ENV-13-15-00031-E To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass

7/1/15 N.Y. St. Reg. ENV-13-15-00031-E

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 26

July 01, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY RULE MAKING

 

I.D No. ENV-13-15-00031-E

Filing No. 521

Filing Date. Jun. 12, 2015

Effective Date. Jun. 12, 2015

To Amend 6 NYCRR Parts 10 and 40 Pertaining to Commercial and Recreational Regulations for Striped Bass

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

Action taken:

Amendment of Parts 10 and 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-1521, 13-0339, 13-0347 and 13-0105

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

A Notice of Emergency Adoption and Proposed Rulemaking was filed and in effect on March 17, 2015. The emergency rule will expire on June 14, 2015. This current Notice of Emergency Adoption must be filed with the Department of State by June 13, 2015 to ensure this emergency rule is in effect before the original emergency rule expires.

This rule making is necessary to ensure that required management measures to reduce the harvest of striped bass by at least 25% in 2015 remain in effect until the proposed rule is adopted. It is also to ensure New York remains in compliance with the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan (FMP) for Striped Bass. If New York State fails to maintain the management measures needed to meet the required reduction in harvest, the State may be found non-compliant with the FMP and risks a total closure of all of New York’s striped bass fisheries by the Secretary of Commerce.

It is in the best interests of the general welfare of New York State’s recreational and commercial fishing interests not to delay the implementation of these regulations.

Subject:

To amend 6 NYCRR Parts 10 and 40 pertaining to commercial and recreational regulations for striped bass.

Purpose:

Reduce fishing mortality of striped bass to promote stable fish populations, and to remain in compliance with the ASMFC FMP.

Text of emergency rule:

Part 10 of 6 NYCRR is amended to read as follows:

Existing paragraph 10.1(b)(18) is amended to reads as follows:

(b) Table A. Sportfishing regulations

	Species	Open Season	Minimum length	Daily limit
(18)	Striped Bass (in the Hudson River and tributaries north of the George Washington Bridge and all inland waters)	[March 16] April 1 through November 30	[18" TL] 18” to 28” TL or > 40” TL (total length see ECL § 13-0339[4])	1

Subparagraph 10.2(j)(2)(f) is amended to read as follows:

(2) Table D: Fishing regulations for Delaware River and its West Branch bordering Pennsylvania

	Species	Open Season	Minimum length	Daily limit
(‘f’)	Striped bass	All year	28”	[2] 1

Subdivision 40.1(f) is amended to read as follows:

Species	Open Season	Minimum Length	Possession Limit
Striped Bass (except the Hudson River north of the George Washington Bridge)	April 15 – Dec. 15	[Licensed Party/Charter Boat anglers] 28” TL [All other anglers 28” to 40” TL] [>40” TL(Total length)] *	[2] 1 [1] [1]

Species Red drum through Atlantic menhaden remain the same.

Paragraph 40.1(g)(4) is repealed.

Subdivision 40.1(i) is amended to read as follows:

Species	Open Season	Minimum Length	Trip Limit
Striped Bass (the area east of a line drawn due north from the mouth of Wading River Creek & east of a line at 73 degrees 46 minutes west longitude, which is near the terminus of East Rockaway Inlet.)	[Jul] June 1 - Dec 15#	Not less than [24] 28” TL nor greater than [36] 38” TL	See Subdivision (j) of this section

Species Red drum through Anadromous river herring remain the same.

Subparagraph 40.1(j)(8)(v) is amended to read as follows:

(v) Beginning in 2005, and continuing at five year intervals, each striped bass commercial harvesters permit holder in the full share category must file with the department a complete copy of his or her federal or state income tax records from one of the preceding three years. Such tax records must be filed before the June 1 deadline for receipt of applications. Such tax records must demonstrate that the permit holder has, as stated in subparagraph (ii) above, maintained the 50 percent earned income level in order to remain a participant in the full share category. Failure to file a timely and complete copy of federal or state income tax records which demonstrate that the permit holder has maintained the 50 percent earned income level will result in the permit holder being placed into the partial share category. Thereafter, the rules pertaining to partial share permit holders provided in subparagraph (iv) above apply. This requirement shall be suspended in 2015, until either reinstituted upon notification by the department or replaced with an alternate system of determining shares and qualifications for shares.

