Regulations Governing Commercial Fishing of Quota Managed Species
NY-ADR
1/29/20 N.Y. St. Reg. ENV-04-20-00004-EP
NEW YORK STATE REGISTER
VOLUME XLII, ISSUE 4
January 29, 2020
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-04-20-00004-EP
Filing No. 28
Filing Date. Jan. 14, 2020
Effective Date. Jan. 14, 2020
Regulations Governing Commercial Fishing of Quota Managed Species
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Amendment of Part 40 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0303, 13-0105, 13-0339, 13-0340, 13-0340-b, 13-0340-e and 13-0340-f
Finding of necessity for emergency rule:
Preservation of public safety and general welfare.
Specific reasons underlying the finding of necessity:
This rule making is necessary for the general welfare and public safety, and it would allow New York to adopt a Cooperative Multi-state Possession and Landing Program (“Program”) which would allow eligible commercial fishermen to: (1) possess weekly limits for quota-managed species for multiple cooperating states (NY, CT, and RI) onboard the vessel simultaneously while fishing, transiting or landing, and (2) in one trip land their weekly limits with the cooperating states. Currently, a vessel can only possess a single state’s limit, regardless of where they are authorized to land. In order to land fish in another state, the vessel would have to then travel back out to sea, repeat fishing operations, and steam back to shore. Under the proposed rule, vessels would remain restricted to landing a state’s limit at the appropriate port but could then land additional fish onboard in the ports of other states where they are permitted without having to make separate fishing trips.
The normal rule making process would not promulgate these regulations by January 1, 2020, the start of the Winter Period for the fluke fishery, and would result in New York’s commercial fishermen losing the opportunity to participate in the Program. Failure to adopt these amendments as an emergency would place New York’s commercial fishermen at a disadvantage compared to fishermen in Connecticut and Rhode Island who will be able to possess multiple trip limits onboard their vessel at the same time.
Environmental Conservation Law § 13-0105(1)(b)(6) requires DEC to “minimize waste and reduce discard mortality of marine fishery resources.” This Program would meet help satisfy this legislative directive and thus contribute to the general welfare of New York commercial fishermen by: (1) reducing discards (i.e. fish that are thrown overboard after being caught because the fishermen’s harvest limit has been reached), (2) reducing fuel use, and (3) decreasing the risk associated with commercial fishing by eliminating the need for fishermen to undertake multiple trips to catch multiple state limits.
DEC is adopting this amendment as an emergency measure so that it will be in effect by January 1, 2020 for the reasons discussed above and for the benefits it will provide to New York’s commercial fishermen.
Subject:
Regulations governing commercial fishing of quota managed species.
Purpose:
To improve efficiency, reduce waste, and increase safety in marine commercial fisheries.
Text of emergency/proposed rule:
6 NYCRR Part 40 is amended to read as follows:
A new paragraph 40.1(a)(7) is added to read as follows:
(7) “Multi-state possession limit” means the sum of: (i) the commercial trip limit in New York State for a designated quota-based species and (ii) the commercial trip limit for the same species in cooperating states from which the Program participant has privileges to land the designated quota-based species.
A new paragraph 40.1(a)(8) is added to read as follows:
(8) “Cooperating states” means states other than New York that have enacted reciprocal rules enabling commercial fishermen licensed by that state to participate in the Program, and that have provided notice to the department of intent to cooperatively participate in the Program.
A new paragraph 40.1(a)(9) is added to read as follows:
(9) “Program” means the Cooperative Multi-State Possession and Landing Program, which at the discretion of the Department, allows the holder of a commercial food fish license, in accordance with this section, to simultaneously possess trip limits for the designated quota-based species for New York and other cooperating states and land the appropriate trip limit for that species in each of the cooperating states.
A new subdivision 40.1(y) is added to read as follows:
(y) Cooperative Multi-State Possession and Landing Program
(1) Eligibility.
(i) To be eligible to participate in the Program, a person must have:
(a) a valid marine commercial food fishing license issued by the department;
(b) a valid summer flounder commercial permit if the person intends to possess and land summer flounder;
(c) a current privilege to land the designated quota-based species in at least one cooperating state;
(d) no conviction or administrative penalty for violations of state commercial fishing regulations or laws within any cooperating state, or for violations of New York’s commercial fishing regulations or laws, within the past three years; and
(e) demonstrated compliance with commercial fishing reporting requirements as provided in NYCRR 40.1(c)(1)(i) of this title.
