At its April meeting each year, the Council reviews legislative proposals dealing with or affecting the State's marine resources that have been proposed by the Department of Environmental Conservation ("DEC program bills") and/or introduced into the State Legislature by one or more legislators.  Chairman Wise noted that the latter bills were of two kinds:  1) bills newly-introduced in the current legislative session or bills introduced into last year's session after the Council's April meeting and on which the Council has adopted no position and 2) bills re-introduced from a previous legislative session and on which the Council has adopted a position.  He indicated that attention at the meeting will focus on the new introductions.  Bills on which the Council has an existing position will only be discussed at the request of one or more councilors who think that position should be revised.

In the recounting of the Council's discussion of these bills found below, each bill is described by its bill number(s) and a brief statement of its purpose.  The salient points of the Council's discussion of the bill are noted, as are the results of any Council action to either endorse or oppose the legislation.

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New Bills or Re-filed Bills with No Prior Council Position

A07377A/S04169A (Weisenberg/Skelos) – Provide owners/operators of “for hire” fishing vessels the same business-related fuel tax exemption available to commercial fishing vessels

Councilor Robert Danielson noted that the bill's language is specific to vessels providing "charter" sport fishing services; technically, this would exclude partyboats sailing on a scheduled, excursion basis.  Councilor Chris Squeri stated that he believed it was the sponsor's intent that the bill cover partyboats as well as true charter boats.  Councilor John Davi, Jr. observed that a fuel tax rebate is given to commercial fishing vessels by dint of the fact that they are engaged in a food-producing activity; in his view, the same could not be as accurately said for the "for hire" fishing sector.  Although Councilor Joe McBride, who operates a charter vessel, was not present, he had previously asked that his support of this bill be noted in the minutes of the meeting.  Chairman Wise and Gordon Colvin, Director of Marine Resources for DEC, both noted that the language of the bill was vague as to who would qualify for its provisions, as a "commercial sport fishing vessel."  As all "for hire" vessels plying the State's marine waters must have a valid DEC-issued charter/partyboat operator's license, they suggested that a reference to possession of said license would solve this problemCouncilor Danielson made a motion that the Council support A07377A/S04169A with the proviso that its language be tweaked to more clearly define to which vessels it would apply.  Mr. Danielson's motion was adopted by a vote of 12 in favor; 0 opposed; 1 abstention.

A07703  (Saladino) – Directs DEC Commissioner to establish designated zones for crab traps within Great South Bay

Mr. Colvin noted that the Department is in the process of receiving public comments on draft regulations that include measures placing restrictions on where crab (and lobster) gear could be set.  One of the issues being addressed in these regulations is how to most appropriately keep such gear from being a navigation hazard.  Noting this, and the Council's previous expressions of support for the Department's purpose in separating boaters from crabbers, Chairman Wise questioned whether or not this bill is necessary; it simply authorizes DEC to do what it is already in the process of doing.  Councilor Charles Witek said he would support the Council taking no action on the bill but does not disapprove of it.  Mr. Colvin was curious as to who the interested parties were who wanted to see this bill take shape.  Several years ago, the Department released draft regulations that would have restricted the placement of commercial crab gear.  The only comments it received came from the crab industry, which was against the proposed restrictions.  The Department did not receive a single letter or correspondence in support of the proposals, which were subsequently withdrawn.

Councilor Davi moved that the Council oppose this bill as redundant with existing DEC efforts to fashion regulatory measures to achieve the sponsor's purpose.  This motion carried:  11 in favor; 1 opposed; 2 abstentions.

A08017 (Saladino) – Directs DEC to conduct a study of the “annual recruitment success of juvenile striped bass in the spawning and nursery areas of Long Island Sound” to better inform ASMFC on the healthy population of this species in the Sound. 

Mr. Colvin noted that the Department has an on-going annual monitoring program that assesses the recruitment success of striped bass in State waters and the results of this survey are routinely shared with ASMFC, the federal National Marine Fisheries Service, and others.

Councilor Witek made a motion that the Council oppose this bill.  His motion was adopted by a vote of 13 in favor; 0 opposed; 1 abstention.

A08019 (Thiele) – Exempts from state sales tax motor fuel used in the operation of commercial fishing vessels.

Chairman Wise explained that he included this bill in the list of new bills but it appears to be very similar to another, earlier bill by the same sponsor, which the Council has supported from its initial introduction several years ago. Councilor Danielson stated that A08019 would require the motor fuel vendor to decide whether a specific customer qualifies for the fuel tax exemption.  He was uncomfortable with this.  Councilor Sima Freierman objected that motor fuel vendors will have already paid the state fuel tax when they purchased the fuel from a wholesaler.  She feels the proposed legislation would put an unfair burden on the fuel vendor. It was suggested that one way around this problem was for motor fuel vendors to have two pumps, one for commercial fishing vessels and one for all others.  This was not viewed as very workable by most.

