ENV-13-15-00031-EP To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass

4/1/15 N.Y. St. Reg. ENV-13-15-00031-EP

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 13

April 01, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-13-15-00031-EP

Filing No. 180

Filing Date. Mar. 17, 2015

Effective Date. Mar. 17, 2015

To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass

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

Proposed Action:

Amendment of Parts 10 and 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-1521, 13-0339, 13-0347 and 13-0105

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

This rule making is necessary to reduce harvest of striped bass and to allow New York to remain in compliance with the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan (FMP) for Striped Bass. Non-compliance with the FMP risks a total closure of all of New York’s striped bass fisheries.

The promulgation of this regulation on an emergency basis is necessary because the normal rule making process would not allow the rule to take effect before the start of the 2015 striped bass fishing season. New management measures adopted by ASMFC require that striped bass harvests be reduced by at least 25 percent, and that new regulations be enacted before the start of the state’s 2015 fishing seasons, as specified in Addendum IV to Amendment 6 of the ASMFC Interstate FMP for Striped Bass. Current regulations allow the recreational season for striped bass on the Hudson River to open on March 16. The new regulations will delay the opening until April 1. This proposed rule must be in effect before March 16.

In addition this rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. The rule will also suspend the 2015 full share tag allocation requalification process.

It is in the best interests of the general welfare of New York State’s recreational and commercial fishing interests not to delay the implementation of these regulations.

Subject:

To amend 6 NYCRR Parts 10 and 40 pertaining to commercial and recreational regulations for striped bass.

Purpose:

Reduce fishing mortality of striped bass to promote stable fish populations, and to remain in compliance with the ASMFC FMP.

Text of emergency/proposed rule:

Part 10 of 6 NYCRR is amended to read as follows:

Existing paragraph 10.1(b)(18) is amended to reads as follows:

(b) Table A. Sportfishing regulations

	Species	Open Season	Minimum length	Daily limit
(18)	Striped Bass (in the Hudson River and tributaries north of the George Washington Bridge and all inland waters)	[March 16 ] April 1 through November 30	[18" TL] 18” to 28” TL or > 40” TL (total length see ECL § 13-0339[4])	1

Subparagraph 10.2(j)(2)(f) is amended to read as follows:

(2) Table D: Fishing regulations for Delaware River and its West Branch bordering Pennsylvania

	Species	Open Season	Minimum length	Daily limit
(‘f’)	Striped bass	All year	28”	[2] 1

Subdivision 40.1(f) is amended to read as follows:

Species	Open Season	Minimum length	Possession Limit
Striped Bass (except the Hudson River north of the George Washington Bridge)	April 15 – Dec. 15	[Licensed Party/Charter Boat anglers] 28” TL [All other anglers 28” to 40” TL] [>40” TL(Total length)] *	[2] 1 [1] [1]

Species Red drum through Atlantic menhaden remain the same.

Paragraph 40.1(g)(4) is repealed.

Subdivision 40.1(i) is amended to read as follows:

Species	Open Season	Minimum length	Trip Limit
Striped Bass (the area east of a line drawn due north from the mouth of Wading River Creek & east of a line at 73 degrees 46 minutes west longitude, which is near the terminus of East Rockaway Inlet.)	[Jul] June 1 - Dec 15#	Not less than [24] 28” TL nor greater than [36] 38” TL	See Subdivision (j) of this section

Species Red drum through Anadromous river herring remain the same.

Subparagraph 40.1(j)(8)(v) is amended to read as follows:

(v) Beginning in 2005, and continuing at five year intervals, each striped bass commercial harvesters permit holder in the full share category must file with the department a complete copy of his or her federal or state income tax records from one of the preceding three years. Such tax records must be filed before the June 1 deadline for receipt of applications. Such tax records must demonstrate that the permit holder has, as stated in subparagraph (ii) above, maintained the 50 percent earned income level in order to remain a participant in the full share category. Failure to file a timely and complete copy of federal or state income tax records which demonstrate that the permit holder has maintained the 50 percent earned income level will result in the permit holder being placed into the partial share category. Thereafter, the rules pertaining to partial share permit holders provided in subparagraph (iv) above apply. This requirement shall be suspended in 2015, until either reinstituted upon notification by the department or replaced with an alternate system of determining shares and qualifications for shares.

