ENV-19-14-00020-EP Recreational Harvest Regulations for Summer Flounder (Fluke) and Black Sea Bass

5/14/14 N.Y. St. Reg. ENV-19-14-00020-EP

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 19

May 14, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-19-14-00020-EP

Filing No. 343

Filing Date. Apr. 29, 2014

Effective Date. Apr. 29, 2014

Recreational Harvest Regulations 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 to optimize recreational fishing opportunities available to recreational anglers while limiting harvest to remain in compliance with the Fishery Management Plan (FMP) for Summer Flounder, Scup and Black Sea Bass adopted by the Atlantic States Marine Fisheries Commission (ASMFC).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 State’s recreational fisheries and prevent the State from exceeding the State’s recreational harvest limit, as assigned by the FMP. The proposed regulations will decrease the size limit for summer flounder, reduce the recreational fishing season and increase the possession limit. These regulations will also reduce the recreational fishing season for black sea bass.

The promulgation of this regulation on an emergency basis is necessary because the normal rule making process would not promulgate these regulations in the time frame necessary to prevent the 2014 recreational summer flounder season from opening prematurely on May 1, 2014. May 1 is the summer flounder opening date currently in regulation. The proposed opening for the 2014 summer flounder season is May 17, 2014. This rule must be in effect by April 30, 2014 to prevent the summer flounder season from opening on May 1. (Similarly, the opening date for the recreational black sea bass season has been pushed back five days, from July 10 in 2013 to July 15 in 2014.)

New York State determined its 2014 recreational management measures for summer flounder and black sea bass in mid-March after deliberations and a vote by ASMFC. If this rule making were to be promulgated by the normal rule making process, it would not be in effect until after the May 1, the previous year’s opening date. This would result in recreational summer flounder harvest before the proposed opening date, a potential over-harvest of summer flounder, and a finding of out-of-compliance by ASMFC. Promulgating this regulation on an emergency basis is necessary to prevent the recreational summer flounder and black sea bass seasons from opening too early. It is in the best interests of the general welfare of New York State’s marine recreational fishing interests not to delay the implementation of these regulations.

Subject:

Recreational harvest regulations for summer flounder (fluke), and black sea bass.

Purpose:

To maximize recreational angler opportunities for popular finfish species while staying in compliance with the ASMFC.

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 [1]17 – Sept. [29]21	[19]18” TL	[4]5

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

Species	Open Season	Minimum Length	Possession Limit
Black sea bass	July [10]15 – Dec. 31	13” TL	8

Species Anadromous river herring through Oyster toadfish remain 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 27, 2014.

Text of 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 negative declaration is on file with the Department.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105, 13-0340-b, 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 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, Scup and 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 Interstate Fishery Management Plans 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. 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.

In 2014, New York is part of a mandatory region with Connecticut and New Jersey and must have identical recreational summer flounder size limits, possession limits, and season length. These include a 1 inch decrease in minimum size, 1 additional fish added to the possession limit, and a loss of 24 days from the season, at least 16 of which must come from May and June because of harvest concerns. Overall, these changes are projected allow marine recreational anglers to harvest 150 percent of the summer flounder landed in New York in 2013. It is hoped that these relaxed regulations will increase interest and fishing activity, resulting in economic benefits to a number of associated businesses.

Black sea bass rules will be slightly more restrictive and may have negative impacts upon business. However, the proposed rule must be in place so that New York remains in compliance with ASMFC and reduces harvest.

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 seasons for both species; however these may hopefully be offset by increased angler interest in pursuing more available, legal-sized, summer flounder.

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 measures proposed in this rule making are one of a suite of different combinations of season length, minimum size, and possession limit that would change New York’s recreational fisheries regulations while fulfilling the State’s obligations to the ASMFC to control harvest. MRAC had an opportunity to weigh in on their preference for different forms of recreational fishery management at both the January and the March meetings.

Summer Flounder – Regional measures considered for summer flounder included different member states, possession limits, season lengths and start dates. Regional measures had to consider the preferences of all member states, not New York alone. Under state-by-state Conservation Equivalency, significantly shorter seasons and the current size and possession limits were considered. The No Action Alternative for summer flounder will find New York out of compliance with the ASMFC. Under Conservation Equivalency, New York is required to reduce its harvest by approximately 15 percent. Under regional management imposed by Addendum XXV, New York is required to have the same size limit, possession limit, and season length as Connecticut and New Jersey.

Black Sea Bass – ASMFC requires New York to reduce its recreational black sea bass harvest by 7 percent. Season loss from both the beginning and end of the fishing season was considered. In addition, lowering the possession limit for at least part of the fishing season was considered. The No Action Alternative for black sea bass will find New York out of compliance with ASMFC and may lead to coast-wide recreational overharvest of black sea bass.

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.

