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BULLETIN |
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13 May 1999
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Volume VIII, No. 4
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BULLETIN |
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13 May 1999
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Volume VIII, No. 4
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The Council’s discussion of a number of bills relating to marine fisheries is presented below. Each bill’s provisions are described, along with the salient points of the Council’s discussion, and any action taken on the bill by the Council. Views expressed during the discussion of each bill should not be interpreted as the consensus views of the Council, unless this is explicitly stated. Many of the bills discussed at the 13 May 1999 meeting introduced all or portions of one or more DEC Program Bills dealing with marine fisheries. The Council had formulated recommendations on these Program Bills at its 15 April 1999 meeting and then transmitted these recommendations to the Legislature. For these bills, the Council often, although not always, chose to reaffirm and reiterate its earlier position and any recommendation(s) on the Program Bill(s), especially if the language of the legislative bill differed from that of the Program Bill(s).
Provisions. An amended version of a bill that would establish a non-transferable state marine bait dealers license that allows persons to capture three species of fish (menhaden, silversides, and killifish), using nets of a limited size, and retricts the subsequent sale/transfer of fish caught to a single retail bait and tackle shop noted on the license. Sets an annual license fee of $50.
Discussion. A number of bait & tackle shop operators desire to be able to catch bait to sell in their own stores without the need to secure a commercial foodfish license; new such licenses are presently unavailable because of a moratorium. At its 15 May 1999 meeting, the Council had discussed two separate proposals for establishing a marine bait dealers licenses: the original A.6044 and DEC Program Bill #27-99. At that meeting, the Council recommended support for DEC Program Bill #27-99, with the following changes: 1) add sand lance to the fish species covered under the license and 2) increase the maximum size of seines allowable under the license to 100 feet total length. A.6044-A is closer than A.6044 to the language of the DEC Program Bill but it does not include the above two suggested changes. The NYS Bait & Tackle Trade Association could support this bill in its revised form. New York State should not accommodate the needs of a few bait store owners without also helping beleaguered inshore shellfishermen; to do so would be favoritism. The bill allows any "person" (individual, corporation, etc.) to purchase a bait dealers license, not just owners of bait & tackle shops. This could include commercial shellfishermen. Very few bait & tackle shop owners will likely avail themselves of this new license, too few to justify the passage of a law. The Environmental Conservation Law restricts the length of nets that can be used commercially in certain inshore bays. Where these limits are less than 100 feet, would a 100-foot bait seine be allowed in these waters under this license? Anybody catching bait for eventual sale should be required to have a commercial foodfish license. The bill should be modified so as to allow only owners of bait & tackle shops to be eligible for such a license.
Action. The Council voted its support of A.6044-A, with the proviso that its language be modified to include the above-noted changes regarding sand lance and the maximum length of seines that can be fished by license holders. The vote was 7 in favor; 6 opposed; 0 abstentions.
Provisions. Under current law, no gill or trammel net may be set in the waters of Great South Bay during the month of May. This bill would expand this prohibition to 15 April - 15 June in those waters of the Bay west of Blue Point.
Discussion. The original version of this bill would have included the entire Great South Bay in this expanded season closure on the use of gill and trammel nets, but this bill was withdrawn from the legislative calendar by the sponsor so as to revise it to its present language. The bill’s apparent purpose is to protect spawning weakfish in the Bay but no supporting information justifying the bill’s provisions is provided. Western Great South Bay is a known weakfish spawning area. Another concern is the navigational hazards presented by nets set in western Great South Bay. If you restrict commercial fisheries from more & more areas, fishermen just move their gear to the remaining open areas and fish harder, competing with local fishermen in those areas. DEC Division of Law Enforcement views the bill as hard to enforce because of the difficulty of precisely determining a net’s position in these open areas of Great South Bay. If you protect spawning areas, you are protecting the interests of all fishermen in the long run. Such fishery management issues should not be addressed through legislation; the legislative process does not necessarily provide enough opportunity for public comment on proposed actions. Handling these matters through DEC regulatory authority, with the advisement of the Marine Resources Advisory Council, is preferable. If the western end of the Bay is being further restricted, the eastern end should be opened up (i.e., do away with May closure in eastern Bay). Councilor Tom Knobel stated that Councilors representing marine recreational fishing interests routinely vote to restrict commercial fishing operations, regardless of the quality and persuasiveness of the information presented in support of such proposals. This statement was strongly objected to by several Councilors representing recreational fishing interests, who contended that the facts do not support Mr. Knobel’s contention. Councilor Tom Melton noted that Mr. Knobel’s comment only pertained to the Council’s discussion and subsequent vote at its 15 April 1999 meeting on the bill to eliminate commercial haul seines; on virtually all other bills, the Council acted through a strong majority vote with recreational and commercial fishing representatives acting in substantial agreement. If harvests of weakfish during the spawning season are to be suspended or restricted, both commercial and recreational fisheries should be included.
