The following is a summary of the amendments that the department is proposing for 6 NYCRR Subpart 43-2 in order to implement the management measures and harvest provisions to the Atlantic Ocean surfclam fishery which are contained in Amendment 1 to the FMP:

Add the new management measures and harvest controls to the description of the provisions of this Subpart.

Define "Individual Fishing Quota (IFQ)" as 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.

Define "cage tag" as a serially numbered and tamper-evident tag required to be affixed to all standard cages or industry standard bushel containers of surfclams, or a portion thereof, harvested by mechanical means from the NYS certified waters of the Atlantic Ocean which is obtained from the department or a vendor approved by the department.

Define "Vessel Monitoring System (VMS)" as a vessel monitoring system or unit that is installed on board a vessel for monitoring and transmitting the vessel's position as required by this Subpart.

Clarify and establish notification and permit requirements for any change in ownership, principal officers, members of the board of directors or shareholders of any corporation issued a surfclam/ocean quahog Atlantic Ocean owner's permit under this Subpart.

Establish eligibility and annual renewal requirements for issuance of surfclam/ocean quahog Atlantic Ocean owner's permits. This permit will be subject to annual renewal in order to maintain a vessel's eligibility to participate in the Atlantic Ocean surfclam fishery.

Identify criteria and procedures for establishment of an annual harvest limit that will control the maximum allowable harvest of surfclams that may be taken by mechanical means from the certified waters of the Atlantic Ocean for the period January 1 through December 31. The annual harvest limit will be established at no more than 5 percent of the fully recruited biomass based on the most recent surfclam population assessment survey for the Atlantic Ocean. The establishment of the annual harvest limit will also take into consideration other scientific and fishery related data available to the department. This change will establish a quantitative measure for setting the annual harvest limit which is more closely reflective of the fully recruited surfclam population estimate for the Atlantic Ocean fishery. The date for announcement of the annual harvest limit will remain unchanged and is no later than November 15 of the year preceding its effective date of January 1.

Eliminate the need for quarterly harvest allocations and maximum quantity of surfclams that may be taken in a calendar quarter in addition to the need to track quarterly harvest limits. Under the proposed regulations, the annual harvest limit will be regulated and monitored for the surfclam fishery through the establishment of an Individual Fishing Quota (IFQ) system.

Eliminate weekly vessel trip limits of no more than 28 standard cages of surfclams (equivalent to 896 industry standard bushels) to provide increased flexibility to fishermen to determine when they want to fish. This harvest provision will become effective January 1, 2010 under the IFQ system.

Establish an Individual Fishing Quota (IFQ) system in the Atlantic Ocean surfclam fishery, effective January 1, 2010, which will allocate to each eligible surfclam vessel an annual IFQ. The IFQ shall be determined based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery. The IFQ assigned to an eligible surfclam vessel is nontransferable and each vessel can only be used to catch one quota allocation. The IFQ will expire on December 31 of each year and any unused quota not taken by the end of the year will not rollover into the next year but will remain uncaught.

Establish a daily limit of no more than 28 standard cages of surfclams (equivalent to 896 industry standard bushels) which represents the maximum carry capacity of the largest vessels in NYS's Atlantic Ocean surfclam fishery and will optimize economic efficiency of the surfclam fleet. This provision is designed to reduce overhead and fuel costs of surfclam vessels in this fishery.

Establish a cage tagging requirement for all vessels assigned an IFQ for the Atlantic Ocean surfclam fishery effective January 1, 2010. Cage tags may be purchased from the department or an authorized vendor.

Establish criteria and procedures for the use of cage tags for landing surfclams in standard cages or industry standard bushel containers and replacement of lost or stolen cage tags. Each cage tag represents either 32 bushels of surfclam allocation held in standard cages or 1 industry standard bushel of surfclam allocation, or a portion thereof.

Establish a provision that would make it unlawful for any vessel to possess or land surfclams taken from Federal waters or any other state waters by any vessel on the same day it was used to take surfclams from NYS waters of the Atlantic Ocean. This provision is intended to increase compliance with surfclam regulations and provide an effective tool for law enforcement. This requirement is necessary as an additional enforcement tool to ensure compliance with harvest requirements, reduce the likelihood of illegal harvest and close up any loopholes for potential non-compliance with daily catch (trip) limits established for this fishery.

Establish a VMS requirement, effective January 1, 2010, mandatory for all vessels assigned an IFQ in the Atlantic Ocean surfclam fishery.

Establish criteria and provisions for VMS activation, operation, position transmission, exemption, trip declaration, and system replacement.

