Subdivision 40.1 (f) is amended as follows:

(f) Table A - Recreational Fishing.

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

(i) Table B - Commercial Fishing.

1. Statutory authority:

Environmental Conservation Law (ECL) sections 13-0105, 13-0340-a and 13-0340-f authorize the Department of Environmental Conservation (the department) to establish by regulation, open season, size limits, catch limits, possession and sale restrictions and manner of taking for weakfish and black sea bass.

2. Legislative objectives:

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

3. Needs and benefits:

These regulations are necessary in order for New York to comply with the FMP for weakfish, and the one for black sea bass as adopted by the Atlantic States Marine Fisheries Commission (ASMFC).

Pursuant to section 13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the ASMFC. The ASMFC facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanisms for implementation of cooperative management of migratory fish are the ASMFC’s Interstate 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.

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.

Environmental Conservation Law sections 13-0105, 13-0340-a and 13-0340-f, which authorize the adoption of regulations for the management of weakfish and black sea bass, provide that such regulations must be consistent with the FMPs for these species adopted by the ASMFC and with applicable provisions of FMPs adopted pursuant to ACFCMA.

Under Addendum II to Amendment 4 to the Interstate FMP for weakfish, the status of the weakfish stock indicated that management action was warranted. All non-de minimis jurisdictions were required to reduce the bycatch possession limit for non-directed fisheries for weakfish from the Amendment 4, section 4.2.1 allowance of 300 pounds per day or trip to 150 pounds per day or trip. New York’s weakfish fishery is in this category. For black sea bass, the changes were called for at an August 2005 joint meeting of the Mid-Atlantic Fishery Management Council and the ASMFC Black Sea Bass Management Board, and were issued in annual specifications (final rule, Federal Register Vol 70, No 249, December 29, 2005). These measures were to be made effective 1 January 2007, giving fishermen 2 years to comply. 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 weakfish in that state, which could result in significant adverse impacts to the state’s economy.

Specific major changes to the regulations include the following:

1. Weakfish: reduce the bycatch possession limit for the non-directed fishery from a 300-pound trip limit to a 150-pound trip limit.

2. Black sea bass:

a) add a definition of total length specific for black sea bass that excludes the tail filament from inclusion in the length measurement; and

b) change the requirements for fish traps or pots used to take black sea bass to increase the number of vents required from one to two and increase the diameter of the circular vent required from two and three eighths inches to two and one half inches.

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 (commercial foodfish harvesters who use trawl nets, black sea bass pot/trap fishers) may experience some minor economic effects through reduced landings for these species or the cost of gear modifications.

(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 harvesters and other 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 (no amendment to the regulations).

The “no action” alternative would leave current regulations in place, which would likely result in a Federal non-compliance determination, which would bring about a closure of all fishing for weakfish and black sea bass in New York under ACFCMA. This would have a much more severe economic impact than the imposition of tighter restrictions, therefore, this option was rejected.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and Regional Fishery Management Council FMPs.

10. Compliance schedule:

Regulated parties will be notified by mail, through appropriate news releases and via the department’s website of the changes to the regulations. Because the changes were announced previously, fishermen have had ample time to make necessary gear modifications. The regulations will become effective when filed.

1. Effect of the regulation:

Small businesses affected by the proposed regulations will include some of the currently licensed commercial foodfish harvesters. There were 1,109 licensed commercial foodfish harvesters in operation in New York in 2007. Most permitted commercial fishermen are self-employed. None, however, are expected to lose their jobs as a result of the proposed changes.

There are no local governments involved in the commercial or recreational fish harvesting business, nor do any participate in the purchase, sale, storage or transport of marine foodfish. Therefore, no local governments are affected under these proposed regulations.

2. Compliance requirements:

Under the proposed rule, those harvesters who target black sea bass using fish pots or traps will be required to add an additional escape vent to each pot or trap fished, and use the correct minimum size vent. In addition, those fishermen who during the closed season for weakfish continue to fish for other species, will not be allowed to retain more than 150 pounds of weakfish in a trip and must have an equal or greater weight of fish other than weakfish when landing weakfish.

3. Professional services:

None

4. Compliance costs:

Some costs will be associated with complying with the regulations in that each fish pot or trap must be modified at some incremental cost which will then be multiplied by the total number of pots or traps fished. The annual cost of continuing compliance may take the form of lost income if the catch of commercial or recreational fishermen declines.

5. Economic and technological feasibility:

The changes required by this action have been determined to be economically feasible for the majority of the affected parties. For those proposals which are required under federal and interstate fishery management plans, the department does not have any discretion regarding this economic impact. New York must comply with the provisions of the fishery management plans or face federal sanctions.

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

6. Minimizing adverse impact:

The maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, including wholesale and retail outlets and the support industries for commercial and recreational fisheries. There is no way to eliminate the short-term losses while trying to rebuild overharvested stocks of fish. These regulations are designed to protect stocks from continued overharvest and to rebuild them for future utilization. Failing to take these appropriate actions to protect our natural resources could cause the complete collapse of a fish 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. Regulations are proposed to provide the appropriate level of protection.

7. Small business and local government participation:

The proposed regulations are based upon the requirements of interstate fishery management plans which do not provide discretion to the department in developing the proposal. The Interstate Fishery Management Program operated by the Atlantic States Marine Fisheries Commission (ASMFC) operates in public and provides opportunity for public participation at every meeting and at public hearings. The black sea bass proposal is based upon industry recommendations provided to the ASMFCs Black Sea Bass Management Board. There was no special effort to contact local governments because the rule does not affect them.

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 marine finfish fisheries directly affected by the proposed rule are entirely located within the marine and coastal district, and are not located adjacent to any rural areas of the state. Further, the rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of Part 40, a Rural Area Flexibility Analysis is not required.

The Department of Environmental Conservation has determined that the proposed regulations will not have a substantial adverse impact on jobs and employment opportunities. Therefore, a job impact statement is not required.

Those most affected by the proposed rule making are the commercial and recreational fishermen harvesting marine fish species from New York marine waters. There were 1,109 licensed commercial foodfish harvesters in New York during 2007. Some currently licensed commercial fishermen will be affected by these regulations. Some of the proposed regulations may result in a short-term reduction in allowable catch or availability of marine fisheries resources for the affected parties.

The maintenance of long-term sustainable fisheries will have a positive effect on employment for the fisheries in question, including wholesale and retail outlets and the support industries for both commercial and recreational fisheries. Over the long-term, these short-term reductions in harvest or availability will be offset by the restoration of fishery stocks. These regulations are designed to protect stocks from continued over harvest and to rebuild them for future utilization. Failing to take these appropriate actions to protect our natural resources could cause the complete collapse of a fish 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. Moreover, failure to implement the required provisions of interstate fishery management plans can result in complete federal closure of those fisheries in the State, an outcome with far more severe short-term consequences than those resulting from the proposed regulations.

Based on the above and the department's experience in adopting regulations similar to those contained in this proposed rule making, the department has concluded that there will not be a substantial adverse impact on jobs or employment opportunities as a consequence of these amendments. In the short-term, these proposals will prevent a federal closure of New York's fisheries; in the long-term, these proposals, by conserving marine fisheries, will likely have a positive impact on employment opportunities in the commercial and recreational fishing industries.