Councilor Danielson made a motion that the Council oppose A08019.  The motion carried by a vote of 12 in favor; 0 opposed; 2 abstentions.

A08020 (Thiele) – Offers tax credit to commercial fishermen for the purchase and installation of certain equipment related to commercial fishing.

Mr. Emerson Hasbrouck of the Cornell Cooperative Extension of Suffolk County's Marine Program commented that, currently, the expenses cited in this legislation qualify as business tax deductions. Most persons would rather have a tax credit, which this bill would ostensibly provide.  Mr. Wise noted that this bill would not remove the section of law under which these expenses qualify for a tax deduction; it would simply add a fraction of their value as a credit against a person's personal income tax.  To many councilors, this appeared to be "double dipping".  Councilor Freierman moved that the Council support A08020.  Councilor Witek said that this bill is essentially a taxpayers' subsidy of private industry.  He feels on principle this is wrong.  Tools and equipment used by a commercial fisherman are no different than the tools used by a carpenter, mason, etc. who do not enjoy a tax credit based on their purchase.  Ms. Freierman withdrew her motion.  There was general agreement on the Council that the language of this bill made it difficult to discern its full implications and effects.

Councilor Danielson moved that the Council oppose this bill. The motion carried by a vote of 8 in favor; 3 opposed; 3 abstentions.

A10164 (Englebright) – Exempts vessels used to harvest surfclams and ocean quahogs in state waters of the Atlantic Ocean from statutory 70’ length limit on commercial fishing vessels operating in state waters.

At present, no vessel larger that 70' registered length can be used to harvest living marine resources within New York's Marine District, unless the vessel is "grandfathered" under this statutory length limit.  The origins of this limit had nothing to do with regulating or managing the surfclam fishery, some of whose members are seeking relief from this restriction.  Chairman Wise noted that the State's Surfclam/Ocean Quahog Management Advisory Board had recently taken up this issue.  Councilor Robert Doxsee, who is also a member of this Board,  said the Board had found that there were justifiable reasons for modifying the 70’ limit with respect to the surfclam fishery, but not to eliminate a maximum vessel size in that fishery altogether.  The Board has recommended a maximum length of 80' 6" (registered length) be instituted in the surfclam fishery.

Councilor Danielson made a motion that the Council oppose this bill.  The motion was adopted:  9 in favor; 2 opposed; 3 abstentions.

A10584/S07244 (DiNapoli/Johnson) – Establishes the New York ocean and bays protection policy highlighting ecosystem-based management principles and an interagency New York State Ocean and Bays Protection Council to guide/coordinate state actions under this policy.

Ms. Freierman moved that the Council oppose this bill, primarily because eco-system based management, although mandated by several different levels of government, is, in her view, "not ready for prime time."  It is a concept that is poorly defined and poorly understood and can be used as a means to significantly restrict harvesting of living marine resources under the guise of ecosystem health.  She questioned the depth and quality of the science underpinning ecosystem-based management.  Councilor Danielson spoke against this legislation, saying that the duties of the proposed Ocean and Bays Protection Council are redundant with what the Marine Resources Advisory Council already does.  Councilor Witek questioned whether or not this bill would impact the quantity or quality of information that would have to be produced on record during the regulatory process.  Mr. Colvin explained that this bill would create a council of state agency heads (Commissioners of DEC, Department of Transportation, Office of Parks, Recreation & Historic Preservation and Office of General Services and the Secretary of State) to develop a blueprint of where New York State should go with regard to certain policy issues affecting ocean resources.  He believes there is a great deal of room under the "ecosystem-based management approach" for state government to operate with flexibility and to approach the future in a constructive way.  Funds (nearly $2 million) that could be used to implement some of the ocean management plan called for in the bill and the ocean/Great Lakes initiative that has flowed from the recent governor's symposium of that title are available through the State Environmental Protection Fund.  Councilor Squeri thought the bill language is too vague.  Mr. Colvin suggested that this bill derives directly from the simultaneous issuance of the reports by the federal US Oceans Commission Report and the Pew Foundation Oceans Commission, both of which called for a revitalization of national oceans policies, with a strong emphasis on the application of ecosystem-based principles and approaches.  These reports led to the Governor’s Oceans/Great Lakes Symposium last fall, where the same themes resonated.  In his view, this legislation does not tie people’s hands; it basically directs the state agencies to develop a state ocean management plan that incorporates ecosystem-based. 