Paragraph 40.1(j)(9) is amended to read as follows:

(9) Applications for striped bass commercial harvesters permits will be accepted until close of business [June] May 1. Any application for a striped bass commercial harvesters permit received after close of business [June] May 1 will not be entertained by the department.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ENV-13-15-00031-EP, Issue of April 1, 2015. The emergency rule will expire August 10, 2015.

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

Carol Hoffman, NYSDEC, Bureau of Marine Resources, 205 N Belle Mead Road - Suite 1, East Setauket, NY 11733, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the State Environmental Quality Review act, a short EAF is on file with the department.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) section 13-0105 stipulates that the management of the state’s anadromous species, such as striped bass, shall be consistent with interstate or state-federal fishery management plans (FMP). ECL sections 11-0303 and 13-0339 authorize DEC to establish by regulation measures for the management of striped bass, including size limits, catch and possession limits, open and closed seasons, closed areas, restrictions on the manner of taking and landing, and other management measures. ECL sections 11-1521 and 13-0347 establish additional provisions for striped bass management in the Hudson River and marine district, respectively.

Regulations adopted by DEC must be consistent with the requirements of applicable fishery management plans adopted by the Atlantic States Marine Fisheries Commission and with applicable provisions of FMPs adopted pursuant to the Atlantic Coastal Fishery Cooperative Management Act.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries in such a way as to protect this natural resource for its intrinsic value to the marine ecosystem and to optimize resource use for commercial and recreational harvesters while remaining compliant with marine fisheries conservation and management policies and interstate fishery management plans.

3. Needs and benefits:

This rule making is necessary for New York State to remain in compliance with fishery management plans adopted by the Atlantic States Marine Fisheries Commission (ASMFC). All ASMFC member states must comply with the provisions of FMPs and management measures adopted by ASMFC. These FMPs and management measures are designed to promote the long-term sustainability of managed marine species, preserve the States’ marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate any regulations necessary to implement the provisions of the FMPs and remain compliant with the FMPs. New York State must amend 6 NYCRR Parts 10 and 40 to ensure that the State’s regulations are consistent with recently adopted Addendum IV to Amendment 6 of the ASMFC Interstate Fishery Management Plan for Atlantic Striped Bass. Failure to adopt these regulations may result in New York State being found non-compliant with the recommendations of the FMP and subject to the imposition of a moratorium on the harvest of striped bass in New York State.

More than ninety (90) percent of boat operators who hold a party and charter license also held a striped bass party and charter permit. The striped bass party and charter permit allowed customers to harvest two striped bass, and required operators to maintain trip-level fishing records of catch and effort expended. The regular party and charter license also requires operators to maintain trip level fishing records of catch and effort expended. Repeal of the striped bass party and charter permit ensures all recreational fishers harvest only one striped bass, to remain in compliance with the ASMFC FMP.

The proposed rule suspends the commercial striped bass harvesters’ tag allocation requalification process for 2015, pending an alternative system for determining shares and qualifications, in accordance with the recommendations of the Marine Resources Advisory Council (MRAC). MRAC has recommended procedures to make the commercial striped bass harvesters permits transferable. The transfer process is expected to be enacted in 2016, and the tag allocation process is likely to be replaced with an alternate system of determining allocations and harvester qualifications. Thus, the current 2015 tag allocation process is likely to be rendered obsolete in the near future.

The proposed rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. The earlier opening of the commercial striped bass harvest season may offset raising the new minimum size limit, and provide increased opportunities for fishers to harvest striped bass when they are in the bays. The commercial quota would remain as specified in the FMP.

4. Costs:

The proposed rule does not impose any costs to DEC, local municipalities, or the regulated public.

5. Local government mandates:

The proposed rule does not impose any mandates on local governments.

6. Paperwork:

None.

7. Duplication:

The proposed amendment does not duplicate any state or federal requirement.

8. Alternatives:

No action alternative: Under this alternative, DEC does not adopt this Notice of Emergency Adoption and the current emergency adoption expires. If the emergency rule lapses, the previous striped bass fishing rules will be in effect. These rules do not provide the harvest reduction needed to meet the required 25% reduction in fishing mortality for striped bass. If there is such a lapse in the implementation of the required management measures, it is not clear what action ASMFC would take given New York State’s obligations to comply with the ASMFC FMP for Atlantic striped bass.

