Regulations for commercial and recreational harvest of American eel.
Purpose:
Reduce fishing mortality of American eel in order to promote stable fish populations, and to remain in compliance with the ASMFC.
Text of proposed rule:
Part 10 of 6 NYCRR is amended to read as follows:
Paragraph 10.1(b)(12) is amended to reads as follows:
(b) Table A. Sportfishing regulations
Species
Open Season
Minimum length
Daily limit
(12)
American eel
All year
[6] 9″
[50] 25 for individuals 50 for party/charter boat captain and crew
Part 11 of 6 NYCRR is amended to read as follows:
Subdivision 11.1(b) is amended to read as follows:
(b) The taking, possessing, sale or exposure for sale of American eel from the Harlem or East River is prohibited, except that American eels may be possessed only when [less than 14 inches in length,] total length is between 9 and 14 inches, for use or sale as bait.
Paragraph 11.2(b)(1) is amended to read as follows:
(1) take or possess American eel, except when greater than 9 inches in length and less than 14 inches in length, for use as bait or for sale as bait;
Part 19 of 6 NYCRR is amended to read as follows:
Paragraph 19.2(b)(5) is amended to read as follows:
(5) American eel (‘Anguilla rostrata’): Delaware River, [six-inch] nine-inch minimum size limit; and the Hudson River downstream from the Federal Dam at Troy to the Battery at the southern tip of Manhattan Island, between [6] 9 and 14 inches.
Part 36 of 6 NYCRR is amended to read as follows:
Paragraph 36.1(c)(1) is amended to read as follows:
(1) Size of eel pots. Eel pots shall not be more than six feet long, nor more than 12 inches in diameter if round, nor more than 12 inches square if in square form. The aperture or mouth of any eel pot shall be not more than two inches in its greatest diameter. Fixtures or wings of any kind attached to or used in connection with eel pots is prohibited. Minimum mesh size must be 1 inch by ½ inch, unless such pots contain an escape panel that is at least four inches square with a mesh size of one inch by one-half inch located so that the panel is on a side, but not at the bottom of a pot.
Part 37 of 6 NYCRR is amended to read as follows:
Paragraph 37.1(a)(12) is amended to read as follows:
(12) northern pike; [and]
Paragraph 37.1(a)(13) is amended to read as follows:
(13) channel catfish[.] ; and
New paragraph 37.1(a)(14) is adopted to read as follows:
(14) American eel.
Subdivision 37.1(b) is repealed.
Part 40 of 6 NYCRR is amended to read as follows:
Existing subdivision 40.1(f) is amended to read as follows:
Species Striped bass through Tautog remain the same. Species American eel is amended to read as follows:
(f) Table A – Recreational fishing
Species
Open Season
Minimum Length
Possession Limit
American eel
All year
[6″]9″ TL
[50] 25 for individuals 50 for party/charter boat captain and crew
Species Pollock through Atlantic menhaden remain the same.
Subdivision 40.1(i) is amended to read as follows:
(i) Table B - Commercial Fishing.
Species Striped bass through Tautog remain the same. Species American eel is amended to read as follows:
Species
Open Season
Minimum Length
Trip Limit
American eel
All year
[6″]9″ TL
no limit
Species Pollock through Anadromous river herring remain the same.
Text of proposed rule and any required statements and analyses may be obtained from:
Carol Hoffman, NYSDEC, 205 N Belle Mead Road - Suite 1, East Setauket, NY 11733, (631) 444-0476, email: cjhoffma@gw.dec.state.ny.us
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, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 11-1319, 11-1501, 11-1503, 11-1505 and 13-0105, 13-0339-a, and 13-0371 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 American eel.
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.
3. Needs and benefits:
These regulations are necessary for New York to maintain compliance with the Interstate Fishery Management Plan (FMP) for American eel. As a member state of Atlantic State Marine Fisheries Commission, New York must comply with the provisions of the Interstate Fishery Management Plans adopted by ASMFC. These FMPs are designed to promote the long-term sustainability of marine species, preserve the States’ marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate regulations that implement the provisions of the FMPs to remain in compliance with the FMPs. If ASMFC determines a state to be in non-compliance with a specific FMP, the state may be subject to a complete prohibition on all fishing for the associated species in the waters of the non-compliant state until the state comes into compliance with the FMP.
