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 recreational fisheries and prevent the State from exceeding the State's recreational harvest limit, as assigned by the FMP. Failure by a state to adopt, in a timely manner, necessary regulations may result in a determination of non-compliance by ASMFC and the imposition of federal sanctions on the particular fishery in that state. A closure, for example, of the New York summer flounder fishery could result in significant adverse impacts to the State's economy. New York State must adopt regulations that are in compliance with the FMP and prevent the recreational harvest of summer flounder, scup and black sea bass from exceeding the State's assigned limits for those species.

The promulgation of this regulation as an emergency rule making is necessary because the normal rule making process would not promulgate these regulations in the time frame necessary for the commencement of the proposed summer flounder, scup and black sea bass seasons, pursuant to the proposed regulations. National Marine Fisheries Service (NMFS) usually publishes the recommended management measures for summer flounder, scup and black sea bass in the Federal Register in the first quarter of each year. As of this writing (April 8, 2010), the 2010 management measures have not yet published by NMFS. However, New York State did determine its 2010 management measures for summer flounder in March based on preliminary data released by ASMFC and NMFS, and after consultation with New York's Marine Resources Advisory Council. Traditionally, the recreational seasons for summer flounder and scup in New York begin in May, while black sea bass has been open year-round. If this rule making were to be promulgated by the normal rule making process, it would not be effective until several months after the traditional start of the fishing seasons. New York State anglers, party and charter boat concerns and bait and tackle shops are dependent on the seasons opening on time. It is in the best interests of New York State's anglers and recreational fishing industry not to delay the opening of the seasons by promulgating the proposed regulation through the normal rule making process.

Rulemaking for recreational black sea bass in particular is necessary to correct emergency action previously taken in response to federal action. On January 13, 2010 the department filed a Notice of Emergency Adoption and Proposed Rule Making reducing the recreational season for black sea bass from year-round to just the months of June and September. This proposal kept New York in compliance with the management measures adopted by ASMFC and MAFMC. In February 2010, MAFMC and ASMFC changed their recommendations based on new scientific information. The black sea bass recreational season now recommended is from May 22 through September 12. As the fishery management plan for black sea bass requires regulations to be consistent among the states along the Atlantic coast, the department must promulgate this proposed regulation to remain in compliance with the fishery management plan. Failure to do so would also cause unnecessary hardship in the recreational fishing industry and for recreational anglers, as the new recommendation would provide greatly enhanced fishing opportunities.

40.1(f) Table A - Recreational Fishing.

Species Yellowtail founder through Winter flounder remains the same. Species Scup (porgy) licensed party/charter boat anglers is amended to read as follows:

Species Scup (porgy) all other anglers remains the same. Species Black sea bass is amended to read as follows:

1. Statutory authority:

Environmental Conservation Law (ECL) sections 13-0105, 13-0340-b, 13-0340-e and 13-0340-f authorize the Department of Environmental Conservation (DEC or department) to establish by regulation the open season, size, catch limits, possession and sale restrictions and manner of taking for summer flounder, scup and 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 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 Summer Flounder and Black Sea Bass 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 quota managed marine species, preserve the States' marine resources, and protect the interests of both commercial and recreational fishermen. All member states must promulgate any necessary regulations that implement the provisions of the FMPs to remain in compliance with 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 the FMP for summer flounder, ASMFC will assign New York an annual harvest for summer flounder for the 2010 recreational season. The 2010 quota will be greater than the 2009 quota. Under existing regulations, it is unlikely that New York will meet the 2010 assigned harvest. The proposed regulations will increase the duration of the 2010 recreational summer flounder season to allow New York State recreational anglers to utilize the fishing opportunities made available by the increase in summer flounder quota. According to a report released by NOAA Fisheries, recreational fishing in New York generated $424 million in total sales in 2006. Summer flounder is one the most popular fish taken by recreational harvesters in New York.

The promulgation of this regulation is necessary for DEC to remain in compliance with the FMP for summer flounder. The regulatory changes in this emergency rule are calculated, and have been approved by ASMFC. The proposed rule will allow New York State recreational anglers to achieve the harvest level provided by the 2010 quota, yet to prevent these anglers from exceeding the assigned summer flounder quota. New York State would remain in compliance with the FMP.

Specific amendments to the current regulations include the following:

1. Summer Flounder: Implement an open season for the summer flounder recreational fishery from May 15 through September 6.

2. Scup: Implement an open season for scup for recreational anglers aboard licensed party charter vessels from June 8 through September 6. In 2009, the season for recreational anglers aboard licensed party charter vessels was from June through August 31. The scup "bonus" season will be reduced from 45 days in 2009 to 35 days in 2010 with a reduced possession limit, from 45 to 40 fish.

2. Black sea bass: Implement an open season for the black sea bass recreational fishery from May 22 through September 12. In 2009, the black sea bass recreational fishery was yearlong.

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. Certain regulated parties (party/charter businesses, bait and tackle shops) may experience some adverse economic effects through a reduction of the recreational black sea bass season from yearlong in 2009 to 108 days in 2010.

(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 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:

1. Summer flounder "No Action" Alternative (no amendment to summer flounder regulations) - The "no action" alternative would leave current summer flounder regulations in place. Under existing regulations, it is unlikely that New York recreational anglers will meet the 2010 assigned harvest. New York recreational anglers would not be able to utilize the summer founder resources that would be made available with the increased quota. Party and charter boat businesses would not be able to benefit from the increased duration of the recreational summer flounder in New York State waters. This alternative was rejected.

