Among the various legislative bills dealing with marine fisheries and marine fisheries resources are those that are newly introduced this year, as well as bills that had been introduced into the prior legislative session but not passed by the Legislature. Many of the latter were reviewed and commented upon by the Council last year. At the present meeting, the Council first took up new bills and resubmitted bills that the Council did not review and/or take a position on last year. Thereafter, Councilors were afforded an opportunity to request that the Council reconsider a bill that it had reviewed and on which it had taken a position during the previous legislative session. The account that follows gives, for each bill discussed, its bill number(s) in the Assembly and Senate, the name(s) of the principal sponsor(s), the salient points and issues made in the Council’s discussion (both in support of and in opposition to the bill), and any position on the bill eventually adopted by the Council. Readers of this bulletin can secure a copy of the text of these bills via World Wide Web pages of either the New York State Senate (www.senate.state.ny.us) or the New York State Assembly (http://assembly.state.ny.us/ALIS/billsearch.html). Both pages offer a complete listing of all bills before the State Legislature, searchable by keyword and/or bill number.

A. 10319, Assemblyman Englebright. This bill would establish a task force within DEC to conduct a very broad assessment of the state and condition of living marine resources found throughout New York’s Marine District and to develop recommendations for the establishment of "marine life reserves" wherein extractive activities (e.g., fishing) would be prohibited as a means of fostering the conservation of the state’s living marine resources.

Discussion. The proposed new task force duplicates too nearly the duties of the Marine Resources Advisory Council. The living marine resources assessment called for in the bill is so comprehensive and potentially detailed that it would take years to effectively accomplish and the bill provides no financial support to do the work. The language of the bill indicates that the task force could draw upon any staff, financial, and other resources not only of the DEC but also any agency of state government. Is this realistic? Marine preserves and special management areas are active topics of discussion among fishery scientists, ecologists, and natural resource managers as a mechanism for conserving marine resources, marine biodiversity, etc. Some view such areas as effective; others disagree. The bill authorizes the task force to hire and fire personnel. How would this work? The concept of this bill is consistent with public views of the National Audubon Society. The Legislature should move to require DEC to be more responsive to the recommendations, requests, and positions of the Marine Resources Advisory Council. The problem of regulating human activities so as to have minimal impact on the integrity of the state’s marine ecosystems is a real one, even if the approach to it taken by this bill might be inappropriate or unrealistic. The DEC’s current special management area authority is quite restricted and applies only to officially designated artificial reefs, natural reefs, and shipwrecks.

Action. The Council adopted a motion to oppose this bill as written, but to recommend to the sponsor that stronger statutory language requiring the DEC to more closely adhere to the guidance, requests, and positions of the Council would be appropriate. The vote was 8 in favor; 1 opposed; 2 abstentions.

A.10239/S.7203, Assemblyman Brodsky et al./Senator Johnson. This bill extends DEC’s regulatory authority over striped bass through 31 December 2003 and creates a 7-member temporary advisory committee to prepare a report to the Commissioner of DEC, the Governor, and the legislative leadership providing recommendations regarding re-establishing the commercial fishery for striped bass in the Hudson River. Chairman Wise indicated that this bill had passed both houses of the Legislature and is before the Governor for signature. He is expected to sign it. The Council had taken a firm position supporting extension of DEC’s regulatory authority over this species. Mr. Wise distributed a letter to the Governor’s Counsel that he had written on behalf of the Council supporting that aspect of A.10239/S7203 but making no comment regarding the temporary advisory committee, which the Council had not previously discussed.

Discussion. It was pointed out by one Councilor that the language of the bill stipulates that 3 individuals on the temporary advisory committee will be representatives of commercial fishing interests and 3 individuals will be representative of recreational fishing interests but the affiliation of the 7th member of the committee is not addressed and this left him very uneasy.

Action. None.

