ENV-19-09-00005-EP 2009 Recreational Harvest Limits for Summer Flounder (Fluke) and Black Sea Bass

5/13/09 N.Y. St. Reg. ENV-19-09-00005-EP

NEW YORK STATE REGISTER

VOLUME XXXI, ISSUE 19

May 13, 2009

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-19-09-00005-EP

Filing No. 438

Filing Date. Apr. 28, 2009

Effective Date. Apr. 28, 2009

2009 Recreational Harvest Limits for Summer Flounder (Fluke) and Black Sea Bass

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

Proposed Action:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

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

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

These regulations are necessary for New York State (NYS) to remain in compliance with the Fishery Management Plan (FMP) for Summer Flounder and Black Sea Bass as adopted by the Atlantic States Marine Fisheries Commission (ASMFC) and avoid a closure of NYS’s recreational and commercial fisheries for summer flounder and black sea bass.

Each member state of ASMFC is expected to promulgate regulations that comply with FMPs adopted by ASMFC. These regulations are needed to properly manage the NYS recreational fisheries and prevent the State from exceeding its quota, as assigned by ASMFC. Failure by a state to adopt, in a timely manner, necessary regulations may result in a determination of non-compliance by ASMFC and the imposition of a total closure of the particular fishery in that state. A closure of the NYS’s summer flounder fishery could result in significant adverse impacts to the State’s economy. New York State must adopt regulations that prevent the recreational harvest of summer flounder and black sea bass from exceeding the State’s assigned quota.

The promulgation of this regulation as an emergency rule making is necessary because the normal rule making process would not promulgate these regulations in the time frame necessary for the commencement of the proposed summer flounder season. Traditionally, the summer flounder season in NYS begins in May. New York State determined its 2009 management measures for summer flounder in late March. The National Marine Fisheries Service published the 2009 management measures for summer flounder and black sea bass in the Federal Register on April 1, 2009. If this rule making were to be promulgated by the normal rule making process, it would not be effective until several months after the traditional start of the summer flounder season. New York State anglers, party and charter boat concerns and bait and tackle shops are dependent on the season opening on time. It is in the best interests of NYS’s recreational fishing industry not to delay the opening of the summer flounder season by promulgating the proposed regulation through the normal rule making process.

Subject:

2009 Recreational Harvest Limits for Summer Flounder (Fluke) and Black Sea Bass.

Purpose:

To ensure that the recreational harvest of summer flounder and black sea bass is in compliance with interstate management plans.

Text of emergency/proposed rule:

Existing Subdivision 40.1 (f) of 6 NYCRR is amended to read as follows: Species Striped bass through Atlantic cod remain the same. Species Summer flounder is amended to read as follows:

40.1(f) Table A - Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Summer flounder	May 15 – [Sept 1] June 15, July 3 - Aug 17	[20.5] 21″ TL	[4] 2

Species Yellowtail flounder through Scup (porgy) all other anglers remains the same. Black sea bass is amended to read as follows:

Black sea bass

All year

[12] 12.5″ TL

25

Species American shad through Prohibited sharks remains the same.

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 July 26, 2009.

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]

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) sections 13-0105, 13-0340-b and 13-0340-f authorize the Department of Environmental Conservation (DEC) to establish by regulation the open season, size, catch limits, possession and sale restrictions and manner of taking for summer flounder and black sea bass.

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 Summer Flounder and Black Sea Bass 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 quota managed marine species, preserve the states' marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate any necessary regulations that implement the provisions of the FMPs to remain in compliance with 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 summer flounder, ASMFC assigned New York an annual harvest of 365,000 fish for the 2009 recreational season. If the 2009 projected harvest for New York, an estimate based on current regulations, exceeds this assigned quota, the State is required to amend its harvest regulations so that they are sufficiently restrictive to prevent the New York State recreational fishing community exceeding this assigned quota. Under existing regulations, it is likely that New York will exceed the 2009 assigned harvest. Failure to adopt, in a timely manner, these necessary regulations may result in a determination of non-compliance by ASMFC and the imposition of a total closure of fishing for summer flounder in New York State waters. This action could result in significant adverse impacts to the state's economy. According to a report released by NOAA Fisheries, recreational fishing in New York generated $424 million in total sales in 2006. Summer flounder is one the most popular fish taken by recreational harvesters in New York.

