ENV-41-11-00030-E Recreational Fishing Season for Scup (Porgy)

10/12/11 N.Y. St. Reg. ENV-41-11-00030-E

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 41

October 12, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-41-11-00030-E

Filing No. 856

Filing Date. Sept. 27, 2011

Effective Date. Sept. 27, 2011

Recreational Fishing Season for Scup (Porgy)

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

Action taken:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

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

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The promulgation of this regulation on an emergency basis is necessary because the normal rulemaking process would not promulgate this rule in the time frame necessary for the rule to be in effect before the current recreational season for scup closes on September 27, 2011. This rule will delay the closing of the recreational scup fishing season until December 25, giving New York State anglers additional opportunities to fish for scup, and New York fishing industry businesses (party and charter boats, bait and tackle shops, marinas) opportunities for increased revenue. In addition, the increased time scup will be available to recreational anglers will redirect fishing effort off of less robust stocks and onto scup, a plentiful resource. It is in the best interests of New York State's recreational fishing industry to delay the closing of the scup recreational season by promulgating the regulation on an emergency basis as an extension would provide a significant economic boost to the recreational industry.

With the scup season set to close on September 27th, but plenty of scup still swimming in local waters, extending the season would allow fishing to continue until the fish depart in November. An extension to the season may result in more fishing trips, more party and charter trips, which means more bait and tackle sold, more fuel sales and other related spending. The past few years of restrictive harvest measures have had a dampening effect on the recreational fishing industry. This action could help reverse some of that. We have heard from some in the industry pleading for an extension to the season.

The increased availability of scup would redirect some pressure off the depleted tautog fishery. Currently, October is closed to the recreational scup, fluke and black sea bass fisheries, with the exception of a brief period during which scup may be taken aboard for-hire vessels. The only fishery available to New York bottom fishers for most of October and until the sea bass fishery reopens in November is tautog, or blackfish. As of this writing, we are planning significant cutbacks in the recreational fishery for blackfish in order to help rebuild a seriously depleted resource. With an extension of the scup season, bottom fishers will have a robust scup fishery through the month of October without having to rely almost exclusively on a tautog resource which is in poor shape.

An extension of the season would present no threat to the stock or the 2011 landing limits. Coastwide scup fishery harvest overall will fall short of achieving optimum yield in 2011. This shortfall is occurring despite substantial State and federal management actions that have been and continue to be taken in an attempt to fill the 2011 commercial quota. Recreational landings this year are below 2010 levels and annual landings are projected to fall short of the target.

Given these projections, there is ample room to suspend the 2011 recreational closed season that would occur beginning September 27 in the states between Massachusetts and New York.

Connecticut, Rhode Island and coastal states to our south currently have or will have the season for scup open to the end of the year.

Subject:

Recreational fishing season for scup (porgy).

Purpose:

To delay the closing of the recreational scup season and thereby extend the season by 90 days.

Text of emergency rule:

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

Species Striped bass through Winter flounder remain the same. Species Scup (porgy) licensed party/charter boat anglers**** through Scup (porgy) all other anglers are amended to read as follows:

40.1(f) Table A - Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Scup (porgy) licensed party/ charter boat anglers****	June 8 - Sept. 6	11" TL	10
	Sept. 7 - Oct. 11	11" TL	40
	Oct. 12 - Dec 25	11" TL	10
Scup (porgy) all other anglers	May 24 - [Sept. 26] Dec. 25	10.5" TL	10

Species Black sea bass through Oyster toadfish remain the same.

This notice is intended

to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires December 25, 2011.

Text of 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]

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 13-0105 and 13-0340-e authorize the Department of Environmental Conservation (DEC or department) to establish by regulation the open season, size, catch limits, possession and sale restrictions and manner of taking for scup.

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 to maximize the economic benefit to New York State's recreational fishing industry through extended access to an abundant and underutilized natural resource. Coastwide harvest of scup is millions of pounds below optimum yield and the stock itself is approximately twice the size of the spawning stock biomass target. An extension of the season will allow recreation anglers to take advantage of the many scup in our local waters and may result in increased sales of fuel, bait, tackle, and party and charter boat fares. The recreational fishing industry, composed of party/charter boat operations, bait and tackle stores, dockside fuel merchants and marina operators should benefit economically. The recreational fishing industry generates hundreds of million dollars in total sales every year but the past few years of restrictive harvest measures combined with rising fuel costs have had a dampening effect on the industry's income. The industry has pleaded for an extension to the season and this is a stock that could easily absorb further harvest.

Specific amendments to the current regulations include the following:

Scup: Implement an open season for the scup recreational fishery for all anglers (private and party/charter) through to December 25, while maintaining current minimum size limits and possession limits.

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.

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

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:

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. Scup "No Action" Alternative (no amendment to scup regulations) - The "no action" alternative would leave current scup regulations in place. Under existing regulations, the season would end on September 26 for most anglers and on October 11 for anglers fishing from party/charter vessels. The New York recreational fishing industry would lose the opportunity to benefit from the presence of an abundant natural resource while anglers and businesses in neighboring states (Connecticut and Rhode Island) benefit. Should New York not extend the scup recreational season, the perception among the recreational fishing industry and the regulated public may be that the department is insensitive to their needs and unwilling to take full advantage of available harvest.

