senate Bill S5838

Signed By Governor
2013-2014 Legislative Session

Relates to management of the American lobster; repealer

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Archive: Last Bill Status - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jul 31, 2013 signed chap.305
Jul 19, 2013 delivered to governor
Jun 21, 2013 returned to senate
passed assembly
ordered to third reading rules cal.684
substituted for a8105
Jun 20, 2013 referred to codes
delivered to assembly
passed senate
ordered to third reading cal.1519
Jun 17, 2013 referred to rules

Votes

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S5838 - Bill Details

See Assembly Version of this Bill:
A8105
Law Section:
Environmental Conservation Law
Laws Affected:
Amd §§13-0329 & 13-0334, En Con L; rpld §2, amd §3, Chap 211 of 2008

S5838 - Bill Texts

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Relates to management of the American lobster.

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BILL NUMBER:S5838

TITLE OF BILL: An act to amend the environmental conservation law, in
relation to the management of American lobster; to amend chapter 211
of the laws of 2008 amending the environmental conservation law
relating to the management of American lobsters, in relation to the
effectiveness thereof; to repeal section 2 of such chapter relating to
the management of American lobsters; and providing for the repeal of
certain provisions upon expiration thereof

Purpose of the Bill: The bill would amend the Environmental
Conservation Law (ECL) to (i) ensure the timely adoption of management
measures required by the Atlantic States Marine Fisheries Commission
(ASMFC) Amendment XVII and (ii) allow lobster parts and oversized
lobsters lawfully landed outside of New York State waters to be sold
within the state.

Summary of Provisions:

Section 1 of the bill would amend ECL § 13-0329(5)(a), (d) to exempt
from the limit associated with the taking, possession or sale of
lobsters measuring a certain size those lobsters lawfully taken
outside of New York in accordance with new ECL § 13-0329(18) and to
clarify the current prohibition on the landing or possession of
lobster parts.

Section 2 of the bill would:

* Add a new subdivision 17 to ECL § 13-0329 to (i) close the lobster
fishery for ASMFC Area Six (Long Island Sound) annually from September
8 until November 28, (ii) require that all lobster traps and pots be
removed from the water by September 22 unless the permittee is
permitted or licensed to use the traps or pots to harvest other
species, (iii) allow permit holders to set un-baited traps or pots
beginning November 14, and (iv) to bait traps beginning November 21;

* Add a new subdivision 18 to allow lobsters greater in length than
provided in ECL § 13-0329(5) to be imported and possessed for export
or sale so long as they were (i) legally taken in the state or country
where they are landed, (ii) properly labeled or tagged and accompanied
by a bill of lading, purchase order or manifest stating the state or
country where the lobster was landed, and, if applicable, the ASFMC
Area where the lobster was taken; and (iii) imported, possessed and
exported by a person with a dealers and shippers license. DEC would be
authorized to promulgate regulations necessary to implement this
subdivision; and

* Add a new subdivision 19 to provide that detached lobster parts may
only be possessed, purchased, sold, bartered, traded, imported, or
exported if the lobster was legally taken where it was landed, and the
parts are properly packaged and labeled, identifying where the lobster
was landed

Section 3 of the bill would amend ECL § 13-0334 to add two new
subdivisions 6 and 7 to provide that a licensed dealer or shipper may
sell, barter, or trade oversized lobsters lawfully landed in another
state, lobster management area or country, provided he or she notifies


DEC of his or her actions in a manner prescribed by the department and
the applicable lobster's are secured or tagged in accordance with ECL
§ 13-0329(18)(a) and (b). This section would also authorize the sale
of lobster parts as long as they comply with ECL § 13-0329(19).

Section 4 of the bill would repeal section 2 of chapter 211 of the
laws of 2008.

Section 5 of the bill would amend section 3 of chapter 211 of the laws
of 2008 to eliminate the requirement that section 2 of that act be
enacted upon notification by the DEC Commissioner that the alternative
conservation-equivalent plan was adopted by the ASMFC to replace the
minimum size limit of 3 3/8 inches.

Section 6 provides that the bill would take effect thirty days after
enactment, provided that subdivision 17 of section 13-0329 of the
environmental conservation law, as added by section two of this act,
shall expire and be deemed repealed December 31, 2016.