Action. A motion to support A.6126-A failed by a vote of 5 in favor, 7 opposed, 1 abstention.
Provisions. Extends DEC regulatory authority over blackfish through 31 December 2002.
Discussion. At its 15 April 1999 meeting, the Council voted in support of DEC Program Bill 22R-99, which extended DEC regulatory authority over blackfish, with the proviso that the bill’s permanent extension of this authority be changed to an extension through 31 December 2003. An extended discussion ensued on the extent to which A.7934 and DEC Program Bill 22R-99, if enacted, would change other blackfish provisions currently in state law, specifically the 25-fish commercial possession limit on blackfish and the prohibition on the use of gill nets to harvest blackfish. DEC Program Bill 22R-99 would, if enacted, eliminate the commercial possession limit from state law, but this possession limit is also present in state regulation and it would, thus, remain. DEC Program Bill 22R-99 would leave untouched the prohibition on the use of gill nets to harvest blackfish. A.7934 would leave both the 25-fish commercial possession limit and the prohibition on the use of gill nets to harvest blackfish in place. Several Councilors stated that, in supporting DEC Program Bill 22R-99 at the Council’s 15 April 1999 meeting, they were unaware that it would have removed the 25-fish commercial possession limit on blackfish and they would not have supported the program bill had they been aware of its impact. Mr. Gordon Colvin observed that the impact of the DEC Program Bill was discussed at the Council’s 15 April 1999 meeting. The commercial possession limit on blackfish would make it difficult to increase such a possession limit should blackfish populations rebound. The NYS Commercial Hook & Line Association has approached the prime sponsor of A.7934 to voice its opposition to the bill.
Action. The Council defeated a motion to support A.7934; the vote was 5 in favor, 8 in opposition, 0 abstentions. This vote reaffirms the Council’s support for DEC Program Bill 22R-99, voted at its 15 April 1999 meeting.
Provisions. This bill grants DEC new regulatory authority over Atlantic cod, two species of sturgeon, and several species of fish in the herring family, each for varying periods of time.
Discussion. At its 15 April 1999 meeting, the Council voted to support DEC Program Bill 27-99, which also provided new regulatory authority for these species. The Council recommended that these authorities be conveyed through 31 December 2003. There is no apparent reason for granting DEC new regulatory authority over these several species for different periods of time. It was clarified that the violations of marine fishery law and marine fishery regulation are treated with equal severity except in those cases where the Environmental Conservation Law provides for specific penalties for violation of specific sections of the law or for violations of certain violations of shellfish and lobster laws that trigger mandatory license revocation.
Action. By acclamation, the Council reaffirmed its earlier support of the language in DEC Program Bill 27-99 granting regulatory authority over these species. It recommends that A.8112 be revised to provide a 31 December 2003 termination date to these new regulatory authorities.
Provisions. This bill would increase the daily and weekly catch limits in the surf clam fishery in State waters of the Atlantic Ocean.
Discussion. At its 15 April 1999 meeting, the Council voted in support of DEC Program Bill 21R-99, which provided for the same increase in daily catch limits, but did not change the weekly catch limit. Mr. Colvin clarified that law provides that the present 14-cage weekly catch limit be in place until a state management plan for surf clams is implemented, at which time the DEC will have regulatory authority to modify the weekly catch limit. Implementation of said management plan will occur shortly. The Surf Clam/Ocean Quahog Management Advisory Board has not discussed or taken a position on A.8117.