The promulgation of this regulation is necessary for DEC to remain in compliance with the FMP for summer flounder and to avoid closure of the summer flounder fisheries and the economic hardship that would be associated with such a closure. The regulatory changes in this emergency rule are calculated, and have been approved by ASMFC, to achieve the harvest level necessary to prevent New York from exceeding its assigned summer flounder quota and achieve compliance with the FMP.

Specific amendments to the current regulations include the following:

1. Summer Flounder (Fluke):

a) Implement a split open season for the summer flounder recreational fishery of May 15 through June 15, and July 3 through August 17. The summer flounder season will be closed from June 16 through July 3 and after August 17.

b) Increase the minimum size limit to 21 inches Total Length.

c) Reduce the possession limit to two fish.

2. Black sea bass

a) Increase the minimum size limit to 12.5 inches Total Length.

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. Certain regulated parties (party/charter businesses, bait and tackle shops) may experience some adverse economic effects through a reduction of the recreational summer flounder season from 110 days in 2008 to 78 days as proposed in the regulations, a reduction of 32 days. Economic opportunities may also be lost due to the increased size limit and reduced bag limit for summer flounder and the increased size limit for black sea bass.

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

DEC 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:

The following significant alternatives have been considered by DEC and rejected for the reasons set forth below:

Summer Flounder.

1. One alternative considered was to keep the summer flounder size limit at 20.5 inches TL with a 2 or 3 fish possession limit. The needed reduction in harvest would have to have come from significantly shortening the fishing season. This alternative seems to provide the greater likelihood of achieving our management objectives for the stock. However, the potential economic consequences of a significantly shortened fishing season for one of the most important recreational fisheries in New York are believed to be particularly damaging to the industry, resulting in significant economic loss to bait and tackle shops, party and charter boat businesses and the supporting local economy. In addition, the closure of a significant portion of the summer flounder fishing season would shift fishing effort onto other species, the local populations of which may not respond positively to an increase in fishing effort. This analysis resulted in a rejection of this alternative.

2. Another alternative considered was to include a four week mid-season closure in the proposed summer flounder management measures for 2009. The Mid-Atlantic Fishery Management Council (MAFMC) is requiring that states that must reduce landings to ensure at least 50% of the percent reduction derive from modification to the fishing season. This alternative may cause potential large economic impacts to party and charter concerns and bait and tackle shops. Furthermore, during a four week fishing closure, recreational fishing effort will likely shift to other fish species not usually targeted by recreational harvesters in large numbers and adversely impact their local populations. The potential large economic impact and a likely shift of fishing effort that would result from significantly shortening the fishing season were the reasons this alternative was rejected. After discussion with the Marine Resources Advisory Council and members of the recreational fishing industry, it was decided to implement a 17 day closure from mid-June until early July. Father's Day weekend, a popular and busy fishing weekend, is included in the closed portion of the 2009 summer flounder season. However, adjusting the closure to accommodate Father's Day would preclude July 4th weekend, an even busier weekend. DEC contacted several fishermen and their preference was July 4th weekend over Father's Day.

3. No Action (no amendment to summer flounder regulations).

The "no action" alternative would leave current summer flounder regulations in place. Under existing regulations, it is likely that New York will exceed the 2009 assigned harvest. Failure to adopt, in a timely manner, these necessary regulations may result in a determination of non-compliance by ASMFC and the imposition of a total closure of fishing for summer flounder in New York State waters and the subsequent economic hardship that would be associated with such a closure. This alternative was rejected.

Black Sea Bass

1. No Action (no amendment to black sea bass regulations).

The "no action" alternative would leave the current black sea bass minimum size limit in place. This option would, however, impede DEC's ability to achieve its management objectives for the stock and likely result in New York failing to remain in compliance with the FMP for black sea bass and a possible closure of all fishing for black sea bass in New York. This would have a much more severe economic impact than the imposition of an increased size limit; therefore, this option was rejected.

