ENV-18-12-00010-EP Recreational Harvest Regulations for Summer Flounder (Fluke), Scup and Black Sea Bass

5/2/12 N.Y. St. Reg. ENV-18-12-00010-EP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 18

May 02, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-18-12-00010-EP

Filing No. 389

Filing Date. Apr. 17, 2012

Effective Date. Apr. 17, 2012

Recreational Harvest Regulations for Summer Flounder (Fluke), Scup 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 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 2012 are a relaxation of the 2011 regulations; there is little risk of exceeding the State's recreational harvest limit under current regulations. However, the proposed relaxation of these regulations provides the recreational fishing industry and private anglers an opportunity to take advantage of an abundant natural resource, potentially resulting in significant economic activity.

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. National Marine Fisheries Service (NMFS) usually publishes the recommended management measures for these popular marine recreational fishing species in the Federal Register in the first quarter of each year. As of this writing (March 21, 2012), the 2012 management measures have not yet published by NMFS. However, New York State did determine its 2012 management measures for summer flounder, scup and black sea bass in March based on preliminary data released by ASMFC and NMFS, and after consultation with New York's Marine Resources Advisory Council. Traditionally, the recreational season for summer flounder and scup in New York begins in May. 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. These proposed regulations will extend recreational fishing seasons for scup and black sea bass, reduce the minimum size limit for summer flounder and increase the possession limit for all three species, increasing the likelihood of fishing success for New York State recreational anglers. This may lead to increased interest in fishing and increased business opportunities and income for party and charter boat businesses and bait and tackle shops. It is in the best interests of New York State's recreational fishing 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 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	[20.5]19.5″ TL	[3]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****	[June 8 - Sept. 6] May 1 - Aug. 31 Sept. [7]1 - Oct. [11]31 Nov. 1 - Dec. 31	11" TL 11" TL 11" TL	[10]20 40 20
Scup (porgy) all other anglers	May [24]1 - [Sept. 26]Dec. 31	10.5" TL	[10]20
Black sea bass	June [13]15 [- Oct. 1 and Nov. 1] - Dec. 31	13" TL	[10]15

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 15, 2012.

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 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.

Under the Summer Flounder, Scup and Black Sea Bass FMP, ASMFC will assign New York an annual allotment for each species for the 2012 recreational season. For all three species, the 2012 quota is greater than the 2011 quota. Under the current rules, the 2011 regulations, it is unlikely that New York will meet the 2012 assigned quota for any of the three species. The proposed regulations use a combination of decreased minimum size limits, increased possession limits and expanded seasons to allow New York State recreational anglers to utilize the increased fishing opportunities made available by the larger 2012 quotas. Recreational fishing in New York generates hundreds of millions of dollars in total sales. 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, scup and black sea bass. The regulatory changes in this emergency rule have been reviewed by the Marine Resources Advisory Council and have been approved by ASMFC. The proposed rule will allow New York State recreational anglers to achieve the harvest level provided by the 2012 quotas, yet prevent these anglers from exceeding the assigned quotas.

Specific amendments to the current regulations include the following:

A. Summer Flounder: Reduce the minimum size to 19.5 inches, and increase the possession limit to 4 fish. The open season for the summer flounder recreational fishery, from May 1 through September 30, will remain the same.

B. Scup: Expand the season for both private anglers and anglers fishing from licensed for-hire vessels to May 1 through December 31, and increase the possession limit to 20 fish per angler per day. In addition, anglers fishing from licensed for-hire vessels may possess up to 40 scup from September 1 through October 31. The minimum size limits will not change.

C. Black Sea Bass: Expand the season to June 15 through December 31 and increase the possession limit to 15 fish.

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.

(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 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 measures proposed in this rule making are one of a suite of different combinations of season length, minimum size, and possession limit that would liberalize 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 for neighboring states. The different combinations of management measures were presented to MRAC for review and discussion. A majority of those present at MRAC voted and chose the measures proposed here.

No Action Alternative: The proposed rule making is a relaxation of existing recreational fishing regulations. If New York State does not amend 6 NYCRR Part 40 and implement the changes described above, the State will not be out of compliance with ASMFC or MAFMC. The regulations currently in place from the 2011 fishing season will keep New York's recreational harvest of summer flounder, scup, and black sea bass well below the 2012 targets. However, the State will lose the opportunity to liberalize its fishery regulations and provide additional fishing opportunities for recreational anglers. 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. The No Action Alternative was rejected.

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, and expand the open seasons. It is hoped that these more liberal regulations will encourage anglers to fish and support the recreational fishing industries.

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, scup and black sea bass.

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.

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 to 19.5 inches, and increases the summer flounder possession limit to 4 fish per angler per day. The summer flounder season remains the same. For scup, anglers targeting scup while on board licensed party/charter vessels can fish for scup from May 1 through December 31and have a possession limit of 20 fish per angler per day. Anglers on board licensed party/charter vessels have a bonus season from September 1 through October 31, and may take 40 scup per angler per day. For all other anglers the recreational season is the same, May 1 through December 31 and the possession limit is 20 fish per angler per day. Finally, the proposed rule increases the length of the recreational season for black sea bass to a period from June 15 through December 31 and increases the possession limit to 15 fish. 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. Due to the expanded open seasons, decreased minimum sizes and increased possession limits there may be an increase in angler participation. This could result in a corresponding increase in the number of fishing trips, boat usage, and bait and tackle sales during the upcoming fishing season.

2. Categories and numbers affected:

In 2011, there were 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. Last year, New York anglers took 1.5 million fishing trips in search of summer flounder, 239,415 trips fishing for scup, and 114,912 trips for 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:

This rule making will result in a liberalization of current harvest limits and therefore should not result in any adverse impacts.

4. Minimizing adverse impact:

There will not be any substantial adverse impact on jobs or employment opportunities as a consequence of this rule making.