(3) ‘Terrapin Excluder Device’ means a rectangular [metal] device not larger than (in either dimension) [6] four and three-quarters inches wide by [2] one and three-quarters inches high attached to the end of the entrance funnel of a crab trap.

Paragraph 6 NYCRR 44.2(d)(1) is repealed.

New paragraph 6 NYCRR 44.2(d)(1) is adopted to read as follows:

(1) A terrapin excluder device, as defined in paragraph 44.2(a)(3) of this section, must be used on all non-collapsible, Chesapeake-style crab pots or traps that are fished in the areas detailed below:

(i) within the bays, harbors, coves, rivers, tributaries and creeks that enter into Long Island Sound;

(ii) within the harbors, coves, ponds, rivers, and creeks that enter into Flanders Bay, Great Peconic Bay, Cutchogue Harbor, Little Peconic Bay, Hog Neck Bay, Noyack Bay, Southold Bay, Shelter Island Sound, Pipes Cove, Greenport Harbor, Orient Harbor, Hallock Bay, Northwest Harbor, Gardiners Bay, Napeague Bay and Fort Pond Bay;

(iii) within the rivers, tributaries, creeks and basins that enter into Jamaica Bay, Hempstead Bay, South Oyster Bay, Great South Bay, Moriches Bay and Shinnecock Bay on the south shore of Long Island;

(iv) within the creeks and tributaries that enter into Raritan Bay, Arthur Kill and Kill Van Kull surrounding Staten Island; and

(v) within the tributaries and creeks of the Hudson River that lie within the marine and coastal district, as defined in Environmental Conservation Law 13-0103, including the waterways within Piermont marsh.

6 NYCRR 44.2(d)(2) and (3) are amended to read as follows:

(2) The terrapin excluder device, as defined in paragraph 44.2(a)(3) of this section, shall be securely fastened inside each funnel to effectively reduce the size of the funnel opening to no larger than [six] four and three-quarters inches wide and [two] one and three-quarters inches high.

(3) If the department determines that mortality of diamondback terrapin (‘Malaclemys terrapin’) in blue crab pots is causing a decline in the terrapin population of a given water body or area that is not listed in paragraph (d)(1) of this Section, the department may by order mandate use of terrapin excluder devices in such areas. The Director, [Bureau] Division of Marine Resources, is authorized to issue orders to designate areas in which terrapin excluders are required pursuant to this section.

Paragraph 6 NYCRR 44.3(a)(4) is amended to read as follows:

(4) ‘Harvest limit’ means the maximum number of horseshoe crabs that can be [harvested and/or landed by a vessel during a period of time, not less than 24 hours, in which fishing is conducted. If a vessel is not used in the harvest of horseshoe crabs, the harvest limit means the maximum number of horseshoe crabs that can be harvested and possessed per licensed individual, during a period of time, not less than 24 hours, in which fishing is conducted. Harvesters may not at any time possess live horseshoe crabs aboard their vessel in excess of the number permitted under the harvest limit.] taken or possessed by a permit holder in a 24 hour period. No more than two harvest limits may be possessed aboard a vessel or in a vehicle, provided that at least two permit holders are on board the vessel or in the vehicle.

6 NYCRR Section 50.1 is renumbered to subdivision 50.1(b).

Section 50.1 is amended to read as follows:

(1) ‘Carnivorous marine gastropods’ shall mean marine snails; including channeled whelk (‘Busycotypus canaliculatus’), knobbed whelk (‘Busycon carica’), and moon snails (Naticidae family); that prey on other animals.

(2) ‘Whelk’ shall mean channeled whelk and knobbed whelk.

(b) When the commissioner, or the commissioner's designee authorized to designate shellfish lands as uncertified, determines that carnivorous marine gastropods may be hazardous for use as food for human consumption, due to the presence of marine biotoxins, he shall take such action as he deems necessary to protect the public health and welfare. The commissioner, or the commissioner's designee authorized to designate shellfish lands as uncertified, may prohibit activities such as, but not limited to, the taking, possessing, processing, packing, transporting, offering or exposing for sale carnivorous gastropods from areas that are designated as uncertified for the harvest of shellfish pursuant to section 47.4 of this Title due to the presence of marine biotoxins in shellfish. The commissioner may advise the general public, the industry and public health officials that carnivorous gastropods may be hazardous for use as food.