(ii) To be eligible to land in New York State with a multi-state possession limit on board the vessel, the person shall have on board the vessel official documentation verifying their authorization to participate in the Program(s) of any cooperating state(s) in which the license holder plans to land the remainder of the multi-state possession limit.
(2) Applications.
(i) To be considered for admission into the Program, a person shall complete and submit an application form, issued by the department, to the Department’s Division of Marine Resources. The application form may require the following information:
(a) name of applicant;
(b) address;
(c) license and permit numbers for commercial fishing licenses issued by the department, including those specific to summer flounder if necessary, and any cooperating states as applicable;
(d) name, make, model, vessel identification number, and home port of the commercial fishing vessel that will be used for all fishing conducted under the auspices of the Program;
(e) federal permit number;
(f) federal operator’s license;
(g) New York port(s) of landing;
(h) port of landing in any cooperating state for which the applicant is privileged to land the quota-based species that is the subject of the Program;
(i) acknowledgement of all Program requirements to meet and maintain eligibility; (j) acknowledgement that failure to comply with any Program requirement shall result in immediate revocation of the privilege to participate in the Program; and
(k) any other information that the Department determines is relevant to the applicant’s eligibility to participate in the program.
(ii) The Program is only applicable to the quota-based species and period of time as specified by the department as part of the application form.
(3) Substantive requirements.
(i) If an applicant is deemed eligible to participate in the Program by the department, then the applicant shall be considered a Program participant, as confirmed by a letter from the department. Program participants must reapply annually to participate in the Program.
(ii) Program participants must strictly adhere to all applicable commercial fishing regulations, including the multi-state possession limit, as specified in 6 NYCRR Part 40, Marine Fish, and any applicable directives promulgated pursuant to the department’s authority.
(iii) Each Program participant shall be granted a multi-state possession limit for the specified quota-based species at the beginning of the period designated by the Program.
(iv) Program participants will be subject to the following requirements during each fishing trip to maintain Program privileges:
(a) Program participants may only retain their multi-state possession limit when fishing on a permitted vessel associated with that Program participant’s authorization;
(b) Program designated species catch intended for landing in New York and any cooperating state(s) must be stored such that the catch intended for each state is physically separated; catch intended for each state must be stored in separate totes and identified with a written sign as to the intended port of landing;
(c) all landings of the Program designated species in New York and any cooperating states must occur between the hours of 0600-2000; and
(d) Program participants intending to land summer flounder in New York must call the department (contact information will be provided in the application materials) at least two hours prior to landing, and provide intended port and facility of landing, estimated time of landing, total weight of summer flounder to be landed in New York, and intended ports of landing and total weight for any summer flounder to be landed in cooperating states.
(v) The department may revoke, in writing, the Program privileges of any Program participant should the department determine that such Program participant:
(a) has been issued an infraction, misdemeanor summons, or notice of violation(s) of any state or federal commercial fishing regulations;
(b) did not report landings as required in NYCRR 40.1(c)(1)(i) of this title;
(c) exceeded the multi-state possession limit that the Program participant has been granted;
(d) violated any provision of Article 13 of the New York Environmental Conservation Law or any Regulation of New York State Agencies promulgated thereunder including but not limited to this title; or
(e) has Program privileges revoked by a cooperating state.
(vi) In the event that a Program participant’s privileges are revoked, the permitted vessel associated with that program participant’s authorization is no longer eligible to participate in the Program.
(vii) Any Program participant, whose Program privileges have been revoked by the department, may, within 30 days of receipt of the revocation notice, submit a written appeal addressed to Director, Division of Marine Resources, NYS Department of Environmental Conservation, 205 N. Belle Mead Road, Suite 1, E. Setauket, NY 11733. Such appeal shall include a written statement addressing the grounds for revocation, as stated by the department in the revocation notice, and explaining why those grounds are not accurate. Should the Director determine that the revocation of Program privileges was appropriate, the former Program participant may not apply for admittance into the Program for a period of five years from the date of revocation.
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 April 12, 2020.
Text of rule and any required statements and analyses may be obtained from:
John Maniscalco, Department of Environmental Conservation, Marine Resources, 205 N. Belle Mead Rd., Suite 1, East Setauket, NY 11733, (631) 444-0437, email: [email protected]
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
60 days after publication of this notice.
