DEC Program Bill #4RR-04:  a large, detailed, and multi-faceted bill that provides for a number of revisions to the Environmental Conservation Law (ECL).  The several components of this bill, and the Council’s discussion of each, are presented below.

Discussion:

Section 11-1301

The current Environmental Conservation Law (ECL), if interpreted literally, makes it illegal to catch and release a marine species of finfish, or even to fish at all for a species in the following circumstances:  a) during the closed season for said species (if one exists); b) when the possession limit for said species has already been taken (if a possession limit exists); and c) if the fish caught is outside of the established size limit(s) for that species.   Mr. Gordon Colvin, Director of Marine Resources for DEC, noted that it is not the Department’s intention to prohibit fishing (i.e., catch & release fishing) in the above circumstances.  DEC Program Bill #4RR-04 amends the language of the ECL to authorize DEC to adopt regulations allowing catch and release fishing in these circumstances. 

This element of the program bill drew only perfunctory questions and/or comments from the Council.

Section 13-0311

This element revises the ECL to make it explicit that a person actively engaged in the harvesting or assisting in the harvesting of shellfish (e.g., sorting/culling) must have a shellfish diggers permit in their possession.  Also, the ECL is amended to allow someone who holds a shellfish diggers permit and who digs shellfish in Nassau and Suffolk County to sell his/her catch to an appropriately-licensed shipper or processor in either Nassau or Suffolk County, without having to secure a shellfish shipper’s permit; presently, without a shipper’s permit, a digger can only sell to a licensed shipper and/or processor in the county in which the shellfish were dug, unless the digger has a shellfish shipper’s permit, in which case he/she can sell their product widely. 

A question was raised as to whether this license requirement would now apply to shuckers in a shellfish plant. (No, this activity is exempted from the diggers license requirement because the shucking establishment has a dealers and shipper’s permit).   Mr. Colvin stated that the above-proposed change would liberalize the option for shellfish diggers seeking to sell their product outside the county in which the product was dug.

A representative from the North Shore Baymens Association stated that there a relatively few shellfish buyers left and many of them have contracts with out-of-state diggers that result in local diggers being shut out when production by out-of-state diggers is high and demand for clams is low.  He also claimed that the biggest clam market in the United States is located in New York City and Long Island clammers, in his view, should be allowed to sell their product to buyers located there, as well as to those located in Nassau & Suffolk Counties.      

Section 13-0315

The bill revises the state shellfish shipper permit structure by consolidating the former current Class E (interstate digger/shipper) and Class F (intrastate digger/shipper) permits into a single Class D (shellfish shipper (harvester)) permit and revises the fees charged for the different classes of shellfish shipper’s permit. 

Mr. Tom Drumm of the Shellfish Sanitation program of DEC’s Bureau of Marine Resources indicated that those holding the new Class D permit would be able to do all the things they were presently able to do with either the current Class E or Class F shipper permit.    Councilor Dean Yaxa commented that shellfish diggers who presently hold a Class F (intrastate [within NYS]) shippers permit were not, in his view, really shellfish shippers; they were harvesters who wished to direct market their daily catch to buyers within a reasonable distance from their base of operations.  Diggers have no interest in driving to Buffalo to sell their daily catch.  In his view, rather than require diggers to get the new Class D permit in order to sell their product beyond Nassau & Suffolk Counties, it would be better for the Department to simply allow holders of a diggers permit to sell in the New York Metropolitan Area (including Nassau & Suffolk Counties) or within, say, a 4-hour drive of where the clams were harvested, without the necessity of getting a formal shipper’s permit.  A question was raised as to whether the requirements for holding facilities, transport vehicle inspection imposed by the current Class E and F shipper’s permits will differ under the proposed consolidated Class D shipper’s permit (they will not differ).  Mr. Colvin pointed out, however, that impending federal regulations will change and expand the product holding requirements for shellfish shipper’s permit holders regardless of whether the provisions of this program bill are implemented or not.  Mr. Drumm clarified that, if a digger with a shipper’s permit can move his product to the retail purchaser within 4 hours, the digger does not have to invest in a refrigerated facility. 

Councilors Edward Sullivan and David Relyea suggested that the program bill be modified to allow the holder of a shellfish digger’s permit to sell product in the New York Metropolitan Area (Suffolk, Nassau, Bronx, Queen’s, Kings, & Richmond Counties) without the need to purchase a new Class D shellfish shipper’s permit.  Mr. Colvin responded that the Department could look at this possibility, but the distances involved in this large area might make it extremely difficult to dig and move product to the retailer within 4 hours if the product is dug on eastern Long Island and the buyer is somewhere in New York City.

Section 13-0334

Clarifies that licensed fishermen may sell directly to a, “final seller,” only if such final seller holds a foodfish and crustaceans dealers and shippers license.  Currently, one section of the ECL establishes this requirement but another section of the law allows commercial fishermen to sell to restaurants and retail stores without requiring these buyers to possess a foodfish dealers and shippers license, provided that the fishermen provides the final seller with a record of the sale (receipt) which the final seller must retain for a period of three years and the fishermen reports these direct sales to DEC.  This component eliminates this inconsistency.

