Vests the DEC with the authority to regulate the management of crabs and certain marine fish; technical amendments to commercial fishing licenses

Summary of provisions

Section 1 of the bill would amend Environmental Conservation Law (ECL) § 13-0331(1) to set forth the conditions applicable to endorsing a commercial crab permit to a vessel and clarify that a permit holder is responsible for all violations that occur on the vessel for which the holder's permit is endorsed.

Section 2 of the bill would add a new subdivision 5 to ECL § 13-0331 to authorize a permit holder to allow another permit holder to tend his or her gear in the case of a temporary emergency. This section would also renumber existing subdivisions 5, 6, and 7 of ECL . 13-0331 as subdivisions 6, 7, and 8.

Section 3 of the bill would amend ECL § 13-0331(7), renumbered subdivision 8 by Section 2 of this bill, to extend, until December 31, 2015, DEC's authority to fix by regulation measures for the management of crabs of any kind, including horseshoe crabs.

Section 4 of the bill would amend ECL § 13-0339-a to extend, until December 31, 2015, DEC's authority to fix by regulation measures for the management of Atlantic sturgeon, shortnose sturgeon, American eel, Atlantic herring, American shad, alewife, blueback herring, and hickory shad. This section would also amend ECL § 13-0339-a to delete Atlantic cod and squid because regulatory authority for these species would be moved to separate ECL sections, as added in sections 5 and 6 of this bill.

Section 5 of the bill would add a new ECL § 13-0339-b to authorize DEC, until December 31, 2015, to fix by regulation measures for the management of Atlantic cod.

Section 6 of the bill would add a new ECL § 13-0339-c to authorize DEC, until December 31, 2015, to fix by regulation measures for the management of squid.

Section 7 of the bill would amend ECL § 13-0328 to: (1) maintain a cap on the number of commercial food fish, crab, whelk (conch), and marine and coastal district party and charter boat licenses or permits that may be issued; (2) maintain the current moratorium on new lobster permits; (3) maintain the current eligibility requirements for commercial licenses and permits; (4) continue to allow the transfer (reissuance) of food fish and whelk licenses and lobster and crab permits to a member of the prior holder's immediate family and clarify the conditions under which such transfer takes place; and (5) continue the authority of DEC to establish an apprenticeship program.

Section 8 of the bill would provide for an immediate effective date, except that changes made in section 7 of the bill would take effect December 31, 2011.

Existing law

ECL § 13-0331 (1) requires a commercial permit from DEC before any person may take crabs, including horseshoe crabs, for commercial purposes. ECL § 13-0331 (7) grants DEC regulatory authority for crabs of any kind until December 31, 2011.

ECL § 13-0339-a grants DEC regulatory authority, until December 31, 2011, to manage Atlantic cod, Atlantic sturgeon, shortnose sturgeon, American eel, Atlantic herring, American shad, alewife, blueback herring, squid, and hickory shad.

ECL § 13-0328 establishes, through December 31, 2011, the cap and eligibility requirements for commercial food fish and whelk licenses, commercial crab permits and marine and coastal district party and charter boat licenses, and a moratorium on new commercial lobster permits. ECL § 13-0328 also provides for the transfer (reissuance) of food fish and whelk licenses and lobster and crab permits to a member of the prior holder's immediate family, and authorizes DEC to establish an apprenticeship program.

Prior legislative history

DEC's regulatory authority to manage crabs was last extended by Chapter 152 of the Laws of 2007. The amendments to ECL § 13-0331(1) and the language proposed for ECL §13-0331(5) are new proposals. DEC's regulatory authority to manage the marine species listed in ECL

§ 13-0339-a was last extended by Chapter 146 of the Laws of2007. ECL § 13-0328 was last amended by Chapter 366 of the Laws of2007.

Statement in support

DEC's regulatory authority for crabs is necessary in order to preserve the current fishery management program. Failure to extend the existing regulatory authority by December 31, 2011 will result in the loss of regulatory protection for crabs, including horseshoe crabs. Regulatory authority for crabs is critical in New York to maintain compliance with the Interstate Fishery Management Plan (FMP) for Horseshoe Crab, adopted by the Atlantic State Marine Fisheries Commission (ASMFC).

Currently, ECL § 13-0331(1) does not require that a holder of a commercial crab permit be on board the vessel if the permit is endorsed to a vessel. Additionally, the current endorsement language does not specify who is responsible for violations occurring on the endorsed vessel. The amendments proposed in this bill for commercial crab permits are similar to existing provisions for the endorsement of commercial lobster permits. Likewise, there is no current provision for allowing a crab permit holder to tend the gear of another permit holder in the case of a temporary medical or other emergency, as there is for lobster permits. To address this shortcoming, the bill would add language to ECL § 13-0331 that is similar to language applicable to lobster permits and would allow a permit holder to tend the gear of another in an emergency.

