ENV-04-15-00006-P Regulations Governing the Recreational Harvest of Winter Flounder

1/28/15 N.Y. St. Reg. ENV-04-15-00006-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 4

January 28, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-04-15-00006-P

Regulations Governing the Recreational Harvest of Winter Flounder

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

Proposed Action:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

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

Subject:

Regulations governing the recreational harvest of winter flounder.

Purpose:

Extend the recreational winter flounder fishing open season from April 1 - May 30 to March 1 - December 31.

Text of proposed rule:

Existing subdivision 40.1 (f) of 6 NYCRR is amended to read as follows:

Species Striped bass through Bluefish remain the same. Species Winter flounder is amended to read as follows:

40.1(f) Table A – Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Winter flounder	[April 1 – May 30] March 1 – Dec. 31	12″ TL	2

Species Scup (porgy) through Oyster toadfish remain the same.

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

Stephen 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-c authorize the Department of Environmental Conservation (DEC or the department) to establish by regulation the open season, size, catch limits, possession and sale restrictions and manner of taking for winter flounder.

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 maximize winter flounder fishing opportunities for its marine recreational anglers while remaining in compliance with the Interstate Fishery Management Plan (FMP) adopted by the Atlantic States Marine Fisheries Commission (ASMFC). The proposed rule will extend the current 60 day open season (April 1 – May 30) to 306 days (March 1 – December 31) without altering the current 12 inch minimum size limit or the 2 fish possession limit. This regulatory change will provide New York marine recreational anglers with similar access to winter flounder as anglers in NY’s neighboring states of Rhode Island, Connecticut and New Jersey. The proposed season will provide additional fishing opportunities during periods of the year when there are few other species to fish for. It is hoped that these relaxed regulations will increase interest and fishing activity, resulting in economic benefits to a number of different types of associated businesses.

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 recreational harvesters, party and charter boat operators and other recreational support industries of the new rules.

5. Local government mandates:

None.

6. Paperwork:

None.

7. Duplication:

None.

8. Alternatives:

A moratorium or other more restrictive measures on the harvest of winter flounder: Some stakeholders have said that the winter flounder fishery should be closed or more restrictive than it is currently managed to eliminate fishing mortality on these fish. However, neighboring states have already decided to extend the winter flounder season. This alternative was rejected because such a closure would deny New York State anglers fishing opportunities made available to anglers in neighboring states and because a closure may adversely impact the incomes of New York State recreational fishery businesses.

“No action” alternative or status quo: Under this alternative New York State winter flounder regulations would remain at the current season of April 1 through May 30. This alternative is not projected to impact fishing mortality in any manner. This alternative was rejected because the current winter flounder season is shorter than the winter flounder seasons set by neighboring states. New York State anglers would be denied fishing opportunities made available to anglers in neighboring states.

Extend the season to shorter period than the proposed March through December: Under the ASMFC season extension, New York State can extend its fishing season from 60 days up to 306 days, between the dates March 1 and December 31. A proposed season shorter than the proposed 306 day season allowed by ASMFC could provide some conservation benefit to the winter flounder stock, particularly those sub-populations that are resident in New York’s bays. For example, the season could be closed during times when winter flounder aggregate in June and November-December. As above, this alternative was rejected because such a season is shorter than the winter flounder seasons set by neighboring states.

9. Federal standards:

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

10. Compliance schedule:

The proposed rule will extend the recreational fishing season for winter flounder. Regulated persons will be notified by mail, press release, and DEC’s website of the changes to the winter flounder regulations. Regulated persons will be able to achieve compliance with the rule as soon as it is adopted and in effect.

Regulatory Flexibility Analysis

1. Effect of rule:

The Atlantic States Marine Fisheries Commission (ASMFC) adopted a significantly expanded recreational fishing season for winter flounder in February 2014. New York State can adopt this 306 day season (March 1-December 31) or one more restrictive. The current regulations in place are far more restrictive with only a 60-day fishing season (April 1-May 30); this proposed rule represents a considerable relaxation of current regulations and increased opportunity for marine recreational anglers and associated businesses (party and charter [for-hire] boats, bait and tackle sales, gas docks, and marinas). Neither the current minimum size limit of 12 inches nor the possession limit of 2 fish will change. The adoption of the proposed rule will provide New York State recreational anglers and fishing associated businesses with parity with those in neighboring states where the longer season has already been adopted.

