawn or allowed to remain in, or possessed on the waters of the Hudson River below the dam at Troy between 6 a.m. prevailing time on Friday and 6 p.m. prevailing time on the following Saturday; provided, however, that:
(i) fyke nets and scap nets may be set and operated at any time;
(ii) minnow nets may be set and operated to take bait fish at any time;
[(iii) seines and stake stop nets may be set and operated at any time from the Troy dam to the lighthouse at Esopus Meadows south of Kingston, except in the channel of the river.]
(iii) Shad closure. Gill nets equal to 5 ½ inches stretched mesh, inside measure, through the net, may not be set in or possessed on the waters of the Hudson River below the Rip VanWinkle Bridge to the George Washington Bridge between 6 a.m. prevailing time on Wednesday and 6 p.m. prevailing time on the following Saturday.
Paragraph 36.3(c)(5) is rescinded.
[(5) Closed area. From March 15th through June 15th, no person shall set a gill net other than a drift gill net in the waters of the Hudson River lying between the Bear Mountain Bridge and the Beacon-Newburgh Bridge nor possess any gill net other than a drift gill net while on the shores or waters of that portion of the Hudson River. For the purposes of this subdivision a drift gill net is defined as a gill net that is not anchored or staked and is free to move with water currents.]
Paragraph 36.3(c)(5) is adopted to read as follows:
(5) Gear limits. In the Hudson River from the Bear Mountain Bridge north to the Castleton-on-Hudson (Interstate 90 spur and railroad) bridges, the permittee shall be in immediate attendance while fishing any gill net.
Paragraph 36.3(c)(6) remains unchanged.
(7) Operation of licensed nets at night. Nets that have been duly licensed may be operated between [sunset and] ½ hourbefore sunrise and sunset in the Hudson River south of the barrier dam at Troy to the Bear Mountain Bridge, except as restricted by paragraphs (1) and (5) of this subdivision.
Part 40 of Title 6 of the Official Compilation of New York Codes, Rules and Regulations, entitled “Marine Fish” is amended as follows:
Existing Subdivision 40.1(f) of 6 NYCRR is amended to read as follows:
40.1 (f) Table A - Recreational Fishing.
Species
Open Season
Minimum Length
Possession Limit
Striped Bass (except
Apr 15 – Dec 15
Licensed Party/
2
the Hudson River
Charter Boat anglers
north of the George
28″ TL
Washington Bridge)
All other anglers 28″ to 40″ TL
1
>40″ TL (Total Length)*
1
Red Drum
All year
No minimum size limit
No limit for fish less than 27″ TL. Fish greater than 27″ TL shall not be possessed
Tautog
Jan. 17-Apr. 30 and Oct. 1-Dec. 17
14″ TL
4
American Eel
All year
6″ TL
50
Pollock
All year
19″ TL
No limit
Haddock
All year
19″ TL
No limit
Atlantic cod
All year
22″ TL
No limit
Summer flounder
May 15- Sept. 1
20.5″ TL
4
Yellowtail Flounder
All year
13″ TL
No limit
Atlantic Sturgeon
No possession allowed
Spanish Mackerel
All year
14″ TL
15
King Mackerel
All year
23″ TL
3
Cobia
All year
37″ TL
2
Monkfish (Goosefish)
All year
17″ TL 11″ Tail Length #
No limit
Weakfish
All year
16″ TL
6
10″ Fillet length+
12″ Dressed length**
Bluefish
All year
No minimum size limit for the first 10 fish; 12″ TL for the next 5 fish.
15, no more than 10 of which shall be less than 12″ TL.