Councilor Davi spoke in favor of the bill, suggesting that to have all of the principal state agencies affecting the marine environment on the same page in terms of basic, under-riding policies guiding their actions would likely result in smoother and more effective translation of policy into action.  Chairman Wise spoke in support of this bill.  In his view, it offers the opportunity to develop a more coherent plan by which New York State would deal with the management, conservation and preservation of its marine environment and resources.  The work of the proposed Ocean and Bays Protection Council would not duplicate the work of the Marine Resources Advisory Council.  

Councilor Witek said that although he has concerns that some of the bill's policy statements could give an active discord a little bit too much of a free hand in reviewing regulations, he will support this bill.  He has spoken to one of the bill's sponsors.  In his view, the bottom line is, whether you are talking about commercial fishermen, recreational fishermen or businesses that deal with both industries, without fish neither industry could survive.  This bill puts the emphasis where it should be: we need more information, we should be developing better data, we should be considering holistic approaches that don’t harm one resource at the expense of another, and we should be looking to restore our fisheries.   

Councilor Melissa Dearborn stated that she is somewhat conflicted by this legislation.  She is concerned that ecosystem-based management may be just a call for Marine Protected Areas (MPA’s) in disguise and, in enshrining this approach might be seen as a way to establish "no take zones" without thorough discussion and public input.  However, she realizes that this bill does not give the proposed council any authority in addition to what these agencies already possess and she agrees that formal plan on how New York will approach managing and protecting its marine resources will help stakeholders know what is coming.  While she is fearful about how MPA’s will be approached down the road, this planning process might be an opportunity to ensure that the MPA issue is handled in an upfront and public manner.

Councilor Freierman asked for a guarantee or assurance that the current Director of Marine Resources, to whom the Marine Resources Advisory Council has access, will be the individual from DEC who will be the Commissioner's delegate to the proposed Ocean and Bays Protection Council.  Councilor Squeri reminded the Council that this does not give this group any more authority than they already have, but he too, is conflicted by the proposed legislation.  He has talked to both of the sponsors personally and feels that they have the Council’s best interest at heart.  Another councilor commented that individual legislators come and go, but the law remains.

Mr. Carl LoBue of The Nature Conservancy expressed surprise at the apprehension about this bill expressed by some councilors.  He feels that, whatever it takes to make our bays and estuaries better, we should do.  He feels that everyone is basically working toward the same goal and he personally would support his bill.

The Council voted on Ms. Freierman's motion recommending opposition to this legislation.  This motion failed by a vote of 4 in favor; 5 opposed; 5 abstentions.  Councilor Witek made a motion that the Council express support for the bill.  This motion, too, failed.  The vote was 4 in favor; 5 opposed; 5 abstentions.

The Council takes no position on A10584/S07244.

S05516 (Johnson) – Establishes standards that must be met for DEC to establish areas in the Marine District that are closed to fishing.

This bill is similar to one recently passed in the State Assembly.  Chairman Wise said that one difference between this bill and the Assembly bill is that the Assembly bill prohibited DEC from establishing no-take fishing zones in the Marine District lacking proof that recreational fishing was the cause of the problem the no-take zone was designed to address.  S05516 prohibits the Department from establishing such areas unless there is a clear indication that fishing is the cause of the conservation problem to be address; "clear indication"is a less rigorous standard than "lacking proof".  He also noted that the Assembly bill is specific to prohibitions on recreational fishing; S05516 applies its provisions to prohibitions on fishing generally.  Mr. Wise reminded the Council that, in commenting on the Assembly bill several years ago, the Council encouraged the sponsor not to restrict its provisions to recreational fishing alone but to expand them to include commercial harvesting.

Councilor John Mason noted that the bill requires that the effects of any MPA established by DEC to be reviewed every 3 years.  He believes that is too infrequent a review.  What if an area is closed and the condition of its fish resources changes quickly for the better? In his view; three years is a long time to wait for it to open again.  Councilor Danielson responded that it is always best to err on the side of conservation.  Councilor Jack Ferrera observed that this is why it is important to set strict requirements that must be met if an area is to be closed to fishing.  Councilor Witek feels the bill's language is imprecise and needs to be looked at further.  Mr. Colvin concurred.  He stated that the bill seems to be saying that, if you are managing marine fisheries, one of the tools that is normally in your toolbox, along with size limits and season closures, i.e., closed areas, should be much harder to use administratively.  Whereas, if you want to consider closing areas to fishing for reasons that have nothing to do with fisheries management, perhaps you just want to have a marine wilderness area, there is nothing to stop you because it’s not part of fisheries management.  Mr. Wise agreed, noting that the bill applies its provisions only to actions taken by DEC under a "statewide plan for fisheries management," a phrase of ambiguous meaning.  Are the bill's provisions not to apply to actions not undertaken as part of any such plan?  Several Councilors expressed concern about the ambiguous language of this bill and felt it needed significant review and better definition.