This bill also would extend DEC's regulatory authority for Atlantic sturgeon, shortnose sturgeon, American eel, Atlantic herring, American shad, alewife, blueback herring, hickory shad, Atlantic cod, and squid for an additional four years. This is necessary to preserve the current fishery management program for these species, and will ensure that DEC continues to be able to maintain compliance with any applicable federal management plan. Failure to make necessary regulatory changes as may be required by an applicable management plan could result in the closure of New York's fishery for that species.

Atlantic sturgeon is managed pursuant to the Interstate Fishery Management Plan for Atlantic Sturgeon adopted by the ASMFC. The 1998 amendment to the FMP required closure of all states' sturgeon fisheries and the possession of Atlantic sturgeon is prohibited in New York. The species has been proposed for listing as "endangered" pursuant to the federal Endangered Species Act of 1973.

The shortnose sturgeon is officially listed by the National Marine Fisheries Service as endangered, and is therefore fully protected by the Endangered Species Act of 1973. It is also listed as endangered in New York State pursuant to ECL § 11-0535. It is therefore unlawful to kill or posses this fish. Abundance of shortnose sturgeon is increasing, and its status may be upgraded in the future. If so, it

will be necessary for New York to have regulatory authority to protect the recovered stock.

American eel is managed pursuant to the Interstate Fishery Management Plan for American Eel adopted by ASMFC in 1999. New York must have the ability to regulate the taking of American eel in New York waters consistent with the FMP.

Atlantic herring is regulated by ASMFC and the New England Fishery Management Council through complementary management plans that set annual quotas. The ASMFC FMP requires annual review of stock status, and regulatory actions may be needed in future years as a result of such review.

Alewife and blueback herring (known collectively as "river herring") and American shad and hickory shad are managed pursuant to the Interstate Fishery Management Plan for Shad and River Herring adopted by ASMFC. In March of this year, to allow for stock recovery, DEC closed both the recreational and commercial American shad fisheries in the Hudson River and tributaries north of the George Washington Bridge. New York's ability to adopt these regulatory amendments allowed New York to act quickly in response to the most recent stock assessment showing American shad abundance is at an all-time low.

This bill would move the authority to manage Atlantic cod and squid from ECL § 13-0339-a to two new sections of the ECL to recognize that these species are significantly dissimilar to the other marine species included within ECL § 13-0339-a. Atlantic cod is managed by the federal government pursuant to a federal FMP adopted by the New England Fishery Management Council. Atlantic cod is not usually caught in N ew York waters, but is often landed in New York from fishing trips in federal waters. It is important that New York have the ability to synchronize State regulations with any amendments to the FMP and resulting changes to the federal regulations so that the - applicable rules are clear and consistent.

Squid are managed by a Federal quota system which is applicable to federal waters and federal permit holders only. DEC must continue to have the ability to timely set and adjust trip limits and to close fisheries when quotas are reached, or to adopt other management regulations such as minimum mesh size, in squid fisheries which are not subject to the federal regulations. Authority to establish appropriate regulations consistent with the Federal FMP for squid is essential in order to provide uniform protection to maintain a sustainable fishery.

Since ECL § 13-0328 was last amended in 2007, the number of commercial fishing licenses and permits issued has generally continued to decline as follows:

2007 2008 2009 2010

Resident Food Fish 1059 1028 1006 990 Non-Resident Food Fish 50 46 43 40 Resident Crab 605 588 589 578 Non-Resident Crab 30 30 29 28 Resident Lobster 412 384 375 337 Non-Resident Lobster 30 30 30 27 Resident Whelk 262 259 260 256 Non-Resident Whelk 12 12 12 12 Party & Charter Boat 536 530 524 501

In the opinion of DEC staff, the current numbers of licenses and permits are still too high to ensure economic viability of commercial fishers, given the restrictions and limits on fishing activity required under current and foreseeable federal and interstate fishery management regu- lations. Accordingly, this bill would provide a mechanism for their further reduction over the next four years. The maximum number of party and charter boat licenses that may be issued to uninspected passenger vessels would remain at 517. Further, a moratorium on new commercial lobster permits would continue because of significantly excess harvest- ing capacity and current lobster management regulations do not provide for issuance of the required lobster trap tags to any new persons. The substantial decline in lobster abundance that has resulted from episodes of mortality beginning in 1999 also supports continuing to prevent new entrants to this troubled fishery.

The eligibility and transfer provisions, and apprenticeship program, are maintained in order to uphold family and community traditions of commer- cial fishing, and to provide limited opportunity for new entry to indi- viduals who show a commitment to the profession.

Budget implications

This bill would not have any fiscal impact on the State.

Effective date

The bill would take effect immediately upon enactment, provided that changes made by section 7 of the bill would take effect December 31, 2011.