ENV-32-13-00004-EP Commercial and Recreational Regulations for Atlantic Menhaden

8/7/13 N.Y. St. Reg. ENV-32-13-00004-EP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 32

August 07, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-32-13-00004-EP

Filing No. 773

Filing Date. Jul. 22, 2013

Effective Date. Jul. 22, 2013

Commercial and Recreational Regulations for Atlantic Menhaden

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

Proposed Action:

Amendment of section 40.1(f); and addition of section 40.1(x) to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 11-1303, 13-0105 and 13-0342

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

Adoption of these regulations on an emergency basis is necessary for New York to end overfishing on the Atlantic menhaden, be in compliance with the Fishery Management Plan (FMP) for Atlantic Menhaden as adopted by the Atlantic States Marine Fisheries Commission (ASMFC), and to avoid potential federal sanctions imposed for lack of compliance with the plan. 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 fisheries. Because of the extended time needed to develop New York’s fishery management proposal for menhaden and to allow the ASMFC Atlantic Menhaden Board to review the proposal, there was not enough time to promulgate this is as a normal rule making. This rule must be in effect as close to the ASMFC’s compliance date of July 1, 2013 as possible. Therefore the rule is being submitted as an Emergency Rulemaking and Notice of Adoption.

Subject:

Commercial and recreational regulations for Atlantic menhaden.

Purpose:

Establish commercial quota management, reporting requirements and a recreational possession limit for Atlantic menhaden.

Text of emergency/proposed rule:

Existing section 6 NYCRR 40.1 is amended to read as follows:

Existing subdivision 6 NYCRR 40.1(f) is amended to read as follows:

Species Striped bass through Oyster toadfish remain the same. Species Atlantic menhaden is added to read as follows:

40.1(f) Table A – Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Atlantic menhaden	All year	No minimum size	100

New subdivision 40.1(x) is adopted to read as follows:

(x) ‘Atlantic menhaden commercial fishing - special regulations.’

(1) Permits. It is unlawful for any person to take or land menhaden for commercial purposes without having in possession a valid commercial food fishing license, commercial food fish landing license, a menhaden vessel license, or marine bait permit issued by the State of New York. For purposes of this subdivision, a person is presumed to be taking menhaden for commercial purposes when that person possesses more than 100 menhaden, or more than the possession limit for menhaden listed in Table A of this section, whichever is less. A person who holds a lobster bait gill net permit may take or land more than 100 menhaden; menhaden taken using this permit are for the sole use of the permittee to pursue the permittee’s lobster fishery and may not be sold. A person who holds a lobster bait gill net permit must abide by the special regulations of this subdivision.

(2) Quota harvest and trip limits.

(i) The total annual harvest of menhaden may not exceed that amount annually allocated to New York State by the Atlantic States Marine Fisheries Commission (ASMFC) for the period January 1 through December 31. Annual harvest limits for menhaden are based on the Fishery Management Plan (FMP) for menhaden as adopted and approved by the ASMFC pursuant to the Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C., section 5101, ‘et. seq.’

(ii) Following consultation with industry, the department may establish quota periods, trip limits and directed fishery thresholds such that the harvest does not exceed the quota assigned to New York.

(iii) When the department determines, based on a projection of landings using daily fishing vessel trip reports, that trip limits are necessary as provided in Table B of subdivision (i), such trip limits will be required and enforceable upon 72 hours written notice to license holders referenced in paragraph (1) of the appropriate limit allowed per vessel for that time period. Such trip limits may be further reduced by written direction of the department if the projection of the landings indicates a closure will be required before the end of the period. In any time period, the trip limits may be increased if the projection of the landings indicates the total quota will not be caught.

(3) Fishery closures.

(i) If the department determines that the maximum allowable harvest of menhaden will take place before the end of any period, the directed harvesting of menhaden for commercial purposes will be prohibited, except that the department may allow a bycatch of menhaden in non-directed fisheries, not to exceed 6,000 pounds daily per vessel trip. Directed harvest may be prohibited for all license holders, or for users of specific gear types as directed by the department upon 72 hours written notice to all license holders referenced in paragraph (1). If the department closes the period, but unanticipated events result in the quota not being landed by the projected date, then the department may reopen the period for a specified time and a specified trip limit upon 72 hours written notice to all license holders referenced in paragraph (1).

(4) Possession, transport and sale.

(i) During periods of trip limits, all menhaden must be held together in a separate container or containers readily available for inspection and may not be mixed with other species while on board any vessel.

