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Part 40: Marine Fish

(Statutory authority: Environmental Conservation Law: §§ 3-0301, 11-0103, 11-0303, 11-0340, 11-1303, 13-0105, 13-0329, 13-0331, 13-0338, 13-0339-a, 13-0340, 13-0340-a, 13-0340-b, 13-0340-c, 13-0340-e, 13-0340-f, 13-0341-13-0343, 13-0343-a, 13-0347, 13-0360, 13-0371)

[This regulation was last amended April 29, 2014.]

Contents:

Sec.

§40.1 Marine fish-open seasons, size and catch limits.

(a) Definitions. For the purposes of this section, the following definitions apply:

(1) A trip limit means the maximum amount of fish that can be possessed on board or landed by a vessel during a period of time, not less than 24 hours, in which fishing is conducted, beginning when the vessel leaves port and ending when the vessel returns to port. A fisher shall not land more than a possession limit or trip limit in any one calendar day, except that where a weekly limit or biweekly limit is specifically authorized by the Department pursuant to subdivision (i) of this section, a fisher shall not possess or land more than the weekly limit or biweekly limit in one calendar day.

(2) A slot size limit means a size limit which has both a minimum length and a maximum length.

(3) At sea transfer means the transferring of fish from one vessel to another vessel other than in harbor at a vessel's permanent mooring.

(4) Party and charter boats means vessels used to carry passengers for hire wherein a fee is charged, either directly or indirectly, for the purpose of taking or attempting to take marine fish for recreational purposes. A vessel advertising or offering services for charter or brokering a trip shall be presumed to be a party or charter boat.

(5) Land or landed means the bringing of fish to shore or the transfer of the catch of fish taken from a vessel to any other vessel or in-water storage facility or to the land or to any pier, wharf, dock or other similar structure. When a vessel bearing fish has been tied, moored, or made fast to land, to another vessel, to an in-water storage facility or to any pier, wharf, dock or similar structure, such fish shall be deemed as landed.

(b) General Provisions.

(1) It is unlawful for any person to take or possess on the waters of the marine and coastal district, as defined in Environmental Conservation Law (ECL) section 13-0103, or the shores thereof, or anywhere inland from such shores in the counties of Suffolk, Nassau, Queens, Kings, Richmond, New York, Bronx, and those portions of Westchester County within the marine and coastal district bordering on Long Island Sound, fish of the species listed in Tables A, B or C:

(i) other than during the open season specified for the species;

(ii) of a size less than that specified for such species or outside of any slot size limit specified for such species;

(iii) in excess of the possession limit or trip limit specified for such species, except that where a weekly limit or biweekly limit is specifically authorized by the Department pursuant to subdivision (i) of this section, such fish shall not be taken or possessed in excess of the weekly limit or biweekly limit specified for such species.

(iv) contrary to the provisions of any special regulations for such species;

(v) contrary to any directive issued by the department pursuant to the provisions of this section; or

(vi) except in accordance with this Part. Nothing in this Part shall be construed as authorizing any person to possess fish described in this Part except as permitted by these regulations.

(2) The "at sea transfer" of any species for which there is a possession or trip limit is prohibited.

(3) Conviction for or civil settlement of a violation of any provision of Part 40 may result in permit revocation or disqualification from receiving future permits issued pursuant to this Part as prescribed in Part 175 of this Title.

(4) Failure to comply with the provisions of Part 40 may result in permit revocation or disqualification from receiving future licenses and/or permits issued pursuant to this Part.

(c) Reporting requirements.

(1) Marine commercial food fishing license, food fish landing license and marine bait permit holders.

(i) Any person who is the holder of a marine commercial food fishing license, food fish landing license, or marine bait permit issued pursuant to section 13-0335 of the Environmental Conservation Law shall complete and submit an accurate fishing Vessel Trip Report for each commercial fishing trip, detailing all fishing activities and all species landed, on a form prescribed by the department. The license holder shall submit such fishing reports monthly to the department within 15 days after the end of each month or at a frequency specified by the department in writing. Fishing Vessel Trip Reports shall be completed, signed, and submitted to the department for each month; if no fishing trips were made during a month, a report must be submitted stating no trips were made for that month. Incomplete fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements. Any New York license holder who is also the holder of a federal fishing permit issued by NOAA Fisheries Service must instead satisfy the reporting requirements specified by NOAA Fisheries Service. If requested in writing by the department, New York license holders who also hold federal fishing permits shall submit to the department the state (blue) copy of the Fishing Vessel Trip Report (NOAA Form No. 88-30) for the month or months identified in the written notification.

(ii) The fishing Vessel Trip Report must be completed with all required information, except for information not yet ascertainable, and signed before the vessel arrives at the dock or lands the catch. Information that may be considered unascertainable before arriving at the dock or landing includes dealer name, dealer number, and date sold.

(2) Food fish and crustacea dealers and shippers license holders.

Any person who is the holder of a marine and coastal district food fish and crustacea dealers and shippers license issued pursuant to section 13-0334 of the Environmental Conservation Law shall:

(i) Complete and sign an accurate Purchases From Fishing Vessels and/or Fishermen report detailing each purchase of marine food fish, crustacea, horseshoe crabs, and whelks from harvesters, on a form prescribed by the department. The license holder must submit these reports to the department within 3 days after the end of each week, or at a frequency specified by the department in writing. A Purchases From Fishing Vessels and/or Fishermen report shall be completed, signed and submitted to the department each week; if no purchases of food fish, crustacean, horseshoe crabs or whelk were made during that week, a report must be submitted stating no purchases were made for the week. Incomplete Purchases From Fishing Vessels and/or Fishermen reports or unsigned reports will not satisfy these reporting requirements. Any New York license holder who is also the holder of a federal dealers permit issued by NOAA Fisheries Service must instead satisfy the reporting requirements specified by NOAA Fisheries Service.

(ii) Effective January 1, 2012, submit complete and accurate purchases from fishing vessels and/or fishermen reports to the Atlantic Coastal Cooperative Statistics Program (ACCSP) through its website at www.accsp.org. Any New York license holder who is also the holder of a federal dealers permit issued by NOAA Fisheries Service must instead meet the reporting requirements specified by NOAA Fisheries Service.

(3) Marine and coastal district party and charter boat license holders.

(i) Any person who is the holder of a marine and coastal district party and charter license issued pursuant to section 13-0336 of the Environmental Conservation Law shall complete and submit an accurate fishing Vessel Trip Report for each party or charter fishing trip, detailing all fishing activities and all species landed, on a form prescribed by the department. The license holder shall submit such fishing reports monthly to the department within 15 days after the end of each month or at a frequency specified by the department in writing. Fishing Vessel Trip Reports must be completed, signed, and submitted to the department for each month; if no fishing trips were made during a month, a report must be submitted for that month stating no trips were made. Incomplete fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements. For each fishing trip, the license holder shall complete and sign the fishing Vessel Trip Report prior to the vessel's return to port. Any New York license holder who is also the holder of a federal fishing permit issued by NOAA Fisheries Service must instead satisfy the reporting requirements specified by NOAA Fisheries Service.

(ii) Upon the request of an on-board observer, who is an authorized representative of the department or of the NOAA Fisheries Service, the holder of a marine and coastal district party and charter boat license shall carry such on-board observer at all times when engaged in activities authorized by such license, and shall report catch and effort information to the department or the NOAA Fisheries Service when requested to do so by such agencies or an authorized representative.

(4) License holders subject to the provisions of this subdivision shall present their logbooks, fishing Vessel Trip Reports or Purchases from Fishing Vessel Reports and/or Fishermen reports and make them available for inspection upon the request of an authorized agent of the department or NOAA Fisheries Service. License holders shall submit their fishing Vessel Trip Reports or Purchases from Fishing Vessels and/or Fishermen reports to the department at the following address: NYSDEC, Bureau of Marine Resources, 205 N. Belle Mead Road, Suite # 1, East Setauket, New York 11733. Reports may be mailed, faxed, emailed or submitted by any other method approved by the department.

(5) In fulfillment of these reporting requirements, license holders subject to the provisions of this subdivision may choose to submit purchases from fishing vessels data or fishing trip data online at the Atlantic Coastal Cooperative Statistics Program website, www.accsp.org. Complete and accurate fishing trip and purchase data submissions to this website will satisfy the reporting requirements specified in this subdivision. License holders who submit fishing data electronically must maintain a dated logbook, on board the specific fishing vessel, that details all fishing activities for each fishing trip. Data to be recorded in this logbook must include the vessel name, date sailed and date landed, all species landed and the weight or number of each species taken during the dated trip, and other information required by the department. Entries must be entered into the logbook before the vessel arrives at the dock or lands the catch.

(6) Failure to file fishing Vessel Trip Reports or Purchases from Fishing Vessels and/or Fishermen reports as required may disqualify the owner or operator from receiving future licenses or permits pursuant to Part 175 of this title. Any person who falsifies any fishing Vessel Trip Report or Purchases from Fishing Vessels and/or Fishermen report shall be subject to the penalties established pursuant to the provisions of Article 71 of Environmental Conservation Law and may be subject to permit revocation pursuant to Part 175 of this Chapter.

(d) Commercial fishing - general provisions.

(1) It is unlawful for the holder of a commercial foodfish license while exercising the privilege of such license to take or have in their possession or on board the same vessel any foodfish in addition to what is allowed by any regulations affecting the commercial fishery.

(2) It is unlawful to take or possess bluefish, scup, black sea bass, striped bass, summer flounder, tautog, weakfish, or winter flounder for commercial purposes on any charter vessel, or party boat or any other vessel while carrying passengers for hire. No person fishing on any charter vessel or party boat or any vessel, while such vessel or boat is carrying passengers for hire, including persons who hold a license pursuant to section 13-0335 of the ECL, may take or possess more than the recreational possession limit for bluefish, scup, black sea bass, striped bass, summer flounder, tautog, weakfish, or winter flounder nor take or possess any species of fish during any recreational closed season or in excess of any recreational possession limit or smaller than any recreational size limit.

(3) The holder of a commercial license issued pursuant to ECL 13-0335 shall carry on his or her person or shall have posted on his or her vessel such license at all times when fishing for foodfish. The holder of any permit issued pursuant to this section shall carry on his or her person or post on his or her vessel such permit at all times when fishing under the authority of such permit. The holder of any such license or permit shall make it available for inspection upon the request of an authorized agent of the department.

(4) License holders shall display a valid Commercial Foodfish License decal, provided by the Department, whenever the vessel is operating as a commercial fishing vessel or when any person onboard is fishing under the authority of a Commercial Foodfish License. The decal shall be displayed on the port side of the vessel, and shall be readily visible from the water or dock. The decal shall be placed on the wheel house window or, in the case of craft with no enclosed cabin, on the console or windscreen. Vessels with no wheel house or console shall display the decal in plain sight on the port side of the hull.

(5) Conviction for or civil settlement of a violation of any provision of this section may result in permit revocation or disqualification from receiving future permits issued pursuant to this Part as prescribed in Part 175 of this Title.

(e) Shipping, labeling and packing requirements for quota managed species.

(1) It shall be unlawful for a New York commercial food fish license holder to possess, ship, or transport, or cause to be shipped or transported, any container holding summer flounder, scup, black sea bass, bluefish, or spiny dogfish which has not been properly labeled at the point of landing in New York State. Such labels shall be at least two inches wide by four inches long of substantial water proof material and display the following information:

(i) the license holder's name;

(ii) the license holder's New York commercial foodfish license number or New York commercial foodfish landing license number; and

(iii) the date landed.

(2) No person, including dealers, shippers, wholesalers and retailers, shall receive, store, possess, sell, offer for sale, transport, ship, or reship, or cause to be received, stored, possessed, sold, offered for sale, transported, shipped or reshipped, any New York landed summer flounder, scup, black sea bass, bluefish, or spiny dogfish, in containers that have not been properly labeled, pursuant to paragraph (1) of this subdivision.

(3) No person, including dealers, shippers, wholesalers and retailers, shall receive, store, possess, sell, offer for sale, transport, ship, or reship, or cause to be received, stored, possessed, sold, offered for sale, transported, shipped or reshipped, any summer flounder, scup, black sea bass, bluefish, or spiny dogfish lawfully taken in another state unless there is a complete bill of lading that accompanies such product and each container is marked with a label at least two inches wide and four inches long of substantial, water resistant material. Such label must indicate clearly:

(i) the state of origin;

(ii) the harvester's name, and permit number;

(iii) the date landed; and

(iv) the shipper's name.

