Part 43, Subpart 43-2 - Surf Clam/Ocean Quahog Fishery Management, Atlantic Ocean - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) section 13-0309 (12) authorizes the Department of Environmental Conservation (department) to fix by regulation open seasons, harvest areas, size limits, catch limits, manner of taking and possession, transportation, identification, sale and permit requirements for surf, sea, hen and skimmer clams. Environmental Conservation Law section 13-0308 created a Surf Clam/Ocean Quahog Management Advisory Board (the Surfclam Board) to assist the department with the development of a comprehensive long-term management plan for the protection of surf clams/ocean quahogs in New York State (NYS) waters.

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 by developing a comprehensive long-term management plan for this important resource.

3. Needs and benefits:

The NYS waters of the Atlantic Ocean have supported an important surfclam fishery for more than sixty years. The department adopted a Fishery Management Plan (FMP) for the Mechanical Harvest of the Atlantic Surfclam in NYS waters of the Atlantic Ocean in 2003. This FMP maintained the status quo on the fishery and did not address major problems affecting the economic viability of the fishery. The department has been working with the Surfclam Board since 2005 to develop an amendment to the FMP (referred to as Amendment 1) that is designed to promote sustainability of the surfclam resource, enhance economic viability of participants in the surfclam fishery, foster compliance with surfclam regulations, reduce the department's implementation and administrative costs and increase surfclam vessel operating safety in the fishery. The proposed rule making is necessary in order to implement the management measures and provisions contained in Amendment 1 to the FMP.

The department proposes to amend 6 NYCRR Subpart 43-2 to implement the following management measures:

The proposed rule making will allow the department to establish an annual harvest limit, which shall not exceed 5 percent of the fully recruited biomass (as measured in industry standard bushels), that will control the maximum quantity of surfclams that may be taken by mechanical means from the certified waters of the Atlantic Ocean for the period January 1 through December 31. The current regulatory program does not link the annual harvest limit with any specific fraction of the estimated surfclam population biomass as determined by surfclam population assessments (surveys) conducted by the department. The proposed regulations will establish a quantitative measure for setting the annual harvest limit in bushels which is more closely reflective of the fully recruited surfclam population estimate (given as biomass, measured in industry standard bushels) for the Atlantic Ocean fishery. The proposed rule making is considered to be more protective of the surfclam resource and intended to promote the long-term sustainability of New York's Atlantic Ocean surfclam fishery.

The proposed rule making will establish an Individual Fishing Quota system (IFQ) which will allocate to each eligible surfclam vessel an individual fishing quota that is determined based on the annual harvest limit divided equally by the number of eligible vessels. Implementation of an IFQ system will provide surfclam industry participants with greater flexibility to decide when they want to fish, reduce overhead costs, increase economic and harvesting efficiency and promote safety of fishing vessels.

The proposed rule making will eliminate weekly and quarterly catch limits and establish a daily catch limit of a maximum of 28 standard cages of surfclams (896 industry bushels) per day per vessel eligible to participate in the fishery. This provision will maximize economic efficiency, increase flexibility to the fishermen, reduce capital costs to the industry and promote safety to the fishery. In addition, the proposed rule making will allow fishermen to schedule harvest trips during the most favorable weather conditions and peak market demands rather than forcing each vessel to fish every week as required under the current regulatory program.

The proposed rule making will require surfclam/ocean quahog Atlantic Ocean - Owner's Permits issued under Subpart 43-2.4 to be renewed annually in order to maintain a vessel's eligibility to participate in the Atlantic Ocean surfclam fishery. This is necessary in order to maintain the economic viability of the established New York based participants in the harvesting sector of the industry, determine the IFQ assigned to each vessel, and to reduce the level of over-capitalization over the long-term in this fishery.

The proposed rule making will establish a mandatory Vessel Monitoring System (VMS) requirement for all vessels participating in New York's Atlantic Ocean surfclam fishery. This requirement is consistent with the VMS regulations adopted by the National Marine Fisheries Service for the federal surfclam and ocean quahog Individual Transferable Quota (ITQ) fishery and is intended to reduce or eliminate illegal harvest of surfclams within New York's Atlantic Ocean by both New York and Federally permitted surfclam harvesting vessels. Additionally, this system is expected to assist law enforcement and help promote compliance with rules and regulations controlling surfclam harvest in the Atlantic Ocean.

The proposed rule making will establish a cage tag requirement for all surfclams taken from the certified waters of the Atlantic Ocean which is consistent with the cage tag requirement implemented in the Federal Surfclam ITQ Fishery under Amendment 5 in 1985. This will allow increased tracking of individual quota allocations and is considered an effective law enforcement tool along with implementation of a mandatory VMS. It will also further reduce the potential for vessels to make illegal trips or attempt to harvest another vessel's allocation. The use of cage tags has been demonstrated to be an effective enforcement and management measure in the Federal Surfclam Fishery.

The proposed rule making will simplify the reporting requirements for surfclam industry participants by replacing the current filing of weekly trip reports with a monthly vessel logbook reporting requirement. This will reduce the administrative burden on surfclam industry participants and the department. It will also allow the surfclam catch data to be potentially incorporated into other Vessel Trip Reports (VTR's) required by the department in order to streamline the trip reporting requirements for permit holders involved in multiple fisheries. Additionally, the proposed rule making will add a provision to protect the confidentiality of fisheries data reported to the department. This will protect individual surfclam permit holder catch data from disclosure except under certain circumstances and be consistent with section 40.4 of 6 NYCRR which provides for confidentiality of fisheries data.

The proposed rule making will prohibit the possession or landing of surfclams taken from Federal waters on or from any vessel on any given day that has been used to harvest surfclams from NYS waters of the Atlantic Ocean. This requirement is necessary as an additional enforcement tool to ensure compliance with harvest requirements, reduce the likelihood of illegal harvest and close up any loopholes for potential non-compliance with daily catch (trip) limits established for this fishery. Because a number of the vessels permitted to harvest in New York's Atlantic Ocean fishery are also permitted to harvest surfclams in Federal waters, the rule making will reduce any confusion or ambiguity with the enforcement of the allowable harvest limits for any vessel involved in both fisheries.

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.

There will be minimal additional costs incurred by surfclam vessel owners who do not already have a VMS installed on their vessel. Additionally, the regulated industry will incur minimal costs for purchase of cage tags but overall, the rule making is designed to increase the economic efficiency and viability of the surfclam industry and should offset any costs imposed by this rule making.

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

There will be no costs to the regulating agency and is designed to reduce administrative costs to the department.

5. Local government mandates:

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

6. Paperwork:

The proposed rule making will reduce the reporting requirements for the surfclam industry by replacing weekly reporting with a monthly reporting requirement.

7. Duplication:

The proposed rule does not duplicate any State or Federal requirement.

8. Alternatives:

The no action alternative was considered and rejected because it would not address the immediate needs of the surfclam industry and resource which have been identified in the department's draft Amendment 1 to the FMP. The issues addressed in this rule making have been thoroughly reviewed by the Surfclam Board and surfclam industry participants. The Surfclam Board and surfclam industry are generally supportive of these issues. Additionally, the no action alternative would likely force vessels to drop out of the fishery due to economic hardship from the continuation of the current regulatory program.

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 regulation.