(ii) During closed periods, no possession of menhaden shall be permitted on the waters of the marine and coastal district except as bycatch aboard vessels participating in other fisheries.

(5) Reporting requirements.

Any person who is the holder of a marine commercial food fishing license, commercial food fish landing license, a menhaden vessel license, marine bait permit, or lobster bait gill net permit issued by the State of New York shall report all harvest of menhaden in accordance with the requirements established in subdivision (c)(1) of this section.

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 October 19, 2013.

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

Kim McKown, 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.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) section 11-0303 authorizes the Department of Environmental Conservation (DEC) to adopt management regulations for fish resources. ECL section 11-1303 authorizes DEC to establish by regulation open seasons, size and catch limits and manner of taking of all species of fish in all waters of the state. ECL Section 13-0342 authorizes DEC to adopt regulations which require reporting of catch, effort, area fished, gear used, by-catch and volume and value of product purchased from permit holders of almost all categories of marine fish harvester and dealer licenses.

ECL Section 13-0105 requires that DEC be guided by the recommendations of the Marine Resources Advisory Council (MRAC) and to incorporate the Council’s recommendation into the final rulemaking if they are found to be consistent with the state’s marine fisheries conservation and management policies and interstate Fishery Management Plans (FMPs).

2. Legislative objectives:

It is the objective of the above-cited statutory provisions that DEC manages marine fisheries to optimize resource use for commercial and recreational harvesters consistent with marine fisheries conservation and management policies, and interstate FMPs. Further it is the intent of the statute that DEC incorporates the recommendation of the MRAC if the recommendations do not conflict with state policy or interstate FMPs.

3. Needs and benefits:

This rule making is necessary to reduce menhaden harvest by 20 percent to end overfishing. The Atlantic Menhaden Management Board adopted new reference points in response to the 2010 Peer Review Panel’s recommendation to provide greater protection for the stock. The 2012 stock assessment update found overfishing to be occurring on the Atlantic menhaden stock. Amendment 2 to the Atlantic States Marine Fisheries Commission (ASMFC) Atlantic Menhaden FMP implements a total allowable catch (TAC) in 2013 to end overfishing. The TAC is a 20 percent reduction from the 2009 through 2011 average landings and approximately 25 percent reduction from 2011.

Because of the extended time needed to develop New York’s fishery management proposal for menhaden and to allow the ASMFC Atlantic Menhaden Board to review the proposal, there was not enough time to promulgate this is as a normal rule making. This rule must be in effect as close as possible to the ASMFC’s compliance date of July 1, 2013. Therefore the rule is being submitted as an emergency adoption (with an accompanying notice of proposed rule making). Failure to adopt the rule in a timely fashion may result in a menhaden fishery closure due to non-compliance. The commercial and recreational menhaden fisheries in New York could be penalized and closed until the State comes back into compliance. This would cause significant hardship on resource users. The estimated dollar value of New York’s commercial menhaden harvest was approximately $270,000 in 2011 based on our best estimate of landings. Menhaden is used as bait in New York’s trap fisheries and by recreational anglers. Since menhaden is used as bait to catch other fish, the loss of this resource would have much higher economic impact.

4. Costs:

(a) Cost to State government:

The cost to state government is primarily that affecting the regulating agency, the Department of Environmental Conservation, and is described under section (d).

(b) Cost to local government:

There will be no costs to local governments.

(c) Cost to private regulated parties:

The proposed rule will impose costs to commercial menhaden harvesters and potentially to recreational anglers who use menhaden as bait. The objective of Amendment 2 is to decrease harvest by 20 percent based on historic landings information. If New York must abide by the quota specified in Amendment 2, the impact to permit holders will be much greater than the 20 percent reduction, since we believe the historic harvest may have been an order of magnitude greater than New York’s ASMFC quota allocation.

(d) Costs to the regulating agency for implementation and continued administration of the rule:

DEC will incur costs associated with both the implementation and administration of these rules, including the costs relating to notifying permit holders of the new rules, the workload and mailing costs associated with quota management and the costs of increased enforcement.

5. Local government mandates:

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

6. Paperwork:

Food fishing, menhaden vessel, marine bait and lobster bait gillnet permit holders are required to report their menhaden harvesting activities in accordance with state reporting regulations. Food fish, marine bait and lobster bait gillnet permit holders are required by 6 NYCRR section 40.1(c) to report all species caught. The proposed rule specifies that menhaden catch must be reported.

