ENV-31-12-00001-EP Mandatory V-Notching Rules for Legal Size Female Egg-Bearing American Lobster

8/1/12 N.Y. St. Reg. ENV-31-12-00001-EP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 31

August 01, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-31-12-00001-EP

Filing No. 688

Filing Date. Jul. 11, 2012

Effective Date. Jul. 11, 2012

Mandatory V-Notching Rules for Legal Size Female Egg-Bearing American Lobster

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

Proposed Action:

Addition of section 44.1(r); and amendment of section 44.7 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301, 13-0105 and 13-0329

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

These regulations are necessary for New York to come into compliance with the Fishery Management Plan (FMP) for American lobster as adopted by the Atlantic States Marine Fisheries Commission (ASMFC), to avoid potential federal sanctions for lack of compliance with such plan, and to begin rebuilding the southern New England lobster stock. Each member state of ASMFC is expected to promulgate regulations that comply with FMPs adopted by ASMFC. These regulations are needed to properly manage the State’s fisheries. Failure by a state to adopt, in a timely manner, necessary regulations may result in a determination of non-compliance by ASMFC and the imposition of federal sanctions on the particular fishery in that state. A closure of the New York’s lobster fishery could result in significant adverse impacts to the State’s economy. During 2010, New York’s 360 resident commercial lobster license holders harvested almost 800,000 pounds of lobsters for a value of approximately $3.4 million. In addition, there were 1,095 non-commercial lobster license holders who utilized the State’s lobster resource. New York State must adopt regulations that are in compliance with the FMP which are intended to start rebuilding the depleted southern New England lobster stock.

The promulgation of this regulation as an emergency rule making is necessary because the normal rule making process would not promulgate these regulations in the time frame necessary to meet the new V-notch implementation date. The V-notch rule for Lobster Conservation Management Area (LMA) 4, which includes New York State waters, was scheduled to be implemented in 2013. The implementation date was moved up to July 1, 2012 due to concerns about the ability of the lobster industry to V-notch enough legal size egg-bearing females to remain in compliance with the FMP if the program started in 2013. Due to the short timeframe available, the Bureau of Marine Resources (BMR) seeks to adopt by an emergency rule making the regulations needed to become in compliance with the Atlantic States Marine Fisheries Commission (ASMFC) American Lobster Fishery Management Plan (FMP) as soon as possible. If New York is found out of compliance by ASMFC, it may result in federal sanctions and a moratorium on lobster harvest in New York. It is in the best interests of New York State’s lobster fishing industry to remain in compliance with ASMFC lobster requirements by not promulgating the proposed regulation through the normal rule making process.

Subject:

Mandatory V-notching rules for legal size female egg-bearing American lobster.

Purpose:

To implement ASMFC American Lobster Fishery Management Plan Addendum XVII and remain in compliance with ASMFC.

Text of emergency/proposed rule:

Section 44.1 of 6 NYCRR is amended read as follows:

Existing subdivisions 44.1(a) through 40.1(q) remain the same.

New subdivision 44.1(r) of 6 NYCRR is adopted to read as follows:

(r) "V-notched lobster" is defined as any female lobster that bears a notch or indentation in the base of the flipper that is at least as deep as 1/8 inch, with or without setal hairs. V-notched lobster also means any female lobster which is mutilated in a manner which could hide, obscure, or obliterate such a mark.

Existing sections 44.2 through 44.6 remain unchanged.

Existing section 44.7 of 6 NYCRR is repealed.

New section 44.7 is adopted to read as follows:

44.7 Mandatory V-Notching

(a) All legal size egg-bearing female lobsters captured in LMA 4 must be V-notched and immediately released back in the water. V-notches must be to the right of the center flipper as viewed from the rear of the female lobster when the underside of the lobster is down. The V-notch should be made by means of a sharp bladed instrument, at least one quarter inch in depth and not greater than one half inch in depth and tapering to a sharp point.

(b) Permittees who designate more than one LMA in their lobster permit application shall abide by the V-notching rules of the most restrictive of the designated LMAs, regardless of where they are fishing. Any person who possesses more than one commercial lobster permit shall abide by the V-notching rules of the most restrictive of the LMAs designated on all of their permits, regardless of where they are fishing. Any permitee who fails to designate an LMA on their application shall abide by the most restrictive of the LMAs 1, 2, 3, 4, 5, 6, and Outer Cape Cod (OCC) V-notching rules. The department shall provide license holders written notice of the current V-notching rules of LMAs 1, 2, 3, 4, 5, 6 and OCC annually.

(c) The landing or possession of any V-notched female lobster is prohibited. This prohibition applies to all persons other than a final purchaser or consumer.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire October 8, 2012.

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

Kim McKown, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, NY 11733, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

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

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 3-0301, 13-0105 and 13-0329 authorize the Department of Environmental Conservation (the department) to establish by regulation V-notch regulations for Lobster Conservation Management Areas 1, 2, 3, 4, 5, and Outer Cape Cod (OCC) for American lobsters.