2. Another alternate considered was a black sea bass fishing closure during a portion of the black sea bass spawning season. Black sea bass are protogynous hermaphrodites, that is they employ a reproductive strategy wherein young fish begin as females but change to males as they age. The largest fish are almost always males. These fish also have complex spawning behavior wherein the largest males compete for and then spawn sequentially with a number of females. A fishing closure during the spawning season would appear to have some biological justification. This alternative was rejected by the Mid-Atlantic Fishery Management Council in favor of increasing the size limit. New York's options, therefore, were limited and must comply with the federal rule that raises the size limit.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and 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.

The Atlantic State Marine Fisheries Commission recently adopted quota changes for summer flounder and size limit changes for black sea bass. The Department of Environmental Conservation (DEC) now seeks to amend its summer flounder and black sea bass regulations to comply with the requirements of the ASMFC FMP. There are severe consequences for failure to comply with 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. Furthermore, failure to take required actions to protect our marine and anadromous resources may lead to the collapse of the targeted species' populations. Either situation could have a significant adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries.

Those most affected by the proposed rule are recreational fishers, licensed party and charter businesses, and retail and wholesale marine bait and tackle shops operating in New York State (NYS). The Department of Environmental Conservation consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on summer flounder recreational management measures. The response indicates that there is a belief that a long season will provide economic benefits to businesses because their customers will take advantage of the additional opportunities to go fishing for fluke. 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) indicated their preference for as long a season as possible to enable them more opportunities to fish for summer flounder. Most indicated that a mid-season closure would result in an adverse economic impact on the recreational fishing industry. The proposed rule does reduce the number of days available to recreationally fish for summer flounder, from 110 days in 2008 to 78 days as proposed in the regulations, a reduction of 32 days.

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 summer flounder.

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 in order for DEC to maintain compliance with the FMPs for summer flounder and black sea bass and to avoid closure of the summer flounder and black sea bass fisheries and the economic hardship that would ensue with such a closure. Since these regulatory amendments are consistent with federal and interstate fishery management plans, DEC anticipates that NYS will remain in compliance with the FMPs. 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 and other support industries for recreational fisheries. 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 of Environmental Conservation 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 summer flounder and black sea bass 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 maintain compliance with the Fishery Management Plan for Summer Flounder and Black Sea Bass and to avoid closure of the summer flounder and black sea bass fisheries and the economic hardship that would be associated with such closure. The proposed rule reduces the summer flounder recreational fishing season by 32 days, reduced from 110 days in 2008 to 78 days, as proposed in this rule making. The proposed rule will also increase the minimum size limits for summer flounder and back sea bass.

Many currently licensed party and charter boat owners and operators, as well as bait and tackle businesses, will be affected by these regulations. Due to the reduction in the number of fishing days, there may be a corresponding reduction in the number of fishing trips and bait and tackle sales during the upcoming fishing season. The proposed increase in the minimum size limits for summer flounder and black sea bass will affect the availability of legal-sized fish and may, therefore, negatively affect angler incentive for fishing.

2. Categories and numbers affected:

In 2008 there were 558 licensed party and charter businesses in New York State (NYS). There were also a number of retail and wholesale marine bait and tackle shop businesses operating in NYS; however, DEC does not have a record of the actual number. The number of recreational fishers in NYS has been estimated by the National Marine Fisheries Service to be just over 1 million in 2007. 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 included 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. The Hudson River is not a usual habitat of summer flounder and black sea bass.

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 summer flounder recreational 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 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 summer flounder and black sea bass resources is essential to the survival of the party and charter boat businesses and bait and tackle shops that are sustained by these fisheries. 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.

Based on the above and DEC staff's knowledge and past experience with similar regulations, DEC has concluded that there will not be any substantial adverse impact on jobs or employment opportunities as a consequence of this rule making.