7. Duplication:

The proposed amendment does not duplicate any State or Federal requirement.

8. Alternatives:

Alternative Measures: Amendment 2 to the ASMFC Atlantic Menhaden FMP adopted a TAC which was a 20 percent reduction of the average harvest from 2009 through 2011 to end overfishing. Alternative measures would need to be approved by the ASMFC Menhaden Management Board.

“Landings reconstruction”: DEC requested a grace period to give staff time to reconstruct New York’s historic (2009 through 2011) menhaden landings. This would allow New York to establish a more realistic quota based on information submitted on harvest reports that have not yet been compiled and processed and from previously unreported landings submitted by harvesters which have been verified. The ASMFC Menhaden Management Board was not clear about the status of this grace period, but still required DEC to implement quota management in 2013. DEC intends to continue to work on reconstructing the 2009 through 2012 menhaden landings data in order to attempt to revise our ASMFC quota allocation in the future.

No action: This alternative is rejected because New York State must abide by the ASMFC Atlantic Menhaden FMP required quota management plan to end overfishing on the stock.

9. Federal standards:

The revisions to Section 40.1 are in compliance with the ASMFC fishery management plan for Atlantic menhaden.

10. Compliance schedule:

The ASMFC implementation deadline for menhaden management was July 1, 2013. DEC seeks to adopt this rule making as quickly as possible. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via DEC’s website and electronic mailing list.

Regulatory Flexibility Analysis

1. Effect of rule:

The amendment of 6 NYCRR Section 40.1 establishes Atlantic menhaden commercial quota management, reporting requirements and a recreational possession limit. The rule will affect both commercial and recreational menhaden harvesters. Small businesses directly affected by the quota include licensed commercial food fish, menhaden vessel and marine bait harvesters. There were 1,108 food fishing, 23 menhaden vessel and 80 marine bait permit holders during 2012. Most commercial harvesters holding food fishing and marine bait permits are self-employed. Commercial harvesters who utilize menhaden for bait (such as lobster and crab permit holders) and recreational anglers may be impacted by these rules due to possible bait shortages or price increases. Recreational harvesters may also be impacted by the possession limit for recreational harvest. In addition, although most permit reporting requirements specify that “all species” caught must be reported, many permit holders did not realize that menhaden needed to be reported since it is used as bait. The proposed regulation specifies that menhaden must be reported on trip reports. The regulations do not apply directly to local governments, and will not have any direct effects on local governments.

The objective of Amendment 2 to the Atlantic States Marine Fisheries Commissions (ASMFC) Atlantic Menhaden Fishery Management Plan (FMP) is to reduce harvest of menhaden by 20 percent to end overfishing. Amendment 2 implements a total allowable catch (TAC) in 2013 to end overfishing. The TAC is a 20 percent reduction from the 2009 through 2011 average landings and approximately 25 percent reduction from 2011.

The proposed rule will impose costs to commercial menhaden harvesters and recreational anglers. The objective of Amendment 2 is to decrease harvest by 20 percent based on historic landings information. If New York must abide by the quota specified in Amendment 2, the impact to permit holders will be much greater than the 20 percent reduction, since we believe the historic harvest was approximately an order of magnitude greater than New York’s ASMFC quota allocation. The estimated dollar value of New York’s commercial menhaden harvest was approximately $270,000 in 2011 based on estimated landings. Menhaden is used as bait in New York’s trap fisheries and by recreational anglers. Since menhaden is used as bait to catch other fish, the loss of this resource would have much higher economic impact.

In the long-term, the maintenance of sustainable fisheries will have a positive effect on small businesses in the fisheries in question. Any short-term losses in participation, harvest and sales will be offset by the restoration of fishery stocks and an increase in yield from well-managed resources. Menhaden are an important prey species for many marine species. Protection of the menhaden resource is essential to the survival of these predator species and the commercial and recreational fisheries that rely on the health and sustainability of both menhaden and many of the species that feed on them. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest, and to continue to rebuild or maintain the stocks for future utilization.

2. Compliance requirements:

New York must implement a quota management system by July 1, 2013 and manage the fishery under a quota which is much lower than the estimated landings of previous years. Recreational anglers that catch menhaden for their own bait will need to comply with a possession limit. In addition, food fishing, menhaden vessel, marine bait and lobster bait gillnet permit holders are required to report their menhaden harvesting activities in accordance with the state reporting requirements. Food fishing, marine bait and lobster bait gillnet permits are already required to report “all species” caught. This rule specifies that menhaden catch must be reported as well.

