Part 44 - Lobsters and Crabs - Express Terms Adopted June 12, 2013
Part 44 of 6 NYCRR is amended read as follows:
Existing section 44.1 of 6 NYCRR is repealed.
New section 44.1 is adopted to read as follows:
(1) A lobster pot or trap is any box-like or cage-like device that is made of any material, has an entrance or entrances from the outside into a compartment (sometimes called the kitchen) which has a further entrance to a second compartment (sometimes called the parlor), both compartments being on the same level, and is capable of catching lobsters.
(2) Catastrophic loss is the loss of lobster pots or traps or trap tags that exceeds the initial additional allocation of trap tags provided for in paragraph 44.1(d)(2) for routine loss.
(3) Fishing Vessel Trip Report means the reporting forms prescribed by the department.
(4) Historical level of pots or traps fished is the number of pots or traps that the department determines, pursuant to the provisions of this section, were fished by an individual lobster permit holder, during the qualifying period identified by the department, based on data required by the department and supplied by the permit holder.
(5) Lobster Management Area (LMA) 2 is defined as the nearshore area, including State and Federal waters that are nearshore in Southern New England, bounded by straight lines connecting the following points, in the alphabetical order stated:
|H||41° 40' N||70° 00' W||N||40° 45.5'N||71° 34' W|
|I||41° 15' N||70° 00' W||O||41° 07' N||71° 43' W|
|J||41° 21.5' N||69° 16' W||P||41° 06.5' N||71° 47' W|
|K||41° 10' N||69° 06.5' W||Q||41° 11'30'' N||71° 47'15'' W|
|L||40° 55' N||68° 54' W||R||41° 18'30' N||71° 54'30'' W|
|M||40° 27.5' N||72° 14' W|
(6) Lobster Management Area (LMA) 3 is defined as the area comprised entirely of Federal waters, bounded by straight lines connecting the following points, in the alphabetical order stated:
|A||43° 58'N||67° 22'W||U||42° 12.5'N||72° 48.5'W|
|B||43° 41' N||68° 00' W||V||39° 50' N||73° 01' W|
|C||43° 12' N||69° 00' W||X||38° 39.5' N||73° 40' W|
|D||42° 49' N||69° 40' W||Y||38° 12' N||73° 55' W|
|E||42° 15.5'N||69° 40' W||Z||37° 12' N||74° 44' W|
|F||42° 10' N||69° 56' W||ZA||35° 34' N||74° 51' W|
|K||41° 10' N||69° 06.5'W||ZB||35° 14.5'N||75° 31' W|
|N||40° 45.5'N||71° 34' W||ZC||35° 14.5'N||71° 24' W|
|M||40° 27.5'N||72° 14' W|
(7) Lobster Management Area (LMA) 4 is defined as the area, including State and Federal waters that are nearshore in the northern Mid-Atlantic, bounded by straight lines connecting the following points, in the alphabetical order stated:
|M||40° 27.5'N||72° 14' W||P||41° 06.5' N||71° 47' W|
|N||40° 45.5'N||71° 34' W||S||40° 58' N||72° 00' W|
|O||41° 07' N||71° 43' W||T||41° 00.5'N||72° 00'W|
From Point T along the New York/New Jersey coast to Point W.
|W||39° 50'N||74° 09'W|
|V||39° 50'N||73° 09'W|
|U||40° 12.5'N||72° 48.5'W|
From Point U back to Point M.
(8) Lobster Management Area (LMA) 6 is defined as the area, including New York and Connecticut State waters, bounded by straight lines connecting the following points, in the alphabetical order stated:
|T||41° 00.5'N||72° 00'W|
|S||40° 58'N||72° 00'W|
From Point S, boundary follows the 3 mile limit of New York as it curves around Montauk Point to Point P.
|P||41° 06.5'N||71° 47'W|
|Q||41° 11'30''N||71° 47'15''W|
|R||41° 18'30''N||71° 54'30''W|
From Point R, along the maritime boundary between Connecticut and Rhode Island to the coast; then west along the coast of Connecticut to the western entrance of Long Island Sound; then east along the New York coast of Long Island Sound back to Point T.
(9) Lobster Management Area (LMA) 6B means a portion of LMA 6 referred to as the "Race" which is the area south of the New York-Connecticut State line, north of 41° 10' north latitude, east of 72° 10' west longitude and west of 71° 54' west longitude.