Existing law: ECL § 13-0329 allows for the taking and management of
American lobster. ECL § 13-0329(5)(a) limits the taking, possession,
buying, selling importation, and exportation of lobsters smaller than
3 3/8 inches or greater than 5 1/4 inches. ECL § 13-0329(5)(a), as
added by section 2 of chapter 211 of the laws of 2008, would have
established a minimum lobster size of 3 5/16 inches but was never
implemented as ASFMC never adopted the alternative
conservation-equivalent plan, creating confusion in the law by listing
two different minimum size limits for lobster. ECL § 13-0329(5)(d)
prohibits the landing or possession of lobsters or parts thereof not
in the shell. ECL § 13-0334 requires that only licensed dealers or
shippers may resell, trade or barter food fish and crustacea,
including lobsters.

Prior Legislative history: This is a new bill.

Statement in Support: The Southern New England lobster stock is
experiencing persistent recruitment failures caused by both
environmental impacts, such as low oxygen in the water and warming
waters, and fishing mortality.

In February 2012, the American Lobster Management Board of the ASFMC
approved Addendum XVII to Amendment 5 of the American Lobster
Interstate Fishery Management Plan (FMP) to implement a 10 percent
reduction in the exploitation of the lobster stock. The addendum
addresses rebuilding the Southern New England lobster stock and
contains conservation measures with respect to lobster conservation
management areas (LCMAs) 2, 3, 4, 5, and 6 to mitigate declining
lobster populations in the New York area. All applicable states were
to comply with the requirements of the Addendum by December 15, 2012.

In consultation with each Lobster Management Conservation Team in New
York, DEC met its obligations by, among things, (i) instituting
seasonal closures for LCMAs 4, 5, and 6 to meet the FMP-mandated take
reduction, (ii) including within the seasonal closure a two week gear
removal and two week gear replacement grace period, and (iii)
prohibiting lobster traps from being baited more than one week prior
to season reopening. DEC implemented each of these recommendations by


regulations adopted in 2012 for all applicable areas in New York
except Long Island Sound. DEC excluded Long Island Sound because DEC
lacks statutory authority to implement regulations for the applicable
LCMA - Area 6. Nevertheless, failure to implement the new rules by the
compliance date could result in being determined to be out of
compliance with the Interstate Fisheries Management Plan and subject
to federal sanctions by the National Marine Fisheries Service. The
bill would provide DEC with the necessary authority to adopted
regulations associated LCMA 6.

The bill would also clarify statutory requirements related to the sale
of large lobsters and parts of lobsters. Under existing law, the sale
of lobsters bigger than 5 1/4 inches is prohibited in New York
regardless of where the lobsters are taken, and the law is unclear as
to the legality of possessing or selling detached lobster parts. This
prohibition prevents licensed dealers from purchasing or making
available for sale "oversized" lobsters that have been legally landed
in other states or countries while the lobster parts restriction
creates confusion for grocery stores and law enforcement. Allowing
licensed shippers and dealers to sell properly packaged and labeled
lobster parts and properly tagged oversized lobsters would provide
opportunities for dealers interested in providing such lobsters and
parts to restaurants, grocery stores or seafood markets, while
protecting New York's lobster fishery.

Finally, the bill would repeal provisions of the law which would have
changed the minimum allowable lobster size from 3 3/8 inches to 3 5/16
inches. This provision was never implemented as ASFMC never adopted
the alternative conservation-equivalent plan. This change would make
clear in the statute that the minimum size limits for lobster remains
3 3/8 inches.

Budget Implications: None.