The 2015 recreational fishing seasons for striped bass opened April 1 (inland waters) and April 15 (marine waters) under the rules set by the emergency adoption. If DEC does not adopt this second emergency rule, and the original emergency rule expires, the size limits and possession limits for striped bass would revert to the older, previous limits. Recreational anglers would be required to observe the previous rules. Once DEC files a Notice of Adoption for these rules and the adopted rules are published and in effect, the striped bass fishing rules would switch back to the rule promulgated in the original emergency adoption.

Likewise, the commercial striped bass fishing season will open June 1 under the rules set by the emergency adoption. If DEC does not adopt this second emergency rule, and the original emergency rule expires, the commercial season for striped bass will close (until July 1, the previous opening date) and the slot limit would revert to the older, previous slot limit.

This second emergency adoption will maintain consistent rules and provide stable management of the recreational and commercial striped bass fisheries in New York. This emergency rule will allow DEC to provide reliable guidance to both recreational anglers and commercial fishermen who target striped bass. The no action alternative was rejected.

9. Federal standards:

The amendment to 6 NYCRR Parts 10 and 40 is in compliance with the recently adopted addendum to the ASMFC FMP for Atlantic striped bass.

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 proposed 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 diadromous 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.

DEC is proposing amendments to 6 NYCRR in order to remain in compliance with Addendum IV to Amendment 6 of the Striped Bass FMP.

The amendment of 6 NYCRR Parts 10 and 40 revises the size and possession limits for the striped bass recreational fishery, in both the marine and coastal district, and inland waters, including the Hudson and Delaware Rivers and their tributaries; as well as new open season dates for the Hudson River and its tributaries. It will also implement new size limits and a new open season date for the marine commercial fishery, temporarily suspend the tag allocation requalification process for 2015, repeal the striped bass party and charter boat permit, and require commercial striped bass harvesters to renew their permits one month earlier.

Specifically, for the Delaware River, the proposal is for one fish, 28 inches or greater Total Length for recreational fisheries. For the Hudson River (north of the George Washington Bridge), the proposal is for one fish, either between 18 and 28 inches total length OR one “trophy” fish greater than 40 inches total length. Additionally, the start date of the open season will be approximately two weeks later, from the current March 16, to the proposed April 1 for the recreational fishery. For the Marine and Coastal Waters, (including Hudson River south of the George Washington Bridge), the proposal is for one fish, 28 inches or greater Total Length for all recreational fishers. The proposal also repeals the striped bass party and charter permit that allows customers to possess two striped bass. For-hire vessels will still need to have a regular party and charter license in order to be able to operate.

For the commercial fishery: the proposal is for a change in the current slot size limit of 24-36 inches Total Length to a proposed slot of 28-38 inches Total Length; as well as a proposal to suspend the commercial striped bass harvesters tag allocation requalification process for 2015, pending an alternative system for determining tag shares and qualifications. Also, this rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. This rule making may have an impact on the commercial and recreational fisheries, including private recreational fishers, and party and charter boat operators. It may also have an indirect effect on their supporting industries. These proposals are intended to reduce the catch for commercial and recreational fishers as required by ASMFC. In 2014, DEC issued 457 striped bass commercial harvesters permits, 490 party and charter boat licenses, and 444 striped bass party and charter boat permits, in the marine and coastal district. Three hundred sixty-seven (367) striped bass commercial harvesters received a full share individual quota allocation of striped bass tags; 90 received a part share allocation. In 2014, there were also 479 food fish and crustacea dealer and shipper licenses issued. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders sell bait used to harvest striped bass. The total number of bait and tackle shops in New York is also unknown. In addition, approximately 200 Hudson River marine permit gear licenses are sold annually; most of these permits are used for taking river herring to be used for striped bass bait.

The regulations do not apply directly to local governments, and will not have any direct effects on local governments.

2. Compliance requirements:

All commercial licensed fishers, as well as party and charter boat license holders, as part of their mandatory reports to DEC, are already required to maintain daily or trip level fishing records of catch and effort expended.

