Part 10 - Sportfishing Regulations, Part 35 - Licenses and Part - 36 Gear and Operation of Gear - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 3-0301, 11-0303,11-0305, 11-0306, 11-0315, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 11-1501, 11-1503, 11-1505 and 13-0105 authorize the Department of Environmental Conservation (DEC or Department) to establish, by regulation, the open season, size and catch limits, possession and sale restrictions and manner of taking for American shad.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manage marine fisheries to optimize resource use for commercial and recreational harvesters, consistent with marine fisheries conservation and management policies and interstate Fishery Management Plans (FMPs).

3. Needs and benefits:

The Department is adopting amendments to 6 NYCRR Parts 10, 35 and 36 which will implement a catch and release recreational fishery for American shad in the Hudson River and implement gear limit and fishing restrictions for the Hudson River commercial fishery. These regulations are necessary to protect American shad and therefore are a part of DEC's stewardship responsibilities over the state's natural resources.

American shad of the Hudson River are anadromous. They spawn in the river, but spend most of their life in the near shore Atlantic Ocean from Virginia to Maine. They are caught by recreational and commercial fishermen while they are in the Hudson and by commercial fishermen while they are in the ocean.

Recently, DEC staff completed a stock assessment of the Hudson River American shad as part of a coast-wide assessment of American shad stocks under the coordination of the Atlantic States Marine Fisheries Commission (ASMFC). Abundance of Hudson River American shad has declined since the early 1990's and is now at a historic low. Moreover, fish in the spawning stock (adult fish) became smaller and younger, mortality increased to excessive and unacceptable levels, and production of young dropped more than 70 percent to an all time low in 2002. The primary cause of these changes was over-fishing. Through the ASMFC, New York worked toward, and achieved closure of ocean harvest of Hudson shad in commercial fisheries that targeted shad in 2005. This closure substantially reduced losses of Hudson River American shad, but it did not solve the problem in the face of continued low production of juveniles and continued excessive mortality. The few fish produced from 2002 to 2007 are now returning as adults and are what remains to recover the stock. These fish need substantial protection if the shad stock is to recover. Our analysis indicates that if river harvest were maintained at 2004-2006 levels mortality would be above that required to maintain the stock at low levels. However, mortality and harvest would still be more than twice the levels needed to allow the stock to begin recovery. The DEC recognizes that this is a serious problem which needs immediate attention.

Under ECL 11-0303, it is the DEC's responsibility to act in behalf of the natural resources of the state. New York will implement measures which will achieve a reduction in adult mortality and will also account for the recent recruitment failure (lack of young fish) in the stock. To allow for stock recovery, it is necessary to reduce recent levels of harvest by approximately 50 percent. In order to accomplish this reduction, the Department will implement actions to: 1) create a catch and release recreational fishery to eliminate recreational harvest and 2) implement seasonal restrictions, from March 15th to June 15th, on the commercial fishery to include an increased escapement period (a period of no fishing each week), gear limits, and closed and restricted areas. Failure by New York to adopt these amendments would jeopardize recovery of the Hudson River American shad stock.

Pursuant to section 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission (ASMFC). The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish are ASMFC's Interstate Fishery Management Plans for individual species or groups of fish. The FMPs are designed to promote the long-term health of these species, preserve resources and protect the interests of both commercial and recreational fishers.

Confirming New York's actions, the ASMFC has initiated preparation of Amendment III to the Fishery Management Plan (FMP) for Shad and River Herring. This amendment will require reductions in mortality for shad stocks currently in decline such as the Hudson River stock. The new amendment will not be in place until May, 2009 meaning that any response would not be implemented until the 2010 fishery. It would be irresponsible for the DEC to wait until then to implement measures to stop the stock's decline.

4. Costs:

(a) Cost to state government:

Minor costs will be incurred by the regulating agency. See below.

(b) Cost to Local government:

There will be no costs to local governments.