Establish VMS operation requirements that will require a vessel to transmit a signal indicating the vessel's accurate position at least every 15 minutes, 24 hours per day, throughout the year unless exempted by the department. A vessel owner must apply for a letter of exemption from the VMS transmitting requirements of this Subpart by sending a written request to the department.

Establish provisions for approved VMS vendors which are consistent with the federal list of approved VMS vendors maintained by the National Marine Fisheries Service for the surfclam Individual Transferable Quota program in the Exclusive Economic Zone.

Establish monthly surfclam vessel harvest reporting requirements for all vessels assigned an IFQ in the Atlantic Ocean surfclam fishery. Eliminate the weekly reporting requirement for this fishery which will be replaced by submission of monthly vessel trip reports to the department. This is intended to streamline the reporting requirements and be more consistent with other commercial fisheries data collected by the department from license and permit holders.

Establish requirements for suspension and/or denial of surfclam/ocean quahog Atlantic Ocean owner/lessee permits if the permit holder fails to comply with the reporting requirements of this section.

Establish daily logbook requirements for all captain/operator's of surfclam vessels to be maintained and immediately available for inspection upon request.

Establish criteria and procedures for confidentiality of fisheries data which includes information collected and submitted by individual permit holders through the vessel trip reporting requirements of this Subpart. This is consistent with regulations established for the collection of other fisheries data submitted to the department pursuant to 6 NYCRR Part 40.

1. Statutory authority:

Environmental Conservation Law (ECL) section 13-0309 (12) authorizes the Department of Environmental Conservation (department) to fix by regulation open seasons, harvest areas, size limits, catch limits, manner of taking and possession, transportation, identification, sale and permit requirements for surf, sea, hen and skimmer clams. Environmental Conservation Law section 13-0308 created a Surf Clam/Ocean Quahog Management Advisory Board (the Surfclam Board) to assist the department with the development of a comprehensive long-term management plan for the protection of surf clams/ocean quahogs in New York State (NYS) waters.

2. Legislative objectives:

It is the objective of the above cited statutory authority that the department implements management measures necessary to protect the sustainability of the surfclam resource and assure the economic viability of the fishery by developing a comprehensive long-term management plan for this important resource.

3. Needs and benefits:

The NYS waters of the Atlantic Ocean have supported an important surfclam fishery for more than sixty years. The department adopted a Fishery Management Plan (FMP) for the Mechanical Harvest of the Atlantic Surfclam in NYS waters of the Atlantic Ocean in 2003. This FMP maintained the status quo on the fishery and did not address major problems affecting the economic viability of the fishery. The department has been working with the Surfclam Board since 2005 to develop an amendment to the FMP (referred to as Amendment 1) that is designed to promote sustainability of the surfclam resource, enhance economic viability of participants in the surfclam fishery, foster compliance with surfclam regulations, reduce the department's implementation and administrative costs and increase surfclam vessel operating safety in the fishery. The proposed rule making is necessary in order to implement the management measures and provisions contained in Amendment 1 to the FMP.

The department proposes to amend 6 NYCRR Subpart 43-2 to implement the following management measures:

The proposed rule making will allow the department to establish an annual harvest limit, which shall not exceed 5 percent of the fully recruited biomass (as measured in industry standard bushels), that will control the maximum quantity of surfclams that may be taken by mechanical means from the certified waters of the Atlantic Ocean for the period January 1 through December 31. The current regulatory program does not link the annual harvest limit with any specific fraction of the estimated surfclam population biomass as determined by surfclam population assessments (surveys) conducted by the department. The proposed regulations will establish a quantitative measure for setting the annual harvest limit in bushels which is more closely reflective of the fully recruited surfclam population estimate (given as biomass, measured in industry standard bushels) for the Atlantic Ocean fishery. The proposed rule making is considered to be more protective of the surfclam resource and intended to promote the long-term sustainability of New York's Atlantic Ocean surfclam fishery.

The proposed rule making will establish an Individual Fishing Quota system (IFQ) which will allocate to each eligible surfclam vessel an individual fishing quota that is determined based on the annual harvest limit divided equally by the number of eligible vessels. Implementation of an IFQ system will provide surfclam industry participants with greater flexibility to decide when they want to fish, reduce overhead costs, increase economic and harvesting efficiency and promote safety of fishing vessels.

The proposed rule making will eliminate weekly and quarterly catch limits and establish a daily catch limit of a maximum of 28 standard cages of surfclams (896 industry bushels) per day per vessel eligible to participate in the fishery. This provision will maximize economic efficiency, increase flexibility to the fishermen, reduce capital costs to the industry and promote safety to the fishery. In addition, the proposed rule making will allow fishermen to schedule harvest trips during the most favorable weather conditions and peak market demands rather than forcing each vessel to fish every week as required under the current regulatory program.