Paragraph 40.1(j)(9) is amended to read as follows:

(9) Applications for striped bass commercial harvesters permits will be accepted until close of business [June] May 1. Any application for a striped bass commercial harvesters permit received after close of business [June] May 1 will not be entertained by the department.

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 June 14, 2015.

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

Carol Hoffman, NYSDEC, Bureau of Marine Resources, 205 N 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) section 13-0105 stipulates that the management of the state’s anadromous species, such as striped bass, shall be consistent with interstate or state-federal fishery management plans (FMP). ECL sections 11-0303 and 13-0339 authorize New York State Department of Environmental Conservation (DEC) to establish by regulation measures for the management of striped bass, including size limits, catch and possession limits, open and closed seasons, closed areas, restrictions on the manner of taking and landing, and other management measures. ECL sections 11-1521 and 13-0347 establish additional provisions for striped bass management in the Hudson River and marine district, respectively.

Regulations adopted by DEC must be consistent with the requirements of applicable fishery management plans adopted by the Atlantic States Marine Fisheries Commission and with applicable provisions of FMPs adopted pursuant to the Atlantic Coastal Fishery Cooperative Management Act.

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 while remaining compliant with marine fisheries conservation and management policies and interstate fishery management plans.

3. Needs and benefits:

This rule making is necessary for New York State to remain in compliance with fishery management plans adopted by the Atlantic States Marine Fisheries Commission (ASMFC). All member states and jurisdictions of ASMFC must comply with the provisions of FMPs and management measures adopted by ASMFC. These FMPs and management measures are designed to promote the long-term sustainability of 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. New York State must amend 6 NYCRR Parts 10 and 40 to ensure that the State’s regulations are consistent with recently adopted Addendum IV to Amendment 6 of the ASMFC Interstate Fishery Management Plan for Atlantic Striped Bass. Failure to adopt these regulations may result in New York State being found non-compliant with the recommendations of the FMP and subject to the imposition of a moratorium on the harvest of striped bass in New York State.

More than ninety (90) percent of boat operators who hold a party and charter license also have a striped bass party and charter permit. The striped bass party and charter permit allows customers to harvest two striped bass, and requires operators to maintain trip-level fishing records of catch and effort expended. The regular party and charter license also requires operators to maintain trip level fishing records of catch and effort expended. Repeal of the striped bass party and charter permit ensures all recreational fishers harvest only one striped bass, to remain in compliance with the ASMFC FMP.

The proposal suspends the commercial striped bass harvesters’ tag allocation requalification process for 2015, pending an alternative system for determining shares and qualifications, in accordance with the recommendations of the Marine Resources Advisory Council (MRAC). MRAC has recommended procedures to make the commercial striped bass harvesters permits transferable. The transfer process is expected to be enacted in 2016, and the tag allocation process is likely to be replaced with an alternate system of determining allocations and harvester qualifications. Thus, the current 2015 tag allocation process is likely to be rendered obsolete in the near future.

The proposal will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. The earlier opening of the commercial striped bass harvest season may offset raising the new minimum size limit, and provide increased opportunities for fishers to harvest striped bass when they are in the bays. The commercial quota would remain as specified in the FMP.

4. Costs:

The proposed rule does not impose any costs to DEC, local municipalities, or the regulated public.

5. Local government mandates:

The proposed rule does not impose any mandates on local governments.

6. Paperwork:

None.

7. Duplication:

The proposed amendment does not duplicate any state or federal requirement.

8. Alternatives:

“No action” alternative: Under this alternative New York State would not amend 6 NYCRR Parts 10 and 40. This alternative was rejected because of New York State’s obligations to comply with the ASMFC FMP for Atlantic striped bass.

The ASMFC Interstate Fishery Management Plan for Atlantic striped bass has been amended to provide further protection to the species. DEC must amend 6 NYCRR Sections 10.1, 10.2, and 40.1 to be compliant with the provisions of the ASMFC FMPs.

The “No Acton” alternative would also mean that New York State would not suspend the 2015 commercial tag allocation requalification. This alternative was rejected, because, if the requalification were to occur in 2015, commercial striped bass harvesters would have the burden of submitting tax records to DEC for review, only to have the process rendered obsolete in the near future.

