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Part 44, 50 - Crab and Whelk - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law sections 13-0330(6) and 13-0331(7) give the Department of Environmental Conservation (DEC) broad regulatory authority for the management of crabs, horseshoe crabs ('Limulus' sp.) and whelk ('Busycon' and 'Busycotypus' spp.), provided the regulations are consistent with the compliance requirements of fishery management plans (FMPs) adopted by the Atlantic States Marine Fisheries Commission (ASMFC) and the Federal Fishery Conservation and Management Act.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries in such a way as to protect the natural resources for its intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters. The ECL stipulates that management and use of State fish and wildlife resources must be consistent with marine fisheries conservation and management policies and interstate fishery management plans.

3. Needs and benefits:

Terrapin Excluder Device (TED): DEC is proposing regulations that will require the use of TEDs on commercial and recreational non-collapsible crab traps set in the nearshore areas of New York's marine district to prevent diamondback terrapin from entering crab traps and drowning. Terrapin utilize New York's estuaries as feeding grounds and often enter crab traps in search of food. Once inside the trap, they are unable to surface and have been found dead in crab traps. DEC has been approached by environmentalists and researchers stating that mortality from crab traps can be significant on local terrapin populations. They urge DEC to require the use of TEDs on crab traps set in New York's estuaries to protect the terrapin. The drowning deaths of diamondback terrapin in crab traps can be reduced with minimal impact to crab harvest by the use of TEDs.

Horseshoe Crab Harvest Limit: DEC is proposing to allow two horseshoe crab (HSC) permit holders to harvest from a single vessel and transport in a single vehicle; each can possess a single harvest limit. The current rule on HSC harvest limits allows only one harvest limit taken on board fishing vessels regardless of the number of permit holders onboard. HSC permit holders have commented to DEC about the safety hazard of boating alone, especially at night and have requested DEC allow two permit holders to fish together on a vessel and to allow them to each harvest their daily harvest limit. This amendment would also benefit the environment by decreasing the number of vessels required and their emissions. This proposed rule should not impact the horseshoe crab (HSC) resource since the permit holders will still be restricted by the harvest limit.
The HSC harvest limit rule will also be modified to define the harvest limit as a possession limit. This will aid the enforceability of the rule.

Whelk reporting: DEC is proposing to adopt mandatory catch reporting for whelk permit holders. Catch reporting regulations must be consistent for fisheries in New York; all food fish, lobster, and crab permit holders are required by 6 NYCRR Part 40 and Part 44 to report ALL species landed. Whelk permit holders are not subject to Parts 40 and 44 and there are no reporting rules in Part 50 for whelk permit holders. Mandatory harvest reporting for whelk permit holders is necessary to determine the impact of the whelk fishery on the whelk population. In many East Coast states, the whelk fishery has become an alternative fishery to the depleted Southern New England lobster fishery. Currently in New York there are no reporting requirements for whelk permit holders. It is critical for prudent whelk management to collect and process the whelk landings information and determine if there is an adverse impact on the local whelk population in New York.

The Marine Resources Advisory Council supported the proposed rules in this regulatory package at their January 17, 2016 meeting.

4. Costs:

The proposed rule will not impose any costs on DEC or local governments. There may be some costs to permit holders due to the proposed amendments.

Terrapin Excluder Device (TED): Crab permit holders may incur the costs of adding TEDs to crab traps. DEC staff estimate that, on average, a permit holder will need to install TEDs on 60 pots. Commercial crab pots generally have 4 entrances per pot, so 240 TEDs would be needed on average. Metal TEDs cost $1.34 (plastic version cost $1.00), so it would cost approximately $322 to purchase the TEDs for the traps. To help alleviate costs to fishermen, local environmental groups (TNC and Seatuck) have purchased more than 7,000 TEDs to distribute to fishermen for free. Time needed to install the TEDs is approximately 2 minutes per pot, so it would take a permit holder fishing the average number of pots (60) about 2 hours to install the TEDs. Many commercial and recreational crabbers believe TEDs will not only impact the number and size of their blue crab catch, but will also decrease their bycatch, which is often saleable.

Horseshoe Crab Harvest Limit: Costs for horseshoe crab (HSC) permit holders may decrease with the proposed changes to the HSC harvest limit since two permit holders would be able to share vessel costs.

Whelk reporting: Whelk permit holders may incur costs of time and postage for submitting trip catch reports to DEC. However, they may submit their trip catch reports online at no cost.

5. Local government mandates:

The proposed rule does not impose any mandates on local government.

6. Paperwork:

None.

7. Duplication:

The proposed amendment does not duplicate any state of Federal requirement.

8. Alternatives:

Terrapin Excluder Device
No Action Alternative: This alternative was rejected since diamondback terrapin would continue to be at risk to drowning in crab traps with possible consequences for local populations.

Alternative 1: Require TEDs on all crab traps in the Marine District - This alterative was rejected because permit holders are generally more supportive of a rule that would limit the area of mandated use to the inshore and near shore areas where there is increased interaction between crab traps and terrapins.

Alternative 2: Require the use of a larger 6 inch wide by 2 inch high TED - DEC discussed a 6 inch by 2 inch TED with the Marine Resources Advisory Council (MRAC) to get feedback. These are the dimensions used by New Jersey. However, DEC received many comments from the public and MRAC recommending that DEC require a smaller TED that is 4 ¾ by 1 ¾ because it will prevent more terrapin from entering traps. This smaller TED is currently required in Delaware and Maryland. Based on the feedback received, the 6 inch by 2 inch TED was rejected, and the proposed rulemaking contains the 4 ¾ by 1 ¾ TED requirement.

Horseshoe Crab Harvest Limit
No Action Alternative: Only a single possession limit would be allowed on a vessel, regardless of how small the limit is. This alternative was rejected because permit holders would continue to be at risk operating a boat and fishing alone, often late at night. In addition, the possession language would continue to be vague on restrictions when permit holders are not fishing from a vessel.

Alternative 1: Allow more than two permit holders and their possession limits on board a vessel - This alternative was rejected because allowing more than two permit holders, each with a daily possession limit, may make enforcement of the harvest limit more difficult, especially at larger daily trip limits.

Whelk reporting
No Action Alternative: DEC will continue to have incomplete information on whelk harvest and will be unable to track fishery trends, determine harvest impacts, and develop valid management strategies.

9. Federal standards:

The proposed amendment complies with the Atlantic States Marine Fisheries Commission's Fishery Management Plans.

10. Compliance schedule:

Regulated parties will be notified by mail or e-mail, through appropriate news releases and via DEC's website of the changes to the regulations. Compliance with the proposed changes, if adopted, will be required as soon as the regulations take effect.