Review of Marine Resource-related Legislation

The Council moved to its annual review of marine resource-related legislation under consideration by the State Legislature.  The following is a summary of the Council's discussion and position taken (if any) on these legislative proposals.

A-06377, Saladino et al. – Exempts the sale of certain marine vessels from states sales tax where there has been sales tax collected on a previous sale of the same vessel pursuant to section 1105 of the tax law.

Discussion:  In a brief discussion, the Council saw no especial reason to exempt the repeated sale of the same vessel from state sales tax law.  Many objects subject to state sales tax are sold repeatedly and to exempt vessels in this way begs the question of why other objects wouldn't also qualify for exemption. 

Action:  Councilor Danielson moved that the Council oppose A-06377 (seconded by Councilor Witek). Mr. Danielson's motion carried by a vote of 8 in favor, 0 opposed, 2 abstentions.

S-04044, Lanza – Allows Atlantic menhaden to be taken for the purpose of subsequent sale by cast nets in certain waters of New York Harbor.

Discussion:  Mr. Colvin reported that this bill was first introduced in the special legislative session held in November 2006 but was not acted upon at that time.  It originates in response to the ticketing by Environmental Conservation Officers of persons holding either a state commercial foodfish or bait license who were taking menhaden from the waters of New York Harbor and selling them.  Currently, state law restricts the catching of menhaden (and mullet) by cast net from the waters of New York Harbor to recreational purposes, only.  But, Mr. Colvin admitted, the language of the state law is mightily confusing.  This restriction poses a problem for those on Staten Island, for example, who operate bait & tackle shops and want to sell menhaden as bait.  The Department offered some language to the Senate that would allow menhaden taken by casts nets to be sold as bait.  This language is reflected in the present bill.

In response to a question, Mr. Colvin noted that, in addition to certain waters in New York Harbor, it is presently illegal to sell menhaden caught by cast net from the waters of the Carmans, Connetquot and Nissequogue Rivers.

Action:  Councilor Danielson moved that the Council support this legislative proposal, and that it further suggests to DEC and the State Legislature that current state law affecting the use of nets in New York Harbor be reviewed and any ambiguities, contradictions, etc., especially in Sections 13-0343 and Sections 13-0341, be removed; seconded by Councilor Jordan. The Council adopted Mr. Danielson's motion:  9 in favor;  0 opposed; 1 abstention.  Mr. Colvin commented that there was a possibility that DEC's Counsel Office might secure the services of a legal intern to initiate the legislative recodification/streamlining called for in this motion. Mr. Colvin thought this change might be undertaken in 2008, not in 2007.

DEC Departmental Bill #104 – This is a comprehensive proposal to 1) indefinitely renew and extend DEC's regulatory authority over many species of marine finfish and shellfish and 2) renew/extend and make changes to the body of laws governing eligibility for state commercial fishing and "for-hire" vessel operators licenses.  The bills provisions affecting license eligibility are consistent with the previous recommendations of the Council, following up on the suggestions of its 2007 Commercial License Eligibility Work Group.  The license eligibility criteria established thereby would extend to the year 2011.

Section 1 – extends regulatory authority for striped bass
Section 6 – extends regulatory authority for all species of fish including fresh water fish and those salt water fish that are not presently included in ECL Section 13-0339.
Section 7 – extends regulatory authority for oysters
Section 8 extends regulatory authority for clams
Section 9 extends regulatory authority for scallops
Section 10 begins to address commercial license items (specifically the eligibility requirements)
Section 11 – extends the lobster gauge increase that was enacted in 2005
Section 12 – extends regulatory authority for lobsters in Lobster Conservation & Management Areas 1,2,3,4,5 & also out of Cape Cod
Section 13 – extends regulatory for whelk or conch
Section 14 – extends regulatory authority for crabs
Section 15 – extends regulatory authority for sharks.
Section 16 – extends regulatory authority for cod, sturgeon, herring, eel, shad, river herring and squid.
Section 17 – extends regulatory authority for bluefish
Section 18 – extends regulatory authority for weakfish
Section 19 – extends regulatory authority for fluke
Section 20 – extends regulatory authority for winter flounder
Section 21 – extends regulatory authority for blackfish
Section 22 – extends regulatory authority for scup
Section 23 – extends regulatory authority for black sea bass
Section 24 – extends regulatory authority for monkfish
Section 25 – extends regulatory authority for special management areas

Changes to current law: 

Re:  Apprenticeship Program – where multiple applications for new commercial fishing licenses are received by DEC on the same day, applicants who have successfully completed an apprenticeship shall be considered prior to other applicants.

Re: Income Eligibility - the “more than 50% of earned income” from fishing over the past three years has been deleted as a criterion for receiving a new commercial foodfish, crab and whelk license.  The sole criteria to be met henceforth in qualifying for a new license is demonstrating an average income from fishing of at least $15,000/year over the three consecutive prior years. 