Certain regulated parties may experience some adverse economic effects due to the increase in the Escapement period (e.g. loss of several days per week in the fishing season). The targeted party is the commercial shad fishers who will be limited to three days per week to harvest shad. There will be some economic loss to these businesses. Over the last five years, an average of 25 commercial shad fishermen on the Hudson River targeted (intentionally fished for) American shad. Most of the fishermen work alone. Only a few hire assistants. Furthermore, American shad are now only in the river in harvestable numbers for up to eight weeks each spring. Therefore, commercial shad fishing constitutes by nature a short part-time job that provides supplemental income to fishermen and a few helpers.

Over the last 30 years, the number of weeks of fishing activity and the number of participants in the commercial fishery in the Hudson River has dwindled as the stock abundance has declined. This industry has probably reached a level where the costs associated with fishing are high in relation to profit, or even meeting costs, for most fishers. The proposed rule lessens the ability of licensed fishers to harvest American shad and because of this some individuals may stop fishing.

Over the long term, however, the maintenance of sustainable shad fisheries will have a positive effect on small businesses in the Hudson River shad fishery. Any short-term losses will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. These regulations are designed to prevent overharvest of stocks so stocks can rebuild for future utilization.

Another possible affected party is a co-occurring (during the same time period shad are present in the river) commercial bait fishery for river herring. However, proposed regulations were designed to allow this activity to continue without change. Thus, herring netters will retain the ability to harvest fish and bait shops to purchase bait as they have in the past. There should be little economic impact to these businesses.

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

The Department of Environmental Conservation will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying recreational and commercial harvesters and other support industries of the new rules.

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 or federal requirement.

8. Alternatives:

The following significant alternatives have been considered by the Department and rejected for the reasons set forth below:

(1) Complete closure of the commercial and recreational fisheries in the Hudson River. Closure of the commercial fishery was rejected because commercial shad fishing holds a place as one of the longest and most enduring historic fisheries in the Hudson Valley. Archaeological sites indicate shad have been fished in the valley for several thousand years. The "modern" fishery began in the 1600's as colonists shared their fishing skills with the Native Americans in the valley. Department staff believe that the social and historical value of the commercial fishery is worth preserving. The selected option seeks to preserve the commercial fishery while providing needed protection to the Hudson River shad stock.

Closure of the recreational fishery was rejected because little added protection would be gained from such an action. DEC performed a catch and release study that examined the release mortality of shad caught by recreational hook and line fishers. The study found that if shad were minimally handled, that the release mortality was low (approximately 1.6 percent). Recent creel surveys indicate that most (~ 93 percent) recreational shad fishers release their catch. Complete closure (stopping the act of recreational fishing for American shad) would not appreciably lower harvest, but would deny New Yorkers the ability to enjoy the use of this resource. Moreover, recreational shad fishing occurs at times and locations of recreational fishing for other fish species. Thus closure of the shad recreational shad fishery would be difficult to enforce.

(2) Reduce harvest from the recreational and commercial fishery to levels that might maintain the stock at current historic lows. This option was rejected because it puts the stock at unacceptable risk of survival. The current record low stock level and record low and persistent production of young would make it impossible for the spawning stock to compensate for any unfavorable environmental conditions during spawning. This would lead to loss of production and certain stock decline. Department staff believe that maintaining the stock at current low levels would be inconsistent with a sustainable fishery.

(3) No Action (no amendment to regulations).

The "no action" alternative would leave current regulations in place and further jeopardize the American shad stock status. This would put New York in a position of allowing continued excessive mortality as defined in the ASMFC shad management plan and allowing the potential demise of the Hudson River American shad. This result would be contrary to the objectives of ECL 11-0303 to effectively manage the fish resources of New York State. For this reason, this alternative was rejected.

9. Federal Standards:

The amendments to Parts 10, 35 and 36 are in compliance with the ASMFC Fishery Management Plan for American shad.

10. Compliance Schedule:

The emergency regulations will take effect immediately upon filing with the Department of State. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via the Department's website.