A.10802/S.7435, Assemblyman Brodsky/Senator Johnson. This bill would establish an advisory council on seafood policy within the State Department of Agriculture and Markets with broad authority to advise the Governor, the Legislature, and relevant state agencies on the formulation and coordination of policies affecting the harvesting, production, processing, retailing, promotion, and consumption of seafood and seafood products. This bill has been submitted for several consecutive legislative sessions and it has been consistently opposed by the Council. In the last two sessions, it has been passed by the Legislature but vetoed by Governor Pataki. The Council’s continuing concern has been that, to the extent that the proposed new council would provide guidance and advice on fishery management regulations (i.e., "harvesting," above), its role overlaps and duplicates that of the Marine Resources Advisory Council. Previously, the Council has expressed this concern to the bill’s sponsors, suggesting that it would support the legislation if the mandate of the proposed new council were focused on seafood and seafood product processing, retailing, promotion, etc.

Discussion. The bill should be modified to remove fish and shellfish harvesting policies & regulations from the purview of the proposed new advisory council and then it would be acceptable. The state should stay out of the seafood promotion business; that is industry’s responsibility. It was pointed out, however, that New York has a long history of providing marketing assistance to a variety of agricultural products. Some shellfish harvesting regulations have nothing to do with resource management and are in place because of sanitation and public health concerns; the Council has historically not involved itself with these regulations to a great extent.

Action. A motion was made to oppose A.10802/S.7435. A second motion was then made to amend the first motion, to wit: to oppose the bill but to indicate to the sponsors that the Council would support an amended bill that deleted those areas of responsibility of the proposed advisory council on seafood that overlapped existing responsibilities of the Marine Resources Advisory Council. The motion to amend was adopted; the vote was 8 in favor; 3 opposed; 0 abstentions. The amended motion was then voted and adopted by a vote of 8 in favor; 3 opposed; 0 abstentions.

A.3537/S.3712, Assemblyman Englebright/Senator Balboni et al. This bill would require the DEC to issue a commercial foodfish, crabbing, or lobster license to any individual who had lawfully engaged in commercial fishing since 1990 who was either a veteran of the U.S. armed forces or currently receiving social service payments.

Discussion. The state has already adopted, with the Council’s involvement and support, a set of procedures and criteria by which commercial foodfish and lobster licenses should be made available or renewed. Commercial foodfish and crabbing licenses are already available to individuals who can meet income eligibility criteria based on income from fishing. What is the reason for including individuals who receive "social service payments?" The bill does not stipulate that a license applicant’s commercial fishing experience must have been in New York State.

Action. The Council adopted a motion to oppose A.3537; the vote was 10 in favor; 0 opposed; 1 abstention.

A.3538, Assemblyman Englebright. This bill institutes a series of management measures affecting the taking of horseshoe crabs for commercial purposes, including a harvesting permit, limits commercial harvesting to harvesting by hand only, limits harvesting to Tuesdays and Thursdays, and gives DEC regulatory authority to develop additional management measures over this species.

Discussion. Last year, DEC’s regulatory authority over crabs was specifically modified so as to cover horseshoe crabs (which are not true "crabs"). Thus, horseshoe crabs are now covered under the general crab license. DEC is in the process of writing emergency regulations that include, inter alia, a special, free horseshoe crab commercial harvesting permit. The ASMFC management plan for horseshoe crab does not require any of the provisions contained in A.3538. No explanation is given for limiting commercial harvesting of crabs to Tuesdays and Thursdays.

Action. The Council adopted a motion to oppose A.3538 by a vote of 11 in favor; 0 opposed; 0 abstentions.

A.5944/S.3151, Assemblyman Sweeney/Senator Johnson. This bills imposes restrictions on the use and placement of commercial crab pots, including areal restrictions on where crab pots can be set in the waters of Great South Bay, requirements for marking and identifying gear, and a prohibition on tampering with licensed crabbing gear. The proliferation of crab pots and associated buoys in some south shore bay areas has become an issue in terms of the navigability of these areas to other fishermen, boaters, etc.