In 2012, an (ASMFC) – benchmark stock assessment indicated that the American eel population was depleted. Addendum III of the ASMFC FMP for American Eel was approved in August 2013, with requirements to reduce eel fishing mortality. The requirements affect both marine and inland fisheries. States must implement measures by January 1, 2014, including a 9 inch minimum size limit for recreational, bait, and commercial fisheries, ½ inch by ½ inch minimum mesh sizes for eel pots, and a 25 fish recreational creel limit. The proposed rules must be in place so that New York remains in compliance with the ASMFC.
As a result of the ASMFC’s FMP for American Eel, the department is proposing amendments to 6 NYCRR Parts 10, 11, 19, 36 and 40 which will implement possession and size limits for the recreational fishery and implement gear restrictions and size limits for the commercial and bait fisheries for American eel in inland and marine and coastal district waters, including the Hudson, Delaware, Harlem, and East Rivers and their tributaries.
The department is also proposing amendments to 6 NYCRR Part 37 which will repeal language allowing the possession of American eels less than 14 inches in length for use as bait or for sale as bait, and add American eel to the list of species that are prohibited from sale when taken from the St. Lawrence River, Lake Ontario, and its tributaries. Not only are there relatively few naturally recruited (i.e. non-stocked) American eel in the St. Lawrence River/Lake Ontario system, but there are extremely few individual American eels smaller than 14 inches total length. The Lake Ontario American eel commercial fishery in the Lake Ontario/St. Lawrence River system was closed in 1985. There is currently no known harvest of American eel for use as bait or for sale as bait in this system.
4. Costs:
There are no new costs to state and local governments from this action. The department will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying commercial, bait, and recreational harvesters, party and charter boat operators and other support industries of the new rules.
Cost to private regulated parties:
Minimum mesh sizes or escape panels on eel pots or traps are already required in marine and coastal waters, and are more restrictive than the proposed required minimum ½ inch by½ inch mesh size stated in the ASMFC Fishery Management Plan. Requiring these gear changes for inland water fisheries, which currently only use pots to harvest American eels for use or sale as bait, may impose some initial costs to these fishers. The proposed increase in the minimum size for American eel may reduce the catch for an unknown number of commercial and recreational fishermen.
As there is no known harvest of American eel from the St. Lawrence River/ Lake Ontario and its tributaries for use as bait or for sale as bait, there is no cost to private regulated parties in this area.
Costs to the regulating agency for implementation and continued administration of the rule:
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) No Action (no amendment to regulations).
The "no action" alternative would leave current regulations in place and jeopardize the fisheries for American eel in New York State. Compliance with ASMFC Addendum III to the Fishery Management Plan for American Eel is mandatory. If New York does not amend the regulations as proposed, the State will most likely be found out of compliance with Addendum III. The consequence of noncompliance is a state-wide moratorium for taking American eel. The “no action” alternative was rejected for this reason.
9. Federal standards:
The amendments to Parts 10, 11, 19, 36, 37, and 40 are in compliance with the ASMFC Fishery Management Plan for American Eel.
10. Compliance schedule:
The regulations will take effect when the Notice of Adoption is 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:
The Atlantic State Marine Fisheries Commission (ASMFC) facilitates cooperative management of marine and diadromous fish species among the fifteen Atlantic Coast member states. The principal mechanism for implementation of cooperative management of migratory fish is the ASMFC’s Interstate Fishery Management Plans (FMPs) 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.
The department is proposing amendments to 6NYCRR in order to remain in compliance with Amendment III to the American Eel FMP. Amendments to 6 NYCRR Parts 10, 11, 19, 36 and 40 will implement possession and size limits for the recreational fishery; and implement gear restrictions and size limits for the commercial and bait fisheries for American eel, in both inland, and marine and coastal district, waters, including the Hudson, Delaware, Harlem, and East Rivers and their tributaries. Specifically, the proposed rule increases the American eel minimum size limit to 9 inches for recreational and commercial fisheries; implements a 1 inch by ½ inch minimum mesh size requirement for eel pots or traps in inland waters; and reduces the recreational creel limit to 25 fish, with a 50 fish exemption for party and charter boat captain and crew. Amendments to 6 NYCRR Part 37 will repeal language allowing the possession of American eels less than 14 inches in length for use as bait or for sale as bait, and add American eel to the list of species that are prohibited from sale when taken from the St. Lawrence River, Lake Ontario, and its tributaries. This rule making addresses both recreational and commercial fishing. The rule making may have an impact on the commercial and recreational fisheries, including bait fisheries and party/charter boat operations, and an indirect effect on their supporting industries. In 2012, the department issued 996 resident, and 38 nonresident, commercial food fish licenses; Twenty five (25) of those license holders reported harvest of American eel on their State vessel trip reports. The department also issued 25 commercial eel pot licenses for the Hudson River bait fishery, 468 food fish and crustacean dealer/shipper licenses, and 508 party/charter boat licenses. Approximately 515 bait licenses are sold state-wide each year; an unknown number of these license holders harvest American eel for bait. There are also an unknown number of bait and tackle shops in NY. Because there is currently no known harvest of Lake Ontario/St. Lawrence River American eel for use or sale as bait, this rule will not have any direct effects in that area.