Local Impact: None

Effective Date: This bill would take effect 30 days after enactment,
provided that subdivision 17 of section 13-0329 of the environmental
conservation law, as added by section two of this act, shall expire
and be deemed repealed December 31, 2016

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                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  5838

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                              June 17, 2013
                               ___________

Introduced  by  Sen.  ZELDIN -- read twice and ordered printed, and when
  printed to be committed to the Committee on Rules

AN ACT to amend the environmental conservation law, in relation  to  the
  management  of  American  lobster; to amend chapter 211 of the laws of
  2008 amending the  environmental  conservation  law  relating  to  the
  management  of  American  lobsters,  in  relation to the effectiveness
  thereof; to repeal section 2 of such chapter relating to  the  manage-
  ment  of  American  lobsters;  and providing for the repeal of certain
  provisions upon expiration thereof

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Paragraphs a and d of subdivision 5 of section 13-0329 of
the environmental conservation law, paragraph a as amended by section  1
of  chapter  211 of the laws of 2008 and paragraph d as added by chapter
357 of the laws of 1998, are amended to read as follows:
  a. Except as provided in subdivisions 13 [and],  16  AND  18  of  this
section,  only lobsters measuring three and three-eighths inches or more
and five and one-quarter inches or less may be taken, possessed, bought,
sold, imported and exported. All measurements are 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).
  d. The landing or possession, IN THE MARINE DISTRICT, of  lobster,  or
parts thereof, not in the shell, detached lobster tails or claws, or any
other  part of a lobster that has been separated from the lobster BY ANY
PERSON WHO HAS A LOBSTER PERMIT ISSUED BY THE STATE is prohibited. [This
prohibition applies to any lobstermen licensed by the state.]
  S 2. Section 13-0329 of the environmental conservation law is  amended
by adding three new subdivisions 17, 18 and 19 to read as follows:
  17.  A.  NO LOBSTER MAY BE TAKEN FROM ATLANTIC STATES MARINE FISHERIES
COMMISSION AREA SIX FROM SEPTEMBER EIGHTH THROUGH NOVEMBER TWENTY-EIGHTH
PURSUANT TO THE  RECOMMENDATIONS  OF  THE  AREA'S  LOBSTER  CONSERVATION

