ENV-05-10-00003-EP Recreational Harvest Limits for Black Sea Bass

2/3/10 N.Y. St. Reg. ENV-05-10-00003-EP

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 5

February 03, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-05-10-00003-EP

Filing No. 12

Filing Date. Jan. 13, 2010

Effective Date. Jan. 13, 2010

Recreational Harvest Limits for Black Sea Bass

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 13-0105 and 13-0340-f

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

Black sea bass are managed under a joint plan by the Atlantic States Marine Fisheries Commission (ASMFC), the Mid-Atlantic Fishery Management Council (MAFMC) and the NOAA Fisheries Service. The recreational fishery for sea bass is managed under measures applied coastwide, as opposed to state-by-state conservation equivalency as is done with summer flounder (fluke). Annually, total allowable landings (TAL) are determined by NOAA Fisheries from which the coastwide recreational harvest limit is derived and set.

For 2009, the coastwide recreational harvest limit was set very low, at 1.14 million pounds. It was set low because, at the time, the stock was considered to be overfished and the deadline for rebuilding the black sea bass stock, the year 2011, was approaching. After the 2009 harvest limit was set, a peer-reviewed black sea bass stock assessment was approved by NOAA Fisheries in January 2009.

This recent stock assessment shows that the black sea bass stock has been rebuilt. However, NOAA Fisheries received a recommendation from the MAFMC Science and Statistical Committee (SSC) that the black sea bass TAL for 2010 should remain the same as 2009 due to considerable uncertainty in the stock assessment. Consequently, NOAA Fisheries will again set the recreational harvest limit at 1.14 million pounds. At the joint meeting of the MAFMC and ASMFC's Black Sea Bass Management Board in December 2009, it was decided to accept the recommendation to severely reduce the recreational season for black sea bass. It was also decided to remand the 2010 TAL recommendation back to the SSC for reconsideration, jointly with the MAFMC's Black Sea Bass Monitoring Committee. Despite reconsideration of the TAL recommendation, ASMFC member states are still required to immediately adopt rules implementing a reduced recreational season for black sea bass.

The rules that ASMFC member states must implement for 2010 are the following: a 12.5-inch minimum size limit, 25-fish daily possession limit, and an open season of June 1-June 30 and September 1-September 30, 2010. New York's current rule provides for an open season of January 1-December 31. Emergency action is needed to implement the season closure in state waters on or about January 1, 2010. Failure to implement these measures will result in New York being out of compliance with the Fishery Management Plan for Black Sea Bass and subject to further black sea bass restrictions later in 2010 or in 2011. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium on fishing for black sea bass in the State of New York should the State be found out of compliance.

Subject:

Recreational harvest limits for black sea bass.

Purpose:

To reduce the recreational fishing season for black sea bass to only June and September in 2010.

Text of emergency/proposed rule:

Existing subdivision 40.1 (f) of 6 NYCRR is amended to read as follows: Species striped bass through scup (porgy) all other anglers remain the same. Species black sea bass is amended to read as follows:

40.1(f) Table A - Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Black sea bass	[All year] June 1 - June 30 and Sept 1 - Sept 30	12.5" TL	25

Species American shad through Prohibited sharks remain the same.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire April 12, 2010.

Text of rule and any required statements and analyses may be obtained from:

Stephen W. Heins, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, NY 11733, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105 and 13-0340-f authorize the Department of Environmental Conservation (DEC) to establish by regulation the open season, size limits, catch limits, possession and sale restrictions, and manner of taking for black sea bass.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries in such a way as to protect this natural resource for its intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters. The ECL stipulates that management and use of State fish and wildlife resources must be consistent with marine fisheries conservation and management policies, and Interstate Fishery Management Plans (FMP).

3. Needs and benefits:

All member states of the Atlantic States Marine Fisheries Commission (ASMFC) and the Mid-Atlantic Fishery Management Council (MAFMC) must comply with the provisions of FMPs and management measures adopted by ASMFC and MAFMC. These FMPs and management measures are designed to promote the long-term sustainability of quota managed marine species, preserve the States' marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate any regulations necessary to implement the provisions of the FMPs and remain compliant with the FMPs.

At the December MAFMC meeting a motion was passed that established a two month recreational season for black sea bass in 2010, limited to the months of June and September. Currently, the black sea bass recreational season in New York is yearlong and will be open for recreational angling on January 1, 2010. As a member state of both MAFMC and ASMFC, New York State must comply with the management measures and management plans implemented by these agencies. The New York State recreational black sea bass season must be restricted to the months of June and September in 2010.