(10) Trap tag means a tag sold by the department or by a vendor or another State or Federal agency recognized by the department to be used to identify legal lobster pots or traps.
(11) Trap tag year means the period from June 1 of a given year through the following May 31st.
(12) Replacement trap tags are those tags which will be issued to a permit holder when a catastrophic loss has occurred within a given year and will bear the same information as the original trap tags but will be distinguished from the original tags in a manner acceptable to the department.
(13) Routine loss is the loss of pots or traps or trap tags equal to the additional allocation of trap tags provided for in paragraph 44.1(d)(2) based on the historical level of pots or traps fished by an individual lobster permit holder.
(14) Dredge means any rectangular or oblong frame device, with or without teeth on the bottom bar or scrape, to which is attached a bag-like or cage-like net or device either flexible or rigid of either metal rings or wire netting or wire cage or a natural or manufactured fiber webbing or any combination of these materials and which is fished by being pulled or towed or dragged along the bottom of a body of water from a boat or vessel.
(15) Carapace length means a measurement from the rear end of the eye socket along a line parallel to the center line of the body shell (carapace) to the rear end of the body shell (carapace).
(16) Land or landed means the bringing of crabs and lobsters to any shore or the transfer of the catch of crabs and lobsters 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 crabs and lobsters 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 crabs and lobsters shall be deemed as landed.
(17) Designated navigation channels means the Long Island Intracoastal Waterway and natural or dredged paths through otherwise shoal waters that are used for entering or leaving ports and harbors, the boundaries of which are marked by maintained aids to navigation. Designated navigation channels do not include the main west/east shipping fairway through the center of Long Island Sound.
(18) V-notched lobster is defined as any female lobster that bears a notch or indentation in the base of the flipper that is at least as deep as 1/8 inch, with or without setal hairs. V-notched lobster also means any female lobster which is mutilated in a manner which could hide, obscure, or obliterate such a mark.
(b) Identification of gear used in taking of lobsters
Gear used in taking lobsters must be identified as follows:
(1) All lobster pots or traps, while in operation, must have attached to them a floating buoy or identification marker which must be constructed and placed as to be clearly visible on the surface of the water. Plastic containers, bottles or jugs originally designed to contain liquids must not be used as buoys or markers to identify the location of lobster pots or traps.
(2) Each buoy or marker attached to a lobster pot or trap must be of a distinctive color. The number, including any letters, assigned the holder of a lobster permit for the current year at the time he or she obtains a lobster permit 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 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 shall also be marked or branded, in characters not less than three-fourths 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 shall 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 shall be of a material that is not deteriorated by sea water and shall be firmly attached to the pot or trap it identifies. A valid trap tag is an acceptable identifying marker as long as it contains the fishermen's New York State commercial lobster harvester's permit number.
(4) Lobster pots shall not be placed within 25 feet of designated navigation channels, and all floating buoys or identification markers and lines attached to such pots shall remain outside designated navigation channels at all times.
(5) Violations of any provision of this subdivision shall subject the violator to the penalties fixed by the Environmental Conservation Law and may result in the suspension or revocation of any lobster permit.
(c) Construction of escape vents and panels in lobster pots or traps.
(1) Effective June 1, 2000 all lobster pots or traps in use shall contain in the parlor section (that part of a pot or trap farthest from the entrance or entrances which holds the lobsters until they are removed by the permit holder) either one or more unobstructed rectangular openings not less than five and three quarter inches by not less than two inches or two or more unobstructed circular openings not less than two and five-eighths inches in diameter each. These openings, called escape vents, shall be placed so that they are on a side, but not at the bottom or top, of the parlor section of the pot or trap.
(2) In addition to the requirements set forth in paragraph (1) of this subdivision, lobster pots or traps made of any material other than untreated natural wood shall contain on a side, but not the bottom, of the parlor section an escape panel, which when open, will provide an unobstructed opening of not less than three and three-fourths inches by three and three-fourths inches in length and height. The panel may incorporate escape vents having the dimensions described in paragraph (1) of this subdivision. If this panel is constructed of wood, it shall be untreated natural wood not more than three-eighths of an inch thick. If the panel is constructed of any material other than untreated natural wood, it shall be hinged to open. Effective July 19, 2006, the panel shall be hinged in such a manner that upon degradation of the material keeping the panel closed, the panel is released to produce an opening which is not blocked or otherwise obstructed by the panel material. Hinged panels shall 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. If the pot or trap is constructed of nylon, polypropylene, or any other synthetic fiber mesh netting placed over the 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 for an escape panel in this subdivision.
