ENV-40-07-00005-A Marine Recreational Fishing Regulations for Summer Flounder

2/6/08 N.Y. St. Reg. ENV-40-07-00005-A

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 6

February 06, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-40-07-00005-A

Filing No. 36

Filing Date. Jan. 22, 2008

Effective Date. Feb. 06, 2008

Marine Recreational Fishing Regulations for Summer 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 3-0301, 13-0105 and 13-0340-b

Subject:

Marine recreational fishing regulations for summer flounder.

Purpose:

To control the recreational harvest and possession of summer flounder consistent with fishery management plans.

Text or summary was published

in the notice of emergency/proposed rule making, I.D. No. ENV-40-07-00005-EP, Issue of October 3, 2007.

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, Department of Environmental Conservation, 205 N. Belle Meade Rd., Suite 1, East Setauket, NY 11733-3400, [phone], e-mail: [e-mail]

Additional matter required by statute:

Pursuant to the requirements of article 8 of the Environmental Conservation Law, a negative declaration is on file with the department.

Assessment of Public Comment

This proposed rulemaking, which amends New York's regulations for recreational harvest of summer flounder, was published in the New York State Register on September 17, 2007.

The Department received thirteen written comments from a total of eleven individuals during the public comment period for this rulemaking. All of the comments expressed opposition to the proposed amendment. Those comments are summarized below, followed by the Department's response:

Comment: The rationale for closing the season early is flawed. The recreational quota for 2008 will not be affected by overages in 2007, nor will the regulations be any more restrictive in 2008 in spite of the overage.

Response: New York's allowable harvest limit of fluke for 2007 was 430,262 fish. The measures in place for 2007 failed to constrain the harvest of fluke to the allowable harvest limit. According to the Marine Recreational Fisheries Statistics Survey (MRFSS) estimate, New York anglers took 666,753 fluke, or 55% more fish than allowed. If the 2008 allowable harvest limit were the same as that in 2007, New York would have to adopt measures in 2008 that are more restrictive than 2007's in order to constrain harvest to the allowable limit. However, the 2008 allowable harvest limit is only 361,000 fish, which is lower than 2007. Therefore, the 2008 management measures will need to be even more restrictive.

Fluke is currently required by federal law to be rebuilt by 2013 and the current estimates show that the population is only slightly over half way to the target. One of the main causes for the lack of progress in the rebuilding is the fact that the fishing mortality rate (F) target has been exceeded each year throughout the rebuilding program. Clearly, a state exceeding its recreational allocation contributes to a higher fishing mortality rate. Each year the F target is exceeded the biomass does not increase as expected or may even decrease. This lack of growth in the biomass will impact future year's quotas and in turn will negatively impact the future recreational regulations. As the 2013 deadline approaches, if there is not consistent and significant growth in the biomass each year, future quotas will have to be reduced accordingly.

Comment: The data used in the management of the fishery are not credible. It is not possible that nearly 400,000 fluke were taken in the recreational fishery before the 4th of July.

Response: A 2006 review of the Marine Recreational Fisheries Statistics Surveys (MRFSS) by a panel of independent scientists concluded that there are a number of serious flaws requiring immediate attention. This same panel has advised NOAA Fisheries to rethink the way they do recreational fishing surveys to improve their transparency, effectiveness, and applicability to today's fishery management practices, and changes are currently under development. However, despite these concerns, federal law requires the use of the best scientific information available in fishery management. MRFSS is currently the only annual survey of its type available.

In 2006, the MRFSS estimate for the number of anglers fishing saltwater in New York was 874,055. New York's allowable harvest of fluke for 2007 was 430,262 fish. Assuming the 2006 angler data does not change for 2007, this would mean each angler would be allowed no more than one-half of a fluke for the whole season (430,262 fish divided among 874,055 anglers). The MRFSS estimate of fluke taken by New York anglers for the time period from April 24th (when the season opened) to June 30th is 365,759 fish. Given the number of potential fluke anglers in the state, this estimate is plausible.

Comment: Recreational anglers have been limited to fish over 19.5 inches, while commercial fishermen can take 14-inch fish. Why are you closing the recreational fishery when the commercial fishermen are the ones who are over harvesting?

Response: The commercial fluke fishery quota is managed under a limited-entry system using trip limits and net mesh restrictions. There is a cap on the total number of participants in the commercial fishery, and this cap has been lowered each year since 2001. In 2007, there were less than 350 participants. These participants are allowed daily trip limits in pounds of fish. These landings are monitored weekly and the fishery is closed when the quota is reached. New York's commercial quota for 2007 was 619,123 pounds, which was taken by October 20 when the fishery was closed. As of the end of December, 2007, an over-harvest of about 3% had been recorded in the commercial landings.

In the recreational fishery in 2006, the average weight of a harvested fluke was over three pounds. The 2007 recreational fluke allowable harvest limit was 430,262 fish, or 1.29 million pounds using the 3-pound average from 2006. As of the end of October 2007, MRFSS estimated that 666,753 fluke had been harvested by New York anglers. Assuming that three-pound per-fish average weight (an underestimate because of the size-limit increase), the recreational fishery had accounted for well over 2 million pounds of fluke, or over 3 times the commercial catch and a 55% over-harvest.

Comment: The fluke population is higher than at any time in recent memory. The stock is healthy and does not need further rebuilding. Fishing does not pose a threat to this resource.

Response: The recent growth in the fluke stock in spite of the high fishing mortality rates suggests that the current environment can support a large fluke population. The current stock assessment indicates that sustainable catches at the biomass goal would be higher than catches at the current population size — perhaps much higher. It is the objective of the stock rebuilding program to continue to grow the stock until the biomass goal is achieved, with the result that fluke fishing will be even better than it is now. Over-harvest of our yearly allowable harvest limit delays achievement of this goal, and must therefore be controlled.

The Department participates in interstate coastal management of many stocks of fish, including fluke. The Department is obligated by law to participate and is committed to the goals of the management program. The program is only effective to the extent that the states participate and does not work if individual states abandon their responsibilities under the coastwide management process. New York, by closing its fishery, has demonstrated its commitment to the process.

Comment: The closure of the fluke season prematurely will have a devastating impact on the party and charter boat industry and the recreational industry in general.

Response: The Department is very much aware of and concerned about the affects that an early closure has on industry. However, the Department's responsibility to maintain healthy fishery resources often necessitates significant restrictions in order to allow a fishery to recover or rebuild. The Department's experience with rebuilding of coastal striped bass stocks has demonstrated that short-term social and economic losses are offset by long-term socio-economic gains.

Comment: Would the Department consider holding a public hearing on this issue?

Response: Emergency regulations by their nature do not allow sufficient time for public input. Quick action is required, so public consultation is not what it would be under the normal rulemaking process. However, this emergency rule is not permanent. The Department will be proposing a recreational fluke fishing season for 2008. When that proposal is issued, there will be an opportunity for public comment.

Comment: Would the Department consider increasing the size limit and decreasing the catch limit as an alternative to closing the fishery?

Response: No. Once it is discovered that New York's allowable harvest limit has been exceeded, the Department does not support allowing the season to remain open, even with new size and catch limits. Allowing the fishery to remain open would permit harvest and hooking mortality to continue and would therefore be irresponsible and contrary to management objectives.