2. Legislative objectives:

It is the objective of the above-cited legislation that the department 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:

The objective of Addendum XVII to ASMFC American Lobster Fishery Management Plan (FMP) is to reduce harvest of lobster in Southern New England (SNE) by 10 percent to initiate stock rebuilding. Lobster Conservation Management Teams (LCMT) met and determined implementation measures. These measures include that all legal size egg-bearing female lobsters captured in LMA 2, 4 and 5 must be V-notched and immediately released back in the water. New York permit holders harvest lobsters in all three areas, but LMA 4 is the only one which contains New York waters. The Addendum's implementation date is 2013, but due to concerns about not meeting the reduction by the 2014 compliance date, the V-notch implementation date was moved forward to 2012. New York must implement the new V-notch rules by July 10, 2012 to become in compliance with the ASMFC lobster FMP as soon as possible, which necessitates an emergency adoption of the rule. Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York.

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

Under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), ASMFC determines if states have implemented provisions of FMPs with which they are required to comply. If ASMFC determines that a state is non-compliant with an FMP, it so notifies the U.S. Secretary of Commerce. If the Secretary concurs in the non-compliance determination, the Secretary promulgates and enforces a complete prohibition on all fishing for the subject species in the waters of the non-compliant state until the state comes into compliance with the FMP.

Environmental Conservation Law section 13-0329(16), authorizes the department to adopt regulations for the management of lobster in LMAs 1, 2, 3, 4, 5 and Outer Cape Cod (OCC), provided that such regulations must be consistent with the fishery management plans for lobster adopted by ASMFC.

Addendum XVII to the Fishery Management Plan (FMP) for American Lobster requires New York to implement mandatory V-notch program for LMAs 2, 4 and 5.

Failure by New York to adopt these amendments could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York. The promulgation of this regulation on an emergency basis is necessary in order for the department to meet compliance deadlines and avoid closure of the lobster fishery and the economic hardship that would be associated with such closure. During 2010, New York's 360 resident commercial lobster license holders harvested almost 800,000 pounds of lobsters for a value of approximately $3.4 million. In addition, there were 1,095 non-commercial lobster license holders.

4. Costs:

(a) Cost to State government:

There are no new costs to State government resulting from this action.

(b) Cost to local government:

There will be no costs to local governments.

(c) Cost to private regulated parties:

The proposed rule will impose costs to commercial lobster permit holders who indicate on their permit that they fish in LMA 2, 4 or 5. The objective of Addendum XVII is to decrease harvest by 10 percent. We estimate the rule would cost New York's lobster industry as a whole approximately $45,000 annually using 2010 lobster harvest data.

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

The department will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying permit holders of the new rules and enforcement.

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:

(a) Alternative management measures.

Addendum XVII to the Atlantic States Marine Fisheries Commission (ASMFC) American lobster Fishery Management Plan adopted a 10 percent reduction in harvest to help rebuild the depleted Southern New England lobster stock. The Addendum recommended size limits and seasonal and area closures as management measures. Lobster Conservation Management Teams (LCMT) 2, 4, and 5 proposed conservation equivalency V-notch programs which were approved by the ASMFC Lobster Board. Alternative measures would need to be proposed by the Area LCMT and approved by the ASMFC Lobster Management Board.

(b) No Action.

The ASMFC American Lobster FMP requires a 10 percent reduction in harvest, which will be implemented all or in part by mandatory V-notching for LMAs 2, 4 and 5. Implementation measures were determined by the LCMTs, which are composed of lobster industry representatives. If the department does not adopt these rules, delayed implementation measures may be imposed or the state could be judged out of compliance with the ASMFC American Lobster FMP. In either event the commercial and recreational lobster fisheries would be closed for some duration of time. This would cause significant hardship on resource users. The estimated dollar value of New York's commercial lobster harvest was approximately $3.4 million in 2011, the most recent year with an estimate of the value of the lobster fishery.

9. Federal standards:

The amendments to Part 44 are in compliance with the ASMFC fishery management plan for American lobster.

10. Compliance schedule:

The 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.

Regulatory Flexibility Analysis

1. Effect of rule:

The amendment of 6 NYCRR Part 44 implements a mandatory V-notch program for lobster harvesters in Lobster Conservation Management Areas (LMA) in which they are required by the Atlantic States Marine Fisheries Commission (ASMFC). It is currently required in LMA 2, 4, and 5. These rules will affect both commercial and non-commercial lobster license holders. These regulations do not apply directly to local governments, and will not have any direct effects on local governments.

