ENV-19-15-00016-P Regulations Governing the Recreational Harvest of Black Sea Bass

5/13/15 N.Y. St. Reg. ENV-19-15-00016-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 19

May 13, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-19-15-00016-P

Regulations Governing the Recreational Harvest of Black Sea Bass

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

Proposed Action:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

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

Subject:

Regulations governing the recreational harvest of black sea bass.

Purpose:

To reduce recreational black sea bass harvest by 33% by increasing the fish minimum size to 14 inches.

Text of proposed rule:

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

Species Striped bass through Scup remain the same. Species Black sea bass is amended to read as follows:

40.1(f) Table A – Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Black sea bass	July 15-[Dec. 31]Oct. 31 Nov. 1-Dec. 31	[13]14″ TL 14″ TL	8 10

Species Anadromous river herring through Oyster toadfish remain the same.

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

Stephen 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 short environmental assessment form is on file at DEC.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105, and 13-0340-f 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 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 Black Sea Bass adopted by the Atlantic States Marine Fisheries Commission (ASMFC). New York, as a member state of ASMFC, must comply with the provisions of the FMPs adopted by ASMFC. These FMPs are designed to promote the long-term sustainability of marine species, preserve the States’ marine resources, and protect the interests of both commercial and recreational fishermen. To remain in compliance with the FMPs, all member states must promulgate the 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.

ASMFC requires all states from Massachusetts through New Jersey to reduce recreational harvest of black sea bass by 33 percent to prevent recreational anglers from exceeding the coast-wide recreational harvest limit (RHL) set by the National Marine Fisheries Service (NMFS) for 2015. As a result, black sea bass rules will be more restrictive and may have negative impacts upon businesses dependent on recreational fishing. However, the proposed rule must be adopted so that New York reduces recreational black sea bass harvest and remains in compliance with the ASMFC FMP.

4. Costs:

There are no new costs to state and local governments from this action. The department 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. There may be negative impacts to private regulated parties due to the more restrictive black sea bass recreational harvest 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:

Thirty regulatory options were developed by working with a group of anglers and recreational fishing industry members. These options included the manipulation of minimum sizes, possession limits, and fishing seasons to achieve the required reduction. These options were narrowed down to 8 by the working group and presented to New York’s Marine Resources Advisory Council (MRAC). MRAC members provided input during a regularly scheduled meeting on March 10, 2015. A voting quorum was not present, nonetheless, MRAC members did indicate a preference for 2 out of the 8 options. The DEC’s Division of Fish, Wildlife and Marine Resources (DFWMR) has chosen to propose the option that increases the minimum size limit by one inch to achieve the required reduction.

The second preferred option included the same 1 inch increase in minimum size combined with 3 different possession limits. This option was intended to allow the fishing season to open earlier in June (The season currently starts July 15). The possession limit would be 2 fish from June 12 through August 31, increasing to 5 fish from September through October, and increasing to 10 fish from November through December. The initial 2 fish possession limit would effectively reduce this offshore/structure-oriented fishery to an incidental by catch during the time of peak black sea bass fishing. The three different possession limits may lead to angler confusion, non-compliance with the rule, and potential law enforcement issues. DFWMR determined that 8 fish at 14 inches from July 15 through October 31 and 10 fish at 14 inches from November 1-December 31 to be the best option for New York.

“No action” alternative: If New York were to not adopt regulations that reduced recreational black sea bass harvest in 2015 by 33 percent, the State would be out of compliance with ASMFC and subject to federal sanctions.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and Mid-Atlantic Fishery Management Council FMP.

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 rule must be in effect by July 15, 2015, the date the recreational black sea bass seasons opens, to ensure a reduction in the recreational black sea bass harvest and prevent New York from being out of compliance with the ASMFC FMP.

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 ASMFC mandated a 33 percent reduction in recreational black sea bass harvest by coastal states from Massachusetts through New Jersey in 2015. The Department of Environmental Conservation (DEC or the department) now seeks to amend its regulations to comply with the requirements of the 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 anglers, licensed party and charter businesses, and retail and wholesale marine bait and tackle shops operating in New York State. The department consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on marine recreational fishing management measures. The new regulations will increase the minimum size by 1 inch, from 13 to 14 inches; maintains the 8 fish possession limit from July 15 through October 31, and increases the possession limit by 2 fish during the months of November and December, from 8 fish to 10 fish.

