Introduction

The sections of the Environmental Conservation Law that govern the issuance of state marine commercial fishing licenses by the Department of Environmental Conservation (DEC) sunset on 31 December 2003. At the 22 January 2002 meeting of the Marine Resources Advisory Council, the Council and DEC agreed to form a joint work group to prepare recommendations on a revised set of laws that would direct marine commercial fishing licensing in New York beginning 01 January 2004. This report presents the work group’s recommendations. These recommendations are presented to the full Marine Resources Advisory Council. The Council will deal with them and pass them along, as is or with revisions, to DEC for submission to the New York State Legislature in time for the 2003 legislative session.

Background

Prior to 1995, DEC issued marine commercial fishing licenses with only minimal restrictions. If a license applicant met the residency requirements and paid the license fee, a license was issued. In 1995, the State Legislature placed a moratorium on the issuance of new state commercial fishing licenses for the period 28 July 1995 – 31 December 1996. At the same time it directed DEC to prepare, in consultation with the Council, the commercial fishing industry and local governments, an assessment of the capacity of the state’s marine fishery resources to accommodate commercial and recreational fishing effort, including recommendations for changing laws that govern commercial fishing effort and license eligibility requirements. In summer, 1995, DEC and the Council established a joint work group to conduct this project. The Department sent the ensuing report to the State Legislature in May, 1996. A number of that report’s recommendations were subsequently established by statute, including those that, for the first time, established specific, income-based eligibility requirements for state commercial fishing licenses and put numerical caps on some of the licenses. As DEC and the Council had suggested, the Legislature instituted the newly-established commercial fishing license laws for a period of three years. These laws have been subsequently revised and extended by the Legislature with the advice of DEC and the Council.

Underlying Concerns

The Numbers of Licenses. Among the concerns that precipitated the creation of the license moratorium in 1995, and the institution of numeric limitations and eligibility requirements for these licenses, was a concern that there were too many licensed “commercial fishermen” in New York at a time when virtually all historically important commercial finfish and shellfish stocks were in decline and severe restrictions had been imposed on commercial harvest catch and effort. The large numbers of licensed fishermen, it was believed, led to a situation in which commercial fishing became progressively less profitable as more fishermen were pursuing fewer fish and also made achieving the stock rebuilding/conservation targets of fishery management plans less likely. To that extent, it is perhaps gratifying that the numbers of all major state marine commercial fishing license have declined since the mid-1990’s, in some cases by nearly 50%. However, it is the view of the work group that the number of extant commercial licenses remains excessive in most of the state’s marine fisheries; further reductions are desirable. This view is reflected in several of our recommendations.

An overriding issue that remains unanswered in New York, and whose resolution would greatly affect the state’s policies towards the issuance of marine commercial fishing licenses, is the vision of the type of commercial fishery that is desired in New York. At one end of a spectrum of alternatives is a commercial fishery in which small-scale and/or part-time operators are in the preponderance; alternatively, the state could strive for a fishery where most licensed fishermen fish on a full-time basis as their sole source of income and livelihood and their scale of operations is typically larger. In the former fishery, optimal license numbers would be higher than in the latter scenario. The scale and complexion of the State’s marine commercial fisheries is not simply a matter of concern and interest to fisherman and fishery resource managers. Within New York’s Marine and Coastal District exist communities where commercial fishing and support service industries are an integral part of the socioeconomic and cultural fabric. In these places, decisions on what may appear to be narrow and focused issues such as how many commercial fishing licenses to issue quickly expand and ramify into issues that impact the entire local community. Those charged with resolving commercial fishing license eligibility issues must be mindful of this broader social context. Defining an appropriate vision for New York, in a meaningful way, along the spectrum bounded by these two end-members is a task that is best conducted by the State Legislature, acting under the advisement of DEC and the Council. The outcome of this deliberation has many and varied social, economic, and resource conservation ramifications that are most appropriately integrated through a legislative approach. Moreover, the commercial fishery vision for New York must be created in a way that reflects the realities of the condition of the fish and shellfish resources that sustain this fishery. The health and abundance of our marine finfish and shellfish resources are dynamic and their variability is only in part influenced by human activities such as fishing, pollution, and habitat changes. New York’s vision for its marine commercial fishery, and the laws and regulations that seek to achieve this vision, must be flexible enough to accommodate changing circumstances.

Entry Into Commercial Fisheries. In limiting the number of marine commercial fishing licenses for the purposes of better matching fishing effort with allowable harvests or to provide those so-licensed with an opportunity to make a reasonable living at their trade, New York cannot establish a permanent, privileged class of citizens who have an exclusive right to harvest marine resources in perpetuity. While clear justification may exist to bar new entrants into specific fisheries for limited periods of time, some provision must be eventually be made to accommodate people who wish to get a license but do not presently hold one. A possible approach, in addition to the license cap/income eligibility provisions currently in place, is an apprenticeship program (see below).

Commercial Fishing as a Family Business

As is the case throughout most of the United States, commercial fishing in New York is often a family business in which generations of men and women in a family have made a living either directly harvesting marine resources or in closely-allied support services. This is especially true of inshore commercial fishing. Much social and cultural value adheres to fishing as a family tradition and the work group supports a vision of commercial fishing in New York that promotes retention of this important tradition.

