1. Statutory authority:

Environmental Conservation Law (ECL) sections 13-0105 and 13-0340-d 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 tautog.

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 Tautog 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 coast-wide marine species, preserve the states' marine resources, and protect the interests of both commercial and recreational fishermen. All member states remain in compliance with the FMPs by promulgating any necessary regulations that implement the provisions of 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 Addendum VI to the FMP, ASMFC requires New York State to reduce its commercial and recreational harvest of tautog in 2012 by 48 percent. In compliance with the FMP, DEC submitted a Notice of Emergency Adoption and Proposed Rule Making to the Department of State on December 30, 2011 and more restrictive tautog harvest measures became effective in New York that day. After the 45 day public comment period, DEC staff anticipated adopting the rule as it was proposed. However, ASMFC refined the findings of the most recent stock assessment and New York State is now required to achieve a 39 percent reduction in exploitation of tautog. DEC must revise the original proposed rule by slightly relaxing the management measures specified in the original amendment. This rule making package will revise the originally proposed rule.

For the recreational tautog fishery, the revised proposed rule will still require a 16-inch minimum size limit, as originally proposed. However, the revised recreational season for tautog is longer than what was originally proposed, from October 5 through December 14, instead of October 8 through December 4. There was no change to the 2011 possession limit of 4 fish.

For the commercial fishery, there is no change to the original proposed rule. The size limit remains at 15 inches, an increase from 14 inches in 2011.

With this revised proposed rule, New York State will satisfy the ASMFC requirement to reduce fishing mortality on tautog and remain in compliance with the FMP.

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, these proposed management measures will decrease the number of days in the recreational season for tautog and will reduce angler participation in the recreational fishery. This is likely to decrease revenues for party and charter boat businesses and bait and tackle shops that cater to anglers who target tautog. The proposed rule may reduce the number of tautog taken by commercial fishermen and consequently may reduce their income earned from fishing.

(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 commercial and 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" – Failure to promulgate this rule would result in the resumption of the 2011tautog regulations. Under those regulations New York State anglers and fishermen would harvest tautog at a rate that would exceed the fishing mortality recommended to allow the stock to rebuild. Furthermore, New York State would no longer be in compliance with the FMP for tautog.

A suite of options, using a variety of different seasons, minimum size limits, and possession limits that met the requirements of the ASMFC, were developed and presented to the Marine Resources Advisory Council (MRAC). Each of these various options shifted the burden of the reduction in fishing effort between recreational and commercial participants differently. The option proposed in this revised rule making had the most support from MRAC members and members of the public.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and the 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.

The agency received no public comment.