(3) The sizes specified for escape vents and panels in paragraphs (1) and (2) of this subdivision are minimum sizes and no penalty will be assessed if a person uses a lobster pot or trap with larger escape vents or panels.
(d) Lobster trap tags.
(1) Effective June 1, 2000, all lobster pots or traps in use or on board any vessel must be marked by a color coded trap tag, issued by the department of Environmental Conservation or by a vendor or another state or federal agency recognized by the department for this purpose. Such tag must be firmly attached to the pot or trap and must indicate, for commercial permit holders, the State issuing the tag, the Lobster Management Area for which the tag is valid, the year issued, and the permit number of the individual issued the New York lobster permit applicable to that pot or trap. For non-commercial permit holders, the tag must indicate the State issuing the tag, the year issued, and a recreational designation. New tags will be issued annually and must be affixed to each pot or trap in use not later than June 1 of each calendar year.
(2) Lobster Management Area Qualifying Criteria. Lobster trap tag applicants shall identify in their annual lobster license application all Lobster Management Areas, as established by the Atlantic States Marine Fisheries Commission, in which they intend to set their pots or traps. The department shall issue trap tags to New York lobster permit holders who intend to fish in Lobster Management Areas 2, 3, 4, and/or 6 only. In addition, the following restrictions shall apply:
(i) Applicants for LMAs 2, 3, and 4 shall be allocated trap tags in accordance with criteria established by the Atlantic States Marine Fisheries Commission and applicable federal regulations.
(ii) Applicants for LMA 6 shall present proof to the department, in accordance with this section, of their participation in the lobster fishery in Area 6 between January 1, 1995 and June 8, 1998 to qualify for the historical trap tag allocation. Initial trap tag allocation shall be based on the historical level of the maximum number of pots or traps fished during the period January 1, 1995 through June 8, 1998.
(iii) Applicants for more than one LMA shall abide by the trap tag allocation for the LMA with the most restrictive trap tag limit of those identified on the lobster license application.
(iv) Applicants for lobster trap tags shall stipulate in their application that they have not applied for nor received trap tags from any other lobster trap tag issuing jurisdiction.
(3) In years following the initial allocation, trap tags will be issued to a permit holder in an amount requested up to the initial year's allocation. However the number of trap tags allocated to a permittee shall be permanently reduced by the number of such trap tags initially allocated to the permittee which was sold to the New York State Empire State Development Corporation and which the Empire State Development Corporation has certified to the department.
(i) There shall be an additional 10 per cent routine loss allowance added to this amount to provide for lost or damaged gear during the trap tag year.
(ii) For license holders identifying LMA 6B as their primary fishing area, an additional 15 per cent routine loss allowance will be granted upon request. This additional allocation shall be solely for use in LMA 6B and shall be so indicated.
(iii) If the routine loss allowance is completely used without a catastrophic loss having occurred, a permit holder may obtain a replacement number of tags equal to the number of unusable tags turned in to the department.
(iv) Tags turned in for such replacement will be reissued with the same identifying information as on those tags being replaced.
(4) The historical level of pots or traps fished for the initial allocation will be determined by the department based on the following:
(i) A Federal Fishing Vessel Trip Report form for the qualifying period, if available, and
(ii) A signed affidavit form, supplied by the department, from the permit holder attesting to the number of pots or traps and areas fished during any one year of the qualifying periods but no more than:
(a) The number of pots or traps indicated on the 1998 lobster permit application form or
(b) The greater number of pots which can be verified during the qualifying period by:
(1) A license application form for an earlier year in the qualifying period and/or
(2) If requested by the department, receipts or canceled checks for the sale of lobsters, the purchase of bait for lobster pots or traps, and the purchase of actual pots or traps, and forms for Income Tax and observer trips made for lobster on an applicant's vessel, which provide verification for the number of pots or traps being claimed in the affidavit or
(3) An allocation by the department of 50 pots provided that the permit holder reported landing lobsters during the qualifying period.
(5) The historical level of pots or traps fished, as determined by the department, may be appealed by any person on the basis of verifiable information supplied by the appellant. The department may publish a notice providing a 30 day public comment period on both the lobster trap allocations requested by the commercial lobster permit holders, and the department's initial determinations.
