ENV-03-12-00008-E Commercial and Recreational Harvest Regulations for Tautog (Blackfish)

4/11/12 N.Y. St. Reg. ENV-03-12-00008-E

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 15

April 11, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-03-12-00008-E

Filing No. 267

Filing Date. Mar. 27, 2012

Effective Date. Mar. 27, 2012

Commercial and Recreational Harvest Regulations for Tautog (Blackfish)

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-d

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

These regulations are necessary for New York to remain in compliance with the fishery management plan (FMP) for tautog adopted by the Atlantic States Marine Fisheries Commission (ASMFC). Tautog is a popular food fish and is an eagerly sought target species for both recreational anglers and commercial fishermen. Seeking to end overfishing and to allow the tautog stock to rebuild, ASMFC adopted an addendum to the tautog fishery management plan in 2011 that reduced the fishing mortality rate. The member states were required to implement management measures by January 1, 2012 to achieve a 56% coast-wide reduction in species exploitation. On December 30, 2011 DEC submitted a Notice of Emergency Adoption and Proposed Rulemaking to the Department of State and more restrictive tautog harvest regulations became effective that day. This emergency rule will expire on March 28, 2012.

Each member state of ASMFC is expected to promulgate regulations that comply with FMPs adopted by ASMFC. Failure by a state to adopt, in a timely manner, regulations implementing the FMP may result in a determination of non-compliance by ASMFC and the imposition of federal sanctions on the particular fishery in that state. This new emergency rule making is needed to ensure New York State remains in compliance with the FMP and to prevent New York State anglers and commercial fishermen from exceeding the reduced fishing mortality rate identified for tautog by the addendum to the FMP.

The promulgation of this regulation as an emergency rule making is necessary because the first emergency rule will expire before the final rule is adopted. This emergency rule making would ensure that the more restrictive regulations remain in effect and New York remains in compliance with the FMP until the final rule is adopted.

Subject:

Commercial and recreational harvest regulations for tautog (blackfish).

Purpose:

To reduce harvest of tautog to remain in compliance with ASMFC and allow for the overfished stock to recover.

Text of emergency rule:

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

Species Striped bass through Red drum remain the same. Species Tautog is amended to read as follows:

40.1(f) Table A - Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Tautog	[Jan. 17 - April 30 and] Oct. [1]8 - Dec. [20]4	[14]16” TL	4

Species American eel through Oyster toadfish remain the same.

Existing subdivisions 40.1(g) through 40.1(h) remain the same.

Existing subdivision 40.1(i) is amended to read as follows:

Species Striped bass remains the same. Species Tautog is amended to read as follows:

40.1(i) Table B - Commercial Fishing.

Species	Open Season	Minimum Length	Possession Limit
Tautog	April 8 to last day of Feb.	[14]15” TL	25 per vessel (except, 10 per vessel when fishing lobster pot gear and more than six lobsters are in possession)

Species American eel through Oyster toadfish remain the same.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ENV-03-12-00008-EP, Issue of January 18, 2012. The emergency rule will expire May 25, 2012.

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, 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-d 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 tautog.

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 maintain compliance with the Interstate Fishery Management Plan (FMP) for tautog as adopted by the Atlantic States Marine Fisheries Commission (ASMFC). New York, as a member state of ASMFC, must comply with the provisions of the Interstate Fishery Management Plans adopted by ASMFC. These FMPs are designed to promote the long-term sustainability of coast-wide marine species, preserve the states' marine resources, and protect the interests of both commercial and recreational fishermen. All member states remain in compliance with the FMPs by promulgating any necessary regulations that implement the provisions of the FMPs. If 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 the non-compliant state until the state comes into compliance with the FMP.

Under the FMP for tautog, ASMFC requires New York State to reduce its commercial and recreational harvest of tautog by 48 percent in 2012. Continued fishing under the previous regulations will likely lead to New York fishermen exceeding the now reduced harvest level for tautog in 2012. A Notice of Emergency Adoption and Proposed Rulemaking was submitted to the Department of State on December 30, 2011 and more restrictive harvest measures became effective that day. That emergency rule will expire March 28, 2012, before the final rule will be adopted. The promulgation of this rule making is necessary for the current restrictive harvest regulations to remain in effect and DEC to remain in compliance with the FMP for tautog.

The proposed regulations decrease the duration of the 2012 recreational tautog season and increase the recreational minimum size limit. In addition, the commercial minimum size limit will also increase. These proposed changes are necessary to prevent New York State recreational anglers and commercial fishermen from overharvesting tautog. According to a report released by National Oceanic and Atmospheric Administration Fisheries, recreational fishing in New York generated $424 million in total sales in 2006. Tautog is a popular fish taken by recreational harvesters in New York during a time of year when there are fewer other species to fish for. It is also commercially valuable, specifically when sold live in the markets.

The proposed rule will prevent New York State fishermen from over-exploiting tautog while allowing limited harvest. New York State will remain in compliance with the FMP.

Specific amendments to the previous regulations regarding tautog include the following:

1. Recreational: Implement an open season for the tautog fishery from October 8 through December 4, a 16-inch minimum size limit, and a 4-fish possession limit. This represents a loss of 128 days from the fishing season, a 2- inch increase in minimum size, and no change to the bag limit.