9. Federal standards:

The amendments to Part 40 may result in the State of New York being found out of compliance by the Atlantic States Marine Fisheries Commission (ASMFC), but the State will not attain one of the ASMFC fishery management objectives, improving the yield from this abundant source, if we fail to act based upon our most recent data documenting significant under-harvest. The mission of the ASMFC includes the better utilization of marine fisheries; currently the coast-wide harvest of scup is projected to fall as much as 9.9 million pounds short of achieving optimum yield. Review of the most recent data shows that an extension of the season would present no threat to the stock or the 2011 landing limits. Coast-wide scup fishery harvest overall will fall short of achieving optimum yield in 2011. This shortfall is occurring despite substantial state and federal management actions that have been and continue to be taken in an attempt to fill the 2011 commercial quota. Recreational landings this year are below 2010 levels and annual landings are projected to fall short of the target. Given these projections, there is ample room to suspend the 2011 recreational closed season that would occur beginning September 27 in the states between Massachusetts and New York. There is little risk of exceeding the overall Total Allowable Landings (TAL) associated with extending the open season for anglers. The risk to overall stock status is even smaller given that the recommended 2012 TAL (34.43m lb Commercial, 10.85 m lb Recreational = 45.28 m lb) is a 73 percent increase over the 2011 TAL. Further, the stock has been above target biomass since 2004 - is currently at double the target - and fishing rates have been below the rate at Maximum Sustainable Yield since 2001.

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 promulgation of this rule would amend the recreational season for scup by delaying the closing of the season from September 27 until December 25, thereby extending the season 90 days. The consequences of this action, assuming that the scup landings limit will not be exceeded, are not expected to be significant. This is based upon a review of the most recent data which shows an extension of the season would present no threat to the stock or the 2011 landing limits. Coast-wide scup fishery harvest overall will fall short of achieving optimum yield in 2011. This shortfall is occurring despite substantial state and federal management actions that have been and continue to be taken in an attempt to fill the 2011 commercial quota. Recreational landings this year are below 2010 levels and annual landings are projected to fall short of the target.

Those most affected by the proposed rule are recreational anglers, licensed party and charter businesses, and retail and wholesale marine bait and tackle shops operating in New York State. New York State Department of Environmental Conservation (department or DEC) consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on scup recreational management measures. The response indicates that there is a belief that a longer season will provide economic benefits to businesses because their customers will take advantage of the additional opportunities to go fishing for scup. The responses received by DEC suggest that a long season will result in more charter bookings, more party boat trips, and more bait and tackle sales. In addition, private individuals (mostly boating anglers) will have increased opportunities to fish for scup.

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 increase the income of party and charter businesses and marine bait and tackle shops because of the increase in the number of days available for recreational fishers to take scup.

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

6. Minimizing adverse impact:

The promulgation of this rule is necessary for DEC to maximize the economic benefit to New York State's recreational fishing industry through extended access to an abundant and underutilized natural resource.

The maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, including party and charter boat fisheries as well as wholesale and retail bait and tackle shops and other support industries for recreational fisheries. Failure to amend the recreational scup season will deny State based anglers and recreational fishery businesses additional opportunities to benefit from an abundant and readily available resource. These regulations are being proposed in order to allow for harvest consistent with the capacity of the resource to sustain such effort, yet provide the appropriate level of protection for the resource.

7. Small business and local government participation:

DEC received recommendations from the MRAC, which is comprised of representatives from recreational and commercial fishing interests. The proposed regulations are also based upon comments received from recreational fishing organizations, party and charter boat owners and operators, retail and wholesale bait and tackle shop owners, recreational anglers and state law enforcement personnel. 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 scup 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 the Department of Environmental Conservation (DEC) to optimize yield from a rebuilt stock of marine fish and maximize recreational fishing opportunities available to New Yorkers. The proposed rule extends the scup recreational fishing season by 90 days, from 141 days in 2011 to 231 days. All other provisions of the rule remain the same.

Many currently licensed party and charter boat owners and operators, bait and tackle businesses and other small marine businesses, will be affected by these regulations. Due to the increase in the number of fishing days for scup, there may be a corresponding increase in the number of fishing trips and related expenditures during the remainder of the 2011 fishing season.

2. Categories and numbers affected:

In 2010, there were 502 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 fishers in New York has been estimated by the National Marine Fisheries Service to be 739,624 in 2010. This Job Impact Statement does not include them in this analysis, however, since fishing is recreational for them and not related to employment.

3. Regions of adverse impact:

This rule making will result in an extension to the amount of time available for recreational fishing and therefore should not result in any adverse impacts.

4. Minimizing adverse impact:

There will not be any substantial adverse impact on jobs or employment opportunities as a consequence of this rule making.