Action. By acclamation, the Council reaffirmed its prior support of the daily catch limit increases provided by DEC Program Bill 21R-99.
Provisions. This extends through 31 December 2003 DEC’s general regulatory authority over marine finfish, except species named in Article 13 of the Environmental Conservation Law.
Discussion. At its 15 April 1999 meeting, the Council voted its support of DEC Program Bill 22R-99, which would extend DEC’s general regulatory authority over marine finfish, except species named in two subdivisions of section 13-0339 of Article 13. These two subdivisions establish recreational & commercial size limits for several important marine finfish (e.g., summer flounder, weakfish, scup [porgy]). Regulatory authority over these species is provided for in other sections of the Environmental Conservation Law. Mr. Colvin of DEC pointed out that, in exempting all marine finfish species mentioned in Article 13, A.8127 would invalidate the Department’s current regulations governing sturgeon. DEC’s regulatory authority over sturgeon derives from the general regulatory authority over all marine finfish provided by the section of the Environmental Conservation Law that would be amended by A.8127. Sturgeon are also mentioned in Article 13 and, therefore, A.8127 would remove this species from this generic regulatory authority. It was noted that, if either A.8812 or DEC Program Bill 27-99, above, were enacted, this would specifically grant DEC’s regulatory authority over sturgeon for a period of several years and avoid this undesirable consequence.
Action. By acclamation, the Council reaffirmed its support for DEC Program Bill 22R-99, which would provide for the same extension of DEC’s generic regulatory authority of marine finfish as A.8127, but would not affect the Department’s current regulatory authority over sturgeon.
Provisions. This bill extends DEC’s regulatory authority over designated special management areas in the State’s Coastal and Marine District through 01 June 2002.
Discussion. At its 15 April 1999 meeting, the Council supported DEC Program Bill 21R-99, one section of which made DEC’s special management area regulatory authority permanent.
Action. By acclamation, the Council reaffirmed its support for permanent regulatory authority to manage special management areas by regulation, as provided by DEC Program Bill 21R-99.
Provisions. This legislation establishes a lobster trap tag system in New York and authorizes the DEC to adopt regulations to implement this system. It sets a maximum per tag fee to fishermen of twenty (20) cents and directs that tag fee revenue be placed in a special account in the Conservation Fund to be used for administering and enforcing the trap tag system.
Discussion. At its 15 April 1999 meeting, the Council voted to support DEC Program Bill 27-99, a section of which established the lobster trap tag system required by the ASMFC Lobster Management Plan. The program bill set a maximum per tag fee to fishermen of $1. The program bill also would have granted DEC complete and permanent regulatory authority over lobsters; the Council recommended that this authority be granted only through 31 December 2003. Action. DEC has not yet determined the total cost of administering and enforcing the new trap tag system, as the details of that system are still being developed. It is unclear whether a 20 cent/tag fee will provide enough income to cover program costs. He noted that the Connecticut Department of Environmental Protection had sent a bill to that state’s legislature providing for a per trap tag cost of up to $1, identical to the DEC Program Bill. Mr. Colvin also stated that the Department had no additional funds to cover any shortfall between tag income and the total costs of administering/enforcing the trap tag program. Such a shortfall might prevent DEC from fully complying with ASMFC requirements for the trap tag program. John German of the Long Island Sound Lobstermen’s Association spoke in support of A.8152, noting that Maine and Massachusetts charge 20 cents and 16 cents, respectively, for each lobster tag. He did not know whether tag revenues cover all the costs of administering and enforcing the trap tag programs in these states. Mr. German stated that these costs are not likely to be large, in any event. Councilor Jim King noted that commercial lobster fishermen are already required to attach an identification tag to each trap; each such tag costs about 18 cents. If the new trap tag is to substitute for the presently required tag, the additional cost to the fishermen may be relatively little. It was pointed out that the present tag is a permanent tag, whereas the new trap tag will have to be replaced annually; this will significantly increase the overall cost to fishermen over time. Mr. Colvin stated that Maine and Massachusetts issue the same number of trap tags to every licensed lobster fishermen and this may result in a relatively low cost/tag. Lobster management teams developing the trap tag programs for waters fished by New York fishermen have recommended a system that provides for a lobster trap limit for each fisherman based on his/her historical level of participation in the fishery. This will likely result in a more complex trap tag system, with fishermen being distributed widely varying numbers of trap tags, which may raise the relative cost/tag. He further stated that tag income in Massachusetts does not cover the cost of administering the trap tag program, while in Maine it exceeds the costs of administering the program; the overage is invested into additional enforcement activities. Supporting A.8152 will send a message to the Legislature that the Council recommends that the cost to the fishermen of implementing the required trap tag program should be kept to a minimum.