Winter Flounder
Apr. 1 – May 30
12″ TL
10
Scup (porgy)
June 12-Aug. 31
11″ TL
10
Licensed Party/Charter Boat anglers ****
Sept. 1-Oct. 15
11″ TL
45
Scup (porgy) All other anglers
May 24-Sept. 26
10.5″ TL
10
Black Sea Bass
All year
12″ TL
25
American Shad
All year
No minimum size limit
[5]
Hickory Shad
All year
No minimum size limit
5
Oyster toadfish
Jan 1 – May 14 and July 16 – Dec 31
10″ TL
3
Large & Small Coastal Sharks ##, ###
As per Title 50 CFR, Part 635###
As per Title 50 CFR, Part 635###
As per Title 50 CFR, Part 635###
Pelagic Sharks ++, ###
As per Title 50 CFR, Part 635###
As per Title 50 CFR, Part 635###
As per Title 50 CFR, Part 635###
Prohibited Sharks***, ###
No possession allowed
* Total length is the longest straight line measurement from the tip of the snout, with the mouth closed, to the longest lobe of the caudal fin (tail), with the lobes squeezed together, laid flat on the measuring device.
# The tail length is the longest straight line measurement from the tip of the caudal fin (tail) to the fourth cephalic dorsal spine (all dorsal spines must be intact), laid flat on the measuring device.
+ The fillet length is the longest straight line measurement from end to end of any fleshy side portion of the fish cut lengthwise away from the backbone, which must have the skin intact, laid flat on the measuring device.
** Dressed length is the longest straight line measurement from the most anterior portion of the fish, with the head removed, to the longest lobe of the caudal fin (tail), with the caudal fin intact and with the lobes squeezed together, laid flat on the measuring device.
## Large and Small Coastal Sharks include those shark species so defined as in Table 1 to Appendix A to Part 635 of Title 50 Code of Federal Regulations
++Pelagic sharks include those species so defined as in Table 1 to Appendix A to Part 635 of Title 50 Code of Federal Regulations
***Prohibited sharks include those species so defined as in Table 1 to Appendix A to Part 635 of Title 50 Code of Federal Regulations
###Applicable provisions of the following are incorporated herein by reference: 50 CFR Part 635-Atlantic Highly Migratory Species, final rule as adopted by U.S. Department of Commerce as published in the Federal Register, Volume 64, Number 103, pages 29135–29160, May 28, 1999, and as amended in volume 68, Number 247, pages 74746–74789, December 24, 2003. A copy of the federal rule incorporated by reference herein may be viewed at: New York State Department of Environmental Conservation, Bureau of Marine Resources, 205 N. Belle Mead Road, East Setauket, New York, 11733.
****See Special Regulations contained in 6 NYCRR 40.1(h)(3).
This notice is intended
to serve as both a notice of emergency/proposed and a notice of revised rule making. The notice of emergency/proposed rule making was published in the State Register on April 2, 2008, I.D. No. ENV-14-08-00002-EP. The emergency rule will expire August 7, 2008.
Emergency rule compared with proposed rule:
Substantial revisions were made in Parts 10 and 40.
Text of rule and any required statements and analyses may be obtained from:
Kathryn A. Hattala, Department of Environmental Conservation, 21 S. Putt Corners Rd., New Paltz, NY 12561, (845) 256-3071, e-mail: kahattal@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
30 days after publication of this notice.
Revised 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, 13 0105 and 13-0339 authorize the Department of Environmental Conservation (Department) to establish, by regulation, the open season, size and catch limits, possession and sale restrictions and manner of taking for American shad and hickory shad.
2. Legislative objectives:
It is the objective of the above cited legislation that the Department manage 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, 35, 36 and 40 which will implement recreational fishery restrictions for American shad in the Hudson River and Marine District, recreational fishery restrictions for hickory shad in the Hudson River, and implement commercial fishery gear limit and fishing restrictions for American shad in the Hudson River. These regulations are necessary to protect American shad and hickory shad and therefore are a part of the Department's stewardship responsibilities over the state's natural resources.
American shad of the Hudson River are anadromous. They spawn in the river, but spend most of their life in the near shore Atlantic Ocean from Virginia to Maine. They are caught by recreational and commercial fishermen while they are in the Hudson and by commercial fishermen while they are in the ocean.
