ENV-20-13-00006-EP Recreational Harvest Regulations for Summer Flounder (Fluke), Scup (Porgy) and Black Sea Bass

5/15/13 N.Y. St. Reg. ENV-20-13-00006-EP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 20

May 15, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-20-13-00006-EP

Filing No. 449

Filing Date. Apr. 29, 2013

Effective Date. Apr. 29, 2013

Recreational Harvest Regulations for Summer Flounder (Fluke), Scup (Porgy) 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, 13-0340-e 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 regulations proposed for summer flounder and scup for 2013 are a relaxation of the 2012 regulations; there is little risk of exceeding the State’s recreational harvest limit under current regulations and provides the recreational fishing industry and private anglers an opportunity to take advantage of an abundant natural resource, potentially resulting in significant economic activity. Black sea bass harvest must be reduced according to the ASMFC, and so the regulations proposed for 2013 are significantly more restrictive than those in place in 2012. These regulations are likely to reduce economic activity related to the recreational harvest of black sea bass.

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 traditional summer flounder, scup, and black sea bass season. New York could not act until the ASMFC had voted on Addendum XXIV to the Summer Flounder Fishery Management Plan on April 17, 2013. The Addendum allows New York to utilize fish under-harvested by other ASMFC member states to liberalize its regulations. The New York State Department of Environmental Conservation had already consulted with NY’s Marine Resource Advisory Council (MRAC) regarding changes to marine recreational fishing regulation at both its January 15 and March 12 meetings.

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 fishing seasons. New York State anglers, party and charter boat concerns and bait and tackle shops are dependent on the season opening on time with the proper size and possession limits in place. It is in the best interests of New York State’s recreational fishing participants and industry not to delay the implementation of these new marine recreational fishing management measures and to promulgate the proposed regulations through the emergency rule making process.

Subject:

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

Purpose:

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

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 – Sept [30]29	[19.5]19″ TL	4

Species Yellowtail flounder through Winter flounder remain the same. Species Scup (porgy) licensed party/charter boat anglers through Black sea bass are amended to read as follows:

Species	Open Season	Minimum Length	Possession Limit
Scup (porgy) licensed party/charter boat anglers****	May 1 – Aug. 3 Sept. 1 – Oct. 31 Nov. 1 – Dec. 31	[11]10” TL [11]10” TL [11]10” TL	[20]30 [40]45 [20]30
Scup (porgy) all other anglers	May 1 – Dec. 31	[10.5]10” TL	[20]30
Black sea bass	[June 15] July 10 – Dec. 31	13” TL	[15]8

Species American shad 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, 2013.

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.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105, 13-0340-b, 13-0340-e 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, scup 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.

For both summer flounder and scup, the allotment of fish that New York recreational anglers can fish on is sufficient to allow a relaxation of the 2012 regulations. The minimum size limit for both species will decrease and the possession limit of scup will increase. One day in September will be lost from the end of the summer flounder fishing season. This should lead to increased interest in fishing for these species, resulting in economic benefits to related industries. Black sea bass rules will be 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 the 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 black sea bass recreational harvest rules; however these may hopefully be offset by increased angler interest in summer flounder and scup.

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 ASMFC and the Mid-Atlantic Fisheries Management Council (MAFMC) to control harvest. The proposed regulations for black sea bass and scup are part of multi-state management programs that seek to make recreational fishing regulations more contiguous among neighboring states. Prior to meeting with other states, the concerns of various New York recreational fishing interests were assessed. Once multi-state measures were developed, these were presented to New York’s Marine Resource Advisory Council. The black sea bass reduction options were given a great deal of consideration and after Councilors reached out to the public, a majority decided to support the regulations proposed here as the lesser evil.

The “unharvested” summer flounder that Addendum XXIV made available for New York’s use was intended to be used to decrease the disparity of recreational summer flounder minimum size among ASMFC member states. Further expansion of New York’s season and/or possession limit would not help to attain this goal.

No Action Alternative: The proposed rule making is a relaxation of existing recreational fishing regulations for scup and summer flounder and more restrictive for black sea bass. If New York State does not amend 6 NYCRR Part 40 and implement the changes described above, the state will be out of compliance with ASMFC for black sea bass, and summer flounder and scup anglers will miss the opportunity for increased access to fisheries resources shared with other states. Furthermore, party and charter boat businesses and bait and tackle shops may lose the chance to increase business prospects and income with the expanded fishing opportunities and customer base. Failure for New York to promulgate this rule making may be to the detriment of its recreational fishing industry and the public. In addition, angler dissatisfaction may result in non-compliance and increase fishing effort upon other less robust stocks.

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 for summer flounder and scup, increase the possession limit for scup, and increase the opportunity for anglers to take fish home. One day in September will be lost from the end of the summer flounder season. It is hoped that these more liberal regulations will encourage anglers to fish and support the recreational fishing industries. The regulations proposed for black sea bass are more restrictive, decreasing the possession limit by almost half and removing 25 days from the beginning of the season. Anglers and businesses that depend upon black sea bass may experience reduced fishing opportunities and/or loss of revenue.

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 increase the income of party and charter businesses and marine bait and tackle shops because of the increase in fishing opportunities for recreational anglers who pursue summer flounder and scup. However, those dependent upon black sea bass may see decreased activity and revenue.

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, scup 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, Scup 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 half an inch, to 19.0 inches, while maintaining the possession limit and removing one day in September from the end of the season. All anglers targeting scup, whether aboard licensed party and charter vessels, fishing from a private boat, or from shore, can fish for scup from May 1 through December 31and have a possession limit of 30 fish per angler per day (10 more fish than allowed in 2012). The minimum size limit is also 10 inches for all anglers; this is a half inch decrease for private and shore anglers and a full inch decrease for party and charter vessel anglers. In addition, anglers on board licensed party and charter vessels have a bonus season from September 1 through October 31, and may take 45 scup per angler per day (5 more than allowed in 2012). Finally, the proposed rule decreased the length of the recreational season for black sea bass by 25 days to a period from July 10 through December 31 and decreases the possession limit by 7 fish to 8 fish (it was 15 fish in 2012). The minimum size limit remains 13 inches.

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 and scup regulation may have a positive impact upon related businesses while the new black sea bass restrictions will decrease interest and spending in pursuit of this species.

2. Categories and numbers affected:

In 2012, there were 508 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 2012, New York anglers took 1.5 million fishing trips targeting summer flounder, scup, and black sea bass. The numbers of trips have decreased considerably 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.

3. Regions of adverse impact:

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.

4. Minimizing adverse impact:

Proposed regulations for summer flounder and scup recreational harvest in 2013 are more relaxed than the regulations in place for the 2012 season. This will hopefully encourage anglers to go fishing more often, having a positive impact upon marine recreational fishing related industries. In addition, black sea bass targeted trips only make up 5% of the trips taken in 2012 for summer flounder, scup and black sea bass, combined. Hopefully, increased effort in pursuit of summer flounder and scup will outweigh the negative impacts of the more restrictive black sea bass harvest rules.

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 increase opportunities for businesses related to the recreational harvest of summer flounder and scup. Any negative impact on the recreational harvest of black sea bass will be outweighed by the positive impact of the summer and scup 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.