The “No Acton” alternative would also mean that New York State would not open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. This would deny commercial fishers increased opportunities to harvest striped bass when the fish are in the bays.

9. Federal standards:

The amendment to 6 NYCRR Parts 10 and 40 is in compliance with the recently adopted addendum to the ASMFC FMP for Atlantic striped bass.

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 proposed regulations will take effect upon filing with the Department of State.

Regulatory Flexibility Analysis

1. Effect of rule:

The Atlantic State Marine Fisheries Commission (ASMFC) facilitates cooperative management of marine and diadromous fish species among the fifteen Atlantic Coast member states. The principal mechanism for implementation of cooperative management of migratory fish is the ASMFC’s Interstate Fishery Management Plans (FMPs) for individual species or groups of fish. The FMPs are designed to promote the long-term health of these species, preserve resources, and protect the interests of both commercial and recreational fishers.

DEC is proposing amendments to 6 NYCRR in order to remain in compliance with Addendum IV to Amendment 6 of the Striped Bass FMP.

The amendment of 6 NYCRR Parts 10 and 40 revises the size and possession limits for the striped bass recreational fishery, in both the marine and coastal district, and inland waters, including the Hudson and Delaware Rivers and their tributaries; as well as new open season dates for the Hudson River and its tributaries. It will also implement new size limits and a new open season date for the marine commercial fishery, temporarily suspend the tag allocation requalification process for 2015, repeal the striped bass party and charter boat permit, and require commercial striped bass harvesters to renew their permits one month earlier.

Specifically, for the Delaware River, the proposal is for one fish at 28 inches Total Length for recreational fisheries. For the Hudson River (north of the George Washington Bridge), the proposal is for one fish, either between 18 and 28 inches total length OR one “trophy” fish of at least 40 inches total length. Additionally, the start date of the open season will be approximately two weeks later, from the current March 16, to the proposed April 1 for the recreational fishery. For the Marine and Coastal Waters, (including Hudson River south of the George Washington Bridge), the proposal is for one fish at 28 inches Total Length for all recreational fishers. The proposal also repeals the striped bass party and charter permit that allows customers to possess two striped bass. For-hire vessels will still need to have a regular party and charter license in order to be able to operate.

For the commercial fishery: the proposal is for a change in the current slot size limit of 24-36 inches Total Length to a proposed slot of 28-38 inches Total Length; as well as a proposal to suspend the commercial striped bass harvesters tag allocation requalification process for 2015, pending an alternative system for determining tag shares and qualifications. Also, this rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. This rule making may have an impact on the commercial and recreational fisheries, including private recreational fishers, and party and charter boat operators. It may also have an indirect effect on their supporting industries. These proposals are intended to reduce the catch for commercial and recreational fishers as required by ASMFC. In 2014, DEC issued 457 striped bass commercial harvesters permits, 490 party and charter boat licenses, and 444 striped bass party and charter boat permits, in the marine and coastal district. 367 striped bass commercial harvesters received a Full share individual quota allocation of striped bass tags; 90 received a Part share allocation. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders sell bait used to harvest striped bass. The total number of bait and tackle shops in NY is also unknown. In addition, approximately 200 Hudson River marine permit gear licenses are sold annually; most of these permits are used for taking river herring to be used for striped bass bait.

The regulations do not apply directly to local governments, and will not have any direct effects on local governments.

2. Compliance requirements:

All commercial licensed fishers, as well as party and charter boat license holders, as part of their mandatory reports to DEC, are already required to maintain daily or trip level fishing records of catch and effort expended.

3. Professional services:

None.

4. Compliance costs:

This rule making will not impose any costs to DEC or local governments. There are no initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule. The proposal may reduce harvests for an unknown number of commercial and recreational fishers.

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

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for New York to remain in compliance with the FMP for striped bass. The regulations are intended to protect the striped bass resource and avoid the adverse impacts that would be associated with closure of the fishery due to non-compliance with the FMP. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment, as well as wholesale and retail outlets and other support industries. These regulations are being adopted in order to stabilize the stocks spawning stock biomass and to allow for rebuilding to the target level.

7. Small business and local government participation:

New York hosted two ASMFC public hearings on Addendum IV to which recreational and commercial fishers were invited. There was no special effort to contact local governments because the proposed rule does not affect them.