Action. The Council voted to amend the Council’s earlier support of DEC Program Bill 27-99, recommending that the bill’s stipulation of a $1 maximum cost/trap tag be lowered to 25 cents, leaving intact the Council’s support of that bill’s granting of regulatory authority to DEC over lobsters through 31 December 2003. The vote was 12 in favor, 1 opposed, 0 abstentions.
Provisions. This bill prohibits the use of weights or devices on the ground wire of commercial trawls, including "rollers" or "cookies," except non-metallic rollers or cookies not more than 4" in diameter.
Discussion. Presently, DEC regulations prohibit use of rollers larger than 18" in diameter on trawls used to harvest certain marine finfish (scup, black sea bass, tautog). Some Councilors argued that minimizing the size of roller gear used on trawls will likely result in an increase in habitat destruction, as this will keep the ground wire closer to the bottom as the net is towed. This may be the opposite result of what the bill’s sponsor intends. Councilor McCarron observed that most rollers currently used by local trawlers are rubber (non-metallic) but he saw no reason to prohibit all non-metallic materials. In prior Council discussions, it was suggested that few, if any fishermen are using large rollers in New York State waters. It was observed that the language of A.8161 might be interpreted as prohibiting the use of chain sweeps, which are commonly used in the local trawl fishery. State law/regulation should stipulate what gear is allowed rather than what gear is not allowed.
Action. By a vote of 11 in favor, 0 opposed, 2 abstentions, the Council adopted a position opposing A.8161.
Provisions. Makes it explicit that "crabs" in state law includes horseshoe crabs and extends current DEC regulatory authority for crabs, bluefish, weakfish, and summer flounder through 01 July 2004.
Discussion. At its 15 April 1999 meeting, the Council voted in support of DEC Program Bill 22R-99, sections of which carry the same provisions as A.8164. At that time, the Council recommended that regulatory authority over these species be extended through 31 December 2003. One Councilor felt that the proposed 50-crab catch threshold to constitute commercial crabbing is too high. Mr. Colvin of DEC clarified that selling any number of crabs for eventual sale, or catching more than 50 crabs for any purpose, triggers the requirement for a commercial crab license. Fishermen who catch more than 50 crabs (including horseshoe crabs) for use as bait in other fisheries (e.g., whelk fishery) are presently required to possess a crab license. As at the Council’s 15 April 1999 meeting, it was observed that some whelk fishermen catch their own bait (horseshoe crabs) and are presently unable to secure the required commercial crab license under the current moratorium on new crab licenses.
Action. By acclamation, the Council reaffirmed its support for the relevant provisions of DEC Program Bill 22R-99, which are identical to the provisions of A.8164, reiterating its advice, however, that the sunset date for these extended regulatory authorities be set at 31 December 2003 rather than 01 July 2004, as provided by A.8164.
Provisions. This extends current DEC regulatory authority over certain marine finfish species: winter flounder (through 30 June 2003); scup (through 30 June 2001); black sea bass (through 30 June 2001). It also provides for the institution of a state commercial whelk or conch license.
Discussion. At its 15 April 1999 meeting, the Council voted its support of two DEC Program Bills (22R-99 and 27-99) that, respectively, extended regulatory authority over winter flounder, scup, and black sea bass and establishment of a commercial whelk/conch license.
Action. By acclamation, the Council moved to support A.8165, with the recommendation that the bill be modified to uniformly extend regulatory authority over winter flounder, scup, and black sea bass to 31 December 2003.