Additional matter required by statute:
The Department has determined that the Notice of Emergency Adoption is a Type II action and no further review is required pursuant to Article 8 of the ECL, the State Environmental Quality Review Act. The Department has determined that the Notice of Proposed Rule Making is an unlisted action pursuant to Article 8 of the ECL, and a Short Environmental Assessment Form and negative declaration have been prepared and are on file. A Coastal Assessment Form is also on file.
This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) §§ 11-0303, 13-0105, 13-0339, 13-0340, 13-0340-b, 13-0340-e, and 13-0340-f authorize the New York State Department of Environmental Conservation (Department) to establish by regulation the open season, size, catch limits, possession and sale restrictions, and manner of taking for bluefish, fluke, scup, black sea bass, and all quota managed species.
2. Legislative objectives:
ECL section 13-0105 states that it shall be the policy of New York to maintain the long-term health and abundance of marine fisheries resources, providing, among other things, viable business opportunities for commercial fishing that minimizes waste and reduces the number of discards.
3. Needs and benefits:
This rule making would establish a Cooperative Multi-State Possession and Landing Program (“Program”) which would allow eligible commercial fishermen to: (1) possess weekly limits for quota-managed species for multiple cooperating states (New York, Connecticut, and Rhode Island) onboard the vessel simultaneously while fishing, transiting or landing, and (2) in one trip land their weekly limits with the cooperating states. Currently, a vessel can only possess a single state’s limit, regardless of where they are authorized to land. In order to land fish in another state, the vessel would have to then travel back out to sea, repeat fishing operations, and steam back to shore. Under the proposed rule, vessels would remain restricted to landing a state’s limit at the appropriate port but could then land additional fish onboard in the ports of other states where they are permitted without having to make separate fishing trips.
Adoption of these amendments on an emergency basis is necessary in order to avoid placing New York’s commercial fishermen at a disadvantage compared to commercial fishermen from Connecticut and Rhode Island who have already adopted the necessary regulations to implement the Program. The normal rule making process would not have these amendments adopted before the start of the Winter Period fishing season for fluke on January 1, 2020. Implementing this Program would benefit the general welfare by improving fishing opportunities for eligible commercial fishermen, minimizing safety risks by decreasing time spent at sea, decrease discards (i.e. fish that have already been caught but must be thrown overboard due to a fishermen harvesting more than their daily trip limit), and burn less fuel.
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.
5. Local government mandates:
The proposed rule does not impose any mandates on local government.
6. Paperwork:
None.
7. Duplication:
The amendment does not duplicate any state or federal requirement.
8. Alternatives:
“No action” alternative: failure to adopt the proposed regulations would result in some New York fishermen foregoing an opportunity to fish more efficiently while fishermen from Connecticut and Rhode Island benefit from similar programs implemented in their respective states.
9. Federal standards:
The amendments to Part 40 are in compliance with the Atlantic States Marine Fishery Commission (ASMFC) and Mid-Atlantic Fishery Management Council’s (MAFMC) Fishery Management Plans for multiple quota managed species.
10. Compliance schedule:
Compliance with the proposed regulation is required upon the effective date of the rule. Regulated parties will be notified of the changes to the regulations through publication in the State Register, appropriate news releases, and through the Department’s website.
Regulatory Flexibility Analysis
1. Effect of rule:
This rule making would establish a Cooperative Multi-State Possession and Landing Program (“Program”) which would allow commercial fishermen to: (1) possess weekly limits for quota-managed species for multiple cooperating states (New York, Connecticut, and Rhode Island) onboard the vessel simultaneously while fishing, transiting or landing, and (2) in one trip, land their weekly limits with the cooperating states. Currently, a vessel can only possess a single state’s limit, regardless of where they are authorized to land. In order to land fish in another state, the vessel would have to then travel back out to sea, repeat fishing operations, and steam back to shore. Under the proposed rule, vessels would remain restricted to landing a state’s limit at the appropriate port but could then land additional fish onboard in the ports of other states where they are permitted without having to make separate fishing trips.
The Department would have the discretion to establish, and discontinue if necessary, a Program, with cooperating states that allows for possession and landing of a multi-state limit for a specific quota managed species during a specified portion of the year.
2. Compliance requirements:
None.
3. Professional services:
None.