These regulations do not apply directly to local governments, and will not have any direct effects on local government.
2. Compliance requirements:
All commercial licensed fishers, as part of their mandatory reports to the department, are already required to maintain daily or trip level fishing records of catch and effort expended.
3. Professional services:
None.
4. Compliance costs:
This rule making will not impose any costs to DEC or local governments. Minimum mesh sizes or escape panels on eel pots or traps are already required in Marine and Coastal waters, and are more restrictive than the required minimum mesh size stated in the ASMFC Fishery Management Plan. Requiring these gear changes for inland water fisheries, which currently only use pots to harvest American eels for use or sale as bait, may impose some initial costs to these fishers. The proposed increase in the minimum size for American eel may reduce the catch for an unknown number of commercial and recreational fishers.
There are no other initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule. These regulations do not apply directly to local governments, and will not have any direct effects on local government.
5. Economic and technological feasibility:
Required minimum mesh sizes or escape panels on eel pots or traps may impose some initial costs to fishers in inland waters. This type of gear is already mandatory in marine and coastal waters. The proposed increase in the minimum size for American eel may reduce the catch for an unknown number of commercial and recreational fishermen.
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 for the department to remain in compliance with the Atlantic States Marine Fisheries Commission Addendum III to the Fishery Management Plan (FMP) for American Eel. Failure to comply with the FMP and take required actions to protect the fishery could result in non-compliance to the ASMFC FMP, which carries a Federal sanction of a total fishing moratorium for American eel in state waters. The regulations are intended to protect the American eel resource and to avoid the adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP. According to the National Marine Fisheries Service, the 2012 dockside value of the American eel commercial fishery in New York was $62,221. American eels are also a popular bait fish, especially for the recreational striped bass fishery. A moratorium would have a severe adverse impact on the commercial and recreational fisheries, as well as their supporting industries.
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.
7. Small business and local government participation:
ASMFC held public hearings on Draft Addendum III to the Fishery Management Plan for American Eel in East Setauket and in Port Jervis, NY. ASMFC posted a notice of these hearings and requests for public comment on their website. Marine and coastal district fishers were also informed of proposed regulatory changes at two Marine Resources Advisory Council (MRAC) meetings. The department also consulted the Hudson River Estuary Management Advisory Committee (HREMAC) regarding the proposed action. MRAC and HREMAC are comprised of representatives from recreational and commercial fishing interests, local government, educational and research institutions. The department maintains a regular dialogue with many fishers through public information meeting, telephone conversation, and e mail. The department will provide a notice of the rulemaking to affected fishers through mailings, newspapers and other media outlets.
There was no special effort to contact local governments because the proposed rule does not affect them.
8. Cure period or other opportunity for ameliorative action:
Pursuant to SAPA 202-b(1-a)(b), no such cure period is included in the rule because of the potential adverse impact on the resource. Cure periods for the illegal taking of fish or wildlife are neither desirable nor recommended. Immediate compliance is required to ensure the general welfare of the public and the resource is protected.
Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:
There are no rural areas within the marine and coastal district. There are rural areas within the inland waters of New York State. 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. There is no known harvest of American eel in St. Lawrence or Jefferson counties in the Lake Ontario/St. Lawrence River watershed. The proposed regulations will affect individuals who participate in the American eel fishery.
2. Reporting, recordkeeping and other compliance requirements; and professional services:
All commercial licensed fishers in inland waters, as part of their mandatory report to the department, are required to maintain daily fishing records of catch and effort expended.
The marine and coastal district eel fisheries directly affected by the proposed rule are not located adjacent to any rural areas of the State, and will not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. There will also be no reporting, recordkeeping and other compliance requirements on public or private entities within the St. Lawrence River/Lake Ontario watershed.
3. Costs:
There will be no initial capital or annual costs to comply with the new regulations in the marine and coastal district, or in the St. Lawrence River/ Lake Ontario eel fisheries. There may be unknown initial costs for inland fishers to comply with proposed required minimum mesh sizes on their eel pots.
