To amend surfclam regulations to provide consistency with the management measures of the Fishery Management Plan.
Text of final rule:
Part 43 of 6 NYCRR is amended to read as follows:
Subdivision 43-2.6(b) is amended to read as follows:
(b) [Effective January 1, 2010, an] An individual fishing quota system (IFQ) [shall be] has been established which will allocate to each eligible vessel an annual individual fishing quota. The individual fishing quota shall be determined annually based on the annual harvest limit referenced in subdivision (a) of this section divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery. The IFQ assigned to an eligible vessel shall be nontransferable and each vessel can only be used to catch one quota allocation. No eligible vessel shall take or attempt to take more than one quota allocation of surfclams on any surfclam/ocean quahog Atlantic Ocean permit or take more than the cumulative equivalent of one quota allocation if identified as the eligible vessel on one or more surfclam/ocean quahog Atlantic Ocean permits when authorized pursuant to section 43-3.5 of Subpart 43-3, during any calendar year. The IFQ will expire on December 31st of each year and any unused quota not taken prior to the end of the year will not roll over into the next year but will remain uncaught.
Subdivision 43-2.8(c) is amended to read as follows:
(c) [Effective January 1, 2010, all] All surfclam cages or individual standard bushel containers, or portions thereof, must be tagged with a cage tag prior to offloading from the vessel except as authorized by the department. Such tag must be firmly attached on or near the upper crossbar of the cage or affixed to an industry standard bushel container. A cage tag is required for every 60 cubic feet of cage volume of a standard cage, or portion thereof, or each container holding an industry standard bushel or portion thereof. Each cage tag shall indicate the state issuing the tag, the year issued, the Federal documentation number or State registration number of the vessel assigned the individual fishing quota (IFQ), and the serialized number assigned to that tag in ascending order. Cage tags shall be affixed to standard cages or containers holding industry standard bushels or portions thereof in ascending order of the serial numbers assigned to the vessel.
Subdivision 43-2.8(e) is amended to read as follows:
(e) It is unlawful to reuse, alter, sell, offer for sale or transfer any cage tag issued under this section. Once a [vessel owner’s] vessel’s allocation or cumulative equivalent of one IFQ allocation of cage tags is used, that vessel may no longer take surfclams by mechanical means from the New York State certified waters of the Atlantic Ocean. No vessel shall take or attempt to take more than one quota allocation of surfclams on any surfclam/ocean quahog Atlantic Ocean permit or take more than the cumulative equivalent of one quota allocation if identified as the eligible vessel on one or more surfclam/ocean quahog Atlantic Ocean permits when authorized pursuant to section 43-3.5 of Subpart 43-3, during any calendar year.
Subdivision 43-2.8(h) is amended to read as follows:
(h) It is unlawful to land, offer for sale or sell surfclams taken by mechanical means from New York State certified waters of the Atlantic Ocean in a standard cage or industry standard bushel container which are not properly tagged as described in this section unless authorized by the department. A cage tag or tags must not be removed from any standard cage or industry standard bushel container until the cage or standard bushel container is emptied by the processor, at which time the processor must promptly remove and retain the tag(s) for 60 days beyond the end of the calendar year, unless otherwise directed by the department or state or Federal law enforcement agents.
Existing subdivision 43-2.8(i) is renumbered 43-2.8(k) and remains unchanged.
New subdivisions 43-2.8(i) and 43-2.8(j) are adopted to read as follows:
(i) A vessel owner may apply for a temporary exemption from the cage tagging requirements of this section by submitting a written request to the department. The vessel owner must possess a valid surfclam/ocean quahog Atlantic Ocean permit and provide a copy of the cage tag order form that has been submitted to the department or department’s approved vendor for the current calendar year. Any vessel taking surfclams under this temporary cage tagging exemption shall keep a copy of the department’s written exemption onboard the vessel at all times and made immediately available to a department representative or an enforcement officer upon request.