Recently, Department staff completed a stock assessment of the Hudson River American shad as part of a coast wide assessment of American shad stocks under the coordination of the Atlantic States Marine Fisheries Commission (ASMFC). Abundance of Hudson River American shad has declined since the early 1990's and is now at a historic low. Moreover, fish in the spawning stock (adult fish) became smaller and younger, mortality increased to excessive and unacceptable levels, and production of young dropped more than 70 percent to an all time low in 2002. The primary cause of these changes was over fishing. Through the ASMFC, New York worked toward, and achieved closure of ocean harvest of Hudson shad in commercial fisheries that targeted shad in 2005. This closure substantially reduced losses of Hudson River American shad, but it did not solve the problem in the face of continued low production of juveniles and continued excessive mortality. The few fish produced from 2002 to 2007 are now returning as adults and are what remains to recover the stock. These fish need substantial protection if the shad stock is to recover. Our analysis indicates that if river harvest remained at 2004–2006 levels mortality would be above that required to maintain the stock at low levels. However, mortality and harvest would still be more than twice the levels needed to allow the stock to begin recovery. The Department recognizes that this is a serious problem which needs immediate attention.
Under ECL 11-0303, it is the Department's responsibility to act in behalf of the natural resources of the state. New York will implement measures which will achieve a reduction in adult mortality and will also account for the recent recruitment failure (lack of young fish) in the stock. To allow for stock recovery, it is necessary to reduce recent levels of harvest by approximately 50 percent. In order to accomplish this reduction, the Department will implement actions to: 1) create fishing restrictions to reduce recreational harvest and 2) implement seasonal restrictions, from March 15th to June 15th, on the commercial fishery to include an increased escapement period (a period of no fishing each week), gear limits, and closed and restricted areas. Failure of New York to adopt these amendments would jeopardize recovery of the Hudson River American shad 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. The principal mechanism for implementation of cooperative management of migratory fish are ASMFC's Interstate Fishery Management Plans (FMP) for individual species or groups of 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.
Confirming New York's actions, the ASMFC has initiated preparation of Amendment III to the Fishery Management Plan (FMP) for Shad and River Herring. This amendment will require reductions in mortality for shad stocks currently in decline such as the Hudson River stock. The new amendment will not be in place until May, 2009 meaning that any response would not be implemented until the 2010 fishery. It would be irresponsible for the Department to wait until then to implement measures to stop the stock's decline.
Hickory shad spawn in rivers south of New York, but spend most of their life in the near shore Atlantic Ocean from Virginia to Maine. Coastal migrants often appear in the lower Hudson River in late summer and are frequently caught by recreational fishermen. Hickory shad are managed under the ASMFC FMP for Shad and River Herring. Recreational take limits in the Hudson River are necessary to comply with the interstate FMP and to be consistent with limits existing in New York's Marine District.
4. Costs:
(a) Cost to state government:
Minor costs will be incurred by the regulating agency. See below.
(b) Cost to Local government:
There will be no costs to local governments.
(c) Cost to private regulated parties:
Certain regulated parties may experience some adverse economic effects due to the increase in the escapement period for American shad (i.e. loss of several days per week in the fishing season). The targeted party is the commercial shad fishers who will be limited to three days per week to harvest shad. There will be some economic loss to these businesses. Over the last five years, an average of 25 commercial shad fishermen on the Hudson River targeted (intentionally fished for) American shad. Most of the fishermen work alone. Only a few hire assistants. Furthermore, American shad are now only in the river in harvestable numbers for up to eight weeks each spring. Therefore, commercial shad fishing constitutes by nature a short part-time job that provides supplemental income to fishermen and a few helpers.
Over the last 30 years, the number of weeks of fishing activity and the number of participants in the commercial fishery in the Hudson River has dwindled as the stock abundance has declined. This industry has probably reached a level where the costs associated with fishing are high in relation to profit, or even meeting costs, for most fishers. The proposed rule lessens the ability of licensed fishers to harvest American shad and because of this some individuals may stop fishing.