The proposed rule making will require surfclam/ocean quahog Atlantic Ocean - Owner's Permits issued under Subpart 43-2.4 to be renewed annually in order to maintain a vessel's eligibility to participate in the Atlantic Ocean surfclam fishery. This is necessary in order to maintain the economic viability of the established New York based participants in the harvesting sector of the industry, determine the IFQ assigned to each vessel, and to reduce the level of over-capitalization over the long-term in this fishery.

The proposed rule making will establish a mandatory Vessel Monitoring System (VMS) requirement for all vessels participating in New York's Atlantic Ocean surfclam fishery. This requirement is consistent with the VMS regulations adopted by the National Marine Fisheries Service for the federal surfclam and ocean quahog Individual Transferable Quota (ITQ) fishery and is intended to reduce or eliminate illegal harvest of surfclams within New York's Atlantic Ocean by both New York and Federally permitted surfclam harvesting vessels. Additionally, this system is expected to assist law enforcement and help promote compliance with rules and regulations controlling surfclam harvest in the Atlantic Ocean.

The proposed rule making will establish a cage tag requirement for all surfclams taken from the certified waters of the Atlantic Ocean which is consistent with the cage tag requirement implemented in the Federal Surfclam ITQ Fishery under Amendment 5 in 1985. This will allow increased tracking of individual quota allocations and is considered an effective law enforcement tool along with implementation of a mandatory VMS. It will also further reduce the potential for vessels to make illegal trips or attempt to harvest another vessel's allocation. The use of cage tags has been demonstrated to be an effective enforcement and management measure in the Federal Surfclam Fishery.

The proposed rule making will simplify the reporting requirements for surfclam industry participants by replacing the current filing of weekly trip reports with a monthly vessel logbook reporting requirement. This will reduce the administrative burden on surfclam industry participants and the department. It will also allow the surfclam catch data to be potentially incorporated into other Vessel Trip Reports (VTR's) required by the department in order to streamline the trip reporting requirements for permit holders involved in multiple fisheries. Additionally, the proposed rule making will add a provision to protect the confidentiality of fisheries data reported to the department. This will protect individual surfclam permit holder catch data from disclosure except under certain circumstances and be consistent with section 40.4 of 6 NYCRR which provides for confidentiality of fisheries data.

The proposed rule making will prohibit the possession or landing of surfclams taken from Federal waters on or from any vessel on any given day that has been used to harvest surfclams from NYS waters of the Atlantic Ocean. This requirement is necessary as an additional enforcement tool to ensure compliance with harvest requirements, reduce the likelihood of illegal harvest and close up any loopholes for potential non-compliance with daily catch (trip) limits established for this fishery. Because a number of the vessels permitted to harvest in New York's Atlantic Ocean fishery are also permitted to harvest surfclams in Federal waters, the rule making will reduce any confusion or ambiguity with the enforcement of the allowable harvest limits for any vessel involved in both fisheries.

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:

There will be minimal additional costs incurred by surfclam vessel owners who do not already have a VMS installed on their vessel. Additionally, the regulated industry will incur minimal costs for purchase of cage tags but overall, the rule making is designed to increase the economic efficiency and viability of the surfclam industry and should offset any costs imposed by this rule making.

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

There will be no costs to the regulating agency and is designed to reduce administrative costs to the department.

5. Local government mandates:

The proposed rule making does not impose any mandates on local government.

6. Paperwork:

The proposed rule making will reduce the reporting requirements for the surfclam industry by replacing weekly reporting with a monthly reporting requirement.

7. Duplication:

The proposed rule does not duplicate any State or Federal requirement.

8. Alternatives:

The no action alternative was considered and rejected because it would not address the immediate needs of the surfclam industry and resource which have been identified in the department's draft Amendment 1 to the FMP. The issues addressed in this rule making have been thoroughly reviewed by the Surfclam Board and surfclam industry participants. The Surfclam Board and surfclam industry are generally supportive of these issues. Additionally, the no action alternative would likely force vessels to drop out of the fishery due to economic hardship from the continuation of the current regulatory program.

9. Federal standards:

Although there are Federal government standards (regulations) for the surfclam and ocean quahog fisheries for the Federal waters of the Exclusive Economic Zone (3-200 miles off shore), there are no federal standards for the surfclam fishery in NYS waters (0-3 miles of the coastline).

