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Part 43, Section 13-0309 - Atlantic Ocean Surfclam Management - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) Section 13-0309 (12) authorizes the Department of Environmental Conservation (the department or DEC) to fix by regulation open seasons, harvest areas, size limits, catch limits, manner of taking and possession, transportation, identification, sale and permit requirements for surfclams and sea, hen, and skimmer clams.

2. Legislative objectives:

It is the objective of the above cited statutory authority that the department implements management measures necessary to protect the sustainability of the surfclam resource and assure the economic viability of the fishery consistent with a comprehensive long-term fishery management plan for this important resource.

3. Needs and benefits:

The New York State (NYS) waters of the Atlantic Ocean have supported an important surfclam fishery for more than sixty years. This fishery has been subject to limited entry of additional surfclam vessels since the early 1990s as a management measure to conserve the surfclam resource and prevent an increase in fishing effort until a comprehensive surfclam management plan was adopted for the Atlantic Ocean surfclam fishery. The department initially adopted a Fishery Management Plan (FMP) for the Mechanical Harvest of the Atlantic Surfclam in NYS waters of the Atlantic Ocean in 2003. The department, working in collaboration with the former Surfclam/Ocean Quahog Management Advisory Board, developed an amendment to the FMP (referred to as Amendment 1) that established an Individual Fishing Quota (IFQ) to be allocated equally to all eligible surfclam vessels in the fishery. The IFQs are nontransferable and each eligible surfclam vessel can only be used to catch one quota allocation in a calendar year.

Amendment 1 to the FMP was adopted in 2009 and the regulations implementing IFQs and other management measures in the surfclam fishery became effective January 1, 2010. However, the regulations in 6 NYCRR Subpart 43-3 which control vessel eligibility and procedures for replacement of eligible vessels were not amended in 2009 to provide consistency with 6 NYCRR Subpart 43-2, Atlantic Ocean.

The department proposes to amend 6 NYCRR Subparts 43-2 and 43-3 to include the following management measures:

The proposed rule making will authorize any eligible surfclam vessel in the Atlantic Ocean fishery, regardless of the Atlantic Ocean surfclam permit they are assigned to, to be used to catch one Individual Fishing Quota (IFQ) or the cumulative equivalent of one IFQ in any given year. This is needed so that harvest activities remain consistent with New York State's FMP for the Atlantic Ocean Surfclam Fishery to minimize the potential for monopolization of the State's annual surfclam quota by a few vessels.

The proposed rule making will amend the container and tagging requirements section to allow a permit holder to obtain a temporary exemption to authorize a surfclam vessel to take surfclams by mechanical means in the certified waters of the Atlantic Ocean without cage tags. This temporary exemption may be authorized provided that the vessel owner has a valid Atlantic Ocean surfclam permit and has placed an order for cage tags for the year but is waiting for the order to be processed. The specific requirements for the temporary exemption to take surfclams without cage tags will be specified in regulation. This is necessary to provide an exception to allow vessels to fish on a temporary basis without cage tags to minimize any potential burden on the surfclam industry to comply with the regulations for cage tagging requirements and prevent any loss of fishing opportunities by permit holders while providing a mechanism for tracking and enforcement of the harvest regulations for the fishery.

The proposed rule making will clarify and amend the vessel replacement rules for eligible vessels in 6 NYCRR Subpart 43-3.5 to be consistent with the regulations for harvest restrictions in 6 NYCRR Subpart 43-2.6 and the provisions of Amendment 1 of the State's FMP for the Atlantic Ocean surfclam fishery. This will allow increased tracking of individual quota allocations assigned to vessels and ensure that vessels, regardless of the surfclam permit they are assigned to, will only be used to catch no more than one individual quota allocation or cumulative equivalent of one quota allocation for the calendar year.

4. Costs:

(a) Cost to State government:

There are no new costs to state government resulting from this action.

(b) Cost to Local government:

There will be no costs to local governments.

(c) Cost to private regulated parties:

There will be no additional costs to private regulated parties in the surfclam industry.

(d) Costs to the regulating agency for implementation and continued administration of the rule:

There will be no costs to DEC for implementation and administration of the rule. The rule is designed to reduce administrative costs to DEC.

5. Local government mandates:

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

6. Paperwork:

The proposed rule making will not impose any new paperwork requirements for the surfclam industry.

7. Duplication:

The proposed rule does not duplicate any state or federal requirement.

8. Alternatives:

The "no action alternative" was considered and rejected. The broad language in the surfclam regulations would remain inadequate in preventing the cross replacement of vessels to be used as a mechanism to allow a vessel to take more than one individual quota allocation in a year. This alternative would allow for certain vessels to control a greater share of the quota leading to monopolization of the State's surfclam resource. Failure to reject this alternative will negatively impact the economic viability of small businesses in this fishery. Additionally, the no action alternative would likely force independently owned vessels (traditional New York-based commercial surfclam fishermen) to drop out of the fishery due to economic hardship from lack of markets for sale of surfclams. This is due to their inability to compete in the market with the vessels having access to more than one quota.

A "Denial of Vessel Replacement Requests" alternative was considered and rejected. Under this alternative, DEC would deny all requests for vessel replacement that are submitted for cross replacement of vessels in the fishery. Vessel replacement requests submitted to replace an unworkable vessel with one not presently in the fishery would be exempt as this is consistent with the intent of the regulations. This alternative was rejected because it fails to properly address the inconsistency in regulations for surfclam harvest and vessel replacement.

9. Federal standards:

Although there are Federal government standards (regulations) for the surfclam and ocean quahog fisheries for the Federal waters of the Exclusive Economic Zone (3-200 miles off shore), there are no federal standards for the surfclam fishery in NYS waters (0-3 miles of the coastline).

10. Compliance schedule:

Compliance with the proposed regulation is required upon the effective date of the rule. DEC would provide electronic and regular mail notifications to regulated parties in the surfclam fishery. Since this is a relatively small limited-entry fishery, there is only a fraction of the shellfish industry that is affected by this rule.

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