This rule making is necessary to ensure New York State remains in compliance with the recent management measures set in place by MAFMC and ASMFC and to provide harvest restrictions to prevent New York recreational anglers from exceeding the 2010 recreational harvest limit for black sea bass. Failure to implement these measures will result in New York being out of compliance with the Fishery Management Plan for Black Sea Bass and subject to further black sea bass restrictions later in 2010 or in 2011. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium for fishing for black sea bass in the State of New York should the State be found out of compliance.

4. Costs:

(a) Cost to State government:

There are no new costs to State government resulting from this action.

(b) Cost to local government:

There will be no costs to local governments.

(c) Cost to private regulated parties:

There are no new costs to regulated parties resulting from this action. Certain regulated parties will likely experience some adverse economic effects. Local party and charter boat businesses and bait and tackle shops will lose many of their customers who target black sea bass during the winter, spring and fall. Party and charter boat businesses and bait and tackle shops may rely on the patronage of recreational anglers who target black sea bass for the income it provides and may see a substantial reduction in their earnings.

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

The Department of Environmental Conservation will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying recreational harvesters, party and charter boat operators, and bait and tackle shops of the new rules.

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:

1. No Action Alternative - The Mid-Atlantic Marine Fisheries Council and the Atlantic States Marine Fisheries Council Summer Flounder, Scup and Black Sea Bass Board passed a motion recommending a two month recreational season for black sea bass: June and September 2010. Currently New York State has a yearlong season for recreational black sea bass. If New York State fails to amend 6 NYCRR Part 40 and to implement MAFMC's recommendation, the State will be out of compliance with the management measures put into place by MAFMC and ASMFC and may face further black sea bass restrictions later in 2010 or in 2011. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium on fishing for black sea bass in the State of New York if the State is found to be out of compliance. Consequently, this alternative was rejected.

2. Complete ban on possession of black sea bass - A peer-reviewed black sea bass stock assessment was approved by NOAA Fisheries in January 2009. This recent stock assessment shows that the black sea bass stock has been rebuilt. However, NOAA Fisheries received a recommendation from the MAFMC Science and Statistical Committee (SSC) that the black sea bass Total Allowable Landings for 2010 should remain the same as 2009 due to considerable uncertainty in the stock assessment. Consequently, NOAA Fisheries will again set the recreational harvest limit at 1.14 million pounds. At the joint meeting of the MAFMC and ASMFC's Black Sea Bass Management Board in December 2009, it was decided to accept the recommendation to severely reduce the recreational season for black sea bass. It was also decided to remand the 2010 TAL recommendation back to the SSC for reconsideration, jointly with the MAFMC's Black Sea Bass Monitoring Committee. As a result, ASMFC member states are now required to immediately adopt rules implementing these management measures while the recommendation is being reconsidered. A complete ban on possession of black sea bass was rejected because at this time, as the recommendation is being reconsidered, this alternative would be unwise and impose an unnecessary burden on party and charter boat businesses and bait and tackle shops and would result in a significant loss of fishing opportunities for New York State recreational anglers.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and Regional Fishery Management Council Fishery Management Plans.

10. Compliance schedule:

Regulated parties will be notified by mail, through appropriate news releases and via DEC's website of the changes to the regulations. The emergency regulations will take effect upon filing with the Department of State.

Regulatory Flexibility Analysis

1. Effect of rule:

The Department of Environmental Conservation (DEC) has proposed a rule that will severely reduce the recreational fishing season for black sea bass. New York State must amend Part 40 of 6 NYCRR to reduce the recreational season for black sea bass from a yearlong fishery to a two month season consisting of the months of June and September in 2010. This amendment is necessary for New York to remain in compliance with the management measures adopted by the Mid-Atlantic Fishery Management Council (MAFMC) and the Atlantic States Marine Fisheries Commission (ASMFC) Summer Flounder, Scup and Black Sea Bass Board. Failure to implement these measures will result in New York being out of compliance with the Fishery Management Plan for Black Sea Bass and subject to further black sea bass restrictions later in 2010 or in 2011. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium on fishing for black sea bass in the State of New York should the State be found out of compliance.

Those most affected by the proposed rule are recreational fishermen, licensed party and charter businesses, and marine bait and tackle shops operating in New York State. Local party and charter boat businesses and bait and tackle shops will lose many customers who target black sea bass during the winter, spring and fall. Party and charter boat businesses and bait and tackle shops may rely on the patronage of recreational anglers who target black sea bass for the income it provides and may see a substantial reduction in their earnings once the regulations are in place. There are no local governments involved in the recreational fish harvesting business, nor do any participate in the sale of marine bait fish or tackle. Therefore, no local governments are affected by these proposed regulations.

2. Compliance requirements:

None.

3. Professional services:

None.

4. Compliance costs:

There are no initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule.

5. Economic and technological feasibility:

The proposed regulations do not require any expenditure on the part of affected businesses in order to comply with the changes. The changes required by the proposed regulations may reduce the income of party and charter businesses and marine bait and tackle shops. Recreational anglers who target black sea bass may no longer seek party and charter boat trips for black sea bass and may no longer frequent bait or tackle shops to buy bait and fishing gear for black sea bass fishing.

