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Regulations Governing the Recreational Harvest of Black Sea Bass

NY-ADR

7/13/16 N.Y. St. Reg. ENV-28-16-00002-EP

NEW YORK STATE REGISTER

VOLUME XXXVIII, ISSUE 28

July 13, 2016

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

I.D No. ENV-28-16-00002-EP

Filing No. 616

Filing Date. Jun. 23, 2016

Effective Date. Jun. 23, 2016

Regulations Governing the Recreational Harvest of Black Sea Bass

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

Proposed Action:

Amendment of Part 40 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 11-0303, 13-0105 and 13-0340-f

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

This rulemaking is necessary for New York to remain in compliance with the National Marine Fisheries Service’s (NMFS) and the Atlantic States Marine Fisheries Commission’s (ASMFC) required limits for the coast-wide recreational harvest of black sea bass. NMFS set the 2016 coast-wide recreational harvest limit (RHL) for black sea bass at 2.82 million pounds in October of 2015. In mid-February 2016, harvest estimates for the entire 2015 fishing year became available. Based upon coast-wide fishery performance, ASMFC then determined that each northern member state (Massachusetts through New Jersey) must reduce recreational black sea bass harvest by 23% in order to not exceed the 2016 RHL. Once all data was available and the required reduction known, DEC Division of Marine Resources (DMR) developed several regulatory options that would result in the required reduction. DEC made these options available to the public for review and consulted with members of New York’s fishing public for feedback. This rulemaking contains the option that DEC has selected in an effort to provide New York’s anglers with appropriate and equitable access to this popular recreational fishery.

DEC is adopting these changes by emergency rulemaking in order to protect the general welfare. The regulations currently in place for recreational harvest of black sea bass were developed for the previous fishing year, and are not restrictive enough for the current fishing year. Current black sea bass regulations do not satisfy the latest reduction mandated by the ASMFC, and leaving them unchanged would likely result in the over-harvest of black sea bass by New York anglers. Falling out of compliance with the ASMFC requirements could result in federal sanctions and closure of the black sea bass fishery. In addition, the normal rulemaking process would not promulgate these regulations in time for the proposed season opening on June 27. This would result in the loss of fishing days and unnecessarily disadvantage New York’s anglers and associated businesses.

Subject:

Regulations governing the recreational harvest of black sea bass.

Purpose:

To reduce recreational black sea bass harvest in New York State.

Text of emergency/proposed rule:

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

Species Striped bass through Scup remain the same. Species Black sea bass is amended to read as follows:

40.1(f) Table A – Recreational Fishing.

Species	Open Season	Minimum Length	Possession Limit
Black sea bass	June 27-Aug. 31 [July 15]Sept. 1-Oct. 31 Nov. 1-Dec. 31	15” TL [14]15” TL [14]15” TL	3 8 10

Species Anadromous river herring through Oyster toadfish remain the same.

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 September 20, 2016.

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

Stephen Heins, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, NY 11733, (631) 444-0435, email: [email protected]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

The action is subject to SEQR as an Unlisted action and a Short EAF was completed. The Department has determined that an EIS need not be prepared and has issued a negative declaration. The EAF and negative declaration are available upon request.

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105, and 13-0340-f 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 black sea bass.

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 in a manner that is consistent with marine fisheries conservation and management policies and interstate fishery management plans.

3. Needs and benefits:

DEC is adopting these changes by emergency rulemaking in order to protect the general welfare. The regulations currently in place for recreational harvest of black sea bass were developed for the previous fishing year, are not restrictive enough for the current fishing year. Current black sea bass regulations do not satisfy the latest reduction mandated by the ASMFC, and leaving them unchanged would likely result in the over-harvest of black sea bass by New York anglers. Falling out of compliance with the ASMFC requirements could result in federal sanctions and closure of the black sea bass fishery. In addition, the normal rulemaking process would not promulgate these regulations in time for the proposed season opening on June 27. This would result in the loss of fishing days and unnecessarily disadvantage New York’s anglers and associated businesses.