Over the long-term, however, the maintenance of sustainable shad fisheries will have a positive effect on small businesses in the Hudson River shad fishery. Any short-term losses will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. These regulations are designed to prevent over-harvest of stocks so stocks can rebuild for future utilization.
Another possible affected party is a co-occurring (during the same time period shad are present in the river) commercial bait fishery for river herring. However, proposed regulations were designed to allow this activity to continue without change. Thus, herring netters will retain the ability to harvest fish and bait shops to purchase bait as they have in the past. There should be little economic impact to these businesses.
(d) Costs to the regulating agency for implementation and continued administration of the rule:
The Department of Environmental Conservation 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.
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 closure of the commercial and recreational fisheries for American shad in the Hudson River. Closure of the commercial fishery was rejected because commercial shad fishing holds a place as one of the longest and most enduring historic fisheries in the Hudson Valley. Archeological sites indicate shad have been fished in the valley for several thousand years. The “modern” fishery began in the 1600's as colonists shared their fishing skills with the Native Americans in the valley. Department staff believe that the social and historical value of the commercial fishery is worth preserving. The selected option seeks to preserve the commercial fishery while providing needed protection to the Hudson River shad stock.
Closure of the recreational fishery was rejected because little added protection would be gained from such an action. The Department performed a catch and release study that examined the release mortality of shad caught by recreational hook and line fishers. The study found that if shad were minimally handled, that the release mortality was low (approximately 1.6 percent). Recent creel surveys indicate that most (approximately 93 percent) recreational shad fishers release their catch. Complete closure (stopping the act of recreational fishing for American shad) would not appreciably lower harvest, but would deny New Yorkers the ability to enjoy the use of this resource. Moreover, recreational shad fishing occurs at times and locations of recreational fishing for other fish species. Thus closure of the recreational shad fishery would be difficult to enforce.
(2) Reduce harvest of American shad from the recreational and commercial fishery to levels that might maintain the stock at current historic lows. This option was rejected because it puts the stock at unacceptable risk of survival. The current record low stock level and record low and persistent production of young would make it impossible for the spawning stock to compensate for any unfavorable environmental conditions during spawning. This would lead to loss of production and certain stock decline. Department staff believe that maintaining the stock at current low levels would be inconsistent with a sustainable fishery.
(3) No Action (no amendment to regulations).
The “no action” alternative would leave current regulations in place and further jeopardize the American shad stock status. This would put New York in a position of allowing continued excessive mortality as defined in the ASMFC shad management plan and allowing the potential demise of the Hudson River American shad. This result would be contrary to the objectives of ECL 11-0303 to effectively manage the fish resources of New York State. For this reason, this alternative was rejected.
Hickory shad are managed under the ASMFC FMP for Shad and River Herring. Regulations for recreational take limits in the Hudson River are necessary to comply with the interstate FMP and to be consistent with limits existing in New York's Marine District. The “no action” alterative would leave New York with no regulation in place for recreational take of hickory shad in the Hudson River, and out of compliance with the ASMFC FMP. For this reason, this alterative was rejected.
9. Federal standards:
The amendments to Parts 10, 35, 36, and 40 are in compliance with the ASMFC Fishery Management Plan for American shad and hickory shad.
10. Compliance schedule:
The revised emergency regulations will take effect immediately upon filing with 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.
Revised Regulatory Flexibility Analysis
1. Effect of the regulations:
These amendments to 6 NYCRR Parts 10, 35, 36 and 40 limit harvest from the recreational fisheries for American shad in the Hudson River and the Marine District, limit recreational fishing for hickory shad in the Hudson River, and significantly restrict commercial harvest of American shad in the Hudson River. Because this rule making addresses recreational and commercial fishing, the businesses that will be directly affected are commercial shad fishers. These regulations do not apply directly to local governments, and will not have any direct effects on local governments.