The objective of Addendum XVII to ASMFC American Lobster Fishery Management Plan (FMP) is to reduce harvest of lobster in Southern New England (SNE) by 10 percent to initiate stock rebuilding. Lobster Conservation Management Teams (LCMT) met and determined implementation measures. These measures include that all legal size egg-bearing female lobsters captured in LMA 2, 4 and 5 must be V-notched and immediately released back in the water. New York permit holders harvest lobsters in all three areas, but LMA 4 is the only one which contains New York waters. The Addendum's implementation date is 2013, but due to concerns about not meeting the reduction by the 2014 compliance date, the V-notch implementation date was moved forward to 2012. New York must implement the V-notch program by July 10, 2012 to become in compliance with the ASMFC lobster FMP as soon as possible, which necessitates the emergency adoption of the rule. Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York.

In 2010, there were 360 licensed resident commercial lobster fishers in New York; most are self-employed. The objective of Addendum XVII is to decrease harvest by 10 percent. We estimate the rule would cost New York's LMA 2, 4, and 5 lobster harvesters $45,000 annually using 2010 lobster harvest data. The regulatory changes also apply to non-commercial harvesters. There were 1,095 non-commercial lobster permit holders in 2010. In 2010, approximately 30 percent of the non-commercial permit holders fished in areas that would be impacted by the rule.

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

2. Compliance requirements:

None.

3. Professional services:

None.

4. Compliance costs:

There are no initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule.

5. Economic and technological feasibility:

The proposed regulations do not require any expenditures on the part of affected businesses in order to comply with the changes. The changes required by this action have been determined to be economically feasible for the affected parties.

There is no additional technology required for small businesses, and this action does not apply to local governments. Therefore, there are no economic or technological impacts for any such bodies.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for the department to become in compliance with the FMP for lobster as soon as possible. The regulations are intended to protect the lobster resource and avoid the adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP.

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 comply with an FMP and take required actions to protect a marine fishery could hinder the rebuilding of the SNE lobster stock and have an adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. These regulations are being adopted in order to initiate stock rebuilding while allowing for some harvest.

7. Small business and local government participation:

ASMFC had public hearings on Addendum XVII where all resident commercial lobster license holders were invited. In addition, the LMA 4 Lobster Conservation Management Team met to decide on implementation measures for this Addendum.

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

The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The lobster fisheries directly affected by the proposed rule are entirely located within the marine and coastal district, and are not located adjacent to any rural areas of the State. Further, the proposed rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 44, a Rural Area Flexibility Analysis is not required.

Job Impact Statement

1. Nature of impact:

The amendment of 6 NYCRR Part 44 will implement the V-notch management measures of Addendum XVII to the Atlantic States Marine Fisheries Commission (ASMFC) American Lobster Fishery Management Plan (FMP). The objective of this Addendum is to reduce the harvest of lobster in Southern New England (SNE) by 10 percent to initiate stock rebuilding. This rule specifically addresses mandatory V-notch programs for lobster harvesters in Lobster Conservation Management Areas (LMA) in which they are required by the Atlantic States Marine Fisheries Commission (ASMFC). It is currently required in LMA 2, 4, and 5. New York permit holders harvest lobsters in all three areas, but LMA 4 is the only one which contains New York waters. The mandatory V-notch program requires lobster permit holders to cut a notch in the tail fin of any legal size female egg-bearing lobster and return it to the water. V-notching lobsters protects them from harvest for approximately two years. Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a lobster fishery closure - a complete ban on fishing for lobster in New York. These rules will affect both commercial and non-commercial permit holders.

2. Categories and numbers affected:

In 2010, there were 360 licensed resident commercial lobster fishers in New York, most are self-employed. The objective of Addendum XVII is to decrease harvest by 10 percent. We estimate the rule would cost New York's LMA 2, 4, and 5 lobster harvesters $45,000 annually using 2010 lobster harvest data. The regulatory changes also apply to non-commercial harvesters. There were 1,095 non-commercial lobster permit holders in 2010. In 2010, approximately 30 percent of the non-commercial permit holders fished in areas that would be impacted by the rule.

3. Regions of adverse impact:

This rulemaking will impact lobster permit holders fishing in the Marine District of New York in LMAs 2, 4 and 5 which are located in the near shore Atlantic Ocean from Cape Cod through Cape Hatteras.

4. Minimizing adverse impact:

This rule making will decrease the potential for closure of the lobster fishery in New York. If the fishery were to close, it would reduce harvest by 100 percent rather than the 10 percent reduction of the Addendum. During 2010, New York's 360 resident commercial lobster license holders harvested almost 800,000 pounds of lobsters for a value of approximately $3.4 million. In addition, there were 1,095 non-commercial lobster license holders.

Thus, the restrictions are in fact an effort to minimize the potential for job loss due to a closure of the fishery. In the long-term, the maintenance of sustainable fisheries will have a positive effect on lobster fishers. Any short-term losses in participation, harvest and sales will be offset by rebuilding of fishery stocks. Protection of the lobster resource is important to the survival of the lobster fishers and the businesses that support in these fisheries.