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08963-04-3

S. 5838                             2

MANAGEMENT  TEAM AS REQUIRED BY THE INTERSTATE FISHERY PLAN FOR LOBSTERS
ADOPTED BY THE ATLANTIC STATES MARINE FISHERIES COMMISSION.
  B. DURING THE SEPTEMBER EIGHTH THROUGH NOVEMBER TWENTY-EIGHTH CLOSURE,
LOBSTER  PERMIT  HOLDERS  WHO  USE  LOBSTER  TRAPS  OR POTS SHALL REMOVE
LOBSTER TRAPS AND POTS FROM THE WATER BY SEPTEMBER TWENTY-SECOND.
  C. NO LOBSTER  TRAP  OR  POT  MAY  BE  IN  THE  WATER  FROM  SEPTEMBER
TWENTY-SECOND UNTIL NOVEMBER FOURTEENTH UNLESS THE LOBSTER PERMIT HOLDER
ALSO  HOLDS  A  PERMIT  OR LICENSE THAT AUTHORIZES THEM TO HARVEST OTHER
SPECIES FROM THEIR LOBSTER TRAPS OR POTS.
  D. LOBSTER PERMIT HOLDERS MAY  SET  UNBAITED  LOBSTER  TRAPS  OR  POTS
BEGINNING NOVEMBER FOURTEENTH.
  E.  LOBSTER PERMIT HOLDERS MAY SET BAITED LOBSTER TRAPS OR POTS BEGIN-
NING NOVEMBER TWENTY-FIRST.
  18. A. LOBSTERS GREATER IN LENGTH THAN PROVIDED IN  SUBDIVISION  5  OF
THIS  SECTION  MAY BE IMPORTED INTO THE STATE AND POSSESSED FOR EXPORTA-
TION PROVIDED THAT:
  I. THE LOBSTERS WERE LEGALLY TAKEN IN THE STATE OR COUNTRY  WHERE  THE
LOBSTERS  WERE  LANDED,  AND,  IF APPLICABLE, THE ATLANTIC STATES MARINE
FISHERIES COMMISSION AREA WHERE THE LOBSTERS WERE TAKEN;
  II. THE LOBSTERS WERE PLACED IN  CONTAINERS  AND  SEALED  WITH  TAMPER
PROOF  SEALS  ACCEPTABLE TO THE DEPARTMENT IN THE STATE OR COUNTRY WHERE
THE LOBSTERS WERE LANDED;
  III. THE LOBSTERS REMAIN IN THE SEALED CONTAINERS AT ALL  TIMES  WHILE
THE  LOBSTERS ARE POSSESSED IN THE STATE, INCLUDING THE PLACEMENT OF THE
SEALED CONTAINERS IN HOLDING TANKS IN THE STATE;
  IV. EACH SEALED CONTAINER IS ACCOMPANIED WITH A LABEL,  INVOICE,  BILL
OF  LADING,  PURCHASE ORDER OR MANIFEST IDENTIFYING THE STATE OR COUNTRY
WHERE THE LOBSTERS WERE LANDED, AND, IF APPLICABLE, THE ATLANTIC  STATES
MARINE  FISHERIES  COMMISSION  AREA  WHERE  THE LOBSTERS WERE TAKEN, THE
NUMBER OF LOBSTERS CONTAINED THEREIN, AND THE  DATE  THE  CONTAINER  WAS
SEALED; AND
  V. THE LOBSTERS ARE IMPORTED, POSSESSED AND EXPORTED TO OR BY A PERSON
LICENSED PURSUANT TO SECTION 13-0334 OF THIS TITLE.
  B.  LOBSTERS  GREATER IN LENGTH THAN PROVIDED IN SUBDIVISION 5 OF THIS
SECTION MAY BE IMPORTED, POSSESSED, SOLD OR  OFFERED  FOR  SALE  IN  THE
STATE PROVIDED THAT:
  I.  THE  LOBSTERS WERE LEGALLY TAKEN IN THE STATE OR COUNTRY WHERE THE
LOBSTERS WERE LANDED, AND, IF APPLICABLE,  THE  ATLANTIC  STATES  MARINE
FISHERIES COMMISSION AREA WHERE THE LOBSTERS WERE TAKEN;
  II.  EACH  LOBSTER IS TAGGED IN THE STATE OR COUNTRY WHERE THE LOBSTER
WAS LANDED WITH A TAMPER RESISTANT TAG ACCEPTABLE TO THE DEPARTMENT. THE
TAG SHALL BE ATTACHED TO THE LOBSTER AND IDENTIFY THE STATE  OR  COUNTRY
WHERE  THE  LOBSTER  WAS  LANDED AND, IF APPLICABLE, THE ATLANTIC STATES
MARINE FISHERIES COMMISSION AREA WHERE THE LOBSTER WAS TAKEN;
  III. THE TAG MUST REMAIN ON THE LOBSTER UNTIL IT IS SOLD  TO  THE  END
CONSUMER IN THE STATE, INCLUDING WHILE IN A HOLDING TANK IN A RESTAURANT
OR RETAIL OUTLET;
  IV.  EACH  SHIPMENT  OF  TAGGED  LOBSTERS IS ACCOMPANIED WITH A LABEL,
INVOICE, BILL OF LADING, PURCHASE  ORDER  OR  MANIFEST  IDENTIFYING  THE
STATE  OR COUNTRY AND, IF APPLICABLE, THE ATLANTIC STATES MARINE FISHER-
IES COMMISSION AREA  WHERE  THE  LOBSTERS  WERE  TAKEN,  THE  NUMBER  OF
LOBSTERS  CONTAINED  THEREIN,  AND  THE  DATE OR DATES THE LOBSTERS WERE
HARVESTED; AND
  V. THE LOBSTERS ARE IMPORTED, POSSESSED AND SOLD OR OFFERED  FOR  SALE
IN  THE  STATE  BY A PERSON LICENSED PURSUANT TO SECTION 13-0334 OF THIS
TITLE.