(6) The department or an agent authorized by the department will issue the trap tags to an individual lobster permit holder based on the department's determination of historical participation for commercial lobster permit holders pursuant to paragraph (4) or (5) of this subdivision and on application for up to five tags by a non-commercial lobster permit holder. The fee for such trap tags will be established annually by the department and shall be paid in full before the permittee receives their tag allocation for the current year.
(7) Annual trap tags will be issued from January 1 to May 31 of each year and must be firmly attached to any lobster pot or trap in use by June 1. Tags issued under this section will be non-transferable and must be permanently attached to the lobster pot or trap frame, clearly visible for inspection.
(8) If there is a catastrophic loss of trap tags due to unexpected conditions in the fishery during a year, a permit holder will, upon application to the department, be issued a new allotment of trap tags for the remainder of that year which will be distinguished from the original tags (i.e. color).
(i) Replacement trap tags must be placed on all pots or traps within 10 days after issuance.
(ii) Original tags will not be valid after a period of 10 days following issuance of replacement tags.
(iii) Should there be extensive, area wide catastrophic losses or should replacement tags not be immediately available, the department may issue an exemption notice suspending trap tag requirements for appropriate permit holders for a period not to exceed two months.
(9) In the event that a lobster license is reissued to an immediate family member pursuant to Section 13-0328 of the Environmental Conservation Law, the new license holder (i.e., transferee) shall be eligible to receive the trap tag allocation of the former license holder (i.e., transferor). This trap tag allocation shall only be used in the approved Lobster Management Area (LMA) of the former license holder.
(10) The Director, Bureau of Marine Resources of the Division of Fish, Wildlife and Marine Resources, is authorized to implement and administer the policies and procedures set forth in this subdivision, on behalf of the department, which are necessary for the issuance of lobster trap tags pursuant to E.C.L. Section 13-0329.
(e) Temporary Emergency Authorization to Tend Gear.
(1) In the event that a lobster license holder experiences a temporary medical emergency which renders the license holder incapable of operating an endorsed vessel or conducting fishing operations on a non-endorsed vessel, the license holder may apply to the department in writing for permission to authorize another lobster license holder to tend the applicant's lobster gear. If the department approves such application, the department shall issue a letter of authorization which shall be carried by the party authorized to tend the applicant's gear at all times while conducting activities authorized by such letter.
(i) A temporary medical emergency shall only be approved for 30 days, and may be extended in 30 day increments. No more than twelve such 30 day extensions shall be granted for a specific temporary medical emergency
(ii) A doctor's evaluation shall accompany each request for authorization under this section and each 30 day extension thereof. The medical evaluation shall be specific as to why the disability is temporary and why the licensee cannot perform the functions needed to comply with the law without the requested relief. If the medical evaluation calls for additional evaluation or treatment, the licensee shall provide evidence to the department that the licensee made good faith efforts to pursue such further evaluation or treatment during the 30 day period, in order to qualify for an extension pursuant to this subdivision.
(iii) The Director, Bureau of Marine Resources, is authorized to grant approvals and authorizations pursuant to this subdivision.
(f) Lobster size limits.
(1) After January 1, 2004, no person shall possess or land any lobster with a carapace less than three and three eighths inches in length while on or in the New York State waters of LMA 4.
(2) No person shall possess or land, in New York State waters of LMA 4, any lobster with a carapace which exceeds five and one quarter inches in length.
(3) All applicants for a New York State commercial lobster permit or New York State lobster landing license shall designate which of the lobster management areas they chose to fish in for the time period in which the permit is valid. Designated LMAs cannot be changed until the following permit year. Applicants will only be allowed to designate LMAs that they are qualified to fish in according to the criteria specified in paragraph 44.1(d)(2). Permittees who designate more than one LMA in their application shall abide by the lobster size and possession limits of the most restrictive of the designated LMAs, regardless of where they are fishing. Any person who possesses more than one commercial lobster permit shall abide by the lobster size and possession limits of the most restrictive of the LMAs designated on all of their permits, regardless of where they are fishing. Any permittee who fails to designate an LMA on their application shall abide by the most restrictive of the LMA 1, 2, 3, 4, 5, 6, and OCC lobster size and possession limits. The department shall provide license holders written notice of the current lobster size and possession limits of LMA 1, 2, 3, 4, 5, and 6 annually.
(g) Mandatory V-notching.