All bills of lading shall be available for inspection by the department for a period of one (1) year from the date that such product was handled.

(4) Any summer flounder, scup, black sea bass, bluefish or spiny dogfish lawfully taken and landed in other states and shipped into New York for trade, barter or sale shall:

(i) meet New York's minimum total length requirements for such species; and

(ii) be from a state which authorizes reciprocal privileges for such species taken in New York.

(5) Nothing in this section shall prohibit the lawful transportation through the State of summer flounder, scup, black sea bass, bluefish, or spiny dogfish lawfully taken from waters outside the state and destined for a state other than New York, provided that such fish remain in their original unopened container or containers, and such container or containers are accompanied by written documentation, bill of lading, or manifest of their origin.

(6) Fourteen days following the beginning of any period when commercial harvesting is prohibited, no person, including dealers, shippers, wholesalers and retailers, shall hold or store summer flounder, scup, black sea bass, bluefish or spiny dogfish for sale or resale for the duration of the period, except that fish lawfully landed during an open period for the species pursuant to this section, or summer flounder or scup taken between May 1 and October 31 by the holder of a summer flounder fixed gear permit (pound net/trap net only), may be held or stored for sale or resale, provided that:

(i) the fish are in containers labeled pursuant to paragraphs 1 and 3 of this subdivision; and

(ii) the facility in which the fish are stored maintains complete and accurate records indicating the origin of such fish, the dealer's and shipper's name, the location landed, and the date landed; and

(iii) the quantity of fish held for sale or resale is registered with the department upon storage during an open period for the species pursuant to this section; and

(iv) such storage facility maintains all records of purchases and disbursements of such product for a period of one year following such purchases and disbursements.

(7) Packing and repacking. No person shall pack or repack any summer flounder, scup, black sea bass, bluefish or spiny dogfish, or portions thereof, in containers which have not been properly labeled as provided in this subdivision. Any such summer flounder, scup, black sea bass, bluefish, or spiny dogfish subdivided or repacked shall be clearly labeled with the packer's and/or repacker's name, permit number, and all information contained on the original label as specified in paragraphs 1 and 3 of this subdivision.

(f) Table A - Recreational fishing.

Species Open Season Minimum Length Possession Limit
Striped Bass (except the Hudson River north of the George Washington Bridge) Apr 15 - Dec 15 Licensed Party/Charter Boat anglers 28" TL 2
All other anglers 28" to 40" TL 1
>40" TL(Total Length) * 1
Red Drum All year No minimum size limit No limit for fish less than 27" TL
Fish greater than 27" TL shall not be possessed
Tautog Oct. 5 - Dec.14 16" TL 4
American Eel All year 6" TL 50
Pollock All year 19" TL No limit
Haddock All year 18" TL No limit
Atlantic cod## All year 22" TL 10##
Summer flounder May 17 - Sept 21 18" TL 5
Yellowtail Flounder All year 13" TL No limit
Atlantic Sturgeon No possession allowed
Spanish Mackerel All year 14" TL 15
King Mackerel All year 23" TL 3
Cobia All year 37" TL 2
Monkfish (Goosefish) All year 17" TL
11" Tail Length #
No limit
Weakfish All year 16" TL
10" Fillet length+
12" Dressed length**
1
Bluefish All year No minimum size limit for the first 10 fish; 12" TL for the next 5 fish. 15, no more than 10 of which shall be less than 12" TL.
Winter Flounder April 1 - May 30 12" TL 2
Scup (porgy) Licensed Party/Charter Boat anglers **** May 1 - Aug. 31 10" TL 30
Sept 1 - Oct. 31 10" TL 45
Nov. 1 - Dec. 31 10" TL 30
Scup (porgy) All other anglers May 1 - Dec. 31 10" TL 30
Black Sea Bass July 15 - Dec. 31 13" TL 8
Anadromous river herring (alewife and blueback herring) as defined in Part 10 of this Title (except the Hudson River and its tributaries and embayments north of the George Washington Bridge at river mile 11) Possession prohibited
American Shad Possession prohibited
Hickory Shad All year No minimum size limit 5
Oyster toadfish Jan 1 - May 14 and July 16 - Dec 31 10" TL 3
Atlantic menhaden All year No minimum size 100

* Total length is the longest straight line measurement from the tip of the snout, with the mouth closed, to the longest lobe of the caudal fin (tail), with the lobes squeezed together, laid flat on the measuring device, except that black sea bass are measured from the tip of the snout or jaw (mouth closed) to the farthest extremity of the tail, not including the tail filament.

# The tail length is the longest straight line measurement from the tip of the caudal fin (tail) to the fourth cephalic dorsal spine (all dorsal spines must be intact), laid flat on the measuring device.

+ The fillet length is the longest straight line measurement from end to end of any fleshy side portion of the fish cut lengthwise away from the backbone, which must have the skin intact, laid flat on the measuring device.

** Dressed length is the longest straight line measurement from the most anterior portion of the fish, with the head removed, to the longest lobe of the caudal fin (tail), with the caudal fin intact and with the lobes squeezed together, laid flat on the measuring device.

## Anglers fishing on board federally permitted party or charter vessels may possess any number.

****See Special Regulations contained in 6 NYCRR 40.1 (h) (3).

(g) Striped bass recreational fishing-special regulations.

(1) Except as provided in subparagraph 4(v) below, it is unlawful for any person to possess striped bass from which the head or tail has been removed or that have been otherwise cleaned, cut, filleted or skinned so that the total length or identity cannot be determined; except that it is not unlawful if such fish is being prepared for immediate consumption or storage at a domicile or place of residence.

(2) No person shall take striped bass for recreational purposes other than by angling and spearing.

(3) During the closed recreational season for striped bass, catch and release fishing by angling only is permitted. Catch and release fishing is defined as a fishery where the fish are returned to the water. During the closed season all striped bass taken shall be returned to the water immediately without unnecessary injury.

(4) Striped bass party/charter boat permit.

(i) Notwithstanding the possession limit for striped bass contained in Table A above, a party or charter boat owner or operator may apply to the department for a permit to cover a vessel named in the permit to allow their customers to harvest and possess two (2) striped bass of legal size and to fillet striped bass taken on the permitted vessel for their customers under the following conditions.

(ii) For the purposes of this section, party boats and charter boats are vessels that are available for daily hire for the purposes of recreational fishing and for which the owner or operator is licensed to carry passengers by the United States Coast Guard.

(iii) The striped bass party/charter boat permit will be issued to an eligible individual owner or operator and will be endorsed for use on a specific vessel, on which it will cover any operator of that vessel. The individual to whom the permit is issued is responsible for all activities aboard the permitted vessel. The permit must be kept aboard the vessel and be available for display at all times.

(iv) Only the captain or crew of a vessel holding a striped bass party/charter boat permit may fillet striped bass subject to the following conditions:

(a) Fish may be filleted for customers only;

(b) Only fish which are legally possessed may be filleted;

(c) Striped bass may only be filleted prior to customers leaving the vessel or the dock area prior to customers departing the area;

(d) It is unlawful to mutilate any striped bass carcass to the extent that the total length or species of fish cannot be determined;

(e) All striped bass carcasses must be retained (unmixed with any other material) in a separate container readily available for inspection until such time as the vessel has docked and all passengers from that trip have left the vessel and the dock area. Any such carcasses are included in the possession limit;

(f) All striped bass carcasses from any previous trip must be disposed of prior to any person beginning to fish on a subsequent trip.

(v) All permitted party boat and charter boat operators must fill out and maintain a Federal fishing trip report of striped bass caught for each trip conducted during the open season on NOAA Form No. 88-30 provided by the department for non-federally permitted vessels and by NOAA for federally licensed vessels. The operator of any permitted vessel must fill out and file the state copy of NOAA Form No. 88-30 with the department. Copies of NOAA Form No. 88-30 must be made available to department representatives. This report must be completed prior to the passengers dispersing from the vessel for that trip.

(vi) All permitted party and charter boat operators shall file the state copy of their Federal vessel trip reports to the department within seven days following the end of each month of the open season and within seven days following the end of the open season. Failure to file acceptable Federal vessel trip reports monthly with the department may disqualify the owner/operator from receiving future permits pursuant to Part 175 of this Title.

(vii) Permittees' must provide each customer who possesses two striped bass or the fillets from those two fish with a commercially printed, dated original fare receipt, bearing the vessel's name and the permit number. The customer of any party/charter boat in possession of two striped bass or the fillets from those fish must possess an original receipt from the permitted party or charter boat.

(viii) The operator and crew of the permittee vessel are not authorized to possess any striped bass while carrying out the privileges authorized by this special permit. The only person authorized to possess two striped bass is the customer holding a commercially printed, original, dated receipt from the permitted party or charter boat.

(ix) Any person who falsifies any receipt shall be subject to the penalties established pursuant to the provisions of Article 71 of Environmental Conservation Law and may be subject of permit revocation pursuant to Part 175 of this Title.

(x) Conviction for or civil settlement of a violation of any provision of sections 40.1 (d) or (g) may disqualify the convicted or settling person from receiving future striped bass permits issued under provision of sections 40.1 (d) or (g) pursuant to Part 175 of this Title.

(h) Summer flounder and scup recreational fishing - special regulations.

(1) Except as provided in this paragraph or paragraph (2) of this subdivision, no person shall possess summer flounder from which the head or tail has been removed or that has been otherwise cleaned, cut, filleted or skinned, so that the total length or identity cannot be determined. This prohibition shall not apply to fish being prepared for immediate consumption or storage at a domicile or place of residence. White side fillets and skin may be removed for use as bait provided the carcass of the summer flounder with dark side completely intact is retained and available for inspection to determine compliance with the size limit. Any such carcasses count against the possession limit. It is unlawful to discard overboard the carcass of any summer flounder from which a fillet or skin has been removed as bait once fishing has begun.

(2) Holders of a valid New York State marine and coastal district party and charter boat license, issued pursuant to Environmental Conservation Law section 13-0336, may fillet summer flounder on board the vessel covered by the license subject to the following conditions:

(i) For each fishing trip taken by a vessel, summer flounder parts or racks (remains of fish after fillets have been removed) must not be discarded overboard once any person on board the vessel begins to fish and until the vessel returns to its dock.

(ii) Summer flounder racks must not be mutilated to the extent that the length or species of fish cannot be determined.

(iii) All summer flounder racks must be retained (unmixed with any other material) in a separate container readily available for inspection until such time as the vessel has docked and all passengers from that trip have disembarked.

(iv) All summer flounder racks from the previous trip must be disposed of prior to any person beginning to fish on a subsequent trip.

(v) Violators of any of the provisions of this subdivision are subject to the penalties established pursuant to the provisions of Article 71 of the Environmental Conservation Law and may be subject to license revocation pursuant to Part 175 of this Title.

(3) Party and charter boat license holders must provide each customer who possess more than 20 scup during the period of September 1 through October 31 with a commercially printed, dated orginal fare receipt, bearing the vessel's name and the permit number. The customer of any party/charter boat who lands or possesses more then 20 scup during the period of September 1 through October 31 must possess an original receipt from a licensed party or charter boat.