In the last five years, an average of 25 Hudson River commercial fishermen targeted American shad. Although the season March 15th to June 15th spans 13 weeks, shad are only harvested for approximately eight weeks prior to fish spawning, as the market is for female shad roe (eggs). Because shad are only in the river for a limited time in harvestable quantities, all commercial shad operations are part-time operations of short duration. New York will implement measures which will achieve a reduction in the harvest of 50 percent in total landings, relative to the base years of 2004 through 2006. In order to accomplish this reduction, the Department is: 1) increasing the escapement (non-fishing) period for shad to 84 hours, allowing commercial shad fishing to occur three days per week instead of five; 2) allowing fishing to occur only during daylight hours only for drift fishers; 3) implementing gear restrictions of a maximum of 600 feet with mesh restricted to 5.5 inch stretched mesh; and 4) closed areas to fishing in certain spawning reaches. The reduction in the number of fishing days is designed to reduce harvest by about 40 percent. The additional gear limits and area closures will make up the needed additional 10 percent and restrain fishing effort so that fishers may not compensate by fishing more within the limited time allowed.
The American shad commercial fishery has provided only part-time employment for fishers since the 1970's. The number of weeks of fishing activity and the number of participants in the commercial fishery in the Hudson River has dwindled as the stock abundance has declined. Over the last five years, an average of 25 commercial fishermen targeted American shad. This industry has probably reached a level where the costs associated with fishing are high in relation to profit, or even meeting costs, for most fishers. The proposed rule lessens the ability of licensed fishers to harvest American shad and because of this, some individuals may stop fishing.
It is unknown how many fishing charter vessels operate in the Hudson River, New York for American shad. While the proposal reduces harvest for the recreational fishery, it allows continued use of the resource for recreational purposes. Creel surveys indicate that few fishers retain their catch; 93 percent of all American shad caught are released. Thus, the reduced daily limit is not expected to change charter boat activities. No reduction in fishing days is planned for the recreational fishery.
So that regulations for recreational take of American shad are consistent, the daily limit for American shad was reduced to one fish per day in New York's Marine District.
In the long-term, the maintenance of sustainable shad fisheries 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 the stock while allowing appropriate harvest, to prevent over-harvest, and to continue to rebuild stocks for future utilization.
The hickory shad recreational fishery is seasonal in the lower Hudson River only occurring in late summer through fall. There are no charter fisheries that target hickory shad. The daily limit is not expected to change recreational fishing activities. Adults of both hickory shad and American shad are very similar in appearance, but do not overlap in their seasonal use of the Hudson River. The season for hickory shad will allow use of this recreational resource while protecting adult American shad, which are present only during the spring.
2. Compliance requirements:
The Atlantic States Marine Fisheries Commission Intestate Fisheries Management Plan (ISFMP) for Shad and River Herring requires the recreational harvest of American shad and hickory shad be limited. No daily limit was in place for hickory shad in the Hudson River, although hickory shad are increasingly being caught in the lower river in late summer. The daily limit of five fish per day was selected to be in compliance to the ISFMP and consistent with regulations already in place for New York's Marine District.
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 expenditures on the part of affected businesses in order to comply with the changes. The restriction will reduce harvest and may reduce income from commercial fishing activities. However, American shad are in short supply coast-wide and reduced harvest may lead to higher prices and some recoupment of income. The hickory shad fishery is a growing recreational fishery for the lower Hudson River and continued management of this species may have a positive economic effect for local businesses.
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 protect and restore the Hudson River American shad stock. The regulations are intended to protect the resource and avoid the adverse impacts that would be associated with closure of the fishery.
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 actions to protect the fishery could cause the collapse of the stock and 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 supported the need to reduce or eliminate fishing mortality on the Hudson shad stock and encouraged the Department to complete a recovery plan for American shad. The Department has also met with several potentially affected commercial fishermen to explain the need for harvest reduction and to discuss potential fishing restrictions. The Department has maintained a regular dialogue with several of these fishermen by phone and email regarding the issue. The Department has and will provide a notice of the revised emergency rule making to affected fishers through mailings, newspapers and other media outlets. Local governments were not contacted because the rule does not affect them.
