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

Amendment of Parts 10, 11, 18, 19, 35, 36 and 40 of Title 6 NYCRR.

Recreational and commercial harvest of river herring (anadromous alewife and blueback herring) in New York.

Reduce fishing mortality of river herring stocks in New York to achieve sustainable fisheries required by ASMFC Amendment 2.

1. DEC proposes to amend 6 NYCRR Part 10 "Sport fishing" as follows:

1.1 Adopt a new section 10.10 "Taking of anadromous river herring (alewife and blueback herring) in the Hudson River and its tributaries and embayments." Definitions of the Hudson River, tributaries and embayments are described.

1.2 Possession of river herring is not allowed in the Delaware River and its tributaries above Port Jervis New York.

1.3 The following restrictions apply to the Hudson River, its tributaries and embayments:

a. A season will be adopted from March 15 to June 15.

b. The daily possession limit will change from unlimited take to 10 fish per individual angler OR a maximum boat limit of 50 per day for a group of boat anglers, whichever is lower. Party or charter boat operators can qualify for possessing in excess of the individual recreational possession limit prior to their charter trips; see (e) below.

c. Manner of take will be adopted as follows: In the Hudson River, manner of take is by angling or by personal use nets; in a Hudson River tributary or embayment, manner of take is by angling only.

d. The size of personal use nets remains the same for dip nets (14 inches round or 13 inches by 13 inches square), cast net (10 feet in diameter), and seine nets (36 square feet or smaller). Scap/lift net size is reduced from 36 square feet to 16 square feet. Personal use nets must be stowed in a close container when entering a tributary or embayment.

e. To be eligible to possess more than an individual daily limit, operators of party or charter boats must register with the department and provide a copy of their U.S. Coast Guard license and period of expected operation to the NYSDEC, Hudson River Fisheries Unit, New Paltz, New York. Operators possessing a marine and coastal district party and charter boat license need to provide their permit number and the period of expected operation to the NYSDEC.

f. Registered party and charter boat operators shall display a valid Hudson River river herring decal provided by the department on their vessel, whenever the vessel is operating as a party or charter fishing boat.

2. DEC proposes to amend 6 NYCRR Part 11, "More than one species" as follows:

Possession and commercial take for sale of anadromous river herring is not allowed in the Delaware River and its tributaries above Port Jervis NY.

3. DEC proposes to amend 6 NYCRR Part 18, "Taking Bait" as follows:

Allows the taking of river herring as bait by use of nets in the Hudson River as defined in Part 10.

4. DEC proposes to amend 6 NYCRR Part 19, "Use of bait" as follows:

Indentifies the water bodies where anadromous alewife and blueback herring may be used as bait: in the Hudson River, its tributaries and embayments, as defined in Part 10.

5. DEC proposes to amend 6 NYCRR Part 35, "Licenses" to:

Remove anadromous river herring from the commercial bait list. A note indicates that the taking of anadromous river herring for all purposes is regulated pursuant to Parts 10 and 36 of Title 6.

6. DEC proposes to amend 6 NYCRR Part 36, "Gear and Operation Of Gear" as follows:

6.1 Requires that licensed commercial net gear to be marked with the licensee's permit number in visible black numbers on an orange background. A net shall have attached a marked floating buoy; a scoop, scap or dip net shall be marked on the fixed handle to the net.

6.2 Adds the Hudson River tributaries and embayments to the restricted areas where nets are not allowed to be used.

6.3 Changes the area where only a drift gill net can be used or possessed from the area between the Bear Mountain Bridge and the Newburgh-Beacon Bridge to the area between the Bear Mountain Bridge and the Castleton-on-Hudson (Interstate 90 spur and railroad) bridges.

6.4 During the Escapement period, the exception of commercially licensed fyke, scap and minnow trap nets is removed. The Escapement period will apply to all commercially licensed nets.

7. DEC proposes to amend 6 NYCRR Part 40, "Marine Fish" as follows:

7.1 Adds the new species Anadromous river herring to 40.1(f) Table A Recreational Fishing. Possession of anadromous river herring is prohibited, except north of the George Washington Bridge at river mile 11 in the Hudson River. The general provisions in subdivision 40.1(b) apply; anadromous river herring may not be possessed in the waters anywhere inland from such shores (of the marine and coastal district of New York) in the counties of Suffolk, Nassau, Queens, Kings, Richmond, New York, Bronx, and those portions of Westchester County within the marine and coastal district bordering on Long Island Sound.