(i) Table B - Commercial Fishing.
Species Open Season Minimum Length Trip Limit
Striped Bass (the area east of a line drawn due north from the mouth of Wading River Creek & east of a line at 73 degrees 46 minutes west longitude, which is near the terminus of East Rockaway Inlet.) Jul 1 - Dec 15 # Not less than 24" TL nor greater than 36" TL See Subdivision (j) of this section
Red drum All year No minimum size limit No limit for fish less than 27" TL
Fish greater than 27" TL shall not be possessed.
Tautog April 8 to last day of February 15" TL 25 per vessel (except, 10 per vessel when fishing lobster pot gear and more than six lobsters are in possession)
American eel All year 6" TL No limit
Pollock All year 19" TL No limit
Haddock All year 19" TL No limit
Atlantic cod All year 22" TL No limit
Summer flounder All year 14" TL A trip limit set by the department in consultation with the commercial fishing industry, consistent with the requirements of the Interstate Fishery Management Plan for Summer Flounder. The Department, in its discretion, may establish a weekly limit authorizing holders of commercial summer flounder permits to possess and land up to a specified amount of summer flounder in a seven day period.
Yellowtail flounder All year 13" TL No limit
Atlantic sturgeon No possession allowed
Spanish mackerel All year 14" TL 3,500 pounds in possession, per vessel
King mackerel All year 23" TL 3,500 pounds in possession, per vessel
Cobia All year 37" TL 2 per vessel
Monkfish (Goosefish) All year 17" TL
11" Tail length+
No more than 25% of the total weight of Monkfish landed per trip may be monkfish livers
Weakfish Hook and Line
April 1 - June 24 and August 28 -Nov.15

All other gears
April 1 - June 24 and August 28 - Nov. 15

June 25 - Aug 27 and Nov 16 - Mar 31
16" TL




10"fillet length**




12" dressed length##
100 pounds




100 pounds




No more than 100 pounds, per vessel, in the round***, and provided that at least an equal poundage of other foodfish species caught during the same trip is on board the vessel
Bluefish Jan 1 - Dec 31 9" TL A trip limit set by the department and adjusted in consultation with the commercial fishing industry
Winter flounder Pound and Trap nets July 26 - June 14

Fyke nets Oct 1 - Mar 22

All other gear Dec 1 - June 13
12 " TL



12" TL


12" TL
50 pounds



50 pounds


50 pounds
Scup All year 9" A trip limit set by the department to be consistent with the requirements of the Interstate Fishery Management Plan for Scup. The Department, in its discretion, may establish a weekly limit or a biweekly limit authorizing holders of New York State Commercial Foodfish Licenses to possess and land up to a specified maximum quantity of scup in a seven day (weekly limit)or fourteen day (biweekly limit) period.
Black Sea Bass All year 11" TL A trip limit set by the department to be consistent with the requirements of the Interstate Fishery Management Plan for Black Sea Bass
American shad Possession prohibited
Oyster toadfish Jan 1 - May 14 and July 16 - Dec 31 10"TL 25
Anadromous river herring (alewife and blueback herring) as defined in Part 10 of this Title (except the Hudson River and its tributaries and embayments north of the George Washington Bridge at river mile 11) No open season. No possession allowed except that vessels fishing exclusively in the Federal ocean waters of the Exclusive Economic Zone while operating under a valid federal permit for Atlantic mackerel and/or Atlantic herring, may possess river herring up to a maximum of five percent, by weight, of all species possessed. A person shall not barter, sell, offer for sale, or expose for sale, any river herring so possessed).

* Total length is the longest straight line measurement from the tip of the snout, with the mouth closed, to the longest lobe on the caudal fin (tail), with the lobes squeezed together, laid flat on the measuring device, except that black sea bass are measured from the tip of the snout or jaw (mouth closed) to the farthest extremity of the tail, not including the tail filament.

# The commercial striped bass fishery may be closed before December 31st if the allowable harvest cap is projected to be met prior to such date.

+ The tail length is the longest straight line measurement form the tip of the caudal fin. (tail) to the fourth cephalic dorsal spine All dorsal spines must be intact), laid flat on the measuring device.

** The fillet length is the longest straight line measurement from end to end of any fleshy side portion of the fish cut lengthwise away from the backbone, which must have the skin intact, laid flat on the measuring device.

## The dressed length is the longest straight line measurement from the most anterior portion of the fish, with the head removed, to the longest lobe of the caudal fin (tail), with the caudal fin intact and with the lobes squeezed together, laid flat on the measuring device.

(j) Striped bass commercial fishing - special regulations.

(1) General Provisions - The total season harvest may not exceed the amount approved for New York by the Atlantic States Marine Fisheries Commission pursuant to the Interstate Fishery Management Plan for Striped Bass. The annual quota shall be adopted by directive issued by the Chief, Bureau of Marine Resources, consistent with the provisions of subdivision (u) of this section.

(2) Striped bass legally harvested from other states may be sold or offered for sale during New York's closed commercial season provided they meet the provisions of paragraph 23 of this subdivision.

(3) Except as provided in paragraph 40.1(g)(4) of this section, it is unlawful to possess striped bass from which the head or tail have been removed or that have been otherwise cleaned, cut, filleted, or skinned so that the total length or identity cannot be determined unless such fish is being prepared for immediate consumption.

(4) It is unlawful for any person to take or possess striped bass for commercial purposes on any charter vessel, open boat or any other vessel while carrying passengers for hire for the purpose of fishing. All persons on such vessel carrying passengers for hire for the purpose of fishing must comply with Table A of this section and any special regulations and shall not possess striped bass tags or tagged striped bass.

(5) Conviction for or civil settlement of a violation of any provision of subdivision (d) or (g) of this section may disqualify the convicted or settling person from receiving future striped bass permits pursuant to Part 175 of this Title.

(6) The department may close the commercial fishery for striped bass when the harvest is projected, based upon weekly reports and independent monitoring of the commercial fishery, to exceed the total allowable harvest in pounds. Written notice will be sent to all permitted fishers and to dealers known to handle striped bass prior to the closure of the commercial striped bass fishery.

(7) The Department shall subtract any overharvest which exceeds the commercial harvest cap from the following year's harvest cap.

(8) Permits.

(i) It is unlawful for any person to take striped bass for commercial purposes without having in possession a valid striped bass commercial permit. The department may permit a one-time reissuance of a striped bass commercial harvesters permit pursuant to the provisions of Environmental Conservation Law subdivision 13-0328(6). Upon reissuance, the former holder of such permit shall waive eligibility for striped bass commercial harvesters permits, and all rights and responsibilities associated with such permit shall pass to the recipient of such reissued permit.

(ii) Permits to take a full quota share of striped bass will be issued at no cost to persons who currently possess a valid New York State commercial food fish license and who previously held a New York State license to sell striped bass during 1984, 1985, 1990, 1991, 1992, 1993, 1994, or 1995 and who can demonstrate through Federal or New York State income tax records that 50 percent or more of his or her earned income resulted from his or her direct participation in the harvest of marine fish, shellfish, crustaceans or other marine biota in any one year during the period 1994 through 2004. A complete copy of such tax record must be filed with the department upon application.

(iii) Permits to take a partial quota share of striped bass will be issued at no cost to persons who currently possess a valid New York State commercial food fish license and who previously held a New York State license to sell striped bass during 1984, 1985, 1990, 1991, 1992, 1993, 1994, or 1995 but who cannot demonstrate that they earned 50 percent or more of their earned income from the direct participation in the harvest of marine fish, shellfish, crustaceans or other marine biota.

(iv) Any holder of a partial share permit may apply for a full share permit by demonstrating through federal or state tax records that 50 percent or more of his or her earned income has been derived from the direct participation in the harvest of marine fish, shellfish, crustaceans or other marine biota during the preceding year.

(v) Beginning in 2005, and continuing at five year intervals, each striped bass commercial harvesters permit holder in the full share category must file with the department a complete copy of his or her federal or state income tax records from one of the preceding three years. Such tax records must be filed before the June 1 deadline for receipt of applications. Such tax records must demonstrate that the permit holder has, as stated in subparagraph (ii) above, maintained the 50 percent earned income level in order to remain a participant in the full share category. Failure to file a timely and complete copy of federal or state income tax records which demonstrate that the permit holder has maintained the 50 percent earned income level will result in the permit holder being placed into the partial share category. Thereafter, the rules pertaining to partial share permit holders provided in subparagraph (iv) above apply.

(9) Applications for striped bass commercial harvesters permits will be accepted until close of business June 1. Any application for a striped bass commercial harvesters permit received after close of business June 1 will not be entertained by the department.

(10) It is unlawful to transfer or assign striped bass commercial permits or tags provided with such permit to another person. It is unlawful for any person to possess striped bass tags which were issued to another permit holder. It is unlawful for any person to possess striped bass bearing unlawfully transferred striped bass tags issued to another permit holder.

(11) Commercial tags and tagging - The department will issue serialized tags to permitted fishers. Tags will be issued in two categories, full share and partial share holders. A full share of the tags will be issued to those fishers who are the holders of a full share permit; and a partial share of the tags will be issued to the holders of a partial share permit. Individual tag allocations for all permit holders are achieved by first dividing New York's commercial striped bass quota by all eligible permit holders. A partial share permit holder receives 20 percent of this individual allocation. The full share individual quota is derived by subtracting the partial share quota from the total and dividing by the number of full share permit holders to achieve the individual full share allocation.

(12) Tags will be issued in equal numbers to each participant within each category described above.

(13) Each permittee will be provided, in batches, a number of tags equal to their individual quota. A permittee will be required to pay a fee not to exceed $0.25 per tag issued to them. The fee for tags must be paid in full before the permittee receives their tag allocation for the current year. No refunds or replacements will be made for tags which are lost, broken, confiscated, or unused.

(14) Once a permittee's allocation of tags are used, he or she may not take striped bass for commercial purposes.

(15) It is unlawful to sell or offer for sale untagged striped bass or striped bass fillets or steaks unless the tagged carcass from which such fillets or steaks were removed is present and available for inspection. Possession of untagged striped bass or striped bass fillets or steaks without the properly tagged carcass in establishments where fish are sold or offered for sale (including wholesale establishments, retail establishments and restaurants) is presumptive evidence of intent to sell, trade or barter such striped bass.

(16) It is unlawful to reuse or alter any striped bass tag. Any permittee losing tags must report such loss to the department on their weekly reports.

(17) A striped bass commercial permittee who takes and possesses a striped bass of legal commercial slot size shall immediately attach and securely lock into place through the mouth and gill a numbered strap tag issued by the Department immediately after removing said striped bass from their gear and prior to attending another piece of gear. All striped bass not of legal commercial slot size shall be returned to the water immediately without unnecessary injury. Possession of striped bass not tagged as required by this subdivision is prohibited.

(18) It is unlawful to sell striped bass which are not properly tagged, as described in paragraph (17) of this subdivision. Retail markets may prepare portions of legally tagged striped bass for the consumer and must retain the tagged carcass until all portions are sold. The tag must then be removed from the rack and then destroyed by cutting the tag in two.

(19) It is unlawful for any person to possess striped bass tags or tagged striped bass in the marine and coastal district and the shores thereof west of a line drawn due north from the mouth of Wading River Creek and west of a line at 73 degrees 46 minutes west longitude, which is near the terminus of East Rockaway Inlet.

(20) Reporting Requirements.

(a) Fishing Vessel Trip Reports - Any person who is a holder of a striped bass commercial permit shall complete and submit an accurate fishing Vessel Trip Report for each commercial fishing trip, detailing all fishing activities and all species landed, pursuant to paragraph (1) of subdivision 40.1 (c) of this part. Fishing Vessel Trip Reports shall be completed, signed, and submitted to the department for each month; if no fishing trips were made for striped bass during a month, a report must be submitted for that month stating no striped bass trips were made. Permit holders who operate federally permitted vessels and take striped bass must complete and submit the state (blue) copy of their Fishing Vessel Trip Report (NOAA Form No. 88-30) to the department for each commercial striped bass trip. Permit holders must submit the last report 5 days after the close of the commercial striped bass season or within 5 days after all striped bass tags are used. Permit holders must submit all required information, including, but not limited to, the name of the vessel, the permit number(s), trip type, all species taken, the striped bass tag serial numbers used for the trip, the weight (in pounds), and number of striped bass taken, the name and signature of the permit holder, and the date signed. All reports must be complete. Incomplete fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements and may be returned to the permit holder who submitted them for completion. Once commercial striped bass permit holders have reported 100 percent use of the individual allocation of tags, they are no longer required to submit reports for striped bass. Permit holders who fail to submit acceptable fishing Vessel Trip Reports to the department may be denied future commercial striped bass fishing permits pursuant to Part 175 of this title.

(b) Striped Bass Tags - All striped bass commercial permit holders must return any unused tags to the department by December 20 of the year the tags were issued. Permit holders who fail to return unused tags may be denied future commercial striped bass fishing permits pursuant to Part 175 of this title. Permit holders who fail to accurately account for all tags may receive a reduction in the number of tags allocated in the next fishing season in which the permit holder applies for a striped bass commercial permit. This reduction in tags will be equal to the number of tags not accounted for in the previous fishing season.