Rural Area Flexibility Analysis
Although substantial revisions were made to the proposed rule, such revisions do not necessitate that the previously published Rural Area Flexibility Analysis be modified.
Job Impact Statement
Although substantial revisions were made to the proposed rule, such revisions do not necessitate that the previously published Job Impact Statement be modified.
Assessment of Public Comment
The proposed emergency rule making, which amends New York's regulations for recreational and commercial fishing for American shad in the Hudson River, was published in the New York State Register on April 2, 2008. The proposed amendments reduce harvest of American shad by creating a catch-and-release recreational fishery and implementing gear, area and time restrictions for commercial fishing operations.
The Department received written comment from a total of 15 recreational fishers, two commercial fishers, two non-governmental/environmental non-profit organizations and one power generating company. The Department also received comment from the Hudson River Estuary Management Advisory Committee (HREMAC). Comment ranged from full support of the proposed regulations to opposition to some or all segments (recreational or commercial) of the fishery.
A group of 90 emails, consisting of various versions of a form letter generated by a recreational fishing organization, commented on the proposed regulations. All emails contained the same wording and were either addressed to the Governor of New York, a New York State legislator or the DEC Commissioner. Of the 90 emails, 68 were received from out-of-state (CA, CT, DE, FL, MA, ME, MD, MT, NH, NJ, PA, RI, and VA).
Comments were grouped to avoid repetitive remarks and are addressed below.
Comment 1: Banning recreational harvest [by catch-and-release only] while allowing commercial harvest creates an unfair inequity among resource users.
DEC Response: The recreational option for catch-and-release was suggested and strongly supported by a group of shad recreational anglers at a public meeting held by the Department prior to the proposed rule making. Several anglers were concerned that shad, harvested by recreational fishers, were increasingly being used as bait. The Department's decision to propose the catch-and-release fishery was based on these comments and on data from two creel surveys that estimated a minimal level (7 percent) of harvest by recreational anglers. The catch-and-release option, although still allowing recreational users access to the resource, was viewed by most recreational anglers as being unfair as commercial fishers, although restricted, could continue to harvest fish.
Changes Made in Response to Comments: Department staff re-examined the impact of mortality of limited harvest by recreational anglers. It was determined that the mortality impact could be minimized if anglers were restricted to one fish per day. As a good faith effort toward the recreational fishing community, the Department will revise the Express Terms of Part 10 from “catch-and-release only” to a one fish per day limit. A separate rule making package [Parts 10, 18, 19, 35, and 180 Sportfishing Regulations, Taking Bait, Use of Bait, Licenses, and Miscellaneous Regulations], already in progress, does not allow recreational take of American shad for use as bait.
Comment 2: The fishery needs to close entirely.
DEC Response: The full fishery closure option was examined and rejected during the emergency and proposed rule making. The recently developed recreational fishery provides unparalleled opportunity for urban anglers to participate in a healthy outdoor activity. Complete closure (stopping the act of recreational fishing for American shad) would not appreciably lower harvest, but would deny New Yorkers the ability to enjoy the use of this resource. The commercial fishery has existed in the Hudson Valley for over 400 years (and most likely longer); the historic and social values are worth preserving. The intent of the proposed regulations is to reduce mortality by implementing allowed fishing time, gear and area restrictions. Annual stock monitoring will continue and indicate if further management actions are warranted.
Changes Made in Response to Comments: None.
Comment 3: Ban all gill nets from New York Waters, end commercial fishing.
DEC Response: Various restrictions on use of gill nets in New York waters have proven effective in maintaining mortality of harvested species at acceptable levels. Banning gill nets will also affect much of the commercial fishing industry in New York waters. These fisheries include the river herring gill net fishery in the Hudson, the major bait used for striped bass fishing, as well as a number of New York's marine fisheries. Time, area, and gear restrictions are in place for the gill net fishery for American shad in the Hudson. The restrictions were designed to reduce mortality of Hudson shad by 50 percent. Results of these restrictions will be evaluated annually and further management actions will be taken if warranted.