3. Professional services:

None.

4. Compliance costs:

This rule making will not impose any costs to DEC or local governments. There are no initial capital costs that will be incurred by a regulated business or industry to comply with the proposed rule. The proposal may reduce harvests for an unknown number of commercial and recreational fishers.

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. There is no additional technology required for small businesses, and this action does not apply to local governments.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for New York to remain in compliance with the FMP for striped bass. The regulations are intended to protect the striped bass resource and avoid the adverse impacts that would be associated with closure of the fishery due to non-compliance with the FMP. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment, as well as wholesale and retail outlets and other support industries. These regulations are being adopted in order to stabilize the stocks spawning stock biomass and to allow for rebuilding to the target level.

7. Small business and local government participation:

New York hosted two ASMFC public hearings on Addendum IV to which recreational and commercial fishers were invited. There was no special effort to contact local governments because the proposed rule does not affect them.

8. For rules that either establish or modify a violation or penalties associated with a violation:

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

DEC will conduct an initial review of the proposed rule within three years, as required by SAPA section 207.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

There are no rural areas within the marine and coastal district. Secondly, the marine and coastal district striped bass fisheries directly affected by the proposed rule are not located adjacent to any rural areas of the State. Five Hudson River watershed (includes the Hudson Valley) counties fall into the rural area category: Columbia, Greene, Putnam, Rensselaer, and Ulster counties. Two Delaware River counties are also in the rural area category: Delaware and Sullivan counties. The proposed regulations will affect individuals who participate in the Atlantic striped bass fishery, and may also have an indirect effect on supporting industries.

2. Reporting, recordkeeping and other compliance requirements; and professional services:

There is no commercial fishing allowed for striped bass in rural inland waters of New York State. Party and charter boat businesses that target striped bass on the Hudson River are not required to submit fishing reports to DEC. This proposed rule will not impose any reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas.

3. Costs:

There will be no initial capital or annual costs to comply with the new regulations.

4. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for DEC to comply with the Atlantic States Marine Fisheries Commission Addendum IV to Amendment 6 of the Atlantic Striped Bass Interstate Fishery Management Plan. The regulations are intended to create a sustainable fishery in New York water and avoid the adverse economic and social impacts that would be associated with closure of the fishery. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect for the fisheries in question, as well as wholesale and retail outlets and other support industries. These regulations are being adopted in order to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

River herring are harvested in the Hudson River and its tributaries, and used for striped bass bait. Opening the Hudson River striped bass recreational season at a later date will likely not affect many commercial river herring fishers or bait shops. Harvest data reported to DEC show that less that 3% of the total harvest of river herring occurs before April 1st.

5. Rural area participation:

DEC staff met with the affected parties of inland waters at two public hearings, to inform them of the striped bass stock status and initiate discussions of potential fishing restrictions necessary to protect the stock and to maintain acceptable fishing mortality. DEC has also been advised by the Hudson River Estuary Management Advisory Committee to gain their input on the regulation change. Marine and Coastal District fishers were also informed of proposed changes at the November 18, 2014 and January 13, 2015 Marine Resources Advisory Council (MRAC) meetings. DEC has maintained a regular dialogue with fishermen by phone and e-mail regarding the issue. Moreover, DEC has and will continue to provide notice to affected fishers through mailings, newspapers and other media outlets, including those in rural counties and towns.

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

DEC will conduct an initial review of the proposed rule within three years, as required by SAPA section 207.

Job Impact Statement

1. Nature of impact: The promulgation of this regulation is necessary in order for DEC to comply with the Atlantic States Marine Fisheries Commission Addendum IV to Amendment 6 of the Atlantic Striped Bass Interstate Fishery Management Plan.

Amendments to 6 NYCRR Parts 10 and 40 will implement possession and size limits for the recreational striped bass fishery, in both the marine and coastal district, and inland waters, including the Hudson and Delaware Rivers and their tributaries, as well as new open season dates for the Hudson River and its tributaries. It will also implement new size limits for the commercial marine fishery, open the commercial season one month earlier; and require commercial striped bass harvesters to renew their permits one month earlier. The rule will also temporarily suspend the striped bass commercial harvester tag allocation requalification process for 2015.