(21) Manner of Taking. Striped bass may be taken for commercial purposes by using any of the following permitted gear types only: hook and line, pound net, trap net, gill net as specified in subdivision 40.5(e) of this Part, or as bycatch in otter trawls. Permit holders may use any of the legal gears to catch their individual allocation of striped bass. Otter trawl bycatch is limited to 21 striped bass per vessel per trip and shall be separately boxed. All other types of gear are prohibited for use in taking striped bass, including but not limited to: haul seines and spears.

(22) No person shall possess striped bass or striped bass tags while in possession of a seine.

(23) Special Permits. The department may permit the sale of striped bass taken in another state provided that (a) the Department of Health certifies, based on sampling and analysis provided by such state, that such striped bass meet all standards for sale of fish in this state, (b) such striped bass are of a size within the slot size limit, (c) such striped bass are tagged with serially numbered tags provided by the state of origin, and (d) such state authorizes sale within its borders of striped bass taken in New York. Nothing in this section is deemed to prohibit the lawful transportation through the state of striped bass lawfully taken from waters outside the state to other states, provided that such fish are in their original unopened container and written documentation of their origin and destination accompanies such container.

(24) The department may authorize the sale of striped bass from marine hatcheries or off bottom culture facilities permitted pursuant to Part 48 of this Title.

(25) The department may permit the importation and sale of striped bass hybrids or striped bass from aquaculture facilities outside of New York State provided that the facility or jurisdiction within which such facility is located provides for hybrid striped bass documentation as to the origin of these fish in a manner acceptable to the department and for striped bass said documentation as well as individual tagging acceptable to the department.

(k) Atlantic sturgeon commercial fishing-special regulations.

(1) Any Atlantic sturgeon inadvertently taken in New York must be returned to the water immediately without unnecessary injury.

(2) It is unlawful for any person to sell, import, traffic in or possess Atlantic sturgeon or Atlantic sturgeon products in New York.

(3) Any person violating any provision of these regulations may be subject to license revocation as provided in Part 175 of this Title.

(l) Summer flounder (fluke) commercial fishing - special regulations.

(1) The total annual harvest of summer flounder for the period January 1 through December 31, is the amount allocated annually to New York State by the National Marine Fisheries Service (NMFS) in the United States Department of Commerce and/or the Atlantic States Marine Fisheries Commission (ASMFC).

(2) Following consultation with the commercial fishing industry, the Department may establish quota periods, allocations for quota periods, trip limits, and directed fishery thresholds for summer flounder, pursuant to subdivsion (u) of this section, consistent with the annual allocation (quota) assigned to New York such that harvest does not exceed such quota.

(3) When the department determines, based on a projection of any periods landings using the United States Department of Commerce, National Marine Fisheries Service's weekly dealer reports, that trip limits are necessary as provided in paragraph (2) of this subdivision, such trip limits will be required and enforceable upon 72 hours written notice to permit holders of the appropriate limit allowed per vessel for the specified gear category for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In any month the trip limits may be increased if the projection of the landings indicates the period's total quota will not be caught. During periods of trip limits, all summer flounder not being held alive must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(4) If the department determines that the maximum allowable harvest of summer flounder for any time period established pursuant to paragraphs (2) and (3) of this subdivision will have been reached before the end of that period, harvesting for commercial purposes and possession of summer flounder shall be prohibited for all permit holders in except as permitted in paragraph 5 below.

(5) If the Department closes the summer flounder fishery at any time between May 1 and October 31, the harvesting and possession of summer flounder for commercial purposes shall be prohibited for all permit holders except for holders of fixed gear category summer flounder permits. Fixed gear category permit holders may harvest up to a limit of 100 pounds per trip during harvest closures that occur between May 1 and October 31.

(6) Except as permitted in subdivision (e) of this section, fourteen days following the beginning of any period when all commercial harvesting is prohibited, it is unlawful to possess summer flounder for sale, or offer summer flounder for sale, trade or barter during the period January 1 through April 30 and November 1 through December 31, and it is unlawful to sell or offer for sale, trade or barter summer flounder taken by gear other than fixed gear during the period May 1 through October 31 unless such summer flounder are separately boxed and properly labeled pursuant to the procedures set forth in subdivision (e) of this section.

(7) It is unlawful for any person to take summer flounder for commercial purposes without having in possession a summer flounder commercial permit. If the applicant for permit is a corporation, such application must name a specific vessel and a separate permit must be obtained for each vessel fishing owned by the corporation. Such corporate permits must be carried on the specific vessel named in the permit when that vessel is being used to take summer flounder for commercial purposes. For purposes of this subdivision a person is presumed to be taking summer flounder for commercial purposes when that person possesses more summer flounder than the Possession limit indicated in Table A of this section. A permit to take summer flounder will be issued at no cost to any person persons who meets the following criteria:

(i) currently possesses a valid New York State commercial food fish license and previously held a New York State commercial food fish license during 1992 or any subsequent year, and

(a) previously held a summer flounder commercial permit, or

(b) has on file with the department a 1994 summer flounder commercial permit application that was received prior to close of business on April 15, 1994, or

(c) (with respect to calendar year 1995 only) held a 1994 New York State commercial food fish license, and for whom the department finds that, based on advice received from the department in 1994, with respect to future requirements for summer flounder commercial permits, which advice subsequently proved to be affected by changes to eligibility requirements, the applicant relied upon such advice and either failed to apply for a permit or made an investment under the expectation that such a permit would be issued; and

(ii) can demonstrate through Federal or New York State tax records that 50 percent or more of his or her earned income during any one year in the period January 1988 to December 1992 or any subsequent year resulted from his or her direct participation in the harvest of marine fish, shellfish, crustacea or other marine biota. For purposes of this subdivision, earned income is defined as income derived from labor, professional service, or entrepreneurship as opposed to income derived from invested capital, retirement pay or pensions.

(8) Applications for a summer flounder commercial permit will be accepted from November 15 until close of business April 15. Any application received after close of business April 15 will not be entertained. Incomplete applications received before close of business April 15 must be completed no later than close of business May 15 in order to be issued. No permit will be issued after May 15. Applications arriving or remaining incomplete after that date will be returned without action.

(9) Permittees must state and affirm on the application form designed and provided by the department their name, address, commercial foodfish license number, their intent to be permitted to use only fixed gear (pound/trap net), only hook and line gear or for the use of all gear. The commercial permit thereafter issued will authorize landings for that entire calendar year from that category of gear only and it will be unlawful to take summer flounder with gear other than that designated on the permit. Unless at least 50 permit holders select the hook and line gear category, there will not be a separate allocation of summer flounder reserved for those permit holders and they will then fish under the requirements for the all gear category.

(10) It is unlawful for any person to land summer flounder for commercial purposes without having in possession a summer flounder commercial permit or a summer flounder landing permit provided by the department upon application on the form provided by the department. If the applicant for permit is a corporation, such application must name a specific vessel and a separate permit must be obtained for each vessel owned by that corporation. Such corporate permits must be carried on the specific vessel named in the permit when that vessel is being used to land summer flounder for commercial purposes. A landing permit will be issued at no cost to any person who meets the following criteria:

(i) currently possesses a valid New York State food fish landing license and previously held a New York State commercial food fish landing license during 1992 or any subsequent year, and

(a) previously held a summer flounder commercial permit or a summer flounder landing permit, or

(b) has on file with the department a 1994 summer flounder commercial permit application or summer flounder landing permit application received prior to close of business on April 15, 1994, and

(ii) can demonstrate through Federal or New York State tax records that 50 percent or more of his or her earned income during any one year in the period January 1988 to December 1992 or any subsequent year resulted from his or her direct participation in the harvest of marine fish, shellfish, crustacea or other marine biota. For purposes of this subdivision, earned income is defined as income derived from labor, professional service, or entrepreneurship as opposed to income derived from invested capital, retirement pay or pensions. Such summer flounder landing permits will be issued from January 1 until close of business April 15 each year.

(11) Permits issued under this subdivision will be nontransferable except the department may permit a one-time re-issuance of a summer flounder commercial harvesters permit pursuant to the provisions of Environmental Conservation Law subdivision 13-0328(6). Upon re-issuance, the former holder of such permit will waive eligibility for summer flounder commercial harvesters permits and all rights and responsibilities associated with such permit shall pass to the recipient of such reissued permit. Summer flounder Commercial Permits will expire on the last day of December of each year.

(12) Permit modification, suspension, or revocation will be pursuant to Part 175 of this Title.

(13) The possession of summer flounder for commercial purposes from which the head or tail have been removed or otherwise cleaned, cut, filleted, or skinned so that the total length or identity cannot be determined, and which are not in properly labeled containers as required by subdivision 40.1 (e) is prohibited unless such summer flounder are in a wholesale or retail establishment or restaurant for sale to the consumer.

(14) No person may commercially harvest, sell, offer for sale, trade or barter or possess summer flounder except in compliance with this subdivision.

(15) The department may, under mutual agreement with another State and with the concurrence of the Regional Administrator of the Northeast Region, National Marine Fisheries Service, transfer summer flounder quota to that State or combine the summer flounder quota from that State with the New York quota.

(16) Any holder of a New York commercial food fish license who is the owner or operator of a fishing vessel not holding a Federal Fisheries Permit for summer flounder issued by the United States Department of Commerce must complete a daily fishing log supplied by the Regional Administrator of the National Marine Fisheries Service, Northeast Region. Failure to complete a log may result in a denial of a future application for a summer flounder permit.

(17) All persons who hold a summer flounder commercial hook and line permit shall file an accurate weekly report on all summer flounder harvesting activities on the State copy of the Fishing Vessel Trip Report forms as required in subdivision (c) of this Section, whether or not any summer flounder were actually taken. The state copies of the Fishing Vessel Trip Report for a given week will be due to the Department on a weekly basis, within 5 days following the Saturday of each week. Failure to complete and file an acceptable weekly report with the department may result in a denial of a future application for a summer flounder permit.

(m) Bluefish commercial fishing - special regulations.

(1) The total annual harvest of bluefish may not exceed that amount annually allocated to New York State by the National Marine Fisheries Service (NMFS) in the United States Department of Commerce and/or the Atlantic States Marine Fisheries Commission (ASMFC) for the period January 1 through December 31.

(2) Following consultation with industry, the department may establish quota periods, trip limits and directed fishery thresholds such that the harvest does not exceed the quota assigned to New York.

(3) When the department determines, based on a projection of landings using the United States Department of Commerce, National Marine Fisheries Service's weekly dealer reports, that trip limits are necessary as provided in Table B of subdivision (I), such trip limits will be required and enforceable upon 72 hours written notice to license holders of the appropriate limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In any month the trip limits may be increased if the projection of the landings indicates the total quota will not be caught.

(4) During periods of trip limits, all bluefish must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(5) If the department determines that the maximum allowable harvest of bluefish will have taken place before the end of that period, harvesting for commercial purposes and possession of bluefish will be prohibited for all license holders as directed by the department upon 72 hours written notice to commercial food fish license holders.

(6) Fourteen days following the beginning of any period when all commercial harvesting is prohibited, it shall be unlawful to possess bluefish for sale, or offer bluefish for sale, trade or barter, except as permitted in subdivision 40.1(e) of this Part.

(7) It is unlawful for any person to take bluefish for commercial purposes without having in possession a valid New York State commercial food fish license. For purposes of this subdivision a person is presumed to be taking bluefish for commercial purposes when that person possesses more bluefish than the Possession limit indicated in Table A of subdivision (f) of this section.

(8) The possession of bluefish for commercial purposes from which the head or tail have been removed or otherwise cleaned, cut, filleted, or skinned so that the total length or identity cannot be determined and which are not in containers tagged as required by (e) of this Section is prohibited unless such bluefish are in a wholesale or retail establishment or restaurant for sale to the consumer.

(9) No person may commercially harvest, sell, offer for sale, trade or barter or possess bluefish except in compliance with this subdivision.

(10) The use of pair trawls, two boat trawls or paranzella nets for the taking of bluefish is prohibited. The possession or landing of bluefish from any vessel having aboard a pair trawl, two boat trawl or paranzella net is also prohibited.

(11) The department may, under mutual agreement with another State and with the concurrence of the Regional Administrator of the Northeast Region, National Marine Fisheries Service, transfer bluefish quota to that State or combine the bluefish quota from that State with the New York quota.

(12) Any holder of a New York commercial food fish license who is the owner or operator of a fishing vessel not holding a Federal Fisheries Permit for bluefish issued by the United States Department of Commerce must complete a daily fishing log supplied by the Regional Administrator of the National Marine Fisheries Service, Northeast Region. Failure to complete a log may result in a denial of future participation in the bluefish fishery.