7.2 Adds the new species Anadromous river herring to 40.1(i) Table B Commercial Fishing. No open season is allowed. No possession of anadromous river herring is allowed except that vessels fishing exclusively in the federal ocean waters of the Exclusive Economic Zone, while operating under a valid federal permit for Atlantic mackerel and/or Atlantic herring, may possess river herring up to a maximum of five percent, by weight, of all species possessed. A person shall not barter, sell, offer for sale, or expose for sale, any river herring so possessed.

Nonsubstantive changes were made in sections 10.5 and 40.1.

Kathryn A. Hattala, Department of Environmental Conservation, 21 South Putt Corners Road, New Paltz, NY 12561, (845) 256-3071, email: [email protected]

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

Changes made to the last published rule do not necessitate revision to the Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement previously published on May 30, 2012. Non-substantive changes were made to clarify the formatting directions for the text of the rule.

Regulation change affecting the Hudson River and its tributaries.

Twelve individuals sent in written comments on the regulation change proposed for the Hudson River Estuary and its tributaries. Comments ranged from full support of the regulation change to individuals taking issue with a particular section of the proposed regulation.

• Comment: Creel limit: Most anglers (5 of 8 anglers including two charter operators) specifically supported the creel limit implementation. One angler said we did not go far enough and suggested a two day moratorium per week during the season. One charter fisher was against the creel limit.

Response: Most anglers understand that in order to provide for a sustainable fishery, as defined in the Atlantic States Marine Fisheries Commission (ASMFC) Amendment 2 to the shad and river herring plan, New York proposed the creel limit to reduce mortality on the Hudson spawning stock. Individual anglers will be limited to 10 fish per day. Charter boat businesses have an additional allowance for up to a maximum of 50 fish per day. DEC recognizes that as a business, charter boat businesses need to be prepared for fishing when fares arrived. The department will only require that charters register with the department and carry a decal onboard their boat to aid law enforcement officers to identify charters versus individual anglers.

• Comment: Two recreational anglers and one charter fisher were opposed to the net ban in the tributaries. One recreational and one charter fisher supported the net ban in the tributaries.

Response: The primary purpose of the regulations is to reduce mortality on spawning fish. Many river herring spawn in the Hudson's tributaries; they often concentrate in large numbers near or below obstructions (most are dams) making them an easy target for netters. Netters also can capture many fish at one time; numbers caught can be much higher than the proposed 10 fish creel limit increasing the possibilities for bycatch mortality, injury and poaching. A fishery-wide ban on the use of nets in the tributaries will equally affect both commercial and recreational fishers. However, recreational anglers will be allowed to continue to fish in the tributaries using hook and line.

• Comment: Four anglers commented that they do not want a reduction in size of scap nets.

Response: Both commercial and recreational netters can use the same size net. The proposed regulation will impose a recreational creel limit of 10 fish per angler; a smaller recreational net size will not greatly reduce the ability to catch fish but will most likely reduce the numbers of fish caught, aiding in compliance with the proposed creel limit. Commercial netters currently do not have a limit on take numbers. The distinction of gear size will also aid law enforcement officers in recognizing recreational and commercial fishers at a distance.

• Comment: One charter and one bait shop owner opposed the tributary closure to commercial gears as they stated the proposed regulation would affect their business by eliminating their supply of bait. The charter fisher mistakenly thought that commercial fishers will have to use smaller size gear to catch fish.

Response: Commercial netters, along with recreational netters, were excluded from the tributaries where river herring concentrate in order to reduce mortality on the stock (the numbers of fish caught where they are spawning). Commercial fishers can continue to fish in the main-stem river to supply bait to bait shops and/or for charter fishing. Commercial fishers have no limit on the amount of fish they can catch, in addition to being able to use larger size nets. The intent of the proposed regulations is to reduce mortality. No other bait shop owners or charter operators had an issue with the net closure in the tributaries.

• Comment: One charter boat operation, a bait shop owner and an angler commented on the possible negative economic and tourism impacts that the river herring regulations would have on the Hudson's existing spring striped bass recreational fishery.

Response: River herring are used as bait in the spring striped bass fishery. The objective of the regulation is to reduce morality on the herring stock; the regulations will not eliminate their use as bait in this fishery. The department recognizes that fishers will have to make an adjustment to their fishing behavior in response to the new regulations; a decrease in participation in the striped bass fishery is not expected.

No comments were received regarding the new regulations affecting the Delaware River and its tributaries, Bronx, Kings, Manhattan, Nassau, Richmond, Suffolk, and Queens Counties and Westchester County streams that empty into the East River or Long Island Sound.