Specifically, the proposed rule decreases the recreational striped bass daily possession limit from two fish to one fish for the Delaware River, including both its West Branch bordering Pennsylvania and East Branch in New York and changes the opening recreational striped bass season date for the Hudson River and tributaries north of the George Washington Bridge from March 16 to April 1. The rule changes the minimum length for recreational striped bass for the Hudson River and tributaries north of the George Washington Bridge, from 18 inches, to either one fish of 18 to 28 inch slot size, or one fish greater than 40 inches. It changes the marine recreational fishing regulations for striped bass from two fish with a minimum length of 28 inches for licensed party and charter boat fishers, and one fish of 28 to 40 inch slot size, plus one fish greater than 40 inches, for private fishers, to one fish, 28 inches or greater total length for all recreational anglers and repeals the marine and coastal district striped bass party and charter boat permit that allows customers to possess two striped bass. The proposed rule changes the minimum length for commercial striped bass from a 24 to 36 inch slot size, to a 28 to 38 inch slot size. In addition, the proposed rule will open the commercial striped bass season one month earlier and require commercial striped bass harvesters to renew their permits one month earlier. The rule will also temporarily suspend the 2015 tag allocation requalification process for striped bass commercial harvesters.

This rule making may have an impact on the commercial and recreational fisheries, including private recreational fishers, and party and charter boat operators. It may also have an indirect effect on their supporting industries. These proposals may reduce the catch for commercial and recreational fishers.

2. Categories and numbers affected: In 2014, DEC issued 457 striped bass commercial harvesters permits, 490 party and charter boat licenses, and 444 striped bass party and charter boat permits, in the marine and coastal district. 367 striped bass commercial harvesters received a full share individual quota allocation of striped bass tags; 90 received a partial share allocation. In 2014, there were also 479 food fish and crustacea dealer and shipper licenses issued. There are approximately 515 bait licenses sold state-wide each year; an unknown number of these license holders sell bait used to harvest striped bass. The total number of bait and tackle shops in New York is also unknown. In addition, approximately 200 Hudson River marine permit gear licenses are sold annually; most of these permits are used for taking river herring to be used for striped bass bait.

Recreational and commercial fishing is a major generator of revenue in New York. According to the National Marine Fisheries Service, the 2013 dockside value of the striped bass commercial fishery in New York was $3,393,905. In 2014, the National Marine Fisheries Service also reported 1,079,265 recreational angler trips targeting striped bass in New York. According to the US Fish and Wildlife Service, in 2011, there were 1.9 million recreational anglers in all waters of New York, generating an estimated 2 billion dollars in total expenditures.

3. Regions of adverse impact: The proposed rule will affect striped bass fishers in both marine and coastal district and inland waters, including the Hudson and Delaware Rivers and their tributaries.

4. Minimizing adverse impact: The promulgation of this regulation is necessary in order for DEC to comply with the ASMFC Addendum IV to Amendment 6 of the striped bass FMP. The regulations are intended to optimize resource use for commercial and recreational harvesters consistent with fisheries conservation and management policies and interstate fishery management plans. These regulations are being adopted to provide the appropriate level of protection and allow for harvest consistent with the capacity of the resource to sustain such effort.

If the 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 that state until the state does come into compliance with the FMP. The proposed regulations are intended to avoid the adverse economic and social impacts that would be associated with closure of the fishery.

A moratorium on the harvest of striped bass would have a severe adverse impact on the commercial and recreational fisheries, as well as their supporting industries. Ultimately, the maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, as well as wholesale and retail outlets and other support industries.

River herring are used for striped bass bait. Opening the Hudson River striped bass recreational season at a later date will likely not affect many commercial river herring fishers or bait shops. Harvest data reported to DEC show that less that 3% of the total harvest of river herring occurs before April 1.

Commercial striped bass fishers must tag every fish they harvest. Each fisher is issued an individual quota of either a full share of tags or a partial share of tags, depending on the percentage of their earned income that comes from fishing. Full share quota fishers would have had to submit tax records to DEC in 2015, to verify that they still qualify to receive a full share of tags. Suspending the striped bass commercial harvesters requalification process for 2015 is not expected to have a large impact on commercial fishers. Those in the partial share category can still be upgraded to full share in 2015 by submitting their tax records to DEC. Those in the full share category will remain full share for 2015.

