Pursuant to § 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission (ASMFC). The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish are the ASMFC's Interstate Fishery Management Plans for individual species or groups of fish. The Fisheries Management Plans (FMPs) are designed to promote the long-term health of these species, preserve resources, and protect the interests of both commercial and recreational fishers.

Under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), ASMFC determines if states have implemented, in a timely manner, provisions of FMPs with which they are required to comply. If ASMFC determines a state to be in non-compliance with an FMP, it so notifies the U.S. Secretary of Commerce. If the Secretary concurs in the non-compliance determination, the Secretary promulgates and enforces a complete prohibition on all fishing for the subject species in the waters of the non-compliant state until the state comes into compliance with the FMP.

ECL Sections 13-0105 and 13-0340-b, which authorize the adoption of regulations for the management of summer flounder, provide that such regulations must be consistent with the FMPs for these species adopted by the Atlantic States Marine Fisheries Commission and with applicable provisions of fishery management plans adopted pursuant to the Federal Fishery Conservation and Management Act.

Under the FMP for summer flounder, ASMFC assigns each state an annual harvest target or quota. In addition, a projection is made for each state as to its expected harvest if the state's regulations remained unchanged and harvest patterns and rates remained the same as the previous year. ASMFC reviews each state's regulations and determines if they are compliant with the FMP. If the projected harvest for a state exceeds that state's assigned quota, the state is required to amend its harvest regulations so that they are sufficiently restrictive to prevent the state from exceeding its assigned quota. Failure by a state to adopt, in a timely manner, revised regulations may result in a determination of non-compliance by ASMFC and the Secretary of Commerce, and the imposition of a total closure of fishing for summer flounder in that state, which could result in significant adverse impacts to the state's economy.

New York's assigned recreational harvest limit for 2007 is 430,262 fish. Under existing regulations, which were adopted on April 24, 2007, New York's recreational harvest of summer flounder for 2007 was projected to be within the assigned harvest limit. Data provided by the National Marine Fisheries Service from a coast-wide angler survey estimated that New York marine anglers had harvested in excess of 357,379 fish, or 83% of the State's quota, by the end of June 2007. Having considered data collected in previous years, Department staff believe that it is highly probable that the recreational fluke harvest in New York has by now exceeded New York's 2007 harvest limit, perhaps by a wide margin. The promulgation of this regulation on an emergency basis is necessary in order for the Department to immediately end the current harvest of summer flounder in New York for 2007 and maintain compliance with the FMP. It is also necessary in order to prevent more stringent management measures for fluke in 2008 based on exceeding 2007's harvest limit.

40.1(f) Table A — Recreational Fishing:

1. Statutory authority:

Environmental Conservation Law (ECL) Sections 3-0301, 13-0105 and 13-0340-b authorize the Department of Environmental Conservation (DEC or Department) to establish by regulation, open season, size, catch limits, possession and sale restrictions and manner of taking for summer flounder.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manage marine fisheries to optimize resource use for commercial and recreational harvesters consistent with marine fisheries conservation and management policies and interstate FMPs.

3. Needs and benefits:

The Department is adopting an amendment to 6 NYCRR Part 40 which will implement a closure of the recreational summer flounder season, effective September 17, 2007. These regulations are necessary in order for New York to maintain compliance with the Fishery Management Plan (FMP) for Summer Flounder as adopted by the Atlantic States Marine Fisheries Commission (ASMFC).

Pursuant to § 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission (ASMFC). The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish are the ASMFC's Interstate Fishery Management Plans for individual species or groups of fish. The Fisheries Management Plans (FMPs) are designed to promote the long-term health of these species, preserve resources, and protect the interests of both commercial and recreational fishers.

Under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), ASMFC determines if states have implemented, in a timely manner, provisions of FMPs with which they are required to comply. If ASMFC determines a state to be in non-compliance with an FMP, it so notifies the U.S. Secretary of Commerce. If the Secretary concurs in the non-compliance determination, the Secretary promulgates and enforces a complete prohibition on all fishing for the subject species in the waters of the non-compliant state until the state comes into compliance with the FMP.

ECL Sections 13-0105 and 13-0340-b, which authorize the adoption of regulations for the management of summer flounder, provide that such regulations must be consistent with the FMPs for these species adopted by the Atlantic States Marine Fisheries Commission and with applicable provisions of fishery management plans adopted pursuant to the Federal Fishery Conservation and Management Act.