Commercial Fishing As An Economically Viable Trade

State law, in particular New York’s statutory marine fisheries management policy, clearly states that the fundamental interest of the citizens of the state in managing our marine resources and the fisheries that rely on them is the conservation of the stocks of finfish, shellfish, and other marine animals, themselves. If the state fails in this purpose, all other considerations and purposes associated with our fisheries are ultimately compromised. Nonetheless, fisheries management in the past quarter century has evolved to incorporate maintaining various socio-economic conditions associated with fishing as clear and important, albeit secondary goals. Among these is the objective of foster the economic viability of commercial fishing as a livelihood. The work group subscribes to this objective as applied to commercial fishing in New York. In truth, “economically viable,” is a general concept with little meaning outside of specific instances. The term cannot be adequately defined apart from intimate familiarity and interaction with commercial fishermen and their families and communities and the circumstances pertaining in specific fisheries. We urge that any specific proposed law or regulation, as well as the state’s fisheries management framework as a whole, be continually assessed in light of its impact on the ability of commercial fishing license holders to make a reasonable living at their trade.

A fisherman’s vessel(s), nets, pots, and other fishing gear represent a substantial financial investment. When a fisherman decides to stop fishing for a living, it is understandable that he/she would wish to recoup some of the value of this investment through sale of the equipment. The market for such equipment (and, to a degree, its monetary value) will vary depending on conditions in the fishery and the number of persons looking to leave as opposed to remain in or to enter commercial fishing. Commercial license eligibility and, especially, license transferability restrictions may impose severe limits on the ability of those leaving the fishery to recoup their equity invested in fishing equipment. The equipment is valueless to a prospective new fisherman if he/she cannot get a license to fish it. Thus, the equipment will have relatively fewer buyers if the numbers of new licenses being issued is kept to a minimum. The work group supports continued limits on the number of new commercial fishing licenses being issued, but it does not wish to impose a further economic burden on New York commercial fishermen. The State should strive to maintain the value of the equity fishermen have in their equipment and to manage license eligibility and transferability in ways that do not erode this value unnecessarily.

Recommendations

As a general principle, the State should move in the direction of standardizing the rules and regulations affecting license eligibility and related matters for all of the major license categories in our marine fisheries. It is understood that circumstances unique to certain fisheries may warrant specific and unique treatment in the licensing of individuals to participate in those fisheries, but this does not obviate the need for a more consistent, fisheries-wide approach. Such an approach may lay the groundwork for an eventual consolidation of many of the current licenses into one or a small number of more general state commercial fishing licenses.

Limits on the Numbers of Licenses. The work group recommends that numerical limits on commercial licenses should be retained.

With the above new license caps in place, the work group recommends that the issuance of new licenses proceed at a replacement rate of 2:1; i.e., one new license issued for every two licenses that are retired.

License Eligibility, Income. The workgroup recommends that the current income-based eligibility requirements be maintained for now. Depending on the type of commercial fishing industry “envisioned” in New York (see above) the specific income thresholds that should apply to this criterion and whether these thresholds should be refer to earned or total income should be reviewed and, if appropriate, revised. However, see second bullet, below.

License Eligibility, Corporate vs. Individual. The work group recommends that the restrictions governing what legal entities may receive a commercial fishing license promote an accelerated phase-out of corporate license-holding. Thus, we recommend the following:

The work group further recommends that DEC’s authority to charge a substantially higher fee for a corporate as opposed to an individual license be explored and, if such a differential fee is legal, it be instituted.

License Eligibility, Citizenship. Citizenship requirements for commercial fishing licenses have been ruled unconstitutional. The work group recommends that any such provision in law applying to state marine commercial fishing licenses be removed.

License Eligibility, Apprenticeship Program. The work group recommends that an apprenticeship program be established under the aegis of DEC that would provide an opportunity for, typically, younger individuals to learn the trade of commercial fishing under the tutelage of an experienced, license-holding fisherman - - a sponsor. Suggested aspects of this program, which should initially be applied only to the commercial foodfish license include:

License Transferability. The work group recommends the following:

License Requalification. Since the initiation in the mid-1990’s of restrictions on the issuance of commercial fishing licenses in New York, those who have had a license have been allowed to retain that license almost regardless of circumstances, except for serious violation of ECL laws and supporting regulations pertaining to marine fisheries. In particular, license holders have been able to annually renew licenses although they may not have been active participants in the state’s commercial fishing industry. The work group is concerned with the existence of latent (unused) licenses and believe that it is in the best interest of marine resource management in New York to begin to reduce the number of such licenses extant. One means of accomplishing this is to periodically require that license-holders requalifiy for the license, which usually means meeting the same or some other income-based or other criteria that applicants for new licenses must meet.

Sunset. To provide an ability to monitor and respond to the effectiveness of the above recommendations, the work group recommends that the above new provisions and those licensing provisions presently in law that are unaffected by these recommendation, be established/renewed, respectively, for a period of five (5) years.