The proposed regulations are more restrictive and designed to reduce New York’s black sea bass harvest. Larger black sea bass are less available to anglers fishing from some parts of the Marine and Coastal District, so this rule’s impact will differ geographically. In addition, the larger size limit will increase the number of fish discarded by recreational anglers, including dead discards. Finally, some anglers may view the increase in the possession limit in November and December as favoring party and charter vessels. It should be noted that this increase in the possession limit had no impact on the season, size limit, or possession limit established for recreational black sea bass during other times of the year.

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. The proposed regulations may decrease the income of party and charter businesses, marinas and marine bait and tackle shops that depend heavily upon the recreational black sea bass fishery, especially in areas where larger fish are less available.

5. Economic and technological feasibility:

Compliance with this rule will not present any economic or technological challenges to small business or local governments.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for DEC to maintain compliance with the FMP for black sea bass while optimizing opportunities for its recreational fishing industry and recreational anglers. Since these regulatory amendments are consistent with the Interstate FMPs, DEC anticipates that New York State 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 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.

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.

9. Initial review of rule:

The department will conduct an initial review of the rule within three years as required by SAPA section 207.

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 black sea bass fishery directly affected by the proposed rule is 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:

New York is part of a management region that includes the states of Massachusetts, Rhode Island, Connecticut and New Jersey. All member states of the region are required by the Atlantic States Marine Fisheries Commission to independently reduce recreational black sea bass harvest by thirty-three percent using changes to minimum size limit, possession limit, and season length.

The promulgation of this regulation is necessary for the Department of Environmental Conservation (DEC) to maintain compliance with the Fishery Management for Plan Black Sea Bass, and to optimize recreational fishing opportunities available to New Yorkers. The proposed rule reduces the recreational black sea bass harvest by increasing the minimum size by 1 inch, from 13 to 14 inches; maintains the 8 fish possession limit from July 15 through December 31, and increases the possession limit by 2 fish during the months of November and December, from 8 fish to 10 fish.

Many currently licensed party and charter boat owners and operators, as well as bait and tackle businesses, will be affected by these regulations. The proposed restrictions may reduce the amount of money spent in pursuit of this species.

2. Categories and numbers affected:

In 2014, there were 490 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. According to the American Sportfishing Association, in 2011 New York had an estimated 800,811 marine recreational anglers that spent $1,194,493,042 on saltwater fishing, generating $144,539,079 in state and local tax revenue. In 2014 New York anglers took an estimated 173,511 fishing trips targeting black sea bass, significantly more than any other year in the last 5 years.

3. Regions of adverse impact:

The more restrictive black sea bass regulations will decrease the number of trips anglers take in pursuit of this species, decreasing the amount of money they spend on bait, tackle, fares and gas. This will have a negative impact upon those businesses (bait and tackle retail, party and charter operations, gas docks, marinas, etc.) that cater to these anglers. The change in minimum size will not impact all anglers in the same manner. Anglers fishing from the western south shore or in western and central Long Island Sound have less access to large fish. In addition, large fish are more available further offshore, especially later in the season. This proposed rule will have greater impacts on small boat owners, inshore fishermen and anglers who fish the western shores of Long Island.

4. Minimizing adverse impact:

A thirty-three percent reduction in New York’s recreational black sea bass harvest will have a significant negative impact on fishery participants and associated businesses. Thirty regulatory options were developed by working with a group of anglers and recreational fishing industry members. These options included the manipulation of minimum sizes, possession limits, and fishing seasons to achieve the required reduction. These options were narrowed down to 8 by the working group and presented to New York’s Marine Resource Advisory Council (MRAC). MRAC members provided input during a regularly scheduled meeting on March 10, 2015. A voting quorum was not present, nonetheless, MRAC members did indicate a preference for 2 out of the 8 options. The Division has chosen to propose the option that increases the minimum size limit by one inch to achieve the required reduction. This option represents the least disruption to last year’s regulations and preserves the targeted nature of the fishery for the period when most anglers have access.

5. Self-employment opportunities:

The party and charter boat businesses, the bait and tackle shops, and marinas are, for the most part, small businesses, owned and often operated by the owner. The recreational fishing industry is mostly self-employed. This rule will likely have a negative effect upon opportunities for businesses related to the recreational harvest of black sea bass.

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

The department will conduct an initial review of the rule within three years as required by SAPA section 207.