Councilor Danielson moved that the Council support S05516.  This motion failed.  The vote was 0 in favor; 11 opposed; 3 abstentions.

S07284 (Johnson) – Allows the use of mechanical hauler when retrieving clam rakes

This bill was developed to provide some physical relief to shellfish diggers digging clams in deep water.  It will allow the digger to use a mechanical hauler to retrieve the clam rake when it is full; the mechanical device will not be involved in the raking itself.  Mr. Colvin observed that, if adopted, this legislation will reduce the need for diggers to hire "ropers" to help pull in the clam rake, saving the digger some money.   Councilor Davi suggested that allowing pot haulers to be used to retrieve the rake will allow clammers to harvest more clams and in deeper waters and he thought some upper catch limit should be imposed to protect the resource.  Councilor Dean Yaxa said that a 27” wide rake simply cannot catch that many clams, especially in the deep waters of Long Island Sound, where these haulers might be used.  Councilor Tony Somma asked if this legislation would apply to harvesting clams in Raritan Bay.  Mr. Colvin replied that this would not supersede the mechanical harvest prohibition in Raritan Bay; pot haulers would not be allowed in Raritan Bay.  DEC staff member Deborah Barnes informed the Council that this legislation was strongly supported by DEC's Shellfish Advisory Committee, comprised of shellfish diggers and municipal shellfish managers and others.

Councilor Yaxa moved that the Council support S07284.  His motion was adopted by a vote of 13 in favor; 0 opposed; 1 abstention.

This ended the review of newly-submitted legislative bills.

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Re-filed Bills with an Existing Council Position

Of the bills re-filed in the current legislation session on which the Council has an existing position, only one was raised for discussion.

A06893 – Prohibits the use of rubberized rollers (“cookies”) on trawl gear used in New York’s Marine District.

This is a bill that the Council has previously opposed.  Councilor Mason said if this bill was reworded, to eliminate the word “cookies” and the prohibition was restricted to rollers, then he thinks the Council should support this bill.  He feels that it is important to prohibit rollers and rock hoppers.  Chairman Wise said that the Council had always opposed this bill because prohibiting the use of cookies would be the end of trawling in state waters.  Councilor Witek asked Councilor Mason to be more specific about the type of gear that would be appropriate to protect against hard bottom damage because it would be helpful to the Council when making up their minds.  Councilor Mason said that he would talk to someone from a recent trawl workshop and gather information for the Council to discuss at a future meeting.  No motion was made at this time.

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Re-filed Bills the Council Opposes

A00888, creates an advisory council on seafood policy within the NYS Department of Agriculture and Markets

A01047, prohibits the taking of striped bass from the Hudson River for commercial purposes

A01811/S04550, prohibits taking striped bass from the Hudson River for commercial purposes while allowing recreational harvest

A02258, prohibits the taking of horseshoe crabs without a permit; permits to be issued only for taking horseshoe crabs for medical or research purposes or to such persons holding commercial lobster permits as determined by DEC

A02262, extends the limits of a “essential fish habitat protection” zone along the north shore of Long Island

A02386, establishes the marine life protection task force within DEC and charges it to conduct a comprehensive assessment of the needs to protect marine life in New York’s Marine District and the adequacy of current laws and regulations to provide this protection

A02387, provides hardship exception to commercial fishing license moratorium for veterans and those receiving public assistance payments

A02526/S01338, allows commercial lobster licenses to be transferred between persons who each possess a commercial foodfish license

A02818, 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

A03849, provides that operators of “for hire” vessels are not responsible for acts of individual aboard their vessels

A06893, prohibits use of rubberized rollers (“cookies”) on trawl gear used in New York’s Marine District

A08431, prohibits taking of striped bass in the Hudson River north of the George Washington Bridge with commercial fishing gear and prohibits sale of any striped bass taken from this section of the river

A10663, prohibits the purchase or sale of fish caught in New York waters that contains PCB levels higher than 1 part per million

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Re-filed Bills the Council Supports

A01373/S714, bans the release of 25 or more balloons inflated with a lighter-than-air gas within a 24-hour period

A03335/S02071, prohibits disposal of dredged spoils containing toxic pollutants into the waters of New York’s Marine District

A03854/S0279, eliminates requirement for operators of commercial fishing vessels to pay diesel fuel taxes and then seek a full refund of these payments

A04739/S03323, allows licensed shellfish diggers to harvest shellfish in Lake Montauk regardless of public or private ownership of bottomlands, except for lands that are being used for private aquaculture

A06067, prohibits DEC from establishing areas closed to recreational fishing without a prior determination that recreational fishing is the cause of the conservation problem for which the closure is imposed; other limits on establishing no-take reserves

 

Page last modified Sunday, May 7, 2006 by George E. Carroll