2. Commercial: Implement an open season for the tautog fishery from April 8 to the last day of February, a 15.0 inch minimum size limit, and 25 fish per vessel trip limit (except, 10 per vessel when fishing lobster pot gear and more than six lobsters are in possession). This represents a 1.0 inch increase in minimum size and no additional changes to season and trip limit for the commercial fishery.

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. However, these more restrictive management measures will decrease the number of days in the recreational season for tautog and will reduce angler participation in the recreational fishery. This is likely to decrease revenues for party/charter boat operators and sales at bait and tackle shops. The proposed rule may reduce the number of tautog taken by commercial fishermen and may reduce their income earned from fishing.

(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 commercial and 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:

The "no action" alternative would allow the current emergency rule to expire before the final rule is adopted. The previous tautog regulations would become effective again. Commercial and recreational fishing effort under those regulations would likely exceed the fishing mortality rate deemed acceptable by the ASMFC's Amendment VI. If New York doesn't take steps to reduce harvest and maintain that reduction, the state could be found out of compliance with the Fishery Management Plan by the Atlantic States Marine Fisheries Commission and subject to federally imposed sanctions. This alternative was rejected.

9. Federal standards:

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

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 Atlantic State Marine Fisheries Commission (ASMFC) facilitates cooperative management of marine and anadromous 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.

ASMFC requires New York State to reduce its tautog exploitation by 48 percent and this will impact the State's recreational and commercial fishing industries. Those most affected by the proposed rule are commercial fishermen, recreational anglers, licensed party and charter boat businesses, and retail and wholesale marine bait and tackle shops operating in New York State. In 2010, the State issued 990 food fish licenses to resident commercial fishermen and these individuals may be affected by an increase in their minimum size limit. There may be additional economic effects experienced by the 423 holders of food fish and crustacean dealer/shipper licenses. There were 501 licensed party and charter boats in 2010, and an unknown number of bait and tackle shops. Approximately 230,000 recreational marine fishing licenses were sold in 2010. Local party and charter boat businesses and bait and tackle shops will lose customers who target tautog during the late fall, winter, and early spring or that are discouraged by more restrictive regulations. Party and charter boat businesses and bait and tackle shops may rely on the patronage of recreational anglers who target tautog for the income it provides and may see a reduction in their earnings once the regulations are in place.

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 reduce the income of party and charter businesses and marine bait and tackle shops because of the reduction in the number of days available for recreational fishers to take tautog. Commercial fishermen may experience smaller catches because they will then be required to throw back fish smaller than 15 inches.

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 regulation is necessary for DEC to maintain compliance with the FMPs for tautog and to avoid a punitive closure of the fisheries and the economic hardship that would ensue with such a closure. Since these regulatory amendments are consistent with federal and Interstate FMPs, DEC anticipates that New York State will remain in compliance with the FMPs.

The department consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on tautog recreational and commercial management measures. There was no consensus but a majority was in favor of the proposed regulation.

Ultimately, 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, commercial fishing operations and other fishery support industries. Failure to comply with FMPs and take required actions to protect our natural resources could cause the collapse of a stock and have a severe adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. These regulations are being proposed in order to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

7. Small business and local government participation:

The department received recommendations from 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.

8. Cure period or other opportunity for ameliorative action:

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.

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 tautog fishery is located entirely within the marine and coastal district, and is 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 maintain compliance with the Fishery Management Plan for tautog, to avoid potential Federal sanctions for lack of compliance with such plan, and to optimize recreational and commercial fishing opportunities available to New Yorkers. The proposed rule will reduce the recreational season for tautog by 128 days and decrease the opportunities commercial and recreational fishermen will have to take fish home because of changes to minimum size limits.

Many currently licensed party and charter boat owners and operators, commercial fishermen, as well as bait and tackle businesses, will be affected by these regulations. Due to the reduction in the number and appeal of fishing days for tautog, there may be a corresponding reduction of the number of fishing trips and bait and tackle sales during the upcoming fishing season.

2. Categories and numbers affected:

In 2011, there were 978 people licensed to harvest finfish commercially, another 53 person issued finfish landing licenses, 451 licensed shipper/dealers and 503 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 just under 740,000 in 2010 (an estimate for 2011 is not yet available). However, this Job Impact Statement does not include them in this analysis, since fishing is recreational for them and not related to employment.

3. Regions of adverse impact:

The regions most likely to receive any adverse impact are within the marine and coastal district of the State of New York. This area includes all the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the State, including Long Island Sound and the Hudson River up to the Tappan Zee Bridge.

4. Minimizing adverse impact:

In the development of the proposed rule making, DEC consulted with the Marine Resources Advisory Council and many individuals who chose to share their views on tautog fishery management measures to the DEC. In the long-term, the maintenance of sustainable fisheries will have a positive affect on employment for the fisheries in question, including commercial participants, party and charter boat owners and operators, wholesale and retail bait and tackle outlets and other support industries for recreational fisheries. Any short-term losses in participation and sales will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. Protection of the tautog resource is essential to the survival of the party and charter boat businesses and bait and tackles shops that are sustained by these fisheries. In addition, sale of tautog may be a significant portion of some commercial fishermen's income. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest and to continue to rebuild stocks and maintain them for future utilization.