(n) Winter Flounder commercial fishing - special regulations.

(1) The use of a gill or trammel net for the taking of winter flounder is prohibited.

(2) Winter flounder legally harvested from waters outside the state may be possessed on board vessels transiting state waters, and may be landed in New York at any time. Persons on such vessels may not fish for winter flounder in state waters or possess winter flounder while fishing in state waters with those gear types seasonally prohibited under Table B of this section.

(o) Tautog commercial fishing- special regulations.

(1) It shall be unlawful to take or land tautog from any boat or vessel for commercial purposes in excess of the commercial possession limit regardless of the number of commercial license holders aboard such boat or vessel.

(2) No individual may place tautog in storage in the waters of the marine and coastal district in excess of the recreational possession limit unless he or she is the holder of a commercial license issued pursuant to section 13-0335 of the Environmental Conservation Law (food fish license).

(3) Any containers, pens or live cars placed in the waters of the marine and coastal district to store tautog for commercial purposes must be clearly labeled and have visible on the top of such container, pen or live car the name and foodfish license number of the person responsible for the fish stored within such containers, pens or live cars.

(4) No individual may possess tautog in storage in the waters of the marine and coastal district in excess of the commercial possession limit.

(p) American eel commercial fishing- special regulations.

(1) It shall be unlawful to use eel traps or pots in the waters of the marine and coastal district for commercial purposes with mesh sizes smaller than one inch by one-half inch unless such pots contain an escape panel that is at least four inches square with a mesh size of one inch by one-half inch located so that the panel is on a side, but not at the bottom of the trap or pots.

(2) Any containers, pens or live cars, placed in the waters of the marine and coastal district to store American eels for commercial purposes must be clearly labeled and have visible on the top of such container, pen or live car the name and foodfish license number of the person responsible for the fish stored within such containers, pens or live cars.

(q) Weakfish commercial fishing - special regulations.

(1) Except as provided in (2) below weakfish may only be sold, traded, bartered, offered for sale or transported in New York during the open season, or within two weeks following the close of the season.

(2) Persons authorized by Table B may sell during any period where there is a closure for weakfish lawfully taken and landed provided that the fish are in boxes closed and sealed and the boxes are marked with a tag at least two inches wide and four inches long of substantial, water resistant material. Such tag must indicate clearly the state of origin, the shippers name, location landed, and the date landed. Weakfish lawfully taken and landed in other states may be shipped into New York for trade, or sale during any closure, provided that they meet the tagging requirements above and that:

(i) such weakfish meet the minimum total length, fillet or dressed length requirement for this species; and

(ii) such state authorizes reciprocal privileges within its borders for weakfish taken in New York.

(3) Nothing in this subdivision shall prohibit the lawful transportation through the state of weakfish lawfully taken from waters outside the state to other states, provided that such fish are in their original unopened container and written documentation of their origin and destination accompanies such container.

(4) Except during the open season, it is unlawful for any person to land or possess on the waters of the marine district, weakfish from which the head or tail have been removed or that have been otherwise cleaned, cut, filleted, or skinned so that the total length or identity cannot be determined.

(5) The use of pair trawls, two boat trawls or paranzella nets for the taking of weakfish is prohibited. The landing of weakfish from any vessel having aboard a pair trawl, two boat trawl or paranzella net is also prohibited.

(r) Scup commercial fishing - special regulations.

(1) The total annual harvest of scup may not exceed that amount annually allocated to New York State by the National Marine Fisheries Service (NMFS) in the U.S. Department of Commerce and/or the Atlantic States Marine Fisheries Commission for the period May 1 through October 31. Harvest limits for scup are based on the Fishery Management Plan (FMP) for scup as adopted and approved by the Atlantic State Marine Fisheries Commission (ASMFC) and the Regional Fishery Management Council pursuant to the Fishery Conservation and Management Act, 16 U.S.C., section 1801, et. seq. and the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C., section 5101, et. seq.

(2) Quotas, trip limits, and directed fishery thresholds for the periods of January 1 to April 30 and November 1 to December 31 will be established by NMFS. The department will establish trip limits and directed fishery thresholds within the periods of January 1 to April 30 and November 1 to December 31 consistent with those established by NMFS. Trip limits and directed fishery thresholds will be established for the period of May 1 to October 31 such that the harvest in this period does not exceed the quota assigned to New York by NMFS and/or the Atlantic States Marine Fisheries Commission. The department may establish trip limits within the period of May 1 to October 31 annually, based upon projected landings, and the FMP, following consultation with industry and appropriate notice to individual fishermen.

(3) When the department determines during the period of May 1 to October 31, based on a projection of any period's landings using the NMFS weekly dealer reports, that adjustment of a trip limit is necessary as provided in paragraph (2), such trip limits will be adjusted, and will be enforceable upon 72 hours written notice to license holders of the trip limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In the period of May 1 to October 31 the trip limit may be increased if the projection of the landings indicates that period's total quota will not be caught. During periods of trip limits all scup not being held alive must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(4) If the department determines that the maximum allowable harvest of scup will have taken place in the time periods of January 1 to April 30 or November 1 to December 31, harvesting for commercial purposes and possession of scup will be prohibited for all license holders during the remainder of the period. If the department determines that the maximum allowable harvest for scup will have taken place in the time period of May 1 to October 31, harvesting for commercial purposes and possession of scup will be prohibited for all license holders except for holders of a summer flounder fixed gear permit (pound net/trap net only) as directed by the department upon 72 hours written notice to license holders.

(5) If the department closes the period, but unanticipated events result in the quota not being landed by the projected date and at least one month remains in the time period, then the department may reopen the period for a specified time and a specified trip limit up to the maximum allowed for that period upon 72 hours written notice to license holders. If less than one month remains in the time period, the remaining quota available from that period will be added to the next open period in the same year.

(6) Fourteen days following the beginning of any period when commercial harvesting is prohibited, it shall be unlawful to possess scup for sale, or offer scup for sale, trade or barter except scup taken by gear other than fixed gear during the period of May 1 to October 31 and as provided for in subdivision (e) of this section.

(7) It is unlawful for any person to take scup for commercial purposes without having in possession a valid New York State commercial food fish license.

(8) The department may, under mutual agreement with another state and with the concurrence of the Regional Administrator of the Northeast Region, National Marine Fisheries Service or the Atlantic States Marine Fisheries Commission, transfer scup quota to that State or combine the scup quota from that State with the New York quota.

(s) Black Sea Bass commercial fishing - special regulations.

(1) Permits. It is unlawful for any person to take or land black sea bass for commercial purposes without having in possession a valid New York State Resident or Non-Resident Commercial Food Fish license. For purposes of this subdivision, a person is presumed to be taking black sea bass for commercial purposes when that person possesses more black sea bass than the possession limit indicated in Table A of this section.

(2) Quota harvest and trip limits.

(i) The total annual harvest of black sea bass may not exceed that amount annually allocated to New York State by the National Marine Fisheries Service (NMFS) in the United States Department of Commerce and/or the Atlantic States Marine Fisheries Commission (ASMFC) for the period January 1 through December 31. Annual harvest limits for black seabass are based on the Fishery Management Plan (FMP) for black sea bass as adopted and approved by the Atlantic State Marine Fisheries Commission (ASMFC) and the Regional Fishery Management Council pursuant to the Fishery Conservation and Management Act, 16 U.S.C., section 1801, et. seq. and the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C., section 5101, et. seq.

(ii) Following consultation with industry, the department may establish quota periods, trip limits and directed fishery thresholds such that the harvest does not exceed the quota assigned to New York.

(iii) When the department determines, based on a projection of landings using the United States Department of Commerce, National Marine Fisheries Service's weekly dealer reports, that trip limits are necessary as provided in Table B of subdivision (i), such trip limits will be required and enforceable upon 72 hours written notice to license holders of the appropriate limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In any month, the trip limits may be increased if the projection of the landings indicates the total quota will not be caught.

(iv) If the department determines that the maximum allowable harvest of black sea bass will take place before the end of that period, harvesting for commercial purposes and possession of black sea bass will be prohibited for all license holders as directed by the department upon 72 hours written notice to New York State Resident and Non-resident Commercial Food Fish license holders. If the department closes the period, but unanticipated events result in the quota not being landed by the projected date, then the department may reopen the period for a specified time and a specified trip limit upon 72 hours written notice to New York State Resident and Non-resident Commercial Food Fish license holders.

(3) Possession, transport and sale.

(i) The possession of black sea bass for commercial purposes from which the head or tail have been removed or otherwise cleaned, cut, filleted, or skinned so that the total length or identity cannot be determined, and which are not in labeled containers as required by paragraph 40.1(e) of this subdivision, is prohibited unless such black sea bass are in a wholesale or retail establishment or restaurant for sale to the consumer.

(ii) During periods of trip limits, all black sea bass must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(iii) Fourteen days following the beginning of any period when all commercial harvesting is prohibited, it is unlawful to possess black sea bass for sale, or offer black sea bass for sale, trade or barter, except as permitted in subdivision (e) of this section.

(t) Marine and coastal district party and charter boat license requirements.

(1) Application for a Marine and Coastal District Party and Charter Boat License pursuant to ECL section 13-0336 may be made by fully completing an application form provided by the department for that purpose. An application shall be accompanied by the appropriate license fee as specified in ECL section 13-0336. A license will be issued to the applicant subject to the following conditions:

(i) A license may be obtained for a specific vessel only by the vessel owner, lessee or other person having a legal right to operate the vessel as a party/charter boat.

(ii) A license will be issued in the name of only one person and will identify only one vessel. Licenses are valid for use only on the vessel identified on the license and may not be transferred to another vessel.

(iii) An applicant must provide the following:

(a) a copy of the vessel's state registration or United States Coast Guard documentation certificate.

(b) two passport size photographs of the applicant (waived for corporations).

(c) a copy of the applicant's United States Coast Guard Operator's license.

(2) Licenses must be available on the vessel for inspection at all times. License holders must display a valid Marine District Party/Charter Boat License decal whenever the vessel is operating as a party/charter boat. The decal must be displayed on the port side of the vessel, and be readily visible from the water or dock. The decal must be placed on the wheel house window or, in the case of craft with no enclosed cabin, on the console or windscreen. Vessels with no wheel house or console must display the decal in plain sight on the port side of the hull.

(3) Licenses are non-transferable and expire on December 31 of the year issued.

(u) Authority to establish fishing limits and closures for quota-based fisheries. The Chief of the Bureau of Marine Resources within the Department's Division of Fish, Wildlife and Marine Resources is authorized to:

(1) establish, by directive, quota periods, allocations for quota periods, directed fishery thresholds, trip limits and weekly or biweekly limits according to the schedules required under the applicable provisions of this Part and provide written notice to applicable license and/or permit holders of the appropriate limits for the time specified.

(2) prohibit the harvesting for commercial purposes and possession of any species for which an annual harvest quota is established pursuant to Part 40, by all applicable license/permit holders, when the determination has been made by the Bureau of Marine Resources that the maximum allowable harvest of that species, in any specified time period is projected to have taken place or has taken place. The Chief will provide written notice of a closure directive to appropriate permit and license holders, the Division of Law Enforcement and the National Marine Fisheries Service's Northeast Regional Administrator.

(3) reopen any closed period as provided in Part 40.

(4) specify, by directive, the threshold amounts of regulated species which will trigger the manner of taking and the gear which is required to be used pursuant to Part 40 once any threshold amounts have been taken.

(5) approve the export program of another state lawfully eligible to ship commercially taken marine fish species into New York during any closure periods or periods when possession in New York is restricted for a regulated species.

(6) under mutual agreement with another State and with the concurrence of the Regional Administrator of the Northeast Region, National Marine Fisheries Service, or the Atlantic States Marine Fisheries Commission, transfer quota to that State or combine the quota from that State with the New York quota.

(v) Spiny dogfish commercial fishing- special regulations.

(1) It is unlawful for any person to take spiny dogfish for commercial purposes without having in possession a valid New York State commercial food fish license.