This rulemaking is intended to reduce the harvest of black sea bass by increasing the size limit and reducing the possession limit. However, the proposed amendments will also increase the open season by 19 days which will provide some relief to New York State recreational anglers.

4. Costs:

There are no new costs to state and local governments from this action. The department 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 fishing associated businesses of the new rules.

5. Local government mandates:

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

6. Paperwork:

None.

7. Duplication:

The amendment does not duplicate any state or federal requirement.

8. Alternatives:

The management measures proposed in this rulemaking were developed by DMR staff working with a group of anglers and recreational fishing industry members. Twelve options were developed through the manipulation of minimum size limits, possession limits, and length of fishing seasons to achieve the required harvest reduction. These options were made publicly available through the Marine Resource Advisory Council (MRAC) website. They were also available on several local fishing websites. After consulting with the public, DEC is moving to adopt regulations that provide New York’s anglers with appropriate and equitable access to this popular recreational fishery.

“No action” alternative: If New York were to not adopt regulations that reduced recreational black sea bass harvest in 2016, the State would be out of compliance with ASMFC and NMFS requirements and subject to federal sanctions.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and the Mid-Atlantic Fishery Management Council fishery management plan for black sea bass.

10. Compliance schedule:

These regulations are being adopted by emergency rulemaking and therefore will take effect immediately upon filing with Department of State. Regulated parties must comply immediately and will be notified of the changes to the regulations through appropriate news releases, by mail, and through DEC’s website.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed amendment will implement more restrictive fishing rules for New York recreational anglers targeting black sea bass. The proposed rule will adopt the following provisions: increase the minimum size by 1 inch, from 14 to 15 inches, for the entire season; reduce the possession limit from 8 fish to 3 fish from June 27-August 31; open the recreational fishing season 19 days earlier than current regulations, moving the start of the season from July 15 to June 27. The possession limits and open fishing season for dates after August 31 will remain the same as in the current regulations.

The proposed rule is more restrictive than last year’s regulations. In 2015, there were 488 licensed party and charter businesses in New York State. There were also a number of retail and wholesale marine bait and tackle shop businesses operating in New York. The 1-inch increase in size limit and 5-fish decrease in possession limit during the summer months may decrease angler interest in targeting black sea bass and may impact businesses dependent upon these trips. The new size limit will not impact all anglers in the same manner; small boat owners, inshore anglers, and anglers from the western portions of Long Island will be less likely to catch black sea bass of legal size than those fishing offshore and in eastern portions of Long Island.

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 that complies with the emergency rule.

5. Economic and technological feasibility:

The emergency regulations do not require any expenditure on the part of affected businesses in order to comply with the changes. The emergency regulations may decrease the income of party and charter businesses, marinas and marine bait and tackle shops that depend heavily upon the recreational black sea bass fishery, especially in areas where larger fish are less available.

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for DEC to reduce recreational black sea bass harvest in order to maintain compliance with the Atlantic States Marine Fisheries Commission (ASMFC) while providing New York’s anglers with appropriate and equitable access to this popular recreational fishery. These proposed amendments are consistent with the required harvest reduction, and DEC anticipates that New York State will therefore remain in compliance with ASMFC and federal requirements.

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 bait and tackle shops and other support industries for recreational fisheries. Failure to comply 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.

7. Small business and local government participation:

The management measures proposed in this proposed rulemaking were developed by DEC staff working with a group of anglers and recreational fishing industry members. Twelve options were developed through the manipulation of minimum size limits, possession limits, and length of fishing seasons to achieve the required harvest reduction. These options were made publicly available through the Marine Resource Advisory Council (MRAC) website. They were also available on several local fishing websites. After consulting with the public—including commercial fishing interests, recreational fishing organizations, party and charter boat owners and operators, retail and wholesale bait and tackle shop owners, recreational anglers and state law enforcement personnel—the DEC is moving to adopt regulations that provide New York’s anglers with appropriate and equitable access to this popular recreational fishery.