Discussion. The Council made earlier comments to the sponsor on previous versions of this legislation as it evolved. The DEC’s pending revised crabbing regulations contain a number of provisions very similar to those proposed in A.5944/S.3151. The Council took no position on this bill last year. DEC has the regulatory authority to manage the crab fishery and this is how it should be done. The proposed DEC regulations are more enforceable than the provisions of this bill.

Action. A motion was made to oppose this legislation; it was adopted by a vote of 8 in favor; 2 opposed; 1 abstention.

A.6369A, Assemblyman Schimminger et al.. This bill provides for the creation, maintenance, and regulation of freshwater and tidal wetland mitigation banks.

Discussion. This bill is very long and detailed and assumes an understanding of the concept of wetland mitigation banks and technical aspects of wetlands conservation and management that are not possessed by most Councilors. A brief discussion of wetlands mitigation banking ensued.

Action. The Council voted unanimously to table further discussion of this bill.

A.8376/S.5401, Assemblymen Diaz & Brodsky/Senator Marcellino. This legislation increases the penalties for taking fish, shellfish, or crustaceans in violation of the Environmental Conservation Law. Now, a fine of $10/fish or $25 total (whichever is greatest) is levied for each infraction; A.8376/S.5401 would increase these to $25/fish or $250 total, whichever is greatest.

Discussion. This bill was reintroduced from the previous legislative session. It was pointed out by the DEC’s Division of Law Enforcement that certain newly-revised sections of law that stipulate new management measures for several important species, e.g., sea bass, blackfish, bluefish, weakfish, and scup, would not be covered by this proposed legislation and its increased penalties. The Division recommended that the bill be modified to extend its coverage to these new sections (Section 13-0340 series) of the Environmental Conservation Law. Several Councilors agreed with this view. Division of Law Enforcement was lukewarm with regards to the present need for higher penalties under the sections of law to be revised by A.8376/S.5401. Commercial fishery violations are typically processed under another section of state law that already provides stiffer penalties. Several Councilors spoke in favor of stiffer penalties across the board, for both commercial and recreational fishery violators. It was clarified that this bill would not result in commercial fishermen facing higher penalties (for violations of the sections of law cited in the bill) than recreational fishermen; the two groups would be treated alike.

Action. The Council adopted a motion to support A.8376/S.5401, provided that the language of the bill is modified to include Section 13-0340 of the Environmental Conservation Law so as to include various new management measures recently adopted covering a number of important marine finfish species. The vote was 6 in favor; 5 opposed; 0 abstentions.

A.7322, Assemblyman Calhoun. This would prohibit the commercial harvest of striped bass from the waters of the Hudson River.

Discussion. It was pointed out that, assuming that the Governor signs A.10239/S.7203 (see above), DEC will have regulatory authority over striped bass fishing in the Hudson River. That bill provides for a one-year study by a special advisory committee on the issue of reopening the commercial fishery for striped bass in the Hudson River. Is it likely that the Legislature would pass this bill after having just sent Governor Pataki A.10239/S.7302 ? The Council has supported DEC’s regulatory authority over striped bass; whether or not commercial fishing for this species in the Hudson River should be allowed or not should be dealt with through regulation. It was noted that the language of this bill would also effectively outlaw the shad gillnet fishery in the Hudson River. It was countered that the shad fishery was small (approximately 15 individuals) and brief (6 weeks). The current prohibition on commercial harvest of striped bass in the Hudson River resulted from PCB contamination concerns, not resource management concerns. The ASMFC fishery management plan for striped bass would allow for the existence of a commercial fishery for striped bass in the Hudson River. This commercial fishery has not operated for nearly a quarter of a century. The Council should await the results of the report provided for in A.10239/S7203 before deciding on whether or not the commercial fishery for striped bass in the Hudson River should be re-opened and to what extent.

Action. A motion for the Council to support this legislation was defeated by a vote of 2 in favor; 9 opposed; 0 abstentions.

A.8418/S.5400, Assemblymen Cymbrowitz & Brodsky/Senator Marcellino. This bill would prohibit the use of fish picks or other devices that cause unwarranted injury to fish to sort or cull fish on board a vessel while on the waters of New York’s Marine District.