Provisions. This bill authorizes DEC to conduct shellfish growing water certification surveys in the waters of the Hudson River between the Governor Malcolm Wilson Tappan Zee Bridge and the Troy dam, stipulates how the Department must post public notice of these surveys, authorizes DEC to issue shellfish diggers permits to non-residents for an annual fee of $150, and removes language from current law that allows DEC to issue commercial crab licenses to non-residents only for the state waters of Lower Bay of New York Harbor and Raritan Bay.
Discussion. This bill’s provisions mimic those of DEC Program Bill 21R-99, which the Council supported at its 15 April 1999 meeting with two changes: 1) the annual fee for the non-resident shellfish diggers license should be set at the maximum allowable by law up to $1500 ($150 is too little) and 2) only residents of states offering New York residents access to their commercial shellfish license should be eligible for a New York shellfish diggers permit.
Action. The Council affirmed by acclamation its support for these provisions with the two changes described above.
Provisions. This bill grants DEC specific regulatory authority over sharks through 30 June 2003.
Discussion. At its 15 April 1999 meeting, the Council voted to approve DEC Program Bill 27-99, one section of which grants DEC regulatory authority over sharks through 30 September 2003.
Action. By acclamation, the Council reiterated its support for granting DEC regulatory authority over sharks, further recommending that this authority be granted through 30 September 2003, rather than through 30 June 2003, as provided by A.8171.
Provisions. Currently, shellfish diggers cannot dig from sunset to sunrise. This bill would allow digging from 30 minutes before sunrise to 30 minutes after sunset. It would provide that, while performing tasks associated with culling and packaging shellfish, deckhands would work under the license of the shellfish digger and would not be required to have their own license. It also provides for a mandatory 1-year suspension of a digger’s license for violation of certain sections of the shellfish law, provided that such suspension would occur only after an individual has been convicted and the licensee has an opportunity to defend himself/herself before a court or jury.
Discussion. DEC’s Division of Law Enforcement opposes this bill’s extension of shellfish digging into the pre-sunrise/post-sunset hours. The Environmental Conservation Law presently provides for a mandatory 5-year suspension of a shellfish digger’s license upon his/her conviction of violating certain provisions of shellfish law. Councilor Dave Relyea spoke in opposition to this bill and its several provisions. Little support was expressed among Councilors for the bill’s relaxation of several restrictions and penalties affecting commercial shellfish harvests.
Action. The Council adopted a motion opposing S.5295 by a vote of 12 in favor, 0 opposed, 1 abstention.
S.5400/5401/5402, Marcellino
Provisions. In aggregate, this trio of bills mimics several of the provisions of DEC Program Bill 25-99: bans the use aboard vessels in the waters of New York’s Coastal and Marine District of picks or other devices that penetrate fish flesh when culling or sorting fish; increases the fines for violations of certain sections of the Environmental Conservation Law; and strengthens protections to commercial fishermen from having their gear damaged, taken, or disturbed.
Discussion. At its 15 April 1999 meeting, the Council had voted its support for the above provisions as they appeared in DEC Program Bill 25-99, although it recommended that the proscription on the use of fish picks apply only to fish that are released alive back into the water.
Action. By acclamation, the Council reaffirmed its earlier support for these changes in state law, again suggesting that the prohibition on fish picks apply only to fish that are being released back into the water.
Provisions. Establishes certain area restrictions on where commercial crab pots can be set in Great South Bay, requires that all such pots be marked as to ownership and buoyed in a manner to be determined by DEC, and provides protection for commercial crabbers against the destruction, removal, or disturbance of their gear.
Discussion. The Council had reviewed an earlier version of this bill in the previous legislative session. The provisions of this bill make it difficult for an ECO officer to ascertain whether a given crab pot or string of pots is being fished commercially or not. This is a significant potential enforcement problem. There has been a proliferation of crab pots in the Great South Bay; in some places they constitute a navigation hazard to boaters. It was pointed out that towns and villages have certain rights over bay bottom they control; the issues addressed by this legislation, especially navigation issues, may be best resolved at the municipality level.
Action. The Council took no action on S.3151/A.5944.