Changes Made in Response to Comments: None.
Comment 4: Although the proposed commercial regulation are the most restrictive ever put in place, it is understood that the Department is doing its job to protect the resource and balancing that with maintaining the traditional commercial fishery. Requested to “keep up the good job”.
DEC Response: Balancing the stock protection with resource users is not simple nor easy. We acknowledge and appreciate the support.
Changes Made in Response to Comments: None.
Comment 5: The Department should move toward multi-species management.
DEC Response: Although multi-species management is a laudable goal, it is beyond the nature of the proposed regulations. However, the Department is beginning to institute changes to implement an eco-system approach to management.
Changes Made in Response to Comments: None.
Comment 6: The Department should finalize a state management plan for American shad in the Hudson River before finalizing the proposed regulations.
DEC Response: The rule making administrative time line was initiated in March 2008 to change fishing regulations for American shad in time to provide protection to this year's spring spawning run. To let these proposed regulations lapse would decrease protection for the stock and would have the potential to create an administrative burden of promulgating repetitive emergency regulations on an annual basis until if, and when, a state management plan is finalized for American shad.
Changes Made in Response to Comments: None.
Comment 7: The Department should include a sunset clause in the proposed regulations to ensure that reassessment of stock condition and management restrictions are reviewed, and changed if necessary, every five years.
DEC Response: The Department will do its best to develop and implement a recovery plan for Hudson River American shad. New York is a member of the Atlantic States Marine Fisheries Commission (ASMFC) which requires annual monitoring and reporting of American shad stock status in the Shad and River Herring Interstate Fisheries Management Plan (ISFMP). As partner to ASMFC and in the interest protecting New York's resources, the Department will continue annual stock status monitoring for Hudson River American shad. Any new management actions will be based on changes to the American shad stock when changes in measured indices occur. Changes on fishing restrictions should be dictated by stock condition rather than on a fixed time interval.
Changes Made in Response to Comments: None.
Comment 8: The Department must mandate the installation of closed cycle cooling at every Hudson River power plant.
DEC Response: Power generating station impacts are being dealt with under the State Pollution Discharge Elimination System (SPDES) permit issued by the Department's Environmental Permits Division. Power plant operation is beyond the scope of the proposed regulations.
Changes Made in Response to Comments: None.
Comment 9: The Department must lead the fight through the ASMFC to regulate directed fisheries for American shad [in Delaware Bay]; lower by-catch limits; mandate member states find funding for observers to enforce by-catch limits.
DEC Response: New York State, as a member of ASMFC, will fully participate in the development of Amendment 3 to the Shad and River Herring Interstate Fisheries Management Plan which may attempt to address by-catch issues. New York staff plan to meet with the National Marine Fisheries Service in early summer 2008 to begin to identify fisheries where by-catch occurs.
Changes Made in Response to Comments: None.
Comment 10: The Department must dedicate funding to further study the reason(s) for decline, monitor and restore lost shad spawning grounds and continue the Hudson River Estuary Monitoring Program.
DEC Response: The Department is working on a recovery plan for American shad, which will identify specific research needs. These include identifying spawning and nursery habitat to facilitate habitat protection, and hopefully restoration; food habits of young-of-the-year shad and the possible interaction with zebra mussel; and a predator-prey study to understand the role of American shad as a prey species. Many of these studies will be conducted in partnership with other research organizations. The Hudson River Estuary Monitoring Program, a long-term monitoring program which collects data used to track abundance of adult and young shad, is conducted by contractors of Hudson River power generating plants. The Program is tied to the SPDES permitting process now ongoing with Hudson Valley power generating plants. Continuation of the program will require substantial annual funding (greater than two million dollars per year); the future of the program is uncertain.
