§ 20-2.1-9 - Powers and duties of the director.
SECTION 20-2.1-9
§ 20-2.1-9 Powers and duties of thedirector. – It shall be the duty of the director to adopt, implement effective January 1,2003, and maintain a commercial fisheries licensing system that shallincorporate and be consistent with the purposes of this chapter; in performanceof this duty the director shall follow the guidelines and procedures set forthbelow:
(1) The rule making powers of the director to accomplish thepurposes of this chapter shall include the following with regard to commercialfishing licenses and commercial fishing by license holders:
(i) Types of licenses and/or license endorsement consistentwith the provisions of this chapter and applicable sections of this title, andlimitations on levels of effort and/or on catch by type of license and/orlicense endorsement;
(ii) Design, use, and identification of gear;
(iii) Declarations for data collection purposes of vesselsused in commercial fishing, which declaration requirements shall in no way,except as otherwise provided for in law, restrict the use of any vessel lessthan twenty-five feet (25') in length overall by appropriate holders ofcommercial fishing licenses;
(iv) Areas in Rhode Island waters where commercial fishing ofdifferent types may take place, and where it may be prohibited or limited, andthe times and/or seasons when commercial fishing by type or species may beallowed, restricted, or prohibited;
(v) Limitations and/or restrictions on effort, gear, catch,or number of license holders and endorsements;
(vi) Emergency rules, as provided for in chapter 35 of title42, to protect an unexpectedly imperiled fishery resource, to provide access toa fisheries resource that is unexpectedly more abundant, and to protect thepublic health and safety from an unexpected hazard or risk. The marinefisheries council shall be notified of all emergency rules on or before theireffective date, and no emergency rule shall become a final rule unless it ispromulgated as provided for in subdivision (3) of this section.
(2) When implementing the system of licensure set forth in§§ 20-2.1-4, 20-2.1-5, 20-2.1-6, and 20-2.1-7 and other provisions ofthis title pertaining to commercial fishing licenses, permits, andregistrations, the director shall consider the effect of the measure on theaccess of Rhode Islanders to commercial fishing and when establishinglimitations on effort and/or catch:
(i) The effectiveness of the limitation:
(A) In achieving duly established conservation or fisheriesregeneration goals or requirements;
(B) In maintaining the viability of fisheries resourcesoverall, including particularly, the reduction of by-catch, discards, and fishmortality, and in improving efficiency in the utilization of fisheriesresources;
(C) In complementing federal and regional management programsand the reciprocal arrangements with other states;
(ii) The impact of the limitation on persons engaged incommercial fishing on:
(A) Present participation in the fishery, including rangesand average levels of participation by different types or classes ofparticipants;
(B) Historical fishing practices in, and dependence on, thefishery;
(C) The economics of the fishery;
(D) The potential effects on the safety of human life at sea;
(E) The cultural and social framework relevant to the fisheryand any affected fishing communities; and
(iii) Any other relevant considerations that the directorfinds in the rule making process;
(iv) The following standards for fishery conservation andmanagement, which standards shall understood and applied so far as practicableand reasonable in a manner consistent with federal fisheries law, regulation,and guidelines:
(A) Conservation and management measurers shall preventoverfishing, while achieving, on a continuing basis, the optimum yield fromeach fishery;
(B) Conservation and management measures shall be based uponthe best scientific information available; and analysis of impacts shallconsider ecological, economic and social consequences of the fishery as a whole;
(C) Conservation and management measures shall, wherepracticable, consider efficiency in the utilization of fisheries resources;except that no such measure shall have economic allocation as its sole purpose;
(D) Conservation and management measures shall take intoaccount and allow for variations among, and contingencies in, fisheries,fishery resources, and catches;
(E) Conservation and management measures shall, wherepracticable, minimize costs and avoid unnecessary duplication;
(F) Conservation and management measures shall, consistentwith conservation requirements of this chapter (including the prevention andoverfishing and rebuilding of overfished stocks), take into account theimportance of fishery resources to fishing communities in order to (I) providefor the sustained participation of those communities, and (II) to the extentpracticable, minimize adverse economic impacts on those communities;
(G) Conservation and management measures shall, to the extentpracticable: (I) minimize by-catch and (II) to the extent by-catch cannot beavoided, minimize the mortality of the by-catch;
(H) Conservation and management measures shall, to the extentpracticable, promote the safety of human life at sea.
(3) The rule making process set forth in this subdivisionshall conform with the requirements of the Administrative Procedures Act,chapter 35 of title 42, and shall include a regulatory agenda for marinefisheries management, with the advice of the marine fisheries council, inaccordance with the requirements of § 42-35-5.1;
(ii) The director shall submit a proposed rule to the marinefisheries council at least sixty (60) days prior to the proposed date of thepublic hearing on the rule;
(iii) The public hearing shall be on either the rule asproposed to the marine fisheries council by the director or a proposed revisionto that rule adopted by the marine fisheries council;
(iv) The proposed rule as submitted by the director to themarine fisheries council and the council report and recommendation regardingthe rule shall both be entered into the record of the hearing conducted inaccordance with the requirements of chapter 35 of title 42;
(v) Notwithstanding the provisions of paragraphs (i) –(iv) of this subdivision, the director may promulgate a rule with less thansixty (60) days notice to the marine fisheries council if and to the extentnecessary to comply with federal requirements or to respond to a sudden changein conditions, where failure to take immediate action would likely cause harmto fishery resources or participants;
(vi) The decision of the director shall state the basis foradopting the rule including a concise statement giving the principal reasonsfor and against its adoption and the response to positions entered into therecord; and in the case of a rule promulgated in accordance with paragraph (v)of this subdivision, the reasons for having to take immediate action.
(4) Matters to be considered in establishing licenseprograms under this chapter. The director shall be consistent with therequirements of § 20-2.1-2(6) in establishing and implementing a licensingsystem in accordance with the provisions of this chapter that shall be designedto accomplish marine fisheries management objectives. The licensing system maylimit access to fisheries, particularly commercial fisheries for which there isadequate or greater than adequate harvesting capacity currently in the fisheryand for which either a total allowable catch has been set or a total allowablelevel of fishing effort has been established for the purpose of preventingover-fishing of the resource or the dissipation of the economic yield from thefishery. This authority shall include the authority of the director to:
(i) Differentiate between the level of access to fisheriesprovided to license holders or potential license holders on the basis of pastperformance, dependence on the fishery, or other criteria;
(ii) Establish prospective control dates that provide noticeto the public that access to, and levels of participation in, a fishery may berestricted and that entrance into, or increases in levels of participation in afishery after the control date may not be treated in the same way asparticipation in the fishery prior to the control date; retroactive controldates are prohibited and shall not be used or implemented, unless expresslyrequired by federal law, regulation or court decision;
(iii) Establish levels of catch by type of license and/orendorsement which shall provide for basic and full harvest and gear levels;quotas may be allocated proportionally among classes of license holders asneeded to maintain the viability of different forms of commercial fishing.
(5) The director shall by rule, with the advice of the marinefisheries council, develop conservation and management plans for the fisheryresources of the state, which conservation and management plans shall beadopted prior to and at the same time as adoption of any license restrictionson effort or catch. In the development of the fishery conservation andmanagement plans, priority shall be given to those resources with the highestvalue to the state, either for commercial or recreational purposes.
(6) The director shall report annually to the generalassembly and to the citizens concerning the conservation and management of thefishery resources of the state, noting particularly the status of any fisheryresources that are considered to be over-fished or were considered to beover-fished in the preceding year.