(2) Harvest limits for spiny dogfish are based upon the Fishery Management Plan (FMP) for spiny dogfish as adopted and approved by the Regional Fishery Management Council pursuant to the Fishery Conservation and Management Act, 16 U.S.C. section 1801, et. seq. Quotas, trip limits, and directed fishery thresholds for the periods of May 1 through October 31, and November 1 to April 30 will be established by the National Marine Fisheries Service (NMFS). The department will establish trip limits and directed fishery thresholds within the periods consistent with those established by NMFS. Such trip limits and thresholds will be enforceable upon 72 hours written notice to license holders of the trip limit allowed per vessel for that time period. During periods of trip limits all spiny dogfish not being held alive must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(3) If the department determines that the maximum allowable harvest of spiny dogfish has been taken or will be taken by a date prior to the end of the applicable fishing period (either May 1 through October 31 or November 1 through April 30), then harvesting for commercial purposes and possession of spiny dogfish shall be prohibited as directed by the department upon 72 hours written notice to all commercial foodfish license holders.

(4) If the department closes the period, but unanticipated events result in the quota not being landed by the projected date , then the department may reopen the period for a specified time and a specified trip limit up to the maximum allowed for that period upon 72 hours written notice to license holders.

(5) Fourteen days following the beginning of any period when commercial harvesting is prohibited, it shall be unlawful to possess spiny dogfish, or offer spiny dogfish for sale, trade or barter except as permitted in subdivision 40.1 (e) of this Part.

(w) American shad commercial fishing--special regulations.

(1) Any American shad inadvertently taken in New York must be returned to the water immediately without unnecessary injury.

(2) It is unlawful for any person to sell, import, traffic in or possess American shad or American shad products in New York except for fish or products from other than New York waters that are accompanied by a bill of lading or sale denoting the State of origin.

(3) Any person violating any provision of these regulations may be subject to license revocation as provided in Part 175 of this Title as well as other applicable penalties as set forth in law.

(x) Atlantic menhaden commercial fishing - special regulations.

(1) Permits. It is unlawful for any person to take or land menhaden for commercial purposes without having in possession a valid commercial food fishing license, commercial food fish landing license, a menhaden vessel license, or marine bait permit issued by the State of New York. For purposes of this subdivision, a person is presumed to be taking menhaden for commercial purposes when that person possesses more than 100 menhaden, or more than the possession limit for menhaden listed in Table A of this section, whichever is less. A person who holds a lobster bait gill net permit may take or land more than 100 menhaden; menhaden taken using this permit are for the sole use of the permittee to pursue the permittee's lobster fishery and may not be sold. A person who holds a lobster bait gill net permit must abide by the special regulations of this subdivision.

(2) Quota harvest and trip limits.

(i) The total annual harvest of menhaden may not exceed that amount annually allocated to New York State by the Atlantic States Marine Fisheries Commission (ASMFC) for the period January 1 through December 31. Annual harvest limits for menhaden are based on the Fishery Management Plan (FMP) for menhaden as adopted and approved by the ASMFC pursuant to the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C., section 5101, 'et. seq.'

(ii) Following consultation with industry, the department may establish quota periods, trip limits and directed fishery thresholds such that the harvest does not exceed the quota assigned to New York.

(iii) When the department determines, based on a projection of landings using daily fishing vessel trip reports, that trip limits are necessary as provided in Table B of subdivision (i), such trip limits will be required and enforceable upon 72 hours written notice to license holders referenced in paragraph (1) of the appropriate limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In any time period, the trip limits may be increased if the projection of the landings indicates the total quota will not be caught.

(3) Fishery closures.

(i) If the department determines that the maximum allowable harvest of menhaden will take place before the end of any period, the directed harvesting of menhaden for commercial purposes will be prohibited, except that the department may allow a bycatch of menhaden in non-directed fisheries, not to exceed 6,000 pounds daily per vessel trip. Directed harvest may be prohibited for all license holders, or for users of specific gear types as directed by the department upon 72 hours written notice to all license holders referenced in paragraph (1). If the department closes the period, but unanticipated events result in the quota not being landed by the projected date, then the department may reopen the period for a specified time and a specified trip limit upon 72 hours written notice to all license holders referenced in paragraph (1).

(4) Possession, transport and sale.

(i) During periods of trip limits, all menhaden must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(ii) During closed periods, no possession of menhaden shall be permitted on the waters of the marine and coastal district except as bycatch aboard vessels participating in other fisheries.

(5) Reporting requirements.

Any person who is the holder of a marine commercial food fishing license, commercial food fish landing license, a menhaden vessel license, marine bait permit, or lobster bait gill net permit issued by the State of New York shall report all harvest of menhaden in accordance with the requirements established in subdivision (c) (1) of this section.

§40.2 Atlantic salmon.

No person shall take Atlantic salmon from the waters of the marine and coastal district.

§40.3 Fish unintentionally taken.

Any fish unintentionally taken in violation of this Part must be immediately returned to the water without unnecessary injury.

§40.4 Confidentiality of fisheries data.

Fisheries data, statistics or other information collected from individual permit or license holders by the department or available to the department from other states or the federal government shall be confidential and shall not be disclosed except to an authorized user or when required under court order; provided, however, that the department may release or make public any statistics in an aggregate or summary form (with no less than three license holders contributing to that statistic) which does not directly or indirectly disclose the identity of any person who submits such statistics. For the purposes of these regulations, an authorized user is any person that is employed by or under contract to the department or who is employed by or is under contract to the National Marine Fisheries Service, the U.S. Fish and Wildlife Service, the Mid-Atlantic Fishery Management Council, the New England Fishery Management Council, the South Atlantic Fishery Management Council, or the states of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New Jersey, Pennsylvania, Maryland, Delaware, Virginia, North Carolina, South Carolina, Georgia or Florida, and who has been designated by such agency or state, under the auspices of the Atlantic Coastal Cooperative Statistics Program, to require confidential data as a means to fulfill their job and their job is related to fisheries management and conservation.

§40.5 Net fishery limits - mesh sizes and gear restrictions.

(a) Trawl descriptions and definitions.

(1) For the purposes of this section, the cod end of a trawl net used in a directed fishery for summer flounder, or black sea bass is defined as either 75 continuous meshes forward of the terminus of the net or the terminal one third of the net, measured from the center of the chain line at the mouth of the net to the terminus of the net.

(2) For the purposes of this section, the cod end of a trawl net used in a directed fishery for winter flounder and weakfish is defined as either 50 continuous meshes forward of the terminus of the net or the terminal one fourth of the net, measured from the center of the chain line at the mouth of the net to the terminus of the net.

(3) The minimum mesh size is the maximum opening of any single mesh, measured when wet after use and is represented by the median value of 11 consecutive meshes taken at least five meshes from the lacings parallel to the longitudinal axis of the net.

(4) The minimum mesh size is measured by a wedge-shaped gauge having a taper of two centimeters (0.78 inch) in eight centimeters (3.14 inches) and a thickness of 3.2 millimeters (0.125 inch) inserted into the meshes under a pressure or pull of five kilograms (11 pounds). The department may approve the use of other equivalent mesh measurement gauges or methods of measurement.

(5) Taper gauges as prescribed in this subdivision will be available on loan from the department upon written request.

(6) For the purposes of this section, a net that conforms to one of the following specifications and has not been in recent use is considered to be not available for immediate use:

(i) A net stowed below deck, provided:

(a) it is located below the main working deck from which the net is deployed and retrieved; and

(b) the towing wires, including the leg wires, are detached from the net; and

(c) it is fan-folded (flaked) and bound around its circumference.

(ii) A net stowed and lashed down on deck, provided:

(a) it is fan-folded (flaked) and bound around its circumference; and

(b) It is securely fastened to the deck or rail of the vessel: and

(c) the towing wires, including the leg wires, are detached from the net.

(iii) A net that is on a reel and is covered and secured, provided:

(a) the entire surface of the net is covered with canvas or other similar material that is securely bound;

(b) the towing wires, including the leg wires are detached from the net; and

(c) the cod end is removed from the net and stowed below deck.

(7) No fishing vessel may use any means or device, including but not limited to chafing gear, liners, double nets, net strengtheners, ropes, lines, or chafing gear on the top of the regulated portion of a trawl net; except that, one splitting strap and one bull rope, consisting of line or rope not more than two inches in diameter, may be used if such splitting strap or bull rope does not constrict, in any manner, the top of the regulated portion of the net. However, canvas, netting, or other material may be attached to the underside of the cod end to reduce wear and prevent damage. For the purposes of this section, the top of the regulated portion of the net is defined as the 50 percent of the entire regulated portion of the net that will not be in contact with the ocean bottom during a tow if the regulated portion of the net were laid flat on the ocean floor.

(b) Summer flounder.

(1) Only nets with cod ends having a minimum mesh size of at least five and one half inches diamond, or six inches square, inside measure, may be used in a directed trawl fishery for summer flounder. Effective upon adoption of equivalent federal regulations applicable to nets used to take summer flounder in the United States Exclusive Economic Zone (EEZ), only nets having a minimum mesh size of at least five and one half inches diamond, or six inches square, inside measure, in the body, extension(s) and cod end portion of the net may be used in a directed trawl fishery for summer flounder. Diamond mesh nets may have codends using square mesh, provided that the size for such mesh is at least six inches square. Any trawl vessel that has on board more than 100 pounds of summer flounder between May 1st and October 31st or more than 200 pounds of summer flounder between November 1st and April 30th will be presumed to be engaged in a directed fishery for summer flounder.

(2) It is unlawful to use or have available for immediate use any combination of mesh or liners on a vessel engaged in a directed trawl fishery that effectively decreases the mesh below the minimum size, except as permitted in (3) below.

(3) It is unlawful for operators of trawl vessels that have on board more than 100 pounds of summer flounder between May 1st and October 31st or more than 200 pounds of summer flounder between November 1st and April 30th to use or have available for immediate use any net, or any piece of net, that does not meet the mesh requirements contained in this subdivision except for the following: vessels that possess a valid small mesh exemption certificate issued by the United States Department of Commerce.

(4) All summer flounder on vessels fishing with mesh smaller than the legal minimum size described in subdivision (b) shall be kept separate from other fish.

(c) Winter flounder.

(1) Only nets with cod ends having a minimum mesh size of at least six and one half inches diamond, or six and one half inches square mesh, inside measure, may be used in a directed trawl fishery for winter flounder. Diamond mesh nets may have cod ends using square mesh, provided that the minimum size for such mesh is at least six and one half inches square. Any trawl vessel that has on board more than 100 pounds of winter flounder will be presumed to be engaged in a directed fishery for winter flounder.

(2) It is unlawful to possess or land more than 100 pounds of winter flounder unless nets with cod ends that are less than six and one half inches diamond, or six and one half inches square mesh, inside measure, are not in use or available for immediate use.

(3) It is unlawful to use or have available for immediate use any combination of mesh or liners that effectively decreases the mesh below the minimum size when more than 100 pounds of winter flounder are possessed or landed.

(4) All winter flounder on vessels fishing with a mesh cod end smaller than the legal minimum size must be kept separate from other fish.

(d) Weakfish, trawls and gill nets.

(1) Trawls. Effective January 1, 1998. Only nets having a minimum cod end mesh size of at least four and one-half inches diamond mesh, or four inches square mesh, inside measure, may be used in a directed trawl fishery for weakfish. Any trawl vessel that has on board more than 150 pounds of weakfish will be presumed to be engaged in a directed fishery for weakfish.

(2) It is unlawful for operators of trawl vessels that have on board more than 150 pounds of weakfish to use or have available for immediate use any net, or any piece of net, that does not meet the minimum mesh regulations contained in subdivision ( d ) (1) on board.

(3) It is unlawful to use or have available for immediate use any combination of mesh or liners on board a vessel engaged in a directed trawl fishery that effectively decreases the mesh below the minimum size.

(4) All weakfish on vessels fishing with a net mesh smaller than the legal minimum size must be kept separate from other fish.

(5) Gill nets. Effective January 1, 1998. Only gill or trammel nets having a minimum mesh size of at least three and one half inches stretched mesh, inside measure, throughout the net, may be used in a directed gill net or trammel net fishery for weakfish. Any gill net or trammel net vessel that has on board more than 150 pounds of weakfish will be presumed to be engaged in a directed fishery for weakfish.

(6) Operators of gill or trammel net vessels that have on board more than 150 pounds of weakfish may not have any net, or any piece of net that does not meet the minimum mesh requirement contained in paragraph (5) of this subdivision on board.

(7) All weakfish on vessels fishing with a net mesh smaller than the legal minimum size must be kept separate from other fish.