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 (ASMFC) Addendum III to the American Eel Interstate Fishery Management Plan (FMP). The regulations are intended to optimize resource use for commercial and recreational harvesters consistent with fisheries conservation and management policies and interstate fishery management plans. If the ASMFC determines a state to be in non-compliance with a specific FMP, the state may be subject to a complete prohibition on all fishing for the associated species in the waters of the non-compliant state until the state does come into compliance with the FMP. The proposed regulations are intended to avoid the adverse economic and social impacts that would be associated with closure of the fishery in rural areas.
5. Rural area participation:
Marine and Coastal District fishers were informed of proposed changes at the September 17 and November 12, 2013 Marine Resources Advisory Council (MRAC) meetings. The Hudson River Estuary Management Advisory Committee Fish Subcommittee was also informed of proposed regulatory changes. The department maintains a regular dialogue with many fishers through public information meeting, telephone conversation, and e mail. 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 promulgation of this regulation is necessary for the Department of Environmental Conservation (DEC) to maintain compliance with Addendum III to the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan (FMP) for American Eel. Amendments to 6 NYCRR Parts 10, 11, 19, 36 and 40 will implement possession and size limits for the recreational fishery and implement gear restrictions and size limits for the commercial and bait fisheries for American eel, in both marine and coastal district and inland waters, including the Hudson, Delaware, Harlem, and East Rivers and their tributaries. Specifically, the proposed rule increases the American eel minimum size limit to 9 inches for recreational and commercial fisheries, implements a 1 inch by ½ inch minimum mesh size requirement for eel pots in inland waters, and reduces the American eel recreational creel limit to 25 fish, with a 50 fish exemption for party and charter boat captain and crew.
Amendments to 6 NYCRR Part 37 will repeal language allowing the possession of American eels less than 14 inches in length for use as bait or for sale as bait, and add American eel to the list of species that are prohibited from sale when taken from the St. Lawrence River, Lake Ontario, and its tributaries.
This rule making addresses both recreational and commercial fishing. American eels are a popular bait fish, especially for the recreational striped bass fishery. Thus, the rulemaking may have an impact on the commercial and recreational fisheries, including bait fisheries and party/charter boat operations, and an indirect effect on their supporting industries. Requiring gear changes for inland water fisheries may impose some initial costs to these fishers. The proposed increase in the minimum size for American eel may reduce the catch for an unknown number of commercial and recreational fishers.
2. Categories and numbers affected: In 2012, the department issued 996 resident and 38 nonresident commercial food fish licenses; 25 of those license holders reported harvest of American eel on their State vessel trip reports. The department also issued 25 commercial eel pot licenses for the Hudson River bait fishery, 468 food fish and crustacean dealer/shipper licenses, and 508 party/charter boat licenses. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders harvest American eel for bait. The total number of bait and tackle shops in NY is also unknown.
Because there is currently no known harvest of Lake Ontario/St. Lawrence River American eel for use or sale as bait, this rule will not have any direct effects in that area.
Recreational and commercial fishing is a major generator of revenue in New York. According to the National Marine Fisheries Service, the 2012 dockside value of the American eel commercial fishery in New York was $62,221. According to the US Fish and Wildlife Service, in 2011, there were 1.9 million recreational anglers in all waters of New York, generating an estimated 2 billion dollars in total expenditures.
3. Regions of adverse impact: The proposed rule will affect American eel fishers in both marine and coastal district and inland waters, including the Hudson, Delaware, Harlem, and East Rivers and their tributaries.
4. Minimizing adverse impact: The promulgation of this regulation is necessary in order for the department to comply with the ASMFC Addendum III to the American Eel FMP. The regulations are intended to optimize resource use for commercial and recreational harvesters consistent with fisheries conservation and management policies and interstate fishery management plans. If the ASMFC determines a state to be in non-compliance with a specific FMP, the state may be subject to a complete prohibition on all fishing for the associated species in the waters of the non-compliant state until the state does come into compliance with the FMP. The proposed regulations are intended to avoid the adverse economic and social impacts that would be associated with closure of the fishery. A moratorium on the harvest of American eels would have a severe adverse impact on the commercial and recreational fisheries, as well as their supporting industries. 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.
5. Self-employment opportunities: Most commercial fishers, including those involved in the bait fishery, are self-employed. A few individuals may work with or for local bait supply shops or marinas. The party and charter boat businesses, the bait and tackle shops, and the marinas are mostly small businesses that are self-owned and operated. Members of the recreational fishing industry are also mostly self-employed.