8. For rules that either establish or modify a violation or penalties associated with a violation:

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 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.

9. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: DEC will conduct an initial review of the proposed rule within three years, as required by SAPA section 207.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

There are no rural areas within the marine and coastal district. Secondly, the marine and coastal district striped bass fisheries directly affected by the proposed rule are not located adjacent to any rural areas of the State. Five Hudson River watershed (includes the Hudson Valley) counties fall into the rural area category: Columbia, Greene, Putnam, Rensselaer, and Ulster counties. Two Delaware River counties are also in the rural area category: Delaware and Sullivan counties. The proposed regulations will affect individuals who participate in the Atlantic striped bass fishery, and may also have an indirect effect on supporting industries.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

There is no commercial fishing allowed for striped bass in rural inland waters of New York State. Party and charter boat businesses that target striped bass on the Hudson River are not required to submit fishing reports to DEC. This proposed rule will not impose any reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas.

3. Costs:

There will be no initial capital or annual costs to comply with the new regulations.

4. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for DEC to comply with the Atlantic States Marine Fisheries Commission Addendum IV to Amendment 6 of the Atlantic Striped Bass Interstate Fishery Management Plan. The regulations are intended to create a sustainable fishery in New York water and avoid the adverse economic and social impacts that would be associated with closure of the fishery. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect for the fisheries in question, as well as wholesale and retail outlets and other support industries. These regulations are being adopted in order to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

River herring are harvested in the Hudson River and its tributaries, and used for striped bass bait. Opening the Hudson River striped bass recreational season at a later date will likely not affect many commercial river herring fishers or bait shops. Harvest data reported to DEC show that less that 3% of the total harvest of river herring occurs before April 1st.

5. Rural area participation:

DEC staff met with the affected parties of inland waters at two public hearings, to inform them of the striped bass stock status and initiate discussions of potential fishing restrictions necessary to protect the stock and to maintain acceptable fishing mortality. DEC has also been advised by the Hudson River Estuary Management Advisory Committee to gain their input on the regulation change. Marine and Coastal District fishers were also informed of proposed changes at the November 18, 2014 and January 13, 2015 Marine Resources Advisory Council (MRAC) meetings. DEC has maintained a regular dialogue with fishermen by phone and e-mail regarding the issue. Moreover, DEC has and will continue to provide notice to affected fishers through mailings, newspapers and other media outlets, including those in rural counties and towns.

6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:

DEC will conduct an initial review of the proposed rule within three years, as required by SAPA section 207.

Job Impact Statement

1. Nature of impact: The promulgation of this regulation is necessary in order for DEC to comply with the Atlantic States Marine Fisheries Commission Addendum IV to Amendment 6 of the Atlantic Striped Bass Interstate Fishery Management Plan.

Amendments to 6 NYCRR Parts 10 and 40 will implement possession and size limits for the recreational striped bass fishery, in both the marine and coastal district, and inland waters, including the Hudson and Delaware Rivers and their tributaries, as well as new open season dates for the Hudson River and its tributaries. It will also implement new size limits for the commercial marine fishery, open the commercial season one month earlier; and require commercial striped bass harvesters to renew their permits one month earlier. The rule will also temporarily suspend the striped bass commercial harvester tag allocation requalification process for 2015.

Specifically, the proposed rule decreases the recreational striped bass daily possession limit from two fish to one fish for the Delaware River, including both its West Branch bordering Pennsylvania and East Branch in New York and changes the opening recreational striped bass season date for the Hudson River and tributaries north of the George Washington Bridge from March 16 to April 1. The rule changes the minimum length for recreational striped bass for the Hudson River and tributaries north of the George Washington Bridge, from 18 inches, to either one fish of 18 to 28 inch slot size, or one fish greater than 40 inches. It changes the marine recreational fishing regulations for striped bass from two fish with a minimum length of 28 inches for licensed party and charter boat fishers, and one fish of 28 to 40 inch slot size, plus one fish greater than 40 inches, for private fishers, to one fish at 28 inches for all recreational anglers and repeals the marine and coastal district striped bass party and charter boat permit that allows customers to possess two striped bass. The proposed rule changes the minimum length for commercial striped bass from a 24 to 36 inch slot size, to a 28 to 38 inch slot size. In addition, the proposed rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. The rule will also temporarily suspend the 2015 tag allocation requalification process for striped bass commercial harvesters.

