Mr. Colvin stated that state agencies are now developing recommendations to the Governor’s Office for legislative proposals for the following year. He has been asked by senior officials in DEC’s Albany headquarters to solicit comments and recommendations from the Council regarding any legislative initiatives involving marine resources the Council believes are high priority. Mr. Colvin distributed to the Council a list of issues for legislative action that DEC staff feels are of high priority.

Fishery Management Plan Implementation

DEC’s ability to increase commercial harvest quotas is often confounded by poor information about at-sea discards. Commercial fishermen voice frustration that restrictive quotas, such as for fluke, and their associated trip limits, create high levels of “regulatory discard”. Mr. Colvin pointed out that DEC has two ways to get information on at-sea discards information: fishermen reports and observers. Fishermen rarely report accurate information on discards, feeling that to do so is not in their interest. The Department views an observer program as the only practicable way to get reliable information on discards. Most fishermen agree and accept the necessity of on-board observer programs. However, the Department is presently constrained to limit any on-board observer program to those fishermen holding federal permits. Federal permit holders are required to carry observers when they are assigned one by the National Marine Fisheries Service, which believes mandated on-board observer programs should be an element of all federal fishery management plans. Mr. Colvin stated that DEC needs the authority to require on-board observers on state-licensed fishing vessels, if and when necessary, if issues like accurately estimating the extent of at-sea discards are to be effectively addressed. He commented that onboard observers are also able to acquire other information about the fishery (e.g., catch and effort data, biological data on the catch, etc.) that is of real management value.

Some councilors expressed concern with insurance issues raised by placing an observer aboard a vessel. Councilor Sandy Mason said that he never turns down an observer but was concerned about the consequences should the observer get injured while aboard his vessel. Mr. Colvin reassured the Council that, when an observer is mandatory, vessel owner/operator is exempt from any liability, except in a case of clear and gross negligence. The liability issue is probably more of a problem in a voluntary observer program. Mr. Colvin will check on this and report back to the Council.

Mr. Delanoy of the Captree Boatmen’s Association felt that having an observer on your vessel is a positive thing but wanted to know what happens on a six-person charter boat; when you add an observer to the six fishermen on board and the two-person crew, you have a total of 9 persons. Are that many persons aboard legal? Councilor McBride stated that he thought an exception should be made in the case of an observer to the limit of 8 persons aboard a charterboat. Patrick Augustine of the New York Sport Fishing Federation commented that observers on federally-licensed fishing vessels are hired by the federal government and are thereby covered by their insurance.

Penalties for Violations

a) Criminal and civil penalties for violations. - Consider 1) adding all fish and crustacean sections of the Environmental Conservation Law (ECL) to current penalties and 2) raising the fines for violations.

Concerning criminal and civil penalties for violations Chairman Wise stated that he feels that if someone commits the same ECL violation for the twelfth time, the punishment should not be the same as for the second offence. He suggested escalating the penalty/fine for repeat offences. Several councilors supported this view. Councilor McBride moved that the Council recommend to DEC that, as part of its legislative package pertaining to penalties and compliance with ECL provisions, the Department propose revising the law such that repeat violations by the same individual are increasingly severe and secondly, that the penalty structure reflect higher penalties for more serious violations. Councilor Danielson seconded it. After a brief discussion, Mr. McBride’s motioned was adopted by unanimous vote of those councilors present, 11 in favor; 0 opposed; 0 abstentions.

b) Expand Mandatory Revocation Provisions – Consider adding rakes overboard; shellfish dumping; and misdemeanor and felony commercialization of shellfish to those offenses that carry a mandatory license revocation penalty.

Mr. Colvin informed the Council that current law is that anybody with two or more convictions (actual convictions) of certain sections of the shellfish, lobster, and the menhaden laws within a five-year period are subject to a mandatory revocation of their license. The Department would like specific additional offenses added to this list. These offenses include having shellfish harvest rakes overboard in uncertified waters, dumping shellfish, misdemeanor and felony commercialization. Councilor McBride moved that the Council recommend to DEC that it propose this change in the ECL. The motion was adopted; the vote was 9 in favor; 1 opposed; 1 abstention.

Marine Commercial Permits/Licenses

Commercial fisherman John Mihale suggested that fish stores or restaurants be required to display a sign indicating that they can buy fish and shellfish only from a licensed dealer and listing the penalties that the establishment might incur if it violates this requirement. Councilor Dean Yaxa stated that he saw evidence of something akin to price fixing by shellfish dealers in many parts of Long Island. As production of clams from New York has declined, greater amounts of clams have been imported from southern states, at a lower price ($10 to $20 lower per bag) than product harvested locally. Once the going rate for a bag of clams declines by this amount, it is even harder for Long Island diggers to make a living.

Chairman Wise asked the Council if it was in general support of the commercial licensing proposals a, b, and c, above; by acclamation, the Council indicated its support.

Charter/Partyboat Operators License Cap

Councilor McBride raised the issue of a legislatively-imposed cap on the number of charter and partyboat operators licenses. When the current $250 charter & partyboat operators license was established, there was a companion proposal submitted to the Legislature to cap the number of such licenses that would be sold. Mr. McBride stated that the charter/partyboat industry is the only commercially licensed fishing industry that doesn’t have any form of economic protection via license limitation and he asked that the initial idea of a numerical cap be resubmitted to the Legislature. He also suggested that this license be made transferable in the event that the owner of a charter or partyboat decided to sell his boat and get out of the business. Being able to transfer the operators license with the vessel would make the boat much more marketable. Chairman Wise reminded the Council that, presently, licenses can be directly transferred by the holder only to a member of his/her immediate family. Several councilor expressed reservations or opposition to creating a special transferability privilege for the holders of one particular license type and not allowing this to the holders of other fishing licenses. Chairman Wise suggested this issue be further discussed at a future Council meeting.

Catch and Release Fishing

Allow catch and release fishing as permitted by regulations – develop regulations specifically authorizing catch and release fishing for marine species.

Mr. Colvin stated that this was a problem that was discovered last year but it was a long-standing problem that never came to light. Section 11-1301 of the ECL states that, “…fish named by regulation adopted pursuant to Section 11-1303 shall be taken only during the open season and only if they are within the minimum size limit. Fish named by regulation adopted pursuant to section 11-1303 of this title shall not be taken in excess of the daily or seasonal catch limits.” The problem is that the terms, “take,” and, “taken,” are defined in the ECL as meaning, “…attempting to catch, harry, chase, or pursue”. In other words, if you are fishing for them, you are taking them; thus, you can’t fish in the closed season and you can’t continue to fish after you have caught the possession limit. Mr. Colvin stated that DEC wants to fix this by specifically authorizing the establishment of regulations for regulate catch and release fishing.

Councilor Danielson made a motion to recommend that the Department develop draft language that would allow catch & release fishing for marine species, consistent with other provisions of the ECL. The motion was adopted by unanimous vote, 10 in favor; 0 opposed; 0 abstentions.

Chairman Wise wanted to remind everyone that these issues will all be fine-tuned by the Department in time for the Council’s April 2004 meeting when the Council will look at the legislative proposals and can make any changes then.