(j) The captain/operator or owner/lessee of a vessel that has received a temporary exemption to harvest without cage tags shall notify the department prior to commencement of any and all surfclam harvest conducted under an IFQ assigned to an eligible vessel in the Atlantic Ocean surfclam fishery. Such notification must include the following information: identification of the name of the vessel to be fishing, name of captain/operator, date and time harvest will commence, expected time harvest will end, approximate location of fishing area to the nearest landmark or inlet, and identification of dockage and landing location(s). The notification must be made by email, fax or telephone prior to commencement of all surfclam harvesting activities conducted on a daily basis. The captain/operator or owner/lessee must complete and submit a surfclam vessel harvest report immediately following each surfclam harvest trip conducted without cage tags on a daily basis. All surfclam vessel harvest reports must be submitted to the department on the same day as harvest is conducted, on a form provided by the department. The permit holder shall notify the department in writing upon their receipt of cage tags from the authorized cage tag vendor and submit a written request for termination of the temporary cage tagging exemption. The permittee shall be required to surrender cage tags as directed by the department to account for the harvest conducted under the temporary cage tagging exemption based on the quantities of surfclams harvested and reported on the surfclam vessel harvest reports.
Existing subdivision 43-3.3(e) is renumbered 43-3.3(f) and remains unchanged.
New subdivision 43-3.3(e) is adopted to read as follows:
(e) ‘Individual fishing quota’ means the annual allocation of surfclam quota that is assigned to each eligible surfclam vessel based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery.
New subdivision 43-3.5(d) is adopted to read as follows:
(d) No vessel in the Atlantic Ocean surfclam fishery which has been subject to and identified in the sale, transfer or replacement of an eligible vessel by the vessel owner or lessee under this section shall take more than one individual fishing quota (IFQ) or take more than the cumulative equivalent of one IFQ in any calendar year when identified on one or more Atlantic Ocean surfclam owner/lessee permit(s).
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 43-2.6(b).
Text of rule and any required statements and analyses may be obtained from:
Debra Barnes, NYSDEC, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-0477, email: debra.barnes@dec.ny.gov
Additional matter required by statute:
The action is subject to SEQR as an Unlisted action and a Short EAF was completed. The Department has determined that an EIS need not be prepared and has issued a negative declaration. The EAF and negative declaration are available upon request.
Revised Regulatory Impact Statement, Revised Regulatory Flexibility Analysis, Revised Rural Area Flexibility Analysis and Revised Job Impact Statement
The text of the proposed rule contains a non-substantive change in 6 NYCRR subdivision 43-2.6(b) which adds the last sentence of the existing subdivision that was unintentionally omitted from the proposed rule. The original proposed rule, which was published in the State Register on December 16, 2015, (I.D. Number: ENV-50-15-00003-P), mistakenly did not contain this portion of the existing regulation. This change in the final rule which is already part of subdivision 43-2.6(b) will not impose any new requirements on surfclam industry participants as it is currently a regulatory requirement.
The Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement that was published with the Notice of Proposed Rule Making remains accurate and does not require revision to address this non-substantive change.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.
Assessment of Public Comment
The New York State Department of Environmental Conservation (DEC) received a total of twenty-seven written comments on the proposed rule making to amend 6 NYCRR Part 43 (Subparts 43-2 and 43-3) pertaining to Atlantic Ocean Surfclam Management. Twenty-two were form letters having the same content that support the proposed rule as a way to prevent harmful practices in the industry which have led to the precipitous decline in the overall surfclam population in New York waters. One comment expressed similar support for the rule as a measure to address industry practices affecting the decline in the surfclam population. Two comments were supportive of any regulations involving cooperative harvesting and vessel replacement that allow eligible vessels to catch their individual fishing quotas but oppose any rule making that would prevent the harvesting of their yearly quotas. One comment expressed concern about the cage tagging exemption provision and potential enforcement loophole but was generally supportive of the need to protect family small businesses and traditional fishermen on Long Island. One commenter, representing thirteen out of seventeen surfclam permit holders, one shellfish shipper and one company that does not hold a surfclam permit but is having a vessel built, was opposed to the proposed rule that restricted each eligible surfclam vessel to be used to catch only one individual fishing quota regardless of the surfclam permit or permits the vessel was assigned to in a calendar year.
The comments are summarized below, followed by DEC’s response:
Comment: The commenters have over twenty-five years’ experience as owners of a surfclam vessel in New York’s Atlantic Ocean fishery and feels that the proposed changes will help counteract harmful practices in the industry that have led to the precipitous decline in the overall surfclam population in New York waters. They supported the State’s efforts to take action to encourage the vitality of the surfclam population. The twenty-two form letters contained the same overall comment although DEC cannot determine if any are participants in the surfclam fishery. These comments are addressed in a single response.