10. Compliance schedule:

Compliance with the proposed regulation is required upon the effective date of the regulation.

1. Effect of rule:

Small businesses that will be affected by the proposed rule making include shellfish harvesters involved with the mechanical harvest of surfclams from the New York State (NYS) waters of the Atlantic Ocean (within three miles of shore). New York's Atlantic Ocean surfclam fishery is subject to limited entry and there are currently 22 vessels eligible to participate in this fishery. These vessels typically harvest with three persons onboard the vessel (captain and two crew members). In 2009, there were 12 permits issued to captains involved with the mechanical harvest of surfclams in the Atlantic Ocean surfclam fishery. Of the 22 vessels, only about 16 vessels were actively fishing each week in 2008 and for 2009, only 18 vessels have valid permits to take surfclams by mechanical means from the Atlantic Ocean.

The proposed rule making is designed to increase the economic efficiency and viability of the harvesting sector of the surfclam industry by eliminating weekly and quarterly harvest limits and establishing an Individual Fishing Quota system (IFQ) for all eligible surfclam vessels. The provisions of this rule making provides surfclam industry participants with greater flexibility to decide when they want to fish, reduces overhead costs, increases economic and harvesting efficiency and promotes safety of fishing vessels. The IFQ, which will allocate to each eligible surfclam vessel an individual fishing quota based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery, is the most equitable management measure that can be implemented in a highly complex and diverse fishery. The establishment of a daily harvest limit, of not more than 28 standard cages of surfclams per day per eligible vessel, will help to promote vessel operating safety and economic viability of the fishery by allowing vessels to maximize the carrying capacity of their vessel for each trip. This will reduce fuel and overhead costs associated with each trip as compared to the current harvest restriction of 14 cages per week which is taken in one day's trip for most vessels in the fishery. This rule making is expected to have a positive impact on small businesses associated with this fishery by reducing overcapitalization in this fishery.

2. Compliance requirements:

The proposed rule making is designed to reduce the reporting requirements on small businesses by replacing the weekly trip reporting requirements with a monthly vessel logbook or equivalent reporting requirement. This will reduce the administrative burden on surfclam vessel owners and captains who are responsible for the completion and submission of surfclam harvest reports to the department. This rule making will also establish a mandatory Vessel Monitoring System (VMS) requirement for all vessels participating in New York's Atlantic Ocean surfclam fishery. The Federal surfclam fishery implemented a mandatory requirement for VMS on January 1, 2008 and a number of vessels participating in New York's surfclam fishery also participate in the Federal fishery. Therefore, this requirement will only add additional costs to a small fraction of New York's Atlantic Ocean surfclam fishery but should be offset by the reduced costs for implementation of other management measures contained in this rule making.

3. Professional services:

No professional services will be needed for small businesses to comply with the proposed rule making.

4. Compliance costs:

The proposed rule making will require the installation of a VMS on all surfclam harvesting vessels engaged in the mechanical harvest of surfclams from the NYS certified waters of the Atlantic Ocean. The initial purchase and installation costs for VMS are between $1600.00 and $2600.00 depending on the model and if a personal computer is also required. Vessels participating in the federal surfclam Individual Transferable Quota fishery have already purchased this equipment for compliance with federal regulations that became effective in 2008. The annual service fees for VMS range from approximately $264 to $468. The rule making will also require the purchase of cage tags which cost approximately $.16 per tag or $68.00 per year based on 426 cages per vessel (annual cost estimate assumed an annual harvest limit of 300,000 bushels). There will be no costs incurred by local government for this rule.

5. Economic and technological feasibility:

There are currently three companies that have been approved by National Oceanic and Atomspheric Administration's National Marine Fisheries Service, Northeast Region, and are recognized by the department as vendors for obtaining a VMS and service necessary for compliance with this rule making. The VMS technology is readily accessible and reasonably priced to allow small businesses to comply with this rule making. The rule making will not have any impact on local governments.

6. Minimizing adverse impact:

The proposed rule making will not have any adverse impact on small businesses involved in the Atlantic Ocean Surfclam fishery or local governments. The rule making is designed to implement the provisions of Amendment 1 to the FMP for the Mechanical Harvest of the Atlantic Surfclam from NYS waters of the Atlantic Ocean. The management provisions in Amendment 1 of the FMP will promote sustainability of the surfclam resource, enhance the economic viability of participants in the surfclam fishery, foster compliance with surfclam regulations, reduce the administrative burden on the department and surfclam fishery participants and increase surfclam vessel operating safety in the fishery. The proposed rule making will allow the New York surfclam fishery to operate more efficiently and likely reduce operating costs for all participants.