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. Commercial menhaden harvesters’ costs involve the loss of harvest due to the quota which reduces harvest by 20 percent based on 2009 – 2011 reported landings, which may be as much as an order of magnitude below New York’s actual landings during that time period. Bait dealers and recreational anglers may incur costs due to decreased availability of menhaden for sale and possible increased costs for those menhaden that are available.

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 this proposed rule may economically impact some commercial menhaden harvesters and bait dealers as detailed above.

There is no additional technology required for small businesses, and this action does not apply to local governments. Therefore, there are no technological impacts for any such bodies.

6. Minimizing adverse impact:

The unavoidable short term impact of these regulations will be an immediate reduction in the amount of menhaden that can be landed by commercial fishermen and recreational harvesters. Due to the fact that New York’s historic menhaden harvest was under-reported, DEC submitted a proposal to the ASMFC Atlantic Menhaden Management Board requesting a grace period for more time to reconstruct New York’s historic (2009 through 2011) menhaden landings. This would allow New York to establish a more realistic quota based on information from reports that have not been compiled and processed and from previously unreported landings. The ASMFC Menhaden Management Board was not clear about the status of this grace period, but still required DEC to implement quota management in 2013. DEC intends to continue to work on reconstructing the 2009 through 2012 menhaden landings data in order to attempt to revise the ASMFC quota allocation for New York in the future.

The promulgation of this regulation is necessary for DEC to become in compliance with the Atlantic menhaden FMP. The regulations are intended to protect the menhaden resource and avoid adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP.

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. Failure to comply with an FMP and take required actions to protect a marine fishery could have an adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. These regulations are being adopted in order to end overfishing while allowing for some harvest.

7. Small business and local government participation:

ASMFC scheduled a public meeting on draft Amendment 2 for November 1, 2012. This meeting had to be canceled due to the impact of Super Storm Sandy on the region. ASMFC was unable to reschedule the meeting, but the draft Amendment was available on the ASMFC web site and there was an opportunity for harvesters to submit written comments.

DEC alerted the Marine Resources Advisory Council (MRAC) about New York’s Menhaden Fishery Management proposal for implementation of Amendment 2 at the May 2013 meeting. No formal discussion or vote was taken on the proposal. The same evening DEC held an informational meeting for permit holders to discuss the same information. We received feedback from permit holders that the reported landings that ASMFC was basing New York’s commercial menhaden quota on were unrealistically low. Many permit holders mentioned they didn’t realize they needed to report, and offered to help DEC to reconstruct the historic landings.

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 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 section 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.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed rule will affect commercial and recreational fishermen who harvest Atlantic menhaden from marine and estuarine waters in New York. The majority of these individuals are residents of the New York City and Long Island metropolitan areas. In 2012 over 98 percent of the 1,144 permit holders affected by the proposed rule lived in urban counties while only 2 percent lived in rural counties.

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

Food fishing, menhaden vessel, marine bait, and lobster bait gillnet permit holders are required to report their menhaden harvesting activities in accordance with state reporting regulations. Food fishing, marine bait, and lobster bait gillnet permit holders are already required to report all species caught; this rule just specifies that menhaden catch must also be reported.

3. Costs:

The proposed rule will impose costs to commercial menhaden harvesters and potentially to recreational anglers who use menhaden as bait. The objective of the Amendment 2 is to decrease harvest by 20 percent based on historic landings information. If New York must abide by the quota specified in Amendment 2, the impact to permit holders will be much greater than 20 percent reduction, since we believe the historic harvest may have been an order of magnitude greater then ASMFC’s quota allocation. The majority of these costs will impact urban areas since 98 percent of the permit holders come from urban counties.

4. Minimizing adverse impact:

The unavoidable short term impact of these regulations will be an immediate reduction in the amount of menhaden that can be landed by commercial fishermen and recreational harvesters. Due to the fact that New York’s historic menhaden harvest was under-reported, DEC submitted a proposal to the ASMFC Atlantic Menhaden Management Board requesting a grace period for more time to reconstruct New York’s historic (2009 through 2011) menhaden landings. This would allow New York to establish a more realistic quota based on information from harvest reports that have not been compiled and processed and from previously unreported landings submitted by harvesters. The ASMFC Menhaden Management Board was not clear about the status of this grace period, but still required DEC to implement quota management in 2013. DEC intends to continue to work on reconstructing the 2009 through 2012 menhaden landings data in order to attempt to revise our ASMFC quota allocation in the future.