There is no additional technology required for small businesses, and this action does not apply to local governments.

6. Minimizing adverse impact:

This rule making is necessary to ensure New York State remains in compliance with the recent management measures set in place by the Mid-Atlantic Fishery Management Council (MAFMC) and Atlantic States Marine Fisheries Commission (ASMFC) and to provide harvest restrictions to prevent New York recreational anglers from exceeding the 2010 recreational harvest limit for black sea bass. Since these amendments are consistent with federal and interstate fishery management plans, DEC anticipates that New York will remain in compliance with the FMPs.

Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment in the fisheries in question, including party and charter boat operations, bait and tackle shops, and other support industries for recreational fisheries. Lastly, failure to comply with the management measures adopted by MAFMC and ASMFC may result in New York being found non-compliant with the Fishery Management Plan for Black Sea Bass and subject to further black sea bass restrictions in 2010 or 2011. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium on fishing for black sea bass in the State of New York should the State be found out of compliance with the Interstate Fishery Management Plans adopted by ASMFC and MAFMC.

7. Small business and local government participation:

The Department of Environmental Conservation will present the actions taken at the December MAFMC meeting that led to the current rule making to the Marine Resources Advisory Council (MRAC). Members of the recreational fishing community will have the opportunity to discuss the ramifications of the rule making at that meeting.

There was no special effort to contact local governments because the proposed rule does not affect them.

Rural Area Flexibility Analysis

The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The black sea bass recreational fisheries directly affected by the proposed rule are entirely located within the marine and coastal district, and are not located adjacent to any rural areas of the state. Further, the proposed rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 40, a Rural Area Flexibility Analysis is not required.

Job Impact Statement

1. Nature of impact:

The promulgation of this regulation is necessary for Department of Environmental Conservation (DEC) to maintain compliance with the Fishery Management Plan for Black Sea Bass and to prevent New York anglers from exceeding the annual limit of New York's recreational quota for black sea bass and, hence, provide protection to the black sea bass stock. The proposed rule severely restricts the recreational fishing season for black sea bass. Prior to this rule making recreational anglers were able to take black sea bass all year long. Once this rule is adopted, the recreational season will be split for 2010: June 1 through June 30 and September 1 - September 30. Recreational fishermen, licensed party and charter boat businesses, and bait and tackle shops will be affected by these regulations. Recreational anglers who target black sea bass will only seek party and charter boat trips for black sea bass for two months of the year and will significantly reduce the time they spend frequenting bait or tackle shops to purchase bait and tackle for black sea bass fishing. This rule making will reduce a significant portion of the party and charter boat businesses during the spring, fall and winter. Many New York State party and charter boat businesses rely on year long patronage for fishing of black sea bass for the income it provides and will likely see a reduction in their earnings once the season restriction is in place.

2. Categories and numbers affected:

In 2008, there were 558 licensed party and charter businesses in New York State. There were also a number of retail and wholesale marine bait and tackle shop businesses operating in New York; however, DEC does not have a record of the actual number. The number of recreational anglers in New York who could be affected by this rule making is unknown by DEC at this time, but the National Marine Fisheries Service has estimated that there were just over 1 million recreational anglers in New York in 2007. However, this Job Impact Statement does not include recreational anglers in this analysis, since fishing is recreational for them and not related to employment.

3. Regions of adverse impact:

The regions most likely to receive any adverse impact are within the marine and coastal district of the State of New York. This area includes all the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the state, including Long Island Sound and the Hudson River up to the Tappan Zee Bridge. The Hudson River is not a usual habitat of black sea bass.

4. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for DEC to maintain compliance with the Fishery Management Plan for Black Sea Bass and to conserve the black sea bass stock. Since these amendments are consistent with federal and interstate fishery management plans (FMP), DEC anticipates that New York will remain in compliance with the FMPs.

In the long-term, the maintenance of sustainable fisheries will have a positive effect on employment for party and charter boat businesses and bait and tackle shops and provide recreational opportunities for New York State anglers. Failure to comply with FMPs and take required actions to protect our natural resources could cause the catastrophic collapse of a stock and have a severe adverse impact on the commercial and recreational fishing industries dependent on that species. Any short-term losses in harvest, sales of bait and tackle, and angler participation will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. Protection of the black sea bass resource is essential to the long-term benefit of the party and charter boat industry and bait and tackles shops. These regulations are designed to protect the black sea bass stock from overfishing, allow the stock to rebuild and achieve long-term sustainability of the fishery for future use. In addition, ASMFC may request the Secretary of Commerce to implement a moratorium on fishing for black sea bass in the State of New York should the State be found out of compliance.