8. Cure period or other opportunity for ameliorative action:

Pursuant to the State Administrative Procedure Act § 202-b(1-a)(b) (SAPA), a cure period is not 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 that the general welfare of the public and the resource are both protected.

9. Initial review of rule:

The department will conduct an initial review of the rule within three years as required by SAPA § 207(1)(b).

Rural Area Flexibility Analysis

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 black sea bass fishery directly affected by the proposed rule is entirely located within the marine and coastal district and is not located adjacent to any rural areas of the state. Further, the proposed 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 6 NYCRR Part 40, a Rural Area Flexibility Analysis is not required.

Job Impact Statement

1. Nature of impact:

The proposed amendment will implement more restrictive fishing rules for recreational anglers targeting black sea bass. The proposed rule will adopt the following provisions: increase the minimum size by 1 inch, from 14 to 15 inches for the entire season; reduce the possession limit from 8 fish to 3 fish from June 27-August 31; and open the recreational fishing season 19 days earlier than current regulations, moving the start of the season from July 15 to June 27. The possession limits and open fishing season for dates after August 31 will remain the same as in the current regulations.

2. Categories and numbers affected:

In 2015, there were 488 licensed party and charter businesses in New York State. There were also a number of marinas, retail and wholesale marine bait and tackle shop businesses operating in New York. According to the American Sportfishing Association, in 2011 New York had an estimated 800,811 marine recreational anglers that spent $1,194,493,042 on saltwater fishing, generating $144,539,079 in state and local tax revenue. In 2015 New York anglers took an estimated 330,715 fishing trips targeting black sea bass, the most trips in any of the last 5 years.

3. Regions of adverse impact:

The proposed regulation will impact recreational fishing anglers and associated businesses throughout most of New York’s Marine and Coastal District. The more restrictive black sea bass possession limit, reduced from 8 fish to 3 fish, will likely reduce the number of trips anglers take in pursuit of this species, thereby decreasing the amount of money they spend on bait, tackle, fares, and gas. This decrease in spending will have a negative impact upon those businesses (e.g. bait and tackle retail, party and charter operations, gas docks, marinas, etc.) that cater to recreational anglers. Also, the lower possession limit during the time of the year (June 27-August 31) when most people and boat owners are on the water may discourage anglers from pursuing black sea bass as anything more than a bycatch fishery.

The 1-inch increase in minimum size will not impact all anglers in the same manner. Anglers fishing from the western south shore or in western and central Long Island Sound have less access to large fish. In addition, large fish are more available further offshore, especially later in the season. This proposed rule will have greater impacts on small boat owners, inshore fishermen, and anglers who fish the western shores of Long Island.

4. Minimizing adverse impact:

DEC staff, working with a group of anglers and recreational fishing industry members, developed the management measures put forth in this proposed rulemaking. They developed twelve options through the manipulation of minimum size limits, possession limits, and length of fishing seasons to achieve the required harvest reduction. These options were made publicly available through the Marine Resource Advisory Council (MRAC) website. They were also available on several local fishing websites. After consulting with the public, DEC is moving to adopt regulations that provide New York’s anglers with appropriate and equitable access to this popular recreational fishery.

5. Self-employment opportunities:

The party and charter boat businesses, the bait and tackle shops, and marinas are, for the most part, small businesses, owned and often operated by a single owner. The recreational fishing industry is mostly self-employed. This rule will likely have a negative effect upon opportunities for businesses related to the recreational harvest of black sea bass. However, failing to adopt this rulemaking and comply with ASMFC requirements could lead to federal closure of New York’s black sea bass fishery.

6. Initial review of the rule, pursuant to the State Administrative Procedure Act § 207 (SAPA):

The department will conduct an initial review of the rule within three years as required by SAPA § 207(b).

End of Document