The promulgation of this regulation is necessary for DEC to become in compliance with the Atlantic menhaden FMP. The regulations are intended to protect the menhaden resource and avoid adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP.

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. Failure to comply with an FMP and take required actions to protect a marine fishery could have an adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. These regulations are being adopted in order to end overfishing while allowing for some harvest.

5. Rural area participation:

The majority of menhaden harvesters are residents of the New York City and Long Island metropolitan areas. In 2012 over 98 percent of the 1,144 permit holders affected by the proposed rule lived in urban counties while only 2 percent lived in rural counties.

ASMFC scheduled a public meeting on Long Island on draft Amendment 2 for November 1, 2012. This meeting had to be canceled due to the impact of Super Storm Sandy on the region. ASMFC was unable to reschedule the meeting, but the draft Amendment was available on the ASMFC web site and there was an opportunity for harvesters to submit written comments. New York’s Menhaden Fishery Management proposal was discussed at the Marine Resources Advisory Council meeting and a menhaden public information meeting in May 2013 on Long Island.

DEC staff focused public outreach in the marine and coastal district because that is where the majority of the menhaden are harvested.

6. Initial review of the rule, pursuant to SAPA section207 as amended by L. 2012, ch. 462:

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

Job Impact Statement

1. Nature of impact:

The amendment of 6 NYCRR Section 40.1 establishes Atlantic menhaden commercial quota management, reporting requirements and a recreational possession limit. The rule will affect both commercial and recreational menhaden harvesters. This rule making is necessary to implement Amendment 2 of the Atlantic States Marine Fisheries Commission (ASMFC) Atlantic menhaden Fishery Management Plan (FMP). Failure by New York to adopt this measure could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a fishery closure. The objective of this Amendment 2 is to reduce the menhaden harvest by 20 percent to end overfishing. New York must abide by the quota specified in Amendment 2, however DEC believes the impact to license holders will be greater than the 20 percent reduction, since there are strong indicators that the historic harvest was approximately an order of magnitude greater than New York’s ASMFC quota allocation.

2. Categories and numbers affected:

The rule will affect both commercial and recreational menhaden harvesters. Small businesses directly affected by the quota include licensed commercial food fish, menhaden vessel and marine bait harvesters. There were 1,108 food fishing, 3 menhaden vessel, and 80 marine bait permit holders during 2012. Most commercial harvesters holding food fish and marine bait permits are self-employed. An unknown number of other commercial harvesters that rely on menhaden for bait (such as lobster and crab permit holders) and recreational anglers may be impacted by these rules due to possible bait shortages or price increases. Recreational harvesters may also be impacted by the possession limit for recreational harvest.

3. Regions of adverse impact:

In 2012 almost 93 percent of the license holders affected by the proposed rule lived in The New York City and Long Island metropolitan areas counties while less than 7 percent lived in other areas within and outside of New York.

4. Minimizing adverse impact:

The unavoidable short-term impact of these regulations will be an immediate reduction in the amount of menhaden that can be landed by commercial fishermen and recreational harvesters. Due to the fact that New York’s historic menhaden harvest was under-reported, DEC submitted a proposal to the ASMFC Atlantic Menhaden Management Board requesting a grace period for more time to reconstruct New York’s historic (2009 through 2011) menhaden landings. This would allow New York to establish a more realistic quota based on information submitted on harvest reports that have not been computerized and from previously unreported landings submitted by harvesters which have been verified. The ASMFC Menhaden Management Board was not clear about the status of this grace period, but still required DEC to implement quota management in 2013. DEC intends to continue to work on reconstructing the 2009 through 2012 menhaden landings data in order to attempt to revise our ASMFC quota allocation in the future.

The promulgation of this regulation is necessary for DEC to become in compliance with the Atlantic menhaden FMP. The regulations are intended to protect the menhaden resource and avoid adverse impacts that would be associated with closure of the fishery for non-compliance with the FMP.

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. Failure to comply with an FMP and take required actions to protect a marine fishery could have an adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries. These regulations are being adopted in order to end overfishing while allowing for some harvest.

5. Self-employment opportunities:

The commercial menhaden industry as a whole is self-employed, as are portions of the recreational industry.

6. Initial review of the rule, pursuant to SAPA section 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.