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Parts 10, 11, 19, 36, 37 and 40 - Sportfishing, Use of Bait, Gear, Prohibited Sale of Certain Fish, and Marine Fish - Regulatory Impact Statement (American eel)

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections3-0301, 11-0303,11-0305, 11-0306, 11-0317, 11-0319, 11-1301, 11-1303, 11-1305, 11-1319, 11-1501, 11-1503, 11-1505 and 13-0105,13-0339-a, and 13-0371authorize the Department of Environmental Conservation (DEC or the department) to establish, by regulation, the open season, size and catch limits, possession and sale restrictions and manner of taking American eel.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries to optimize resource use for commercial and recreational harvesters consistent with marine fisheries conservation and management policies, and interstate fishery management plans.

3. Needs and benefits:

These regulations are necessary for New York to maintain compliance with the Interstate Fishery Management Plan (FMP) for American eel. As a member state of Atlantic State Marine Fisheries Commission, New York must comply with the provisions of the Interstate Fishery Management Plans adopted by ASMFC. These FMPs aredesigned to promote the long-term sustainability of marine species, preserve the States' marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate regulations that implement the provisions of the FMPs to remain in compliance with the FMPs. If ASMFC determines a state to be in non-compliance with a specific FMP, the state may be subject to a complete prohibition on all fishing for the associated species in the waters of the non-compliant state until the state comes into compliance with the FMP.

In 2012, an (ASMFC) - benchmark stock assessment indicated that the American eel population was depleted. Addendum III of the ASMFC FMP for American Eel was approved in August 2013, with requirements to reduce eel fishing mortality. The requirements affect both marine and inland fisheries. States must implement measures by January 1, 2014, including a 9 inch minimum size limit for recreational, bait, and commercial fisheries, ½ inch by ½ inch minimum mesh sizes for eel pots, and a 25 fish recreational creel limit. The proposed rules must be in place so that New York remains in compliance with the ASMFC.

As a result of the ASMFC's FMP for American Eel, the department is proposing amendments to 6 NYCRR Parts 10, 11, 19, 36 and 40 which will implement possession and size limits for the recreational fishery and implement gear restrictions and size limits for the commercial and bait fisheries for American eel in inland and marine and coastal district waters, including the Hudson, Delaware, Harlem, and East Rivers and their tributaries.

The department is also proposing amendments to 6 NYCRR Part 37 which will repeal language allowing the possession of American eels less than 14 inches in length for use as bait or for sale as bait, and add American eel to the list of species that are prohibited from sale when taken from the St. Lawrence River, Lake Ontario, and its tributaries.Not only are there relatively few naturally recruited (i.e. non-stocked) American eel in the St. Lawrence River/Lake Ontario system, but there are extremely few individual American eels smaller than 14 inches total length. The Lake Ontario American eel commercial fishery in the Lake Ontario/St. Lawrence River system was closed in 1985. There is currently no known harvest of American eel for use as bait or for sale as bait in this system.

4. Costs:

There are no new costs to state and local governments from this action.The department will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying commercial, bait, and recreational harvesters, party and charter boat operators and other support industries of the new rules.

Cost to private regulated parties:

Minimum mesh sizes or escape panels on eel pots or traps are already required in marine and coastal waters, and are more restrictive than the proposed required minimum ½ inch by½ inch mesh size stated in the ASMFC Fishery Management Plan. Requiring these gear changes for inland water fisheries, which currently only use pots to harvest American eels for use or sale as bait, may impose some initial costs to these fishers. The proposed increase in the minimum size for American eel may reduce the catch for an unknown number of commercial and recreational fishermen.

As there is no known harvest of American eel from the St. Lawrence River/ Lake Ontario and its tributaries for use as bait or for sale as bait, there is no cost to private regulated parties in this area.

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

DEC 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.

Cost to state government as a whole:

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

Cost to Local government:

There will be no costs to local governments.

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) No Action (no amendment to regulations).

The "no action" alternative would leave current regulations in place and jeopardize the fisheries for American eel in New York State. Compliance with ASMFC Addendum III to the Fishery Management Plan for American Eel is mandatory. If New York does not amend the regulations as proposed, the State will most likely be found out of compliance with Addendum III. The consequence of noncompliance is a state-wide moratorium for taking American eel. The "no action" alternative was rejected for this reason.

9. Federal Standards:

The amendments to Parts 10, 11, 19, 36, 37, and 40 are in compliance with the ASMFC Fishery Management Plan for American Eel.

10. Compliance Schedule:

The regulations will take effect when the Notice of Adoption is published by 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.

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