ENV-48-09-00003-A The Commercial and Recreational Harvest Limits for Winter Flounder

2/10/10 N.Y. St. Reg. ENV-48-09-00003-A

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 6

February 10, 2010

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-48-09-00003-A

Filing No. 44

Filing Date. Jan. 26, 2010

Effective Date. Feb. 10, 2010

The Commercial and Recreational Harvest Limits for Winter Flounder

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-c

Subject:

The Commercial and Recreational Harvest Limits for Winter Flounder.

Purpose:

To reduce the commercial and recreational harvest limits of winter flounder and remain in compliance with ASMFC management plans.

Text or summary was published

in the December 2, 2009 issue of the Register, I.D. No. ENV-48-09-00003-EP.

Final rule as compared with last published rule:

No changes.

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, New York 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.

Assessment of Public Comment

Question #13. The department received two written comments on the proposed rule, both from the same individual who, in one case was representing the Coastal Conservation Association - New York (CCA NY) and, in the other, himself. The comments were identical and are summarized as follows: Coastal Conservation Association - New York strongly opposes the proposed winter flounder management measures and strongly supports the imposition of a total moratorium on harvest of winter flounder on the following grounds:

1. The State's clear policy (as given in Environmental Conservation Law) with respect to the management of marine resources, including winter flounder, requires that a complete moratorium on harvest be imposed;

2. The economic considerations cited in the DEC statement are inadequate grounds for rejection of the moratorium option;

3. New York's failure to adopt a harvest moratorium, based on the failure of any other state to take similar action, is supported neither by biology nor law; and

4. Imposing a harvest moratorium on the winter flounder fishery would be consistent with the policy recently adopted by the DEC with respect to Hudson River shad.

Department response: The department agrees that the current state of winter flounder stocks does indeed call for strong action on the part of the department. The department feels the difficult decision to comply with the requirements of the Atlantic States Marine Fisheries Commission (ASMFC) Fishery Management Plan for winter flounder and not impose a total moratorium at this time was the proper one.

The department disagrees that the action taken is contrary to the policy for natural resources management given in state law. This action will significantly reduce fishing mortality in state waters while allowing some by-catch of flounder that may be killed incidentally as a result of fishing activity targeted at other species. This action is entirely consistent with such policy, and gives primary consideration to the health of the resource and secondary consideration to associated socioeconomic affects of fishery management actions. What CCA NY may have defined as the primary principle guiding the management of New York's marine fisheries, it is not the sole principle guiding management decisions.

The department disagrees with CCA's contention that socioeconomic needs of a fishery are inadequate grounds for rejection of a total moratorium. A complete moratorium on harvest in New York was given detailed consideration and discussed openly with the fishing industry and the Marine Resources Advisory Council (MRAC). However, many New York State commercial fishermen rely on harvesting winter flounder for the income it provides. They strongly objected to a total moratorium on winter flounder harvest. Up to now, there has been little restriction on the commercial fishery. Fishermen told the department they felt a 200-to-300 pound trip limit would be restrictive without imposing significant economic hardship, but that anything close to a total moratorium would be economically devastating. Representatives of party and charter boat businesses and bait and tackle shops claimed they would lose many of their customers who target winter flounder during the recreational season if a total moratorium were imposed, and so were opposed to such action. Representatives of the party boat fishery suggested a reduction in the recreational possession limit to 4 fish per angler, which would allow them to continue to run targeted trips. Furthermore, the MRAC reviewed the current status of the winter flounder fishery in New York, the recommendations of ASMFC, and the options the department had to manage the imperiled winter flounder resources in state waters. The MRAC then recommended that the department follow the ASMFC requirements for reducing fishing mortality on winter flounder. The MRAC did not support a total moratorium on this fishery.

The department took socioeconomic concerns into account when adopting the current American shad regulations, which allow a very limited take of shad in the Hudson River and a by-catch in the ocean fisheries. The moratorium on harvest of American shad was proposed only after it became clear that the current measures had done nothing to halt or reverse the decline of American shad in the Hudson River.

The economic impacts of a moratorium on winter flounder fishing on New York State commercial fishermen cannot be neglected in the management decision process. Even if New York State prohibits the harvest of winter flounder, New Jersey, Connecticut and Rhode Island would remain open for this fishery. Winter flounder from these states would be found in New York State markets, denying local state fishermen economic opportunities that would remain available in neighboring states.

The course of action chosen by the department is recommended by ASMFC and has also been chosen by all member states of ASMFC. New York State will be in compliance with the fishery management plan for winter flounder and the recommendations of ASMFC. The Mid-Atlantic Fishery Management Council, National Marine Fisheries Service, ASMFC and the department will continue to monitor the winter flounder populations along the Atlantic coast. If no progress toward arresting the decline in population or toward the restoration of the winter flounder stocks is made, further restrictions to protect this resource will be put in effect.