Under the FMP for summer flounder, ASMFC assigns each state an annual harvest target or quota. In addition, a projection is made for each state as to its expected harvest if the state's regulations remained unchanged and harvest patterns and rates remained the same as the previous year. ASMFC reviews each state's regulations and determines if they are compliant with the FMP. If the projected harvest for a state exceeds that state's assigned quota, the state is required to amend its harvest regulations so that they are sufficiently restrictive to prevent the state from exceeding its assigned quota. Failure by a state to adopt, in a timely manner, revised regulations may result in a determination of non-compliance by ASMFC and the Secretary of Commerce, and the imposition of a total closure of fishing for summer flounder in that state, which could result in significant adverse impacts to the state's economy.

New York's assigned recreational harvest limit for 2007 is 430,262 fish. Under existing regulations, which were adopted on April 24, 2007, New York's recreational harvest of summer flounder for 2007 was projected to be within the assigned harvest limit. Data provided by the National Marine Fisheries Service from a coast-wide angler survey estimated that New York marine anglers had harvested in excess of 357,379 fish, or 83% of the State's quota, by the end of June 2007. Having considered data collected in previous years, Department staff believe that it is highly probable that the recreational fluke harvest in New York has by now exceeded New York's 2007 harvest limit, perhaps by a wide margin. The promulgation of this regulation on an emergency basis is necessary in order for the Department to immediately end the current harvest of summer flounder in New York for 2007 and maintain compliance with the FMP. It is also necessary in order to prevent more stringent management measures for fluke in 2008 based on exceeding 2007's harvest limit.

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:

Certain regulated parties (party/charter vessels, bait and tackle shops) will experience some adverse economic effects due to closure of the summer flounder season. Many charter operations have already booked fishing trips for summer flounder into September and October and have paid for advertisements. Most bait and tackle shops have ordered and purchased summer flounder bait, and bait dealers have done the same. There will be some economic loss to these businesses.

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

The Department of Environmental Conservation will incur limited costs associated with both the implementation and administration of these rules, including the costs relating to notifying recreational harvesters, party and charter boat operators and other recreational support industries of the new rules.

5. Local government mandates:

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

6. Paperwork:

None.

7. Duplication:

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

8. Alternatives:

The following significant alternatives have been considered by the Department and rejected for the reasons set forth below:

(1) One alternative that was considered was to close the fishery September 4th, which would have prevented even more over-harvest than closing on September 17th. However, the potential economic consequences of such a short-notice shutdown for one of the most important recreational fisheries in New York are believed to be particularly damaging to the industry, resulting in significant economic loss to bait and tackle shops, party and charter boat businesses and the supporting local economy. This situation was immediately brought to the attention of the Commissioner when this alternative was announced as the choice. The resultant outcry forced a rejection of this alternative.

(2) Another alternative considered and rejected was to wait until September 30th to close the recreational fishery. This was rejected in favor of limiting any overharvest for 2007, thus protecting the fishery stock, and also limiting any negative consequences to New York's harvest limit for 2008. In addition, if open through September 30, New York's fluke season would be two weeks longer than any neighboring state. An influx of these fishermen would increase fishing pressure in New York and add to the over-harvest of New York's quota.

(3) No Action (no amendment to regulations).

The “no action” alternative would leave current regulations in place and defer the consequences of over-harvest until next fishing season. This option would, however, put New York in a position to further exceed the 2007 harvest limit and over-harvest by a wide margin, which would be contrary to the objectives of the fishery management plan and forcing New York into even more restrictive management measures in 2008. For these reasons, 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:

The emergency regulations will take effect immediately upon filing with the Department of State, and compliance will be required as of September 17, 2007. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via the Department's website.

1. Effect of rule:

Pursuant to § 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission (ASMFC). The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish are the ASMFC's Interstate Fishery Management Plans for individual species or groups of fish. The Fisheries Management Plans (FMPs) are designed to promote the long term health of these species, preserve resources, and protect the interests of both commercial and recreational fishers.

In 2006, ASMFC adopted annual quota changes and recreational harvest projections for summer flounder (fluke) for the 2007 fishing season. New York's assigned recreational harvest limit for 2007 is 430,262 fish. Under existing regulations which were adopted on April 24, 2007, New York's recreational harvest of summer flounder for 2007 was projected to be within the assigned harvest limit. Data provided by the National Marine Fisheries Service from a coast-wide angler survey estimated that New York marine anglers had harvested 357,379 fish, or 83% of the State's quota. Based upon data from previous years, it is highly probable that NY's anglers have by now exceeded the harvest limit, perhaps by a wide margin. The result is that we are currently over-fishing on summer flounder. The Department has chosen to amend its fluke regulations to comply with the requirements of the FMP. 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.

There were 503 licensed party/charter vessels operating in New York during 2006. In 2006, there were also retail and wholesale marine bait and tackle shop businesses operating in New York; however, the Department does not have a record of the absolute number. The Department consulted the Marine Resources Advisory Council regarding the proposed action. The Board voted on the Department's proposed action, and a majority voted to support the Department's decision to close the fishery in order to comply with the FMP.

