State finalizes safe harbor rules for commercial fishermen

New York has finalized guidelines for commercial fishing boats seeking safe harbor in storms and other adverse conditions, eight months after the state lost a court case against one East End fisherman because the rules weren’t in writing.

The state Department of Environmental Conservation says the new safe harbor guidelines will give clarity to fishing boat captains faced with potential dangers at sea by defining the conditions under which they can seek permission to enter New York ports while on federally registered commercial fishing trips. The guidelines require captains to notify and seek permission from the DEC before entering ports in the state.

The guidance applies when ships are experiencing a mechanical breakdown, face unsafe weather conditions with winds at 35-plus knots and waves of more than 10 feet, have lost essential equipment, or have a “significant” medical emergency.

The DEC “may require the vessel captain to independently verify the reason for the unscheduled dockage with a mechanic deemed qualified by New York State, the National Weather Service or a medical professional,” according to the rules.

The DEC said the rules were welcomed by fishermen, but one local fishing advocate argued the guidelines are “toothless” because they don’t grant fishermen any rights.

Fishermen who have out-of-state fishing permits aren’t allowed to dock in New York ports while on fishing trips or land their catch. The rules are designed to keep each state’s quota segregated. For vital species such as fluke, each state gets a percentage of the coast-wide quota, and New York’s is lower than most other states.

In January, Hampton Bays fisherman Bill Reed was charged by the DEC with coming to port with more than 600 pounds of illegal fluke after bad weather forced him to return to New York rather than steam 95 miles to New Jersey, where he has permits to land his fish.

But Southampton Justice Court Judge Barbara Wilson dismissed the case mid-trial because the DEC officer who made the arrest was unable to produce rules written into law that would guide fishermen on how to seek safe harbor.

Jim Gilmore, who heads the marine resources division for the DEC, said the agency has been planning to codify the guidance for years, and met informally with groups of commercial fishermen over the past several months to hammer them out. The DEC wanted the guidance out before the storm season

“The whole idea is to give [commercial fishers] some better guidance,” said Gilmore, adding that the court case expedited finalization of the rules. “So far everybody that’s seen it is very happy with it.”

Not everyone. Dan Rodgers, the Southampton attorney who defended Reed, said a disclaimer in the guidance removes any legal rights or protection for fishermen if the DEC decides someone has violated rules. The disclaimer says the guidance “does not create any rights enforceable by any party and does not restrict or alter the authority or enforcement discretion” of the DEC.

“It’s worse than what they have now,” said Rodgers, a former assistant prosecutor for Suffolk County. “They can absolutely disavow it, and they can require approval ahead of time. They are giving fishermen this very slim suggestion, but it’s going to be completely at their discretion.”

By Mark Harrington

mark.harrington@newsday.comMHarringtonNews

Mark Harrington, a Newsday reporter since 1999, covers energy, wineries, Indian affairs and fisheries.