7. Small business and local government participation:

The Surfclam/Ocean Quahog Management Advisory Board (Surfclam Board) was established by the New York State Legislature by Chapter 512 of the Laws of 1994 under Environmental Conservation Law 13-0308, to assist the department with the development of a comprehensive long-term management plan for the protection of surfclams/ocean quahogs in NYS waters. The department has been working with the Surfclam Board, which consists of small business representatives involved in the Surfclam industry, since 2005 in order to develop an amendment to the FMP that is designed to address the long-term sustainability of the surfclam resource and economic viability of the Atlantic Ocean Surfclam fishery. This rule making represents the majority of the recommendations of the Surfclam Board and surfclam industry participants that attended the Board meetings. Small businesses involved in the surfclam industry have been able to attend Surfclam Board meetings and provide input in the management measures for the fishery prior to the development of this rule making. The rule making does not have any impact on local governments so their direct participation was not solicited by the department.

The proposed rule involves the implementation of management provisions for the mechanical harvest of surfclams in the New York State (NYS) waters of the Atlantic Ocean. The commercial harvest of surfclams in this fishery is entirely located within NYS waters of the Atlantic Ocean that border the counties of Suffolk, Nassau, Queens and Kings and is not located adjacent to any rural areas of the State. The majority of the surfclam resource harvested in this fishery is shipped out-of-state for processing and sale. The Department of Environmental Conservation has determined that there are no rural areas within the marine and coastal district. Therefore, the department has determined that this rule making does not impact rural areas or any public or private entities located in rural areas. Further, the proposed 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 rule making, a Rural Area Flexibility Analysis is not required.

The Department of Environmental Conservation (department) has determined that the proposed regulations will not have a substantial adverse impact on jobs and employment opportunities. Therefore, a job impact statement is not required.

The participation in the New York State (NYS) Atlantic Ocean surfclam fishery is limited to 22 eligible vessels and is closed to new entrants (6 NYCRR Subpart 43-3). There were 20 licensed surfclam/ocean quahog Atlantic Ocean owner/lessees and 18 licensed surfclam/ocean quahog Atlantic Ocean captains/operators in New York's Atlantic Ocean fishery in 2008. Additionally, there was an estimated 36 surfclam crew members employed by this fishery; the estimated number assumes a crew of 2 for each captain in the fishery since there is no special surfclam permit required other than the possession of a valid shellfish diggers permit to work as a crew member on a surfclam boat in the Atlantic Ocean. In 2009, there were only 12 licensed surfclam/ocean quahog Atlantic Ocean captains/operators in New York's Atlantic Ocean fishery. The proposed regulations are not expected to significantly impact existing jobs or employment opportunities in this fishery which are estimated to be at less than 100 licensed participants.

The proposed regulations implement the provisions of Amendment 1 to the Fishery Management Plan for the Mechanical Harvest of the Atlantic Surfclam from NYS waters of the Atlantic Ocean. The amendments to 6 NYCRR Subpart 43-2 will promote sustainability of the surfclam resource, enhance the economic viability of participants in the surfclam fishery, foster compliance with surfclam regulations, and reduce the administrative burden on the industry and department. The proposed rule making will establish an Individual Fishing Quota system (IFQ) which will allocate to each eligible surfclam vessel an individual fishing quota. The proposed rule making will eliminate weekly and quarterly catch limits which will provide flexibility to surfclam harvesters to determine when they want to fish based on market demand and price and favorable weather. The daily catch limit will be established at no more than 28 standard cages of surfclams per day per eligible vessel which will allow vessels in this fishery to maximize the carrying capacity of their vessel for each trip. Although the proposed rule making may reduce the number of fishing days required to catch an IFQ assigned to each eligible vessel, it will increase the economic viability and efficiency of each vessel. Additionally, the proposed rule making will establish an annual harvest limit at no more than 5 percent of the fully recruited surfclam biomass (as measured in industry standard bushels) based on the best available scientific information and most recent surfclam population assessment (survey) which is considered more protective of the long-term sustainability and viability of the surfclam resource. The proposed amendments are expected to have a positive impact on the economic viability and long-term sustainability of the surfclam fishery. The protection and maintenance of a sustainable surfclam resource should protect existing jobs and create potential employment opportunities in this fishery.

Based on the above and the department's knowledge of similar regulations in the Federal Surfclam Individual Transferable Quota fishery, the department has concluded that there will not be any substantial adverse impacts on jobs or employment opportunities in this fishery as a consequence of this rule making.