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. Minimizing adverse impact:

The promulgation of this regulation is necessary in order for the Department to maintain compliance with the FMP for summer flounder, immediately end the current over-fishing, and prevent more stringent management measures for 2008. Since these regulatory amendments are consistent with federal and interstate fishery management plans, the Department anticipates limited or no adverse impacts.

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 outlets and other support industries for recreational fisheries. Failure to comply with an FMP and take required actions to protect a marine fishery could cause the collapse of the 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.

6. Small business and local government participation:

The development of this proposal has drawn upon input from the Marine Resources Advisory Council, which is comprised of representatives from recreational and commercial fishing interests, including recreational fishing organizations, party and charter boat owners and operators, retail and wholesale bait and tackle shop owners, and recreational anglers. The Department consulted the Marine Resources Advisory Council regarding the proposed action. The Board voted on the Department's proposed action, and a majority voted to support the Department's decision to close the fishery in order to comply with the FMP.

Local governments were not contacted because the rule does not affect them.

7. Economic and technological feasibility:

The proposed regulations do not require any expenditures on the part of affected businesses in order to comply with the changes. The changes required by this action have been determined to be economically feasible for the affected parties. There is no additional technology required for small businesses, and this action does not apply to local governments. Therefore, there are no economic or technological impacts for any such bodies.

The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The summer flounder fishery directly affected by the emergency rule is entirely located within the marine and coastal district, and is not located adjacent to any rural areas of the state. Further, the emergency 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 emergency amendments of Part 40, a Rural Area Flexibility Analysis is not required.

The Department of Environmental Conservation (Department) has determined that this rule will not have a substantial adverse impact on jobs and employment opportunities as per SAPA § 201-A. Therefore, a job impact statement is not required.

The promulgation of this regulation is necessary in order for the Department to stop over-fishing of summer flounder relative to New York's allowable harvest limit for 2007 and to avoid the more stringent management measures that would be required in the summer flounder recreational fishery if it were allowed to continue, and the economic hardship that would be associated with such management measures.

There were 503 licensed party/charter vessels operating in New York during 2006. In 2006, there were also retail and wholesale marine bait and tackle shop businesses operating in New York; however, the Department does not have a record of the absolute number. Many currently licensed party and charter boat owners and operators hire seasonal employees during the fishing season, the majority of which occurs from May through October, with a peak in the summer months. These businesses also make purchases of bait and tackle and take out advertisements in local media. A longer fishing season provides more opportunity to fish for summer flounder and may, thereby, result in more angler trips made than in a shorter season. Conversely, there may be an adverse affect on the number of fishing trips during the current fishing season as a result of the closure on September 17, 2007. The closure of the summer flounder fishery may, therefore, result in an early end to seasonal employment for an unknown number of industry employees. In addition, there is the potential for isolated cases of business losses severe enough to jeopardize individual business operations.

The 2007 summer flounder fishing season has been open since April 24th. The proposed closure is for September 17th, which means the season will have been open for 147 days. The early closure of the fishery means the loss of 44 fishing days based upon general fishing activity for summer flounder through October. For comparison, the summer flounder season in 2004 was open May 15th through September 6th, in 2005 April 29th through October 31st, and in 2006 May 6th through September 12th. In addition, over-harvest of New York's 2007 summer flounder recreational harvest limit has occurred and is on-going, so the industry has already taken the maximum benefit available from this fishery. Seasonal employment beyond the time period in which New York's limit was taken could not have been relied upon reasonably. Therefore, the premature closure of this fishery is seen to have a limited impact on seasonal employment, with no opportunities for new employment lost as a result. Further, the Department anticipates that there will be an open season for summer flounder in 2008, but the duration of that season is unknown at this time. The closure is, therefore, a temporary condition which will have a limited impact on future seasonal employment.

The Department consulted the Marine Resources Advisory Council regarding the proposed action. The Board voted on the Department's proposed action, and a majority voted to support the Department's decision to close the fishery in order to comply with the FMP.

In the long term, the maintenance of sustainable fisheries will have a positive effect on employment for the fisheries in question, including party and charter boat owners and operators. 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 summer flounder resource is essential to the survival of the party and charter boat operations and bait and tackle businesses that support in these fisheries. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest and to continue to rebuild or maintain them for future utilization.

Based on the above and Department staff's knowledge and past experience with similar regulations, the Department has concluded that there will not be any substantial adverse impact on jobs or employment opportunities as a consequence of this rule making. Therefore, a job impact statement is not required.