Mr. Colvin noted that requiring a “final seller” to have a foodfish dealers and shipper’s license to be able to purchase product from a licensed fisherman does not mean that fishermen could not sell product directly to a consumer.  The purchaser only needs the dealers and shippers license if he/she intends to resell the product.  The Council was directly involved in the formulation of the foodfish dealers and shippers license law as a way of improving the accountability surrounding trade in fish and seafood products. 

Section 71-0923

Increases the criminal and civil penalties for certain violations of the ECL regarding the harvesting of foodfish and crustaceans and removes inconsistencies in the setting of penalties for similar violations of the ECL dealing with marine resource and consolidating these penalties in a single, amended section of the ECL.

Mr. Colvin noted that the proposed increases in penalties are consistent with the general guidance given on this subject by the Council over the years.  He also confirmed that the proposed increases in penalties apply to commercial and recreational fisheries.  Councilor Yaxa observed that the language of the bill states that these increased penalties would also apply to violations of the shellfish sections of the ECL.  Was this the case?  Mr. Colvin stated that this was inaccurate.  While the provisions of this bill would affect crab and lobster fisheries, they do not apply to molluscan shellfish.  Mr. Yaxa suggested that the bill should be amended to delete the reference to, “shellfish.”  Councilor Joe McBride stated that the Council had supported legislation in the past that proposed increases in penalties applied to violations of marine resource sections of the ECL.  

Section 71-0927

Adds additional violations to those that trigger a mandatory revocation of a shellfish and lobster license and establishes several violations involving foodfish that would trigger mandatory revocation of a marine foodfish license.

Capt. Dorothy Thumm of DEC’s Division of Law Enforcement reviewed with the Council the specifics of these changes.  She clarified that mandatory revocation would occur only after a suspect is convicted in a court or after a suspects pleads guilty.   Councilor John Davi, Jr. asked what particular offenses of the lobster sections of the ECL the mandatory license revocation process covered.  Mr. Colvin responded that mandatory revocation presently applies only to serious issues, e.g., fishing for lobsters without a license, violating the minimum gauge size, the mutilation provisions of the ECL, taking of egg-bearing females; disturbing gear, etc.  The proposed additions include felony commercialization, repeated misdemeanor violations, and dumping of product. 

Mr. Wise observed that, in the course of the Council’s extended discussion of this program bill, two principal issues were raised:  1) should the area where a shellfish digger can legally sell his product be expanded beyond just Nassau and Suffolk Counties to include the entire Metropolitan New York Area? and 2) the term, “shellfish,” should probably be removed from the portion of the bill that increases penalties for certain sections of the ECL.

Action:  Councilor McBride moved that the Council support DEC Program Bill #4RR-04 conditional on the following revisions to the language of the bill:  1) expand the area where a digger can sell without needing a shipper’s permit to include the entire New York Metropolitan Area or any area within 4 hours’ transit time from time of harvest and 2) remove the term, “shellfish,” from the element of the bill raising penalties for ECL violations.  The Council adopted this motion by a vote of 11 in favor; 0 opposed; 1 abstention.

A03961a/DiNapoli & cosponsors: requires the organizers of any fishing tournament with vessels further than 1 mile offshore to register with DEC and requires all boats in such tournaments to carry an EPIRB when more than a mile offshore.

Discussion:  The general view of the Council was that the EPIRB requirement of this bill was too restrictive (1 mile) and that it attempted to, “legislate common sense,” in the matter of safety of vessels engaged in fishing tournaments. 

Action:  Mr. Sullivan moved that the Council oppose this bill.  The Council adopted Mr. Sullivan’s motion.  The vote was 9 in favor; 0 opposed; 3 abstentions.

A9334/Thiele: repeals the current 25-fish commercial possession limit for blackfish (tautog).

Discussion:  At present, there exists a 25-fish commercial possession limit on blackfish; this exists both in law and in regulation.  Mr. Colvin noted that, with a 25-fish statutory limit in place, DEC could adopt a stricter (lower) limit through regulation, but not a higher possession limit.  Chairman Wise stated that the Council is on record as supporting a broad granting of regulatory authority to the DEC as the primary mechanism by which New York’s marine resources will be managed, as opposed to a legislative, piece meal approach; he sees no reason to retain this particular statutory limit on blackfish.  Council Davi stated that he actually felt more comfortable with the Legislature playing a more dominant role.  Some Councilors viewed this bill favorably, especially since the 25-fish possession limit would remain in place through regulation, even if removed from state law.  However, other Councilors felt that removing the statutory limit would open the way to changing (raising) the regulatory limit for commercial harvesters above 25-fish. They felt that the blackfish had historically been mainly a recreational species and the 25-fish possession limit was consistent with this historic allocation between user groups.  They favored retaining the limit in law.

Action:  A motion was that the Council oppose A9334.  This motion was rejected by a vote of 6 in favor; 6 opposed; 0 abstentions.   A second motion was made that the Council support the bill.  This motion also failed:  6 in favor; 6 opposed; 0 abstentions.

 

Page last modified Sunday, May 16, 2004 by George E. Carroll