A new section 50.2 is adopted to read as follows:

(1) Any person who is the holder of a commercial whelk license issued pursuant to section 13-0330 of the Environmental Conservation Law shall complete and submit an accurate Fishing Vessel Trip Report for each commercial fishing trip, detailing all fishing activities and all species landed, on a form prescribed by the department. The license holder shall submit such fishing reports monthly to the department within 15 days after the end of each month or at a frequency specified by the department in writing. Fishing Vessel Trip Reports shall be completed, signed, and submitted to the department for each month; if no fishing trips were made during a month, a report must be submitted for that month stating no trips were made. Incomplete Fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements. Any New York license holder who is also the holder of a federal fishing permit issued by NOAA Fisheries Service must instead meet the reporting requirements specified by NOAA Fisheries Service. If requested in writing by the department, New York license holders who also hold federal fishing permits shall submit to the department the state (blue) copy of the Fishing Vessel Trip Report (NOAA Form No. 88-30) for the month or months identified in the written notification.

(2) The Fishing Vessel Trip Report must be completed with all required information, except for information not yet ascertainable, and signed before the vessel arrives at the dock or lands the catch. Information that may be considered unascertainable before arriving at the dock or landing includes dealer name, dealer number, and date sold.

The original Regulatory Impact Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.

The department received a comment which noted that the proposed text of 6 NYCRR 50.1(1) refers to “carnivorous marine gastropods,” while 50.1(2)(b) refers to “carnivorous gastropods.” In order to maintain consistency in the proposed text, the department will revise the proposed language of 50.1(2)(b) to carnivorous “marine” gastropods. This is the only change that has been made to the proposed text since the original Regulatory Impact Statement was published. This is not a substantive change, so it does not affect the validity of the previous Regulatory Impact Statement.

The original Regulatory Flexibility Analysis for small businesses and local governments Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.

The department received a comment which noted that the proposed text of 6 NYCRR 50.1(1) refers to “carnivorous marine gastropods,” while 50.1(2)(b) refers to “carnivorous gastropods.” In order to maintain consistency in the proposed text, the department will revise the proposed language of 50.1(2)(b) to carnivorous “marine” gastropods. This is the only change that has been made to the proposed text since the original Regulatory Flexibility Analysis was published. This is not a substantive change, so it does not affect the validity of the previous Regulatory 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. This regulatory package will affect resources, permit holders, and fisheries in the marine and coastal district only. 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 and Part 50, a Rural Area Flexibility Analysis is not required.

The only change to the proposed text after the comment period was to clarify the language of the proposed text, and did not affect the previous conclusion that there will be no impact on rural areas. The department received a comment which noted that the proposed text of 6 NYCRR 50.1(1) refers to “carnivorous marine gastropods,” while 50.1(2)(b) refers to “carnivorous gastropods.” In order to maintain consistency in the proposed text, the department will revise the proposed language of 50.1(2)(b) to carnivorous “marine” gastropods. This is the only change that has been made to the proposed text since the original Rural Area Flexibility Analysis was published. This is not a substantive change and it does not affect the validity of the previous Rural Area Flexibility Analysis.

The original Job Impact Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.

The department received a comment which noted that the proposed text of 6 NYCRR 50.1(1) refers to “carnivorous marine gastropods,” while 50.1(2)(b) refers to “carnivorous gastropods.” In order to maintain consistency in the proposed text, the department will revise the proposed language of 50.1(2)(b) to carnivorous “marine” gastropods. This is the only change that has been made to the proposed text since the original Job Impact Statement was published. This is a change that will clarify the language and is not a substantive change, so it does not affect the validity of the previous Job Impact Statement.

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2020, which is no later than the 3rd year after the year in which this rule is being adopted.

The Notice of Proposed Rule Making was published on July 12, 2017 in issue 28 of the State Register. There was a 45-day comment period which ended on August 28, 2017. Stakeholders were informed about the public comment period through the department’s website, gov-delivery e-mail and direct mailings to commercial whelk and crab permit holders.

It was brought to the department’s attention that there was an error on the department’s website during the public comment period. Between August 18 and August 25, 2017, the website mistakenly listed the comment period as closed. This error was corrected on August 25, 2017. In order to address the error, the department reopened the public comment period for an additional two weeks, starting on October 26, 2017 and closing on November 8, 2017 (published in the NY State Register, issue 43).

The department received 1,608 comments during the public comment period. The comments about the three proposed amendments are summarized separately below.

1. Terrapin Excluder Devices on Crab Traps

Most of the comments the department received were in support of the terrapin excluder device (TED) proposed rule (1,602 comments). The majority of these were from an identical form letter (1,565 comments). Comment: The comments in support of the proposed rule expressed concern about diamondback terrapin populations and supported the mandated use of TEDs to keep terrapins from entering crab traps and drowning.

Response: The department appreciates these comments in support of the proposed rule and the Department’s efforts to protect diamondback terrapin populations.

