ENV-22-11-00006-EP Recreational Harvest Regulations for Black Sea Bass

6/1/11 N.Y. St. Reg. ENV-22-11-00006-EP

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 22

June 01, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-22-11-00006-EP

Filing No. 440

Filing Date. May. 17, 2011

Effective Date. May. 17, 2011

Recreational Harvest Regulations for 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 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 remain in compliance with the Fishery Management Plan (FMP) for Summer Flounder, Scup and Black Sea Bass as adopted by the Atlantic States Marine Fisheries Commission (ASMFC), to avoid potential federal sanctions for lack of compliance with such plan, and to optimize recreational fishing opportunities available to New Yorkers.

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. 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 federal sanctions on the particular fishery in that state. A closure, for example, of the New York black sea bass fishery could result in significant adverse impacts to the State's economy. New York State must adopt regulations that are in compliance with the FMP and prevent the recreational harvest of black sea bass from exceeding the State's assigned limits for that species.

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 to prevent the fishing season from opening on May 22, one of the provisions of the 2010 regulations. If this rule making were to be promulgated by the normal rule making process, it would not be effective until several months after the target date for the opening of the fishing season. If recreational anglers were allowed to harvest black sea bass under the provisions of the 2010 regulations, it is very likely that New York anglers would exceed the 2011 black sea bass quota assigned to New York State. The State then could be found out of compliance by ASMFC, resulting in federal sanctions and a moratorium. It is in the best interests of New York State's recreational fishing industry to remain in compliance with ASMFC black sea bass requirements by not promulgating the proposed regulation through the normal rule making process.

Subject:

Recreational harvest regulations for black sea bass.

Purpose:

To maximize recreational angler opportunities for black sea bass 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 Scup (porgy) all other anglers 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	[May 22] June 13 - Oct. [11]1 and Nov. 1 - Dec. 31	[12.5]13″ TL	[25]10

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 August 14, 2011.

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

John D. Maniscalco, 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 and 13-0340-f authorize the Department of Environmental Conservation (DEC or 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 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 black sea bass, ASMFC will assign New York an annual harvest for black sea bass for the 2011 recreational season. The 2011 quota will be smaller than the 2010 quota. Under existing regulations, it is likely that New York will overharvest the 2011assigned take of black sea bass by recreational anglers. The proposed regulations will decrease the duration of the 2011 recreational black sea bass season, increase the minimum size limit, and decrease the bag limit to prevent New York State recreational anglers from overharvesting the reduced quota. According to a report released by National Oceanic and Atmospheric Administration Fisheries, recreational fishing in New York generated $424 million in total sales in 2006. Black sea bass is a 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 black sea bass. The regulatory changes in this emergency rule are calculated, and have been approved by ASMFC. The proposed rule will allow New York State recreational anglers to achieve the harvest level provided by the 2011 quota, yet prevent these anglers from exceeding the assigned black sea bass quota. New York State would remain in compliance with the FMP.

Specific amendments to the current regulations include the following:

1. Black sea bass: Implement an open season for the black sea bass recreational fishery from June 13 through October 1 and November 1 through December 31, a 13.0 inch minimum size limit, and a 10 fish bag limit. This represents a loss of 32 days from the fishing season, a 0.5 inch increase in minimum size, and a substantial decrease of the bag limit from 25 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. However, the reduced season length and more restrictive management measures will decrease angler participation in the recreational black sea bass fishery. This is likely to decrease revenues for party/charter boat operators and sales at bait and tackle shops.

(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:

"No Action" Alternative (no amendment to black sea bass regulations) - The "no action" alternative would leave current black sea bass regulations in place. Under existing regulations, it is likely that New York recreational anglers will exceed the 2011 assigned harvest. If New York doesn't take steps to reduce harvest, the state could be found out of compliance with the Fishery Management Plan by the Atlantic States Marine Fisheries Commission and subject federally imposed sanctions. This 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 requires New York State to reduce its recreational black sea bass harvest by 39 percent and this may impact the State's recreational fishing industry. Those most affected by the proposed rule are recreational anglers, licensed party and charter boat businesses, and retail and wholesale marine bait and tackle shops operating in New York State. There were 502 licensed party and charter boats in 2010, and an unknown number of bait and tackle shops. Approximately 300,000 recreational marine fishing licenses were sold in 2010. Local party and charter boat businesses and bait and tackle shops will lose many customers who target black sea bass during the spring. Party and charter boat businesses and bait and tackle shops may rely on the patronage of recreational anglers who target black sea bass for the income it provides and may see a reduction in their earnings once the regulations are in place.

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 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 black sea bass and to avoid a punitive closure of the 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 FMPs, DEC anticipates that New York State will remain in compliance with the FMPs.

The department consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on black sea bass recreational management measures. There was no consensus but a majority was in favor of the proposed regulation.

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.

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 is entirely located within the marine and coastal district, and is not located adjacent to any rural areas of the state. Further, the proposed rule does not impose any reporting, recordkeeping, 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 Black Sea Bass, to avoid potential federal sanctions for lack of compliance with such plan, and to optimize recreational fishing opportunities available to New Yorkers. The proposed rule will reduce the recreational season for black sea bass by 32 days and decrease the opportunities anglers will have to take large amounts of fish home.

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 and appeal of fishing days for black sea bass, there may be a corresponding reduction of the number of fishing trips and bait and tackle sales during the upcoming fishing season.

2. Categories and numbers affected:

In 2010, there were 502 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. The number of recreational fishers in New York has been estimated by the National Marine Fisheries Service to be just over 714,000 in 2010. 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.

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 black sea bass 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 black sea bass resource 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.