4. Compliance costs:
None.
5. Economic and technological feasibility:
The proposed regulations would not require any expenditure on the part of affected businesses to comply with the changes.
6. Minimizing adverse impact:
This rule making would not impose any adverse impacts on the regulated community. This rulemaking would improve opportunities for eligible fishermen, reduce safety risks, decrease discards and burn less fuel.
7. Small business and local government participation:
The quota-based fisheries impacted by this proposed rule are jointly managed by the Atlantic States Marine Fishery Commission (ASMFC) and the Mid-Atlantic Fishery Management Council (MAFMC). Regulations adopted by the Department must be consistent with the compliance requirements of the Fishery Management Plans (FMPs) developed by ASMFC and MAFMC. The general public, including small businesses and local governments, were invited to submit comments during the FMP amendment process and will similarly be able to submit comments during this rule making.
8. (IF APPLICABLE) For rules that either establish or modify a violation or penalties associated with a violation:
None.
9. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:
The Department will conduct an initial review of the rule within three years as required by SAPA § 207(1)(b).
Rural Area Flexibility Analysis
The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. This rule making only affects the marine and coastal district of the State; there are no rural areas within the marine and coastal district. Quota-based fisheries occur entirely within the marine and coastal district, and are not located adjacent to any rural areas of the State. The proposed rule will not impose any reporting, record keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 40, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
1. Nature of impact:
This rule making would establish a Cooperative Multi-State Possession and Landing Program (“Program”) which would allow commercial fishermen to: (1) possess weekly limits for quota-managed species for multiple cooperating states (New York, Connecticut, and Rhode Island) onboard the vessel simultaneously while fishing, transiting or landing, and (2) in one trip, land their weekly limits with the cooperating states. Currently, a vessel can only possess a single state’s limit, regardless of where they are authorized to land. In order to land fish in another state, the vessel would have to then travel back out to sea, repeat fishing operations, and steam back to shore. Under the proposed rule, eligible vessels would remain restricted to landing a state’s limit at the appropriate port but could then land additional fish onboard in the ports of other states where they are permitted without having to make separate fishing trips.
Implementing this Program would improve fishing opportunities for eligible commercial fishermen, minimize safety risks by decreasing time spent at sea, decrease discards, and burn less fuel.
2. Categories and numbers affected:
In 2018, New York State issued 910 Food Fish Licenses to state residents and 39 licenses to non-residents. Approximately half of the non-resident Food Fish Licenses went to residents of Connecticut and Rhode Island. The number of fishermen eligible to participate in the Program depends upon the species to be harvested, and to a lesser extent, the time of year in which the program is active.
The initial trial multi-state limit program would allow possession of fluke limits for multiple states during the winter fishery (January through April). In order to land fluke, a commercial fisherman must also hold a fluke permit in New York and at least one other cooperating state. This limits the possible number of participants to only those fishermen from New York, Connecticut and Rhode Island that possess multiple state fluke permits and a vessel that can fish during the stormier winter months; approximately 10 New York residents, 5 Connecticut residents, and 7 Rhode Island residents would be eligible to participate in the trial program. The existence of corporate Food Fish Licenses that include a Commercial Fluke Permit suggest that these numbers could see limited change. Future programs could impact other species or other fishing seasons.
3. Regions of adverse impact:
There are no anticipated regions of adverse impact. The proposed amendment would benefit residents of the marine and coastal district by increasing opportunity and efficiency for eligible fishermen while decreasing the amount of discarded fish and fuel used.
4. Minimizing adverse impact:
There are no anticipated adverse impacts. The Department will continue to carefully monitor commercial landings of all quota managed species, especially landings associated with a multi-state limit program, to ensure that overharvest does not occur.
5. Self-employment opportunities:
Commercial harvesters, marinas, seafood dealers and other related businesses are, in many cases, small businesses, owned and often operated by a single owner. The commercial fishing industry is mostly self-employed. This rule will not have a negative effect upon opportunities for businesses related to the commercial harvest of quota managed species such as fluke, scup, bluefish and black sea bass. Failure to adopt this rule making will prevent eligible New York commercial fishermen from taking advantage of the opportunity for increased efficiency and reduced waste that may be available to fishermen in other cooperating states.
6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:
The Department will conduct an initial review of the rule within three years as required by SAPA § 207(b).
| End of Document |