Discussion. ASMFC’s Law Enforcement Committee passed a motion recommending that the states ban fish picks. Such a measure was subsequently included in a DEC Program Bill submitted two years ago by the Division of Law Enforcement. This is the origin of the present bill. In reviewing a similar bill several years ago, the Council recommended that any ban on the use of fish picks be applied only to those fish that were being returned to the water; use of picks and similar devices on fish that are to be kept is appropriate. DEC staff pointed out that there is limited evidence indicated that fish returned to the water after being "picked" had higher survival than fish put back into the water "unpicked"!

Action. The Council took no new action on this bill. Its view remains that a prohibition on the use of picks and similar devices on fish that are being returned to the water is reasonable and appropriate.

A.8439/S.4158, Assemblymen Cook & Brodsky/Senator Marcellino. This would prohibit New York State from issuing or reissuing a commercial fishing license (and other hunting, trapping, etc. licenses) to an individual who has had a similar license suspended or revoked in any other jurisdiction in the United States or Canada and, apparently, this person could not use their license in New York while their license in the other jurisdiction was suspended or revoked. This would apply license for license; i.e., a New York lobster fishermen could not use his New York lobster license while his/her Connecticut lobster license was under suspension/revocation, but he/she could use their commercial foodfish license if they had one.

Discussion. The Council discussed similar legislation in the previous legislative session and took no position on it. Would New York state officials know of an applicant’s license suspension/revocation in another jurisdiction? A clearinghouse has been set up among the natural resource management enforcement agencies in the Northeast just for this purpose. The bill memo states that the sponsors intend through this legislation to prohibit non-residents from getting New York State licenses while under license suspension/revocation in their own state. The language of the bill, however, would appear to extend far beyond that particular situation. Several individuals felt that being held liable in one state for licensing actions taken in another state was unfair and unjust. Others felt it was quite appropriate and cited the common practice of drivers licenses being suspended for DWI/DUI convictions in one state being automatically applied by the driver’s home state, too. This bill, with its DEC program bill origin, has been looked at by the agency’s counsel office, and has been judged legally sound. Some expressed concern that enforcement agencies of other states might apply their natural resource laws and regulations very harshly against non-resident fishermen, suspending or even revoking their licenses on trumped-up charges in an effort to limit access of non-residents to these states’ marine fishery resources. Under the terms of A.8439/S.4158, this would precipitate a similar action in New York.

Action. The Council took no position on this bill.

S.2952, Senator Holland. This bill would prohibit the sale and use (in New York) of split-shot sinkers made from lead.

Discussion. This bill was introduced last year and the Council took no position on it. It was confirmed that this prohibition would apply on sinkers used in either freshwater or salt water. This bill addresses a concern about the mortalities caused to aquatic birds, including the common loon, from the ingestion of lead split-shot sinkers.

Action. The Council adopted a motion to oppose this bill by a vote of 8 in favor; 3 opposed; 0 abstentions.

This concluded the list of current bills that were either newly-introduced into the current legislative session or were reintroduced from the previous session and on which the Council had taken no position. It was suggested that, for those bills that were reintroduced from the previous session that the Council supported last year but did not yet have sponsors in both houses of the Legislature, the Council make an effort to secure the necessary sponsor in the current session.

The Council did not make any changes to its position on the following bills from the previous legislative session. See the bulletins from the Council’s April and May 1999 meetings for detailed information on these bills and the Council’s discussion of them.

Support

A.1346, Assemblyman Thiele
A.2840A/S.1633A, Assemblyman Thiele/Senator LaValle

Opposed

A.1142, Assemblyman Brodsky
A.1143, Assemblyman Brodsky
A.3021/S.1747, Assemblypersons Thiele & Acampora/Senator LaValle
A.3424/S.1915, Assemblypersons Connelly et al./Senator Marchi
A.4792, Assemblywoman Mazzarelli
A.6455,Assemblyman Englebright