Opening the commercial fishing season date on June 1 instead of July 1 may help offset economic hardships imposed by raising the minimum size limit, and would allow fishers to harvest striped bass when they are inside marine and coastal district bays. The annual pound quota would remain as specified in the FMP.

For-hire vessels in the marine and coastal district are required to have a party and charter boat license. Those who fish for striped bass are additionally required to have a striped bass party and charter boat permit. More than 90 per cent of those who have a party and charter license also have a striped bass party and charter permit. The striped bass party and charter permit allows customers to harvest two striped bass. The current proposal allows all recreational fishers to only harvest one striped bass. If striped bass regulations are again changed in the future, all party and charter boast license holders will be able to harvest the same possession limit.

5. Self-employment opportunities: Most commercial fishers are self-employed. A few individuals may work with or for local bait supply shops or marinas. The party and charter boat businesses, the bait and tackle shops, and the marinas are mostly small businesses that are self-owned and operated. Some members of the recreational fishing industry are also self-employed.

6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462: DEC will conduct an initial review of the rule within three years, as required by SAPA section 207.

Assessment of Public Comment

Seventy-four (74) letters and e-mails were received by DEC during the public comment period regarding this rule making. Some correspondence had more than one comment.

Comment: Fifteen (15) people supported the proposed regulations; seven (7) others were thankful for regulatory information provided by DEC.

DEC response: DEC acknowledges receipt of these comments.

Comment: Ten (10) people commented that they would prefer to have party and charter boat passengers keep two fish per person, instead of one as proposed.

DEC Response: All Atlantic States Marine Fisheries Commission (ASMFC) member states, from Maine to New York; the Delaware River in Pennsylvania; the coastal portions of Maryland and Virginia; and all of North Carolina have enacted the same recreational striped bass regulation: one fish per person per day of at least 28 inches total length for the coastal recreational fishery, as specified in the ASMFC Interstate Fishery Management Plan (FMP). Consistent regulations for all member states increases the likelihood of reducing fishing pressure and maintaining striped bass populations at targeted levels, to ensure a sustainable fishery.

Comment: Fifteen (15) people expressed concern about the recreational and commercial striped bass fisheries in general. Of these, seven (7) people commented that they believed striped bass fishing should only be allowed recreationally, and that DEC should not allow any commercial harvest. Three (3) believed anglers should not be allowed to keep any fish, and that this should be a catch and release fishery. One person said there should be a total moratorium on any striped bass fishing. Another individual expressed concern regarding the commercial season opening one month early. One fish dealer expressed concern that he could no longer buy or sell striped bass that were caught from another state and were less than 28 inches long. One other individual expressed unspecified “concern” about the proposed regulations. Lastly, one person said that DEC does not know what it is doing.

DEC Response: Striped bass fishing in New York provides recreational and economic benefits to the state and its residents. ASMFC has determined that the striped bass population is declining, but currently is not at levels low enough to warrant a partial or complete fishing moratorium. Commercial harvest is strictly regulated by a pound quota. All commercial fishermen must tag and account for every fish they catch, and each fisherman is given a specific number of tags for the year. The fishery can close early if the quota is expected to be exceeded. In 2014, New York commercial striped bass permit holders caught approximately 523,000 pounds of striped bass. New York recreational anglers caught approximately 7.25 million pounds of striped bass, almost 14 times as much as commercial fishermen. The former legal size for New York commercial striped bass was 24 to 36 inches. The new 28 to 38 inch slot size for commercial striped bass does indicate that fish dealers can no longer buy or sell striped bass that are between 24 and 27 inches long, even if the fish were harvested in another state. However, this may be mitigated by the fact that they can now buy and sell striped bass caught from another state that are 37 to 38 inches long, particularly from Massachusetts.

Comment: Two (2) people suggested that New York should give out a specific number of tags to each recreational angler, in order for them to catch either any size striped bass or to catch a trophy-sized one.