2. Compliance requirements:

The rule does not impose any reporting or recordkeeping requirements for small businesses or local governments.

3. Professional services:

None.

4. Compliance costs:

Associated businesses may experience some economic benefits. Increasing fishing pressure on already depressed stocks of inshore winter flounder may impact their recovery and bear a long term cost for those that wish to fish on them.

5. Economic and technological feasibility:

There is no additional technology required for small businesses, and this action does not apply to local governments; there are no negative economic or technological impacts for either.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for DEC to optimize opportunities for its recreational fishing industry and recreational anglers while maintaining compliance with the ASMFC fishery management plan (FMP) for winter flounder. The proposed rule is a significant relaxation of current regulations and should not result in any immediate negative impacts to small businesses.

7. Small business and local government participation:

The department received recommendations from the Marine Resource Advisory Council, comprised of representatives from recreational and commercial fishing interests, although no formal quorum was present on the number of different occasions that this proposed rule was discussed. Public opinion was also expressed at these meetings. The majority of Councilors and the public were in favor of extending the recreational winter flounder fishing season, but this sentiment was not unanimous.

8. Cure period or other opportunity for ameliorative action:

Although the proposed rule will extend the recreational fishing season for winter flounder, the minimum size limit and possession limit will remain in effect, as management measures to constrain the impacts of fishing on the winter flounder stock. The text of the rule does not include a cure period or other opportunity for ameliorative action (the successful completion of which will prevent the imposition of penalties on the party or parties subject to enforcement). Pursuant to SAPA 202-b (1-a)(b), no such cure period is included in the rule because of the potential adverse impact on the winter flounder resource. Cure periods for the illegal taking of fish or wildlife are neither desirable nor recommended. Immediate compliance is required to ensure the general welfare of the public and the resource is protected.

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. Winter flounder 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 ASMFC adopted a significantly expanded recreational fishing season for winter flounder in February 2014 and New York State has the option to adopt this 306 day season (March 1-December 31) or one more restrictive. The current regulations in place are far more restrictive at only 60 days (April 1-May 30) so this proposed rule represents a considerable relaxation of current regulations and increased opportunity for marine recreational anglers and associated businesses (for-hire vessels, bait and tackle sales, gas docks, marinas). Neither the current minimum size limit of 12 inches nor the possession limit of 2 fish will change. The adoption of the proposed rule will provide New York State anglers and recreational fishing businesses parity with anglers and fishing businesses in neighboring states where the longer season has already been adopted. Winter flounder was at one time the most popular marine recreational fishery in New York State. Its popularity has declined as the population decreased and regulations became more restrictive.

2. Categories and numbers affected:

In 2013, there were 475 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. According to the American Sportfishing Association, in 2011 New York had an estimated 800,811 marine recreational anglers that spent $1,194,493,042 on saltwater fishing, generating $144,539,079 in state and local tax revenue. In 2014, over the 60 day open season, New York marine recreational anglers only made 22,378 trips targeting winter flounder. This is in stark contrast to the almost 2 million directed trips per year in the mid 1980’s when fish were more abundant, the season was year around, and there was no restrictions on the possession limit.

3. Regions of adverse impact:

The proposed rule is less restrictive than those currently in place and it is not anticipated that the rule will have adverse impacts on jobs in the Marine and Coastal District of New York.

4. Minimizing adverse impact:

The proposed rule is less restrictive than those currently in place and it is not anticipated that the rule will have adverse impacts on jobs in the Marine and Coastal District of New York. Long term consequences to the inshore stock from increased fishing pressure is difficult to predict but could ultimately effect the livelihoods of those that depend upon winter flounder.