2. Scup "No Action" Alternative (no amendment to scup regulations) - The "no action" alternative would leave current scup regulations in place. This alternative implies that New York would take no steps to comply with ASMFC's recommendation and the fishery management plan (FMP) for scup. This may result in a finding of non-compliance by the ASMFC and a prohibition by National Oceanic and Atmospheric Administration (NOAA) on all fishing for scup until the State comes into compliance with the FMP.

3. Black Sea Bass "No Action" Alternative (no amendment to black sea bass regulations) - The "no action" alternative would leave the current black sea bass season in place. This option would, however, impede DEC's ability to achieve its management objectives for the stock and likely result in New York failing to remain in compliance with the FMP for black sea bass and a possible closure of all fishing for black sea bass in New York. This would have a much more severe economic impact than the imposition of a limited recreational season; 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 DEC's website of the changes to the regulations. The emergency regulations will take effect upon filing with the Department of State.

1. Effect of rule:

The Atlantic State Marine Fisheries Commission (ASMFC) facilitates cooperative management of marine and anadromous fish species among the fifteen Atlantic Coast member states. The principal mechanism for implementation of cooperative management of migratory fish is the ASMFC's Interstate Fishery Management Plans (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.

ASMFC recently adopted quota changes for summer flounder, scup and black sea bass. The Department of Environmental Conservation (DEC or department) now seeks to amend its summer flounder, scup and black sea bass regulations to comply with the requirements of the ASMFC FMP. There are severe consequences for failure to comply with 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. Furthermore, failure to take required actions to protect our marine and anadromous resources may lead to the collapse of the targeted species' populations. Either situation could have a significant adverse impact on the commercial and recreational fisheries for that species, as well as the supporting industries for those fisheries.

Those most affected by the proposed rule are recreational anglers, licensed party and charter businesses, and retail and wholesale marine bait and tackle shops operating in New York State. The department consulted with the Marine Resources Advisory Council (MRAC) and other individuals who chose to share their views on summer flounder recreational management measures. The response indicates that there is a belief that a long season will provide economic benefits to businesses because their customers will take advantage of the additional opportunities to go fishing for summer flounder. The responses received by DEC suggest that a long season will result in more charter bookings, more party boat trips, and more bait and tackle sales. In addition, private individuals (mostly boating anglers) indicated their preference for as long a season as possible to provide them more opportunities to fish for summer flounder. The proposed rule increases the number of days available to recreationally fish for summer flounder, from 78 days in 2009 to 115 days as proposed in the regulations, an increase of 37 days.

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. 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 the proposed regulations may reduce the income of party and charter businesses and marine bait and tackle shops because of the reduction in the number of days available for recreational fishers to take summer flounder.

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

6. Minimizing adverse impact:

The promulgation of this regulation is necessary for DEC to maintain compliance with the FMPs for summer flounder, scup and black sea bass and to avoid a punitive closure of the scup and black sea bass fisheries and the economic hardship that would ensue with such a closure. Since these regulatory amendments are consistent with Federal and Interstate FMPs, DEC anticipates that New York State will remain in compliance with the FMPs.

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 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. 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.

7. Small business and local government participation:

The department received recommendations from the MRAC, which is comprised of representatives from recreational and commercial fishing interests. The proposed regulations are also based upon comments received from 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. There was no special effort to contact local governments because the proposed 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 summer flounder, scup and black sea bass 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 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.

1. Nature of impact:

The promulgation of this regulation is necessary for the Department of Environmental Conservation (DEC) to maintain compliance with the Fishery Management Plan for Summer Flounder, Scup and Black Sea Bass, to avoid potential federal sanctions for lack of compliance with such plan, and to optimize recreational fishing opportunities available to New Yorkers. The proposed rule increases the summer flounder recreational fishing season by 37 days, from 78 days in 2009 to 115 days. The proposed rule will also reduce the recreational season for black sea bass from a yearlong fishery to the period from May 22 through September 12. The season for scup for recreational anglers aboard licensed party and charter vessels will be from June 8 through September 6. The scup "bonus" season will be reduced to from 45 days to 35 days, from September 7 through October 11 and the daily possession limit reduced from 45 fish to 40.

Many currently licensed party and charter boat owners and operators, as well as bait and tackle businesses, will be affected by these regulations. Due to the reduction in the number of fishing days for black sea bass, there may be a corresponding reduction of the number of fishing trips and bait and tackle sales during the upcoming fishing season.

2. Categories and numbers affected:

In 2009, there were 524 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; however, DEC does not have a record of the actual number. The number of recreational fishers in New York has been estimated by the National Marine Fisheries Service to be just over 1 million in 2007. However, this Job Impact Statement does not include them in this analysis, since fishing is recreational for them and not related to employment.

3. Regions of adverse impact:

The regions most likely to receive any adverse impact are within the marine and coastal district of the State of New York. This area included all the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the state, including Long Island Sound and the Hudson River up to the Tappan Zee Bridge.

4. Minimizing adverse impact:

In the development of the proposed rule making, DEC consulted with the Marine Resources Advisory Council and many individuals who chose to share their views on summer flounder recreational management measures to the DEC. In the long term, the maintenance of sustainable fisheries will have a positive affect on employment for the fisheries in question, including party and charter boat owners and operators, wholesale and retail bait and tackle outlets and other support industries for recreational fisheries. 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, scup and black sea bass resources is essential to the survival of the party and charter boat businesses and bait and tackle shops that are sustained by these fisheries. These regulations are designed to protect stocks while allowing appropriate harvest, to prevent over-harvest and to continue to rebuild stocks and maintain them for future utilization.

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