This rule making may have an impact on the commercial and recreational fisheries, including private recreational fishers, and party and charter boat operators. It may also have an indirect effect on their supporting industries. These proposals may reduce the catch for commercial and recreational fishers.

2. Categories and numbers affected: In 2014, DEC issued 457 striped bass commercial harvesters permits, 490 party and charter boat licenses, and 444 striped bass party and charter boat permits, in the marine and coastal district. 367 striped bass commercial harvesters received a full share individual quota allocation of striped bass tags; 90 received a part share allocation. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders sell bait used to harvest striped bass. The total number of bait and tackle shops in New York is also unknown. In addition, approximately 200 Hudson River marine permit gear licenses are sold annually; most of these permits are used for taking river herring to be used for striped bass bait.

Recreational and commercial fishing is a major generator of revenue in New York. According to the National Marine Fisheries Service, the 2013 dockside value of the striped bass commercial fishery in New York was $3,393,905. In 2014, the National Marine Fisheries Service also reported 1,079,265 recreational angler trips targeting striped bass in New York. According to the US Fish and Wildlife Service, in 2011, there were 1.9 million recreational anglers in all waters of New York, generating an estimated 2 billion dollars in total expenditures

3. Regions of adverse impact: The proposed rule will affect striped bass fishers in both marine and coastal district and inland waters, including the Hudson and Delaware Rivers and their tributaries.

4. Minimizing adverse impact: The promulgation of this regulation is necessary in order for DEC to comply with the ASMFC Addendum IV to Amendment 6 of the striped bass FMP. The regulations are intended to optimize resource use for commercial and recreational harvesters consistent with fisheries conservation and management policies and interstate fishery management plans. These regulations are being adopted to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

If the ASMFC determines a state to be in non-compliance with a specific FMP, the state may be subject to a complete prohibition on all fishing for the associated species in the waters of that state until the state does come into compliance with the FMP. The proposed regulations are intended to avoid the adverse economic and social impacts that would be associated with closure of the fishery.

A moratorium on the harvest of striped bass would have a severe adverse impact on the commercial and recreational fisheries, as well as their supporting industries. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, as well as wholesale and retail outlets and other support industries.

River herring are used for striped bass bait. Opening the Hudson River striped bass recreational season at a later date will likely not affect many commercial river herring fishers or bait shops. Harvest data reported to DEC show that less that 3% of the total harvest of river herring occurs before April 1.

Commercial striped bass fishers must tag every fish they harvest. Each fisher is issued an individual quota of either a full share of tags or a part share of tags, depending on the percentage of their earned income that comes from fishing. . Full share quota fishers would have had to submit tax records to DEC in 2015, to verify that they still qualify to receive a full share of tags. Suspending the striped bass commercial harvesters requalification process for 2015 is not expected to have a large impact on commercial fishers. Those in the part share category can still be upgraded to full share in 2015 by submitting their tax records to DEC. Those in the full share category will remain full share for 2015.

Opening the commercial fishing season date on June 1 instead of July 1 may help offset economic hardships imposed by raising the minimum size limit, and would allow fishers to harvest striped bass when they are inside marine and coastal district bays. The annual pound quota would remain as specified in the FMP.

For-hire vessels in the marine and coastal district are required to have a party and charter boat license. Those who fish for striped bass are additionally required to have a striped bass party and charter boat permit. More than 90 per cent of those who have a party and charter license also have a striped bass party and charter permit. The striped bass party and charter permit allows customers to harvest two striped bass. The current proposal allows all recreational fishers to only harvest one striped bass. If striped bass regulations are again changed in the future, all party and charter boast license holders will be able to harvest the same possession limit.

5. Self-employment opportunities: Most commercial fishers are self-employed. A few individuals may work with or for local bait supply shops or marinas. The party and charter boat businesses, the bait and tackle shops, and the marinas are mostly small businesses that are self-owned and operated. Some members of the recreational fishing industry are also self-employed.

6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: DEC will conduct an initial review of the rule within three years, as required by SAPA section 207.