DEC Response: New York does not have a recreational fishing license for striped bass. Instead, anglers must register in a no-cost saltwater fishing registry. There are approximately 200,000 - 300,000 anglers enrolled in the registry. This is probably a large underestimate of the number of striped bass anglers, because people fishing on party or charter boats in the marine district do not have to enroll in the registry. The ASMFC FMP calls for a 25% reduction in harvest from 2013 levels. In 2013, approximately 376,000 fish were caught recreationally in New York coastal waters. A 25% reduction in harvest would mean that New York fishers could catch 282,000 striped bass for the season, or approximately one fish per person for the entire season, instead of the proposed one fish per person each day. DEC is not currently set up to administer the suggested program.

Comment 5: One person commented that Delaware River regulations should be the same as those for the Hudson River.

DEC Response: ASMFC Interstate Fishery Management Plan (FMP) for striped bass specifies a recreational fishing regulation of one fish per person per day of at least 28 inches total length. States could propose different regulations, but must be able to show, through quantitative analysis, that the proposal achieves at least a 25% reduction in harvest. Because DEC lacks striped bass fishery data specifically from the Delaware River, the regulations have to be the specified one fish, 28 inches or greater total length for New York to be in compliance with the FMP.

Comment 6: DEC received forty-seven (47) comments regarding proposed Hudson River size limits. Four (4) people felt that the marine regulations and the Hudson River regulations should be the same. One of these people commented that the marine regulations should be the same as those proposed for the Hudson (one fish at 18 to 28 inch slot limit or a single fish greater than 40 inches). Three of those people commented that the Hudson regulations should be the same as those proposed for the marine district (one fish, 28 inches or greater total length).

Twenty (20) people commented that the slot size should be different from the one proposed, or that there should just be one specific minimum size. Almost all comments provided different suggested sizes. One person commented that the proposed slot was ineffective. Six (6) people specifically supported the proposed slot size. Fifteen (15) additional people did not want people to be able to catch the trophy sized fish (greater than 40 inches). One person said DEC should shut down tournaments, and increase public awareness on the striped bass decline. One person felt the regulations place a burden on the Hudson fishery.

DEC Response: The regulations were proposed to reduce the harvest of striped bass to promote the rebuilding of the striped bass populations along the Atlantic coast Five options were originally proposed for the Hudson River to achieve conservation equivalency to the default recreational fishing regulation in the ASMFC FMP. The options were reviewed and approved by the ASMFC Technical Committee. Public meetings were held in the Hudson area, and at the Marine Resources Advisory Council (MRAC) meetings to discuss options for the Hudson River fishery. Stakeholders also had the opportunity to take an internet survey to voice their preferences.

The proposed regulations provide a level of protection for larger female spawning striped bass between 29 and 40 inches long. The specific proposed regulations in the Hudson River allow all anglers to harvest striped bass for consumption (those in the 18 to 28 inch harvest slot) while continuing to allow for the harvest of a “trophy” sized striped bass (greater than 40 inches). Much of the lure of the Hudson River striped bass fishery is the chance that one might catch one of the very large striped bass that have returned to the Hudson River to spawn. DEC regulations were not established or amended in consideration of fishing tournaments. Fishing tournaments are a form of “use” of the resource and DEC has not, historically, set regulations that either favor, or specifically discourage, fishing tournaments.

Comment 7: Eleven (11) people felt use of circle hooks to fish for striped bass should be mandatory. One additional person felt DEC should not allow the use of treble hooks.

DEC Response: DEC encourages the use of circle hooks. The department is considering adopting a regulatory amendment in the future to require circle hooks when using live bait to fish for striped bass, as well as other species.

Comment 8: One person felt striped bass in the proposed slot limit would not eat live herring, the fisher’s choice of bait.

DEC Response: There are many ways to catch striped bass, using either live or artificial bait.

Comment 9: One person suggested that DEC should allow the take of large male, but not female, striped bass greater than 28 inches.

DEC Response: ASMFC Interstate Fishery Management Plan (FMP) for striped bass allows states to propose conservation equivalent regulations for recreational harvest, but states must be able to show, through quantitative analysis, that the proposal achieves at least a 25% reduction in harvest. DEC lacks data to determine the proportion of male and female fish in the Hudson River. This strategy would require outreach and education of fishers to help them determine the difference between a male and a female striped bass; and would also increase the burden on law enforcement. It may also increase deaths of female striped bass inadvertently caught and not properly released back into the water.