S. 5838                             3

  C. THE DEPARTMENT MAY PROMULGATE REGULATIONS  NECESSARY  TO  IMPLEMENT
THIS SUBDIVISION.
  19.  LOBSTERS,  OR  PARTS  THEREOF, NOT IN THE SHELL, DETACHED LOBSTER
TAILS OR CLAWS, OR ANY OTHER PART OF A LOBSTER THAT HAS  BEEN  SEPARATED
FROM  THE  LOBSTER  MAY  ONLY BE POSSESSED, PURCHASED, OFFERED FOR SALE,
TRADE OR BARTER, IMPORTED, OR EXPORTED, PROVIDED:
  A. THE LOBSTER WAS LEGALLY TAKEN IN THE STATE  OR  COUNTRY  WHERE  THE
LOBSTER WAS LANDED, AND, IF APPLICABLE, THE ATLANTIC STATES MARINE FISH-
ERIES COMMISSION AREA WHERE THE LOBSTER WAS TAKEN;
  B.  THE  LOBSTER PARTS ARE PACKAGED WITH LABELS IDENTIFYING THE STATE,
OR COUNTRY WHERE THE LOBSTER WAS TAKEN AND IF APPLICABLE,  THE  ATLANTIC
STATES  MARINE FISHERIES COMMISSION AREA. LOBSTER PARTS MUST BE PACKAGED
AND PROPERLY LABELED  PRIOR  TO  BEING  POSSESSED,  SOLD,  PURCHASED  OR
IMPORTED IN THE STATE.
  S  3. Section 13-0334 of the environmental conservation law is amended
by adding two new subdivisions 6 and 7 to read as follows:
  6. A LICENSED DEALER OR SHIPPER MAY ONLY IMPORT, EXPORT,  POSSESS,  OR
OFFER  FOR  SALE,  BARTER,  OR  TRADE,  LOBSTERS  GREATER IN LENGTH THAN
PROVIDED BY SUBDIVISION 5 OF SECTION 13-0329 OF THIS TITLE IF:
  A. THE LICENSED DEALER OR SHIPPER HAS NOTIFIED THE DEPARTMENT IN WRIT-
ING PRIOR TO TAKING SUCH ACTION ON A FORM PRESCRIBED BY THE  DEPARTMENT;
AND
  B.  THE  LOBSTERS  ARE IN A SECURED CONTAINER IN ACCORDANCE WITH PARA-
GRAPH A OF SUBDIVISION 18 OF SECTION 13-0329 OF THIS TITLE OR TAGGED  IN
ACCORDANCE WITH PARAGRAPH B OF SUBDIVISION 18 OF SECTION 13-0329 OF THIS
TITLE.
  7.  NO  PERSON  LICENSED  AS  A  DEALER OR SHIPPER MAY IMPORT, EXPORT,
POSSESS, OR OFFER FOR SALE, BARTER, TRADE, LOBSTERS, OR  PARTS  THEREOF,
NOT  IN THE SHELL, DETACHED LOBSTER TAILS OR CLAWS, OR ANY OTHER PART OF
A LOBSTER THAT HAS BEEN SEPARATED FROM THE LOBSTER EXCEPT AS  AUTHORIZED
BY SUBDIVISION 19 OF SECTION 13-0329 OF THIS TITLE.
  S  4.  Section 2 of chapter 211 of the laws of 2008 amending the envi-
ronmental conservation  law  relating  to  the  management  of  American
lobsters is REPEALED.
  S  5.  Section 3 of chapter 211 of the laws of 2008 amending the envi-
ronmental conservation  law  relating  to  the  management  of  American
lobsters is amended to read as follows:
  S  3.  This act shall take effect July 1, 2008[; provided however that
section two of this act shall take effect on the effective  date  of  an
alternative conservation-equivalent plan approved by the Atlantic States
Marine Fisheries Commission which achieves equivalent conservation value
in  place  of  the required three and three-eighths inches minimum gauge
length for American lobster in Atlantic States Marine Fisheries  Commis-
sion  Lobster  Conservation Management Area 6, provided that the commis-
sioner of environmental conservation shall notify the  legislative  bill
drafting  commission of the effective date of such alternative conserva-
tion - equivalent plan in order that  the  commission  may  maintain  an
accurate and timely effective data base of the official text of the laws
of  the  state  of  New  York  in furtherance of effecting provisions of
section 44 of the legislative law and section 70-b of the  public  offi-
cers law].
  S  6.  This  act shall take effect on the thirtieth day after it shall
have become a law; provided that subdivision 17 of  section  13-0329  of
the environmental conservation law, as added by section two of this act,
shall expire and be deemed repealed December 31, 2016.

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