DEC response: The proposed rule is intended to address inconsistencies in the regulations and the Surfclam Fishery Management Plan (FMP) for the Atlantic Ocean pertaining to an eligible vessel’s taking of surfclams under an individual fishing quota (IFQ), use of cage tags and replacement of eligible vessels. The rule does not address the decline in the overall surfclam population.
Comment: Two commenters supported any type of cooperative harvesting or replacement vessel regulations that allow eligible vessels to harvest their permitted yearly quotas. The commenters currently do not have vessels capable of harvesting their available quotas and rely on cooperative harvesting or vessel replacement regulations to derive economic benefit from their permitted quota. They oppose any rule making that would not allow their permits to be cooperatively harvested or vessel replacements to occur for the purpose of harvesting their IFQs.
DEC response: State regulations controlling Atlantic Ocean Surfclam Management (6 NYCRR Part 43, Subpart 43-2) do not authorize cooperative harvesting of a vessel’s IFQ by an eligible vessel assigned to another surfclam permit holder. Additionally, the regulations assign IFQs to eligible vessels owned or leased by the permit holder and do not allow for transfer or consolidation of quota. Therefore, in order to harvest surfclams from the Atlantic Ocean and participate in the fishery, a permit holder must own or lease a vessel consistent with the regulations in 6 NYCRR Part 43, Subparts 43-2 and 43-3. The proposed rule does not prohibit the replacement of eligible vessels in the fishery which has been done historically by surfclam permit holders for replacement of inoperable and inefficient vessels by other vessels not currently operating in the fishery. The permit holder may replace an eligible vessel in the fishery at any time to allow for harvest of the vessel’s IFQ subject to the vessel replacement requirements in Subpart 43-3. The proposed rule clarifies that all vessels are limited to harvesting no more than one IFQ, regardless of the surfclam permit or permits they are assigned to, which is consistent with the management measures in the State’s Atlantic Ocean Surfclam FMP. DEC cannot consider the alternative options of cooperative harvesting, unrestricted vessel replacement or cross-replacement (swapping) amongst permit holders of vessels already eligible to participate in the fishery for harvest of another vessel’s IFQ if these options are inconsistent with or not authorized by the State’s Atlantic Ocean Surfclam FMP. The FMP establishes the framework for harvest management provisions of New York’s surfclam fishery.
Comment: The commenter requested clarification on the DEC’s intent of the regulatory language in subdivision 43-2.6(b) because the last sentence of the existing rule was not included in the proposed text of the rule making as published in the State Register and on the DEC’s website.
DEC response: The last sentence of the existing rule in subdivision 43-2.6(b) remains unchanged. This sentence was unintentionally omitted in the Notice of Proposed Rule Making Express Terms (text) but will be included in the text of the rule when published with the Notice of Adoption in the State Register to clarify and appropriately address this issue.
Comment: The commenter supports the need for the regulations to be consistent with New York State’s FMP for the Atlantic Ocean Surfclam Fishery to minimize the potential for monopolization of the State’s annual surfclam quota by a few vessels. They recognized the generations of Long Island families with long fishing traditions and expressed the need to support this family small business tradition.
DEC response: DEC concurs with this comment and acknowledges that the proposed rule is intended to take into consideration and maintain the economic viability of these traditional surfclam fishery participants.
Comment: The commenter expressed concern about the proposed cage tag exemptions which may create a potential enforcement loophole. They recommended that the rules for cage tag exemption ensure authenticity of every exemption, require an affirmation and also provide the public with information identifying the applicant in the Environmental Notice Bulletin or DEC’s website.
DEC response: DEC agrees with the need to ensure enforceability of the cage tagging exemption provisions of the rule to prevent illegal harvesting of surfclams. The cage tagging exemption has been authorized by DEC since 2010 through special conditions on Atlantic Ocean surfclam permits to minimize any unnecessary hardship to the surfclam industry and allow surfclam permit holders to harvest surclams while their cage tag orders are processed by the authorized cage tag supply vendor. DEC’s Division of Law Enforcement is provided with a list of those vessels that are temporarily authorized to harvest without cage tags. DEC is not aware of any non-compliance associated with this exemption. The temporary authorization includes daily pre-harvest notification and vessel catch report requirements to ensure compliance with the exemption provisions of the rule.