(1) All legal size egg-bearing female lobsters captured in LMA 4 must be V-notched and immediately released back in the water. V-notches must be to the right of the center flipper as viewed from the rear of the female lobster when the underside of the lobster is down. The V-notch should be made by means of a sharp bladed instrument, at least one quarter inch in depth and not greater than one half inch in depth and tapering to a sharp point.
(2) Permittees who designate more than one LMA in their lobster permit application shall abide by the V-notching rules of the most restrictive of the designated LMAs, regardless of where they are fishing. Any person who possesses more than one commercial lobster permit shall abide by the V-notching rules of the most restrictive of the LMAs designated on all of their permits, regardless of where they are fishing. Any permittee who fails to designate an LMA on their application shall abide by the most restrictive of the LMAs 1, 2, 3, 4, 5, 6, and Outer Cape Cod (OCC) V-notching rules. The department shall provide license holders written notice of the current V-notching rules of LMAs 1, 2, 3, 4, 5, 6 and OCC annually.
(3) The landing or possession of any V-notched female lobster is prohibited. This prohibition applies to all persons other than a final purchaser or consumer.
(h) Season closure.
(1) The harvest and landing of lobsters from LMA 4 is prohibited from February 1 through March 31.
(2) During the February 1 through March 31 closure, lobster permit holders who use lobster traps or pots will have a two week period to remove lobster pots from the water after the closed season begins. No lobster trap or pot may be in the water from February 15 to March 24, unless the lobster permit holder also holds appropriate license(s) to harvest other species from their traps or pots. Lobster permit holders may set un-baited lobster traps or pots one week prior to the end of the closed season.
(3) Permittees who designate more than one LMA in their lobster permit application shall abide by the closed seasons rules in all designated LMAs, regardless of where they are fishing. Any person who possesses more than one commercial lobster permit shall abide by the closed season rules of the LMAs designated on all of their permits, regardless of where they are fishing. Any permittee who fails to designate an LMA on their application shall abide by all the closed season rules of the LMAs 1, 2, 3, 4, 5, 6, and Outer Cape Cod (OCC). The department shall provide license holders written notice of the current closed season rules of LMAs 1, 2, 3, 4, 5, 6 and OCC annually.
(4) These regulations apply to both commercial and recreational lobstermen.
Existing sections 44.2 through 44.7 of 6 NYCRR are repealed.
Existing section 44.8 is renumbered section 44.3.
Renumbered paragraph 44.3(e)(3) is amended to read as follows:
(3) Except during the months of September and October, dredges as defined in [44.1(n)] 44.1(a)(14) may not be used to harvest horseshoe crabs in the Atlantic Ocean. The possession or landing of horseshoe crabs from any vessel having a dredge onboard is also prohibited.
Renumbered subdivision 44.3(g) is amended to read as follows:
(g) The [Chief] Director of the Bureau of Marine Resources is authorized to make determinations and issue directives pursuant to this subdivision.
Existing section 44.9 is renumbered section 44.2.
Renumbered paragraph 44.2(d)(2) is amended to read as follows:
(2) The terrapin excluder device, as defined in paragraph 44.2 (a)(3) [44.8 (a) (3)] of this section, shall be securely fastened inside each funnel to effectively reduce the size of the funnel opening to no larger than six inches wide and two inches high.
Renumbered paragraph 44.2(d)(3) is amended to read as follows:
(3) The [Chief] Director , Bureau of Marine Resources, is authorized to issue orders to designate areas in which terrapin excluders are required pursuant to this subdivision.
Existing section 44.10 is renumbered section 44.4.
Renumbered paragraph 44.4(a)(1) is amended to read as follows:
(1) Any person who is the holder of a marine commercial lobster, lobster landing or lobster bait gill net permit issued pursuant to section 13-0329 of the Environmental Conservation Law, a marine commercial crab permit issued pursuant to section 13-0331 of the Environmental Conservation Law, or a horseshoe crab permit issued pursuant to 6 NYCRR [44.8 (c)] 44.3(c) , 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 permit 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 for that month stating no trips were made. Incomplete fishing Vessel Trip Reports or unsigned reports will not satisfy these reporting requirements. Any New York permit holder who is also the holder of a federal fishing permit issued by NOAA Fisheries Service must instead meet the reporting requirements specified by NOAA Fisheries Service. If requested in writing by the department, New York permit 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.
Existing sections 44.11 and 44.12 are renumbered sections 44.5 and 44.6.