(e) Striped Bass, gill nets.

(1) Gill nets. Only gill nets having a minimum mesh size of at least 6 inches stretched mesh to a maximum of 8 inches stretched mesh, inside measure, throughout the net, may be used in the directed fishery for striped bass.

(2) It is unlawful to use gill nets to take striped bass or to possess tagged striped bass while tending any gill net in Great South Bay, South Oyster Bay, or Hempstead Bay.

(3) It is unlawful to take or possess a trip limit of more than 7 striped bass while using gill nets with mesh less than 6 inches or greater than 8 inches stretched mesh, inside measure, as a bycatch in the non-directed fishery for striped bass. All such striped bass must comply with the applicable provisions of Subdivision 40.1 (j) of this Part and must be separately boxed.

(f) Scup.

(1) Trawls - Only nets that have a minimum mesh size of at least five inches diamond, inside measure, for at least 75 continuous meshes forward of the terminus of the cod end, may be used in a directed trawl fishery for scup. For nets with cod ends (including an extension) less than 125 meshes, the entire trawl net shall have a minimum mesh size of five inches throughout the net. Any trawl vessel that has on board more than the threshold amount established by the department within the periods of January 1 to April 30, May 1 to October 30 and November 1 to December 31 consistent with those established through the FMP by NMFS, will be presumed to be engaged in a directed fishery for scup.

(2) It is unlawful to have nets either in use or available for immediate use with mesh less than the required minimum sizes described in Part 40.5(f)(1) if more than the threshold amount established by the department within the periods of January 1 to April 30, May 1 to October 30 and November 1 to December 31 consistent with those established through the FMP by NMFS are possessed on any vessel.

(3) It is unlawful to land more than the threshold amount established by the department within the periods of January 1 to April 30, May 1 to October 30 and November 1 to December 31 unless nets that have mesh less than the required minimum sizes described in paragraph (1) of this subdivision are not available for immediate use.

(4) It is unlawful to use or have available for immediate use any combination of mesh or liners on board a vessel engaged in a directed trawl fishery for scup that effectively decrease the mesh below the minimum size.

(5) All scup on vessels fishing with nets that have mesh smaller than the legal minimum size shall be kept separate from other fish.

(6) It is unlawful to use roller rig trawl or rock hopper trawl gear equipped with rollers greater than eighteen inches in diameter.

(g) Black sea bass.

(1) Only nets with codends having a minimum mesh size of at least four and one-half inches diamond, inside measure, may be used in a directed trawl fishery for black sea bass. Any trawl vessel that has on board more than the threshold amount established by the department consistent with those established through the FMP by NMFS will be presumed to be engaged in a directed fishery for sea bass.

(2) It is unlawful to have nets either in use or available for immediate use with codends less than four and one-half inches diamond mesh, inside measure, if more than the threshold amount established by the department consistent with those established through the FMP by NMFS are possessed on any vessel.

(3) It is unlawful to land more than the threshold amount established by the department unless nets that are less than four and one-half inches, inside measure, are not available for immediate use.

(4) It is unlawful to use or have available for immediate use any combination of mesh or liners on board a vessel engaged in a directed trawl fishery for black sea bass that effectively decrease the mesh below the minimum size.

(5) All black sea bass on vessels fishing with codend mesh smaller than the legal minimum size shall be kept separate from other fish.

(6) It is unlawful to use roller rig trawl gear or rock hopper trawl equipped with rollers greater than eighteen inches in diameter.

(h) Tautog trawls. It is unlawful to take or possess tautog on any vessel using roller rig or rock hopper trawl gear equipped with rollers greater than eighteen inches in diameter.

§40.6 Fish Pots or Traps.

(a) Definitions.

(1) A fish pot or fish trap is any box-like or cage-like device other than a lobster pot made of any material that is capable of taking and holding fish until removed by the fisher. Traps less than thirty inches in length used only to take bait and trap nets and pound nets are not fish pots or fish traps regulated under this section.

(2) A lobster pot is any box-like or cage-like device regulated and defined under Part 44 of 6 NYCRR of this Title.

(b) Maximum size of a fish pot or fish trap. It is unlawful to take any fish species using a pot or trap having any external dimension greater than six feet.

(c) Identification of fish pots or traps. Fish pots or traps must be identified as follows:

(1) Fish pots or fish traps must have attached to them a floating buoy or identification marker that must be constructed and placed as to be clearly visible on the surface of the water. Plastic containers, bottles or jugs originally designed to carry liquids must not be used.

(2) The number assigned to the holder of a commercial foodfish license for the current year at the time he or she obtains such license, followed by the letter "F", must be painted or otherwise affixed on each buoy or marker in a contrasting color, or branded on each buoy or marker, in clearly visible and legible characters not less than two inches in height. The same color or combination of colors must be used on all buoys or markers bearing the same permit number.

(3) The same number appearing on a buoy or marker must appear in characters not less than three-fourths of an inch in height, on all pots or traps identified by that buoy or marker. If the construction of a pot or trap does not allow it to be marked by branding, that pot or trap must be marked by a tag or other device bearing, in clearly visible and legible characters, the same number appearing on a buoy or marker used to identify that pot or trap. This tag or other device must be of a material that does not deteriorate in sea water and must be firmly attached to the pot or trap it identifies.

(d) Fish Pot or Trap Tags.

(1) Effective January 1, 2003, all fish pots or traps in use or on board any vessel shall be marked by a color coded trap tag, issued by the Department of Environmental Conservation. Such tag shall be firmly attached to the pot or trap and shall indicate the year issued. New tags will be issued annually and shall be affixed to each pot or trap on board or in use.

(2) The department or an agent authorized by the department will issue the trap tags to an individual foodfish license holder. The fee for such trap tags will be established annually by the department and shall be paid in full before the license holder receives their tags for the current year.

(3) Tags issued under this section will be non-transferable and shall be permanently attached to the fish pot or trap frame, clearly visible for inspection.

(e) Construction of escape vents and panels in fish pots or traps.

(1) It shall be unlawful for any fish pots or fish traps to be fished without an escape vent or vents of the type and dimensions described in paragraph (3) of this subdivision. The escape vents must be placed on a side, but not on the bottom, of that section of the pot or trap in which the fish are held immediately prior to their being removed by the fisher. Such vents must be located in a lower corner of the side upon which they are attached.

(2) In addition to the requirements set forth in paragraph (1) of this subdivision, fish pots or traps made of any material other than untreated natural wood or fiber must also contain on a side, but not the bottom, an escape panel that, when open, will provide an unobstructed opening of not less than six inches by six inches. The panel must incorporate escape vents having dimensions prescribed in paragraph (3) of this subdivision. If this panel is constructed of wood, it must be of untreated natural wood and not more than three-eighths of an inch thick. If the panel is constructed of any material other than untreated natural wood, it must be held in the closed position with either untreated, uncoated ferrous wire not more than three thirty-seconds of an inch in diameter or an untreated natural fiber such as cotton, sisal, hemp or manila not more than three-sixteenths of an inch in diameter which when rotted or deteriorated will allow the panel to fall away and leave an unobstructed opening of at least six inches by six inches. If the pot or trap is constructed of nylon, polypropylene or any other synthetic fiber mesh netting placed over a frame, the escape panel may be made by having a section of the mesh netting on the outside of the parlor section comprised of an untreated natural fiber which when rotted out or deteriorated will leave an opening of at least the size specified in this subdivision.

(3) It is unlawful to take or possess any of the species listed in the following table, using fish pots or traps, unless the minimum requirements for either circular vents, rectangular vents, or wire mesh listed in the corresponding row of the table are met as described in paragraphs (1) and (2) of this subdivision:

Construction of escape vents and panels in fish pots or traps.
Species Circular vents Rectangular vents Wire mesh
number Opening
diameter
number Opening
dimensions
Black sea bass 2 2 1/2" 2 1 3/8" x 5 ¾"
or
2" x 2"
not applicable
Scup 1 3 1/8" 1 2 ¼" x 2 ¼" not applicable
Tautog 1 3 1/8" not applicable not applicable
Northern puffer none required none required not applicable
American eels not applicable not applicable 4" x 4" panel with 1" x ½" mesh
all other fish 1 2 3/8" 1 1 1/8" x 5 ¾" not applicable

(f) Disturbance of unattended fish pots or traps. It is unlawful for any person, other than the owner or a law enforcement officer during performance of his or her duties, to intentionally disturb, or without the written consent of the owner on his or her person, take or remove the contents of an unattended fish pot or trap or willfully damage, take, remove or possess said pot or trap or any lines or buoys attached to it. Possession of such contents or gear without the consent of the owner shall be considered prima facie evidence of violation of this subdivision.

(g) Fish pots or traps-prohibited areas: artificial reefs. It is unlawful to use fish pots or traps or to retain any fish caught by lobster pots on or within 500 feet of any of the following artificial reef sites:

(1) Rockaway Reef Site SIZE: 2000 yds by 1000 yds; 413 acres. Boundaries:

NW corner: 40o32.73'N latitude; 73o51.21'W longitude LORAN 26935.6 43753.5

NE corner: 40o32.73'N latitude; 73o49.92'W longitude LORAN 26925.5 43752.1

SE corner: 40o32.20'N latitude; 73o49.92'W longitude LORAN 26924.1 43746.9

SW corner: 40o32.20'N latitude; 73o51.21'W longitude LORAN 26934.1 43748.2

(2) McAllister Grounds Reef Site SIZE: 925 yds by 600 yds; 115 acres. Boundaries:

NW corner: 40o32.30'N latitude; 73o39.70'W longitude LORAN 26843.2 43735.6

NE corner: 40o32.30'N latitude; 73o39.20'W longitude LORAN 26839.3 43735.1

SE corner: 40o32.10'N latitude; 73o39.20'W longitude LORAN 26838.8 43733.2

SW corner: 40o32.10'N latitude; 73o39.70'W longitude LORAN 26842.7 43733.7

(3) Fire Island Reef Site SIZE: 3000 yds by 1200 yds; 744 acres. Boundaries:

NW corner: 40o36.10'N latitude; 73o13.50'W longitude LORAN 26640.9 43739.8 NE corner: 40o36.10'N latitude; 73o11.50'W longitude LORAN 26624.4 43737.7 SE corner: 40o35.60'N latitude; 73o11.50'W longitude LORAN 26623.2 43733.1

SW corner: 40o35.60'N latitude; 73o13.50'W longitude LORAN 26639.7 43735.2

(4) Moriches Reef Site SIZE: 450 yds by 150 yds; 14 acres. Boundaries:

NW corner: 40o43.47'N latitude; 72o46.64'W longitude LORAN 26432.9 43771.9

NE corner: 40o43.54'N latitude; 72o46.36'W longitude LORAN 26430.7 43772.1

SE corner: 40o43.47'N latitude; 72o46.33'W longitude LORAN 26430.5 43771.4

SW corner: 40o43.40'N latitude; 72o46.62'W longitude LORAN 26432.5 43771.2

(5) Shinnecock Reef Site SIZE: 680 yds by 250 yds; 35 acres. Boundaries:

NW corner: 40o48.16'N latitude; 72o28.67'W longitude LORAN 26289.0 43788.0

NE corner: 40o48.21'N latitude; 72o28.30'W longitude LORAN 26286.0 43788.0

SE corner: 40o48.09'N latitude; 72o28.33'W longitude LORAN 26286.0 43787.0

SW corner: 40o48.04'N latitude; 72o28.70'W longitude LORAN 26289.0 43787.0

(6) Yellowbar Reef Site SIZE: 400 yds by 85 yds; 7 acres. Boundaries:

NW corner: 40o37.93'N latitude; 73o14.64'W longitude LORAN 26654.0 43756.5

NE corner: 40o38.04'N latitude; 73o14.39'W longitude LORAN 26652.1 43757.2

SE corner: 40o38.01'N latitude; 73o14.37'W longitude LORAN 26651.8 43756.9

SW corner: 40o37.90'N latitude; 73o14.63'W longitude LORAN 26653.7 43756.1

(7) Kismet Reef Site SIZE: 1000 yds by 50 yds; 10 acres. Boundaries:

NW corner: 40o38.11'N latitude; 73o13.06'W longitude LORAN 26641.3 43756.1

NE corner: 40o38.28'N latitude; 73o12.45'W longitude LORAN 26636.7 43757.0

SE corner: 40o38.26'N latitude; 73o12.44'W longitude LORAN 26636.5 43756.7

SW corner: 40o38.09'N latitude; 73o13.05'W longitude LORAN 26641.2 43755.9

(8) Smithtown Reef Site SIZE: 150 yds by 100 yds; 3 acres. Boundaries:

NW corner: 40o55.97'N latitude; 73o11.20'W longitude LORAN 26671.9 43916.3

NE corner: 40o56.01'N latitude; 73o11.13'W longitude LORAN 26671.4 43916.5

SE corner: 40o55.96'N latitude; 73o11.10'W longitude LORAN 26671.0 43916.1

SW corner: 40o55.92'N latitude; 73o11.17'W longitude LORAN 26671.6 43915.8

(9) Matinecock Reef Site SIZE: 800 yds by 250 yds; 41 acres. Boundaries:

NW corner: 40o54.58'N latitude; 73o37.74'W longitude LORAN 26891.4 43943.7

NE corner: 40o54.69'N latitude; 73o37.25'W longitude LORAN 26887.6 43944.0

SE corner: 40o54.58'N latitude; 73o37.21'W longitude LORAN 26887.0 43943.0

SW corner: 40o54.48'N latitude; 73o37.70'W longitude LORAN 26890.8 43942.7

§40.7 Coastal Sharks - open seasons, size and catch limits.