ASMFC recently adopted quota changes for summer flounder, scup and black sea bass. 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 reduce the minimum size and increase the possession limit for summer flounder, intended to increase the opportunity for anglers to take fish home. The season lengths for summer flounder and black sea bass will decrease by 24 and 5 days, respectively. It is hoped that the more liberal aspects of the regulations will encourage anglers to fish and support the recreational fishing industries but acknowledge that the loss of days of open season, particularly for summer flounder during May, will be a hardship to some businesses.

The summer flounder regulations proposed for New York in 2014 are part of a regional management solution. They are projected to allow New York to harvest more summer flounder than the state would under the more traditional state-by-state system and provides New York parity with its neighbors for the first time in many years. Regional management requires a compromise between all members of a region (in this case Connecticut, New York, and New Jersey) and therefore flexibility and the ability to customize are diminished. The shortened season, particularly the loss of 16 days from the beginning of May, will negatively impact a number of fishing and related businesses. Some geographic areas of Long island will experience this impact more acutely than others, in particular those who fish the North Fork of Long Island and the businesses that cater to them.

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 proposed regulations may decrease the income of party and charter businesses and marine bait and tackle shops during the beginning and end of the traditional season because of the loss of 24 days. However, it is hoped that there is increased interest in summer flounder fishing due to the relaxed size and possession limits and that anglers respond with increased activity and spending during the bulk of the season. Related businesses should see the benefits mid-May through late September. Those solely dependent upon black sea bass may see decreased activity and revenue during the 5 days lost in July.

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 summer flounder and 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 Marine Resources Advisory Council, 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 summer flounder, scup, 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 optimize recreational fishing opportunities available to New Yorkers. The proposed rule reduces the recreational summer flounder minimum size limit by an inch, to 18.0 inches; increases the possession limit by 1 fish, to 5 fish; and removes 16 days from the season in May and 8 days from the season in September. New York is part of a mandatory region with its neighbors, Connecticut and New Jersey, and all member states of a region must have the same minimum size limit, possession limit, and season length. This is part of an effort to provide recreational anglers of all states equitable access to the summer flounder fishery. New York has been at a disadvantage for many years, with the most restrictive harvest rules on the coast. Despite the loss of season, New York is projected to harvest 150 percent of what it would be allowed under more traditional state-by-state Conservation Equivalency.

The proposed rule decreased the length of the recreational season for black sea bass by 5 days to a period from July 15 through December 31. The possession limit of 8 fish and the minimum size limit of 13 inches remains the same.

Many currently licensed party and charter boat owners and operators, as well as bait and tackle businesses, will be affected by these regulations. Relaxation of summer flounder regulations during the open season may have a positive impact upon related businesses, although some business will feel the loss of 24 days of the fishing season. The new black sea bass restrictions may decrease spending in pursuit of this species.

2. Categories and numbers affected:

In 2013, there were 475 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 2013, New York anglers took 1.36 million fishing trips targeting summer flounder and black sea bass. The number of trips has decreased from several years ago when regulations were considerably more relaxed. Despite this decrease in activity, marine recreational fishing continues to be a major outdoor activity in New York and a generator of revenue. It is hoped that the relaxed size limit for summer flounder in New York State will increase opportunities and interest in this recreational fishery.

3. Regions of adverse impact:

The slightly 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 small negative impact upon those businesses (bait and tackle retail, party and charter operations, gas docks, marinas, etc) that cater to these anglers. The changes made to the summer flounder regulations are mixed. The loss of days from the beginning of the season in May and the end of the season in September will negatively affect businesses, particularly for-hire operations in certain parts of Long Island. It is hoped that the relaxed size limit will encourage anglers to fish for summer flounder during the main part of the season (Memorial Day to Labor Day) with positive economic impacts for bait and tackle retail, marinas, gas docks, etc.

4. Minimizing adverse impact:

The projected harvest for the proposed 2014 regulations is 150 percent of what New York would have been allowed to land under traditional state-by-state Conservation Equivalency. Regional Management allows New York increased access to summer flounder and parity with its neighboring states of Connecticut and New Jersey through shared regulations. The trade-off for this increased access (primarily through a minimum size limit decrease of 1 inch) was loss of 24 days in the season, with 16 of those days occurring in May. This loss of season will have an impact on those businesses that have traditionally enjoyed an early season fluke bite, specifically the North Fork of Long Island. However, the reduced size limit of 18 inches should benefit the majority of participants in the fishery (approximately 85 percent of New York’s recreational summer flounder are landed by anglers fishing from private vessels) and the businesses that cater to them will hopefully see the results in increased spending in pursuit of summer flounder. For-hire vessels may see additional fares during the shortened open season due to increased angler enthusiasm. Hopefully, increased effort in pursuit of easier-to-catch-a “keeper” summer flounder during the open season will outweigh the negative impacts of the more restrictive seasons for both summer flounder and black sea bass.

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 usually operated by the owner. The recreational fishing industry is mostly self-employed. This rule will likely have a mixed effect upon opportunities for businesses related to the recreational harvest of summer flounder and a slight negative effect upon recreational businesses that cater to the black sea bass fishery.

6. Initial review of rule:

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