Re:  Lobster Licenses - the only change is to extend the current moratorium on new licenses to 2011.

Re:  Crab and Whelk Licenses - handled identically to commercial foodfish license.

Re:  Marine and Coastal District Party and Charter Boat License - a numerical cap is established that applies only to "6-pack" and less capacity charter vessels, as recommended by the Council.

Re:  Commercial Fishing License Transferability - As recommended by the Council, should a pre-designated immediate family member of a present license-holder who, in fact, receives a license upon the holder's demise not wish to engage in commercial fishing, DEC may permit that person to identify an alternate person to whom the license would be reissued.  Thereupon, that license would subject to all existing laws and regulations governing license transferability (i.e., that person could not themselves transfer it again).

Discussion:  The proposed change in license transferability provisions was the only section of this bill that received much comment or discussion.  Some audience members were not happy with the fact that a license-holder has to die in order to be able to transfer a fishing license.  Councilor Jim House questioned why New York would adopt a transferability regulation that is more restrictive than it presently in place for federal commercial fishing licenses, which can be much more readily transferred/sold.  He thought achieving parity with federal regulations is desirable.  Mr. Colvin reminded the Council that the original fundamental reason DEC established license limitations for the State's marine commercial fisheries (although not the "for hire" industry), as recommended by a joint Council-DEC license eligibility work group in the early 1990's, was to reduce the level of capitalization in the industry.  To allow unrestricted license transferability would work against this.  An audience member said that this might not be a perfect solution, but it is better than what is in place now. Chairman Wise confirmed that this was the Council's original purpose in developing license limits.

Councilor Davi questioned whether or not lobster trap tags could/would go along with a commercial lobster license in the event of a license-holders death and the transfer of the license to a pre-designated immediate family member.  Mr. Colvin clarified that last years regulations which were adopted, stated that in the event that a lobster license is transferred, the trap tag allocation to the original license-holder would accompany the license.

Councilor Mason suggested that the transfer to a pre-designated immediate family member should also be triggered by the “complete incapacitation” of the original license-holder.  This view was discussed.  Concerns were raised that this might put the Department in the position of having to judge someone’s physical capabilities, which could be problematic.  The current law requires death as a condition of transfer. 

Councilor House asked whether the transferability provisions of this bill applied not only to commercial fishing licenses but to the "for hire" vessel operators licenses as well.  Chairman Wise stated that, in accepting the suggestions of its "For Hire"Vessel Operators License Limitation Subcommittee, the Council had accepted and recommended to DEC that the same license transferability provisions applicable to commercial fishing licenses should apply to the "for hire" vessel operators licenses.

Action:  Councilor Jordan voted to support Departmental Bill #104, as written.  Councilor House seconded the motion, on the condition that the bill be revised to explicitly extend the same license transferability provision to "for hire" vessel operators licenses that it does to commercial fishing licenses.  Mr. Jordan accepted this in the way of an amendment to his motion.  The amended motion was adopted by the Council; the vote was 8 in favor, 0 opposed, 3 abstentions.

A-02803, Thiele et al.  – Reduces the alternative income requirement to receive either a full-share quota of commercial striped bass tags or a state commercial fishing license from an average of $15,000 to an average of $10,000 per year over the prior three years.  Retains the current 50% of earned income from fishing criterion.

Discussion:  it was noted that the Council just recommended support for Departmental Bill #104 which 1) retains the current average income from fishing requirement of $15,000/year for the prior three years to receive a commercial fishing license and 2) removes entirely the current alternative criterion of 50% of earned income/year over the previous three years.  A-02803 is inconsistent with that action. 

Action:  Councilor Jordan moved that the Council oppose A-02803; motion seconded by Councilor Charles Witek.  Mr. Jordan's motion was adopted by a vote of 9 in favor, 0 opposed, 2 abstentions.

S-01354, Johnson – Prohibits DEC, as part of any statewide plan for fisheries management, from establishing areas closed to fishing without a prior determination that fishing is the cause of the conservation problem; requires regulations related to any such closure to provide for periodic review based on measurable conservation criteria, limit the size of the closed area, and provide for reopening such closed area whenever it is determined that the reason for the closure no longer exists.

Discussion:  Several councilors remarked that this Senate so-called "right-to-fish" bill was inconsistent with a re-filed Assembly bill of similar intentions but different specific provisions.  To date, there has been little attempt to reconcile the differences between these proposals.  The Council decided to not make a motion on this bill

This concluded the Council's discussion of new bills submitted to the Legislature this session.  Below is a list of re-filed bills on which the Council has previously-adopted position.

Re-filed Bills the Council Currently Opposes

Re-filed Bills the Council Currently Supports