(a) "Purpose of this section." It is the intent of this section to promote the prudent management of coastal sharks that are landed in the State of New York. The provisions of this section shall define which sharks may be taken for commercial and recreational purposes and which sharks are prohibited from harvest. Size limits, possession limits, manner of taking and landing, gear restrictions open and closed seasons will also be specified in this section. The provisions in this section are designed to promote healthy self-sustaining populations of coastal sharks and provide for the sustainable use of the shark resource for the benefit of the residents of the State of New York.

(b) "Definitions." For the purposes of this section, the following definitions apply:

(1) "Circle hook" means a fishing hook originally designed and manufactured so that the point is turned perpendicularly back to the shank to form a generally circular, or oval, shape.

(2) "Eviscerate" means to remove the alimentary organs of a shark without removing the head.

(3) "Finning" means the removal of a fin or fins, other than the caudal fin, and not retaining the remainder of the shark's carcass (as specified in Environmental Conservational Law (ECL) 13-0338(1)(b)).

(4) "Fork length" means that length measured in a straight line from the tip of the nose snout of the shark to the end of the middle caudal fin to the center of the fork of the tail of the shark.

(5) "Handline" means a main line to which not more than two gangions or hooks are attached. A handline is not retrieved by mechanical means and must be attached to, or in contact, with the vessel.

(6) "Land" or "landed" means the bringing of fish to shore or the transfer of the catch of fish taken from a vessel to any other vessel or in-water storage facility or to the land or to any pier, wharf, dock or other similar structure. When a vessel bearing fish has been tied, moored, or made fast to the land, to another vessel, to an in-water storage facility or to any pier, wharf, dock or similar structure, such fish shall be deemed as landed.

(7) "Large mesh gillnet" means a gillnet having a stretched mesh size equal to or greater than five inches.

(8) "Recreational angler" means any person engaged in fishing for sharks for personal use.

(9) "Shore angler" means any person engaged in any type of fishing that does not take place aboard a vessel.

(10) "Shortline" means a fishing line having 50 or fewer hooks and measuring less than 500 yards in total length.

(11) "Small mesh gillnet" means a gillnet having a stretched mesh size less than five inches.

(12) "Vessel" means every type of watercraft used or capable of being used as a means of transportation on water except non-displacement craft and seaplanes.

(13) "Vessel fishing" means any fishing conducted from a vessel.

(c) "Recreational fishing."

(1) It shall be unlawful for any recreational angler to take, or to possess on the waters of the marine and coastal district, as defined in ECL section 13-0103, or the shores thereof, or anywhere inland from such shores, any shark species other than the following: Atlantic sharpnose ("Rhizoprionodon terraenovae"); blacknose ("Carcharhinus acronotus"); blacktip ("Carcharhinus limbatus"); blue ("Prionace glauca"); bonnethead ("Sphyrna tiburo"); bull ("Carcharhinus leucas"); common thresher ("Alopias vulpinus"); finetooth ("Carcharhinus isodon"); great hammerhead ("Sphyrna mokarran"); scalloped hammerhead ("Sphyrna lewini"); smooth hammerhead ("Sphyrna zygaena"); lemon ("Negaprion brevirostris"); nurse ("Ginglymostoma cirratum"); oceanic whitetip ("Carcharhinus longimanus"); porbeagle ("Lamna nasus"); shortfin mako ("Isurus oxyrinchus"); smooth dogfish ("Mustelus canis"); spiny dogfish ("Squalus acanthias"); spinner ("Carcharhinus brevipinna"); and tiger ("Galeocerdo cuvier").

(2) The minimum size limit for the shark species listed in (c)(1) shall be 54 inches fork length, except that there shall be no minimum size limit for Atlantic sharpnose, finetooth, blacknose, bonnethead, smooth dogfish and spiny dogfish.

(3) It shall be unlawful for a recreational angler to take sharks using any means other than handlines retrieved by hand, not mechanical means, or by rod and reel.

(4) It shall be unlawful for a recreational angler to sell, trade or barter sharks or shark pieces.

(5) All sharks harvested by a recreational angler shall have heads, tails and fins attached naturally to the carcass through landing. Sharks may be eviscerated and bled by making a cut at the base of the tail fin as long as the tail fin is not removed.

(6) Catch limits.

(i) Shore anglers shall take or possess no more than one shark, regardless of species, from the list in (c)(1), except that

("a") one additional Atlantic sharpnose may be taken and possessed; and

("b") one additional bonnethead may be taken and possessed; and

("c") there shall be no limit to the number of spiny dogfish and smooth dogfish that can be taken or possessed.

(ii) Recreational anglers fishing from a vessel shall take or possess no more than one shark, regardless of species, from the list in (c)(1) per vessel, except that

("a") one additional Atlantic sharpnose may be taken and possessed per angler; and

("b") one additional bonnethead may be taken and possessed per angler; and

("c") there shall be no limit to the number of spiny dogfish and smooth dogfish that can be taken or possessed per angler.

(7) When aboard a vessel, a recreational angler is bound by the more restrictive vessel fishing limits described in (6)(ii) above, regardless of where the shark was caught.

(8) A shark that is transported aboard a vessel is considered as though caught by an angler on that vessel and is regulated under the more restrictive vessel fishing limits described in (6)(ii) above, regardless of where the shark was caught.

(d) "Commercial fishing."

(1) The commercial fishery for spiny dogfish is regulated under Part 40.1 of this Subchapter and is not regulated under this part.

(2) It is unlawful for any person to take, possess or land sharks listed in this section for commercial purposes without having in their possession a valid New York State commercial foodfish license.

(3) The commercial fishing year for sharks shall begin on January 1 and end on December 31. All annual specifications begin on January 1 of each fishing year.

(4) Shark groups. For the purposes of this section and consistency with federal rules and the fishery management plan for coastal sharks developed by the Atlantic States Marine Fisheries Commission, coastal sharks shall be classified as follows:

(i) Prohibited species: Atlantic angel ("Squatina dumeril"); basking shark ("Cetorhinus maximus"); bigeye sand tiger shark ("Odontaspis noronhai"); bigeye thresher shark ("Alopias superciliosus"); bignose shark ("Carcharhinus altimus"); Carribean sharpnose shark ("Rhizoprionodon porosus"); dusky shark ("Carcharhinus obscurus"); Galapagos shark ("Carcharhinus galapagensis"); longfin mako shark ("Isurus paucus"); narrowtooth shark ("Carcharhinus brachyurus"); night shark ("Carcharhinus signatus"); reef shark ("Carcharhinus perezii"); sand tiger shark ("Carcharias taurus"); sharpnose sevengill shark ("Heptrachias perlo")
bigeye sixgill shark ("Hexanchus nakamurai"); bluntnose sixgill shark ("Hexanchus griseus")
smalltail shark ("Carcharhinus porosus"); whale shark ("Rhincodon typus"); white shark ("Carcharodon carcharias");

(ii) Research species: sandbar ("Carcharhinus plumbeus");

(iii) Smooth dogfish: smooth dogfish ("Mustelus canis");

(iv) Small coastal species: Atlantic sharpnose shark ("Rhizoprionodon terraenovae"); blacknose shark ("Carcharhinus acronotus"); bonnethead shark ("Sphyrna tiburo"); finetooth shark ("Carcharhinus isodon");

(v) Pelagic species: blue shark ("Prionace glauca"); common thresher shark ("Alopias vulpinus"); oceanic whitetip shark ("Carcharhinus longimanus"); porbeagle shark ("Lamna nasus"); shortfin mako shark ("Isurus oxyrinchus"); and

(vi) Non-sandbar large coastal species: great hammerhead shark ("Sphyrna mokarran"); scalloped hammerhead shark ("Sphyrna lewini"); smooth hammerhead shark "Sphyrna zygaena"); lemon shark ("Negaprion brevirostris"); nurse shark ("Ginglymostoma cirratum"); silky shark ("Carcharhinus falciformis"); spinner shark ("Carcharhinus brevipinna"); tiger shark ("Galeocerdo cuvier").

(5) There is no closed season for the shark commercial fishery.

(6) No person shall take, possess or land any shark species listed in (4)(i) and (4)(ii) of this Part without first obtaining and possessing a valid special license in accordance with Part 175.

(7) There is no possession limit for sharks listed in (4)(iii), (4)(iv) and (4)(v) of this Part.

(8) No person shall take possess or land more than thirty-three sharks, regardless of species, listed in (4)(vi) of this Part, in any 24-hour period.

(9) Sharks harvested for commercial purposes shall be taken by the following methods and gears, only: rod and reel; handline, which shall be retrieved by hand, not mechanical means, and shall be attached to or in contact with a vessel; small mesh gillnet; large mesh gillnet; trawl; shortline; pound net; and weir. A maximum of two shortlines per vessel may be used. The use of any other gear to take sharks for commercial purposes is prohibited.

(10) Bycatch reduction measures. No person shall take, possess or land sharks using shortlines or large mesh gillnets without practicing the following bycatch reduction measures:

(i) All hooks attached to shortline gear must be corrodible circle hooks;

(ii) All persons participating in the commercial shark fishery shall practice the protocols and possess the federally required release equipment for pelagic and bottom longlines for the safe handling, release and disentanglement of sea turtles and other non-target species;

(iii) All captains and vessel owners must be certified in using handling and release equipment through workshops offered by National Oceanic and Atmospheric Administration's National Marine Fisheries Service;

(iv) Large mesh gillnets shall be no longer than 2.5 kilometers (1.55 miles).

(11) No person shall possess or land a shark listed in this section without the tails and fins naturally attached to the carcass. Fins may be cut as long as they remain attached to the carcass by natural means with at least a small portion of uncut skin. Finning is prohibited. Sharks may be eviscerated and have the heads removed. Sharks may not be filleted or cut into pieces at sea.

(12) Quotas, trip limits and directed fishery thresholds may be set by the Atlantic States Marine Fisheries Commission Spiny Dogfish & Coast Sharks Management Board (Sharks Board) for the smooth dogfish, small coastal, non-sandbar large coastal and pelagic species groups for each commercial fishing year. The department will establish trip limits and directed fishery thresholds within the fishing year consistent with those established by the Sharks Board. Such trip limits and thresholds will be enforceable upon 72 hours notice to license holders of the vessel trip limit allowed.

(13) If the department determines that the maximum allowable harvest of sharks covered by (12) has been taken or is projected to be taken before the end of the fishing year, the department may prohibit the take and possession of a shark species for commercial purposes upon 72 hours notice to license holders.

(14) If the department closes a fishery, but determines that the quota will not be harvested by the projected date, then the department may reopen the fishery for a specified time at a specified trip limit up to the maximum allowed upon 72 hours notice to license holders.

(15) No person shall take, possess or land sharks listed in (4) for commercial purposes when the federal commercial fishery for that species is closed.

(16) No harvester shall sell sharks taken in state waters for commercial purposes except to a holder of a federal Commercial Shark Dealer Permit. A Federal Commercial Shark Dealer Permit shall be required to buy and sell sharks taken in state waters.