Comment: The commenter representing multiple fishery interests expressed opposition to the parts of the rule restricting each eligible vessel to harvest no more than one IFQ and stated that the impacts to the industry participants would be devastating. Over half of the permit holders do not have eligible and usable vessels capable of harvesting in the Atlantic Ocean fishery. These fishery participants have been cooperatively harvesting in the fishery since the advent of the replacement rule. They will be placed at an economic disadvantage or denied opportunity to harvest their IFQ as a result of the proposed rule.
DEC response: DEC disagrees with this comment. The replacement rule was adopted at the time of limited entry of vessels in the fishery as a means to allow for the replacement of an eligible vessel either temporarily or permanently while maintaining the vessel’s eligibility in the fishery. The permit holders replaced their surfclam vessels with ones typically not already eligible to participate in the fishery. According to DEC’s records, very few vessel replacements were requested by permit holders prior to 2014 and most of those replacements involved the permanent replacement of the eligible vessel with a more seaworthy, oceangoing vessel that was not participating in the fishery at that time. Since 1993, all permit holders have been required to own or lease a vessel to maintain eligibility in the fishery and harvest surfclams from the Atlantic Ocean. Additionally, prior to 2011, no cooperative harvesting was undertaken and all permit holders seeking to harvest surfclams from the Atlantic Ocean used their permitted eligible vessel to participate in the fishery. Prior to 2014, DEC has no records of any request under vessel replacement regulations for the cross-replacement (swapping) of eligible vessels in the fishery amongst permit holders to harvest surfclams from the Atlantic Ocean. During the years 2005, 2007, 2009, and 2010, a total of 22, 19, 17 and 16 eligible vessels, respectively, out of a total of 22 or 23 eligible vessels, reported harvesting surfclams in the Atlantic Ocean. In 2010, the majority of the 22 eligible vessels harvested surfclams from the Atlantic Ocean under an IFQ. DEC does not see any reason why a surfclam permit holder cannot continue to either fish the vessel assigned to their permit or seek a replacement vessel through purchase or lease as has been done in the past, if they want to harvest surfclams in the Atlantic Ocean. The proposed rule does not provide any economic advantage or disadvantage to fishery participants but rather implements a system of equally allocating fishing quota to all vessels in the fishery which is consistent with the State’s Atlantic Ocean Surfclam FMP.
Comment: The commenter representing multiple fishery interests disagreed with DEC’s justification for the proposed rule to prevent monopolization of the quota by a few vessels. They also expressed concern that there are a limited number of vessels capable of catching surfclams that also satisfy the State’s eligibility requirements. This will create a hardship for permit holders with vessels not capable of fishing.
DEC response: DEC’s justification is consistent with the harvest management measures of the Atlantic Ocean Surfclam FMP and individual fishing quota (IFQ) system which allocates IFQs equally to each eligible vessel on an annual basis. In 2010 when the IFQ system was established, 16 out of 22 vessels harvested surfclams in the Atlantic Ocean. Some vessels did not harvest due to lack of markets for their surfclams. In 2011, this number was reduced to 11 and in 2012 and 2013, only 7 vessels harvested surfclams, due to the amendment of the Environmental Conservation Law that allowed for cooperative harvesting amongst vessel owners and consolidation of a vessel’s IFQ. This provision in law sunset as of December 31, 2013. The proposed rule reinforces the provisions of the regulations for IFQs that are consistent with the State’s management of this fishery and provides for equal participation in the fishery by all permit holders. The FMP and regulations also recognize that if some vessels do not fish or do not harvest their full IFQ, any uncaught clams will have a positive benefit by providing an additional conservation measure to help sustain the surfclam population in the Atlantic Ocean. It is not uncommon for any fishery to have less than 100 percent participation in any given year. It is also expected that surfclam permit holders involved in a limited-entry fishery with nontransferable IFQs must make an investment in a vessel capable of harvesting surfclams, either by maintaining their own vessel or purchasing or leasing a replacement vessel, if they want to maintain eligibility in the fishery and take surfclams from the Atlantic Ocean. Lastly, the harvest management alternatives provided in this comment are outside the scope of the State’s Atlantic Ocean Surfclam FMP and cannot be considered as viable alternatives under the proposed rule.
Comment: The commenter representing multiple fishery interests stated that the proposed rule should be rejected. DEC should focus on adopting a resumption of cooperative harvesting for the fishery.
DEC response: Cooperative harvesting is outside of the scope of the proposed rule and inconsistent with the Atlantic Ocean Surfclam FMP. Therefore, it cannot be considered as an alternative option under the adoption of the rule.