Comment: Four comments were received that were opposed to adopting the proposed TED rule. These commenters stated that they have not seen terrapin in the areas where they fish and have not found terrapin in their traps. Therefore, they do not see a need to mandate the use of TEDS.

DEC response: Population studies of terrapin indicate that they are present in many of Long Island’s harbors, creeks, and tributaries. As trap-related mortality decreases, the terrapin population size may increase and the population area may expand.

Comment: There was one comment that questioned why the department selected the smaller sized TED rather than a larger one.

DEC response: The Marine Resources Advisory Council recommended the department mandate the use of the smaller sized TED since it is more precautionary and prevents smaller terrapin from entering traps.

Comment: A number of comments expressed concern about the time and expense of installing TEDs.

DEC response: Several environmental groups on Long Island have donated 14,000 TEDs for the department to distribute to crabbers to help defray the implementation expense. These TEDs are made of either plastic or stainless steel, so they should not need to be replaced annually.

Comment: Three comments recommended expansion of the area where TEDs are proposed to be mandated. These areas include Jamaica Bay, Flanders Bay and off Jones Island.

DEC response: During the development of the proposed rule, the department met with fishery and environmental stakeholders to hear their thoughts and concerns about the areas where TED use would be required. The department determined that Long Island’s harbors, creeks, and tributaries are the areas where terrapin are most likely to be found. In addition, under the new 6 NYCRR 44.2 (d) provisions, the department may require the use of TEDs in areas where terrapin populations are declining due to mortality from crab pots. This gives the department the ability to add areas in the future if the need arises.

Comment: The department received four comments recommending all crab traps sold in New York come equipped with TEDs.

DEC response: The department decided not to require the sale of traps equipped with TEDs since the proposed rule only requires the use of TEDs in crab traps in Long Island’s harbors, creeks, and tributaries. People fishing crab pots in other areas of the Marine District are not required to install TEDs.

Comment: The department received three comments that recommended that recreational crabbers should be mandated to use TEDs. One of these recommended that recreational crabbers be mandated to use crab traps with TEDs in all areas of the Marine District waters.

DEC response: The proposed rule applies to all non-collapsible, commercial style crab pots used by either commercial or recreational crabbers. The department limited the area where TEDs will be required to Long Island’s harbors, creeks, and tributaries because these are the areas where terrapin are most likely to be encountered.

Comment: Three comments recommended that the department provide maps of the areas where TEDs are proposed to be required.

DEC response: The department has prepared these maps and has been providing them to crab permit holders who have requested the free TEDs provided by the environmental groups and to people who have requested details on the proposed areas. These maps will also be posted on the department website after the adoption of the rule.

2. Horseshoe Crab Possession Limit

Comment: The department received four comments in support of the proposed rule that will allow two harvest limits to be possessed aboard a vessel or in a vehicle, provided at least two permit holders are present.

DEC response: The department appreciates these comments in support of the proposed rule and provisions that are intended to address safety concerns. The current rule only allows one harvest limit on board a fishing vessel. This rule was proposed due to a number of Horseshoe Crab permit holders contacting the department to express concern about the safety hazard of boating alone, especially at night.

Comment: The department received three comments against this proposed rule. The comments were concerned that the proposed rule would be less protective than the current rules and increase the harvest of horseshoe crabs.

DEC response: The proposed rule allows for the possession of two harvest limits on a vessel instead of one, and two permit holders must be on board the vessel. The current rule only specifies the harvest limit on board a vessel. The proposed rule expands the definition of harvest limit to include a possession limit, which would apply in all areas. Due to this clarification, the department believes the proposed rule will be more protective and enforceable than the current rule.

3. Whelk Reporting

Comment: The department received four comments in support of the proposed rule mandating harvest reporting for whelk permit holders and two comments against.

DEC response: Collecting whelk harvest information is necessary to monitor fishery changes and impacts. 6 NYCRR 40.1(c)(1) and 44.4 requires food fish, baitfish, lobster and crab permit holders to submit harvest reports. Many whelk permit holders also hold one of the previously mentioned permits, so they are already required to report the harvest of all species caught. The proposed whelk reporting rule will ensure that all the whelk permit holders are required to report their landings so the DEC can track fishery impacts.

4. Comment on Text of 6 NYCRR 50.1

Comment: One person commented that the proposed text of 6 NYCRR 50.1(1) referred to “carnivorous marine gastropods” while 50.1(2)(b) refers to “carnivorous gastropods.”

DEC response: The department appreciates this comment and will revise the language of 50.1(2)(b) to carnivorous “marine” gastropods.

5. Comments Outside the Scope of the Proposed Rule

The department received a number of additional comments that were not directly related to the proposed rule and therefore will not be addressed as part of the assessment of comment for this rulemaking.