This rule making is also necessary to avoid placing New York fishermen and women at an economic disadvantage relative to harvesters from other states who will be allowed to catch and sell the incidental harvest limit of scup. ECL § 13-0105(1)(a) requires the Department to “optimize the benefits of resource use so as to provide viable business opportunities for commercial fisheries.” New York commercial harvesters and associated industries could lose thousands of dollars per fishing trip if these regulations are not in place by April 15, 2019. An individual harvester making 2 trips per week would be able to catch 4000 pounds of saleable scup. At approximately $2 per pound, harvesters could potentially make an additional $8,000.00 per week in 2019 while the increased bycatch is in effect. The scup population is very healthy and can easily sustain any additional fishing pressure that is a result of this change.

The Department is adopting this amendment as an emergency measure so that it will be in effect by April 15, 2019 for the reasons discussed above and for the benefits it will provide to New York’s scup fishery and associated industries.

(1) Trawls – Only nets that have a minimum [mesh] size of at least five inches diamond mesh, inside measure, for at least 75 continuous meshes forward of the terminus of the cod end, may be used in a directed trawl fishery for scup. For nets with cod ends (including an extension) less than 125 meshes, the entire trawl net shall have a minimum mesh size of five inches throughout the net. Any trawl vessel that has on board more than [the threshold amount established by the department within the periods of January 1st to April 30th, May 1st to October 30th and November 1st to December 31st consistent with those established through the FMP by NMFS] one thousand pounds of scup during the period of January 1 through April 14, two thousand pounds of scup during the period of April 15 through June 15, two hundred pounds of scup during the period of June 16 through September 30, and one thousand pounds of scup during the period of October 1 through December 31, will be presumed to be engaged in a directed fishery for scup.

Existing paragraph 40.5(f)(2) is amended to read as follows:

(2) It is unlawful to have nets either in use or available for immediate use with mesh less than the required minimum sizes described in paragraph (1) of this subdivision if more than [the threshold amount established by the department within the periods January 1st to April 30th, May 1st to October 30th and November 1st to December 31st consistent with those established through the FMP by NMFS] the following limits for scup are possessed on any vessel at any time during the designated period: one thousand pounds of scup during the period of January 1 through April 14; two thousand pounds of scup during the period of April 15 through June 15; two hundred pounds of scup during the period of June 16 through September 30; and one thousand pounds of scup during the period of October 1 through December 31.

Existing paragraph 40.5(f)(3) is amended to read as follows:

(3) It is unlawful to land more than [the threshold amount established by the department within the periods of January 1st to April 30th, May 1st to October 30th and November 1st to December 31st] one thousand pounds of scup during the period of January 1 through April 14, two thousand pounds of scup during the period of April 15 through June 15, two hundred pounds of scup during the period of June 16 through September 30, and one thousand pounds of scup during the period of October 1 through December 31, unless nets that have mesh less than the required minimum sizes described in paragraph (1) of this subdivision are not available for immediate use.

1. Statutory authority:

Environmental Conservation Law (ECL) §§ 11-0303, 13-0105, 13-0339, and 13-0340-e authorize the New York State Department of Environmental Conservation (Department) to establish by regulation the open season, size, catch limits, possession and sale restrictions, and manner of taking for scup.

2. Legislative objectives:

It is the objective of the above-cited statutes, specifically ECL §§ 13-0105(1)(a), that the Department manages marine fisheries to “optimize the benefits of resource use so as to provide . . . viable business opportunities for commercial . . . fisheries” in a manner that is consistent with marine fisheries conservation and management policies and interstate fishery management plans. Additionally, the Department is charged to “minimize waste and reduce discard mortality of marine fishery resources.” ECL 13-0105(1)(b)(6)

3. Needs and benefits:

This rule making is necessary for New York to set an incidental small mesh bycatch limit for scup at 2,000 pounds from April 15 through June 15. Scup are one of four species jointly managed by Atlantic States Marine Fisheries Commission (ASMFC) and Mid-Atlantic Fishery Management Council (MAFMC). In August 2018, ASMFC and MAFMC approved an increase of the current incidental possession limit to 2,000 pounds from April 15 through June 15. The goal of this measure is to eliminate the discarding of scup that are inadvertently caught and killed in the small mesh squid fishery. New York Environmental Conservation Law (ECL) § 13-0105(1)(b)(6) requires the Department to “minimize waste and reduce discard mortality of marine fishery resources.” Allowing an increased incidental bycatch for scup will prevent scup from being wasted during the time period when they are most abundant in New York’s waters.

This rule making is also necessary to avoid placing New York fishermen and women at an economic disadvantage relative to harvesters from other states who will be allowed to catch and sell the incidental harvest limit of scup. ECL § 13-0105(1)(a) requires the Department to “optimize the benefits of resource use so as to provide viable business opportunities for commercial fisheries.” New York commercial harvesters and associated industries could lose thousands of dollars per fishing trip if these regulations are not in place by April 15, 2019. An individual harvester making 2 trips per week would be able to catch 4000 pounds of saleable scup. At approximately $2 per pound, harvesters could potentially make an additional $8,000.00 per week in 2019 while the increased bycatch is in effect. The scup population is very healthy and can easily sustain any additional fishing pressure that is a result of this change.

The Department is adopting this amendment as an emergency measure so that it will be in effect by April 15, 2019 for the reasons discussed above and for the benefits it will provide to New York’s scup fishery and associated industries.

This rule is also being proposed for adoption on a permanent basis so that the bycatch will be in place for 2020 and future seasons.

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. New York harvesters would benefit from being able to sell their scup rather than discarding the dead fish overboard.

5. Local government mandates:

The proposed 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:

“No action” alternative: Failure to adopt the proposed regulations would result in New York fishermen and women catching and discarding a valuable food fish resource. It would also put New York harvesters at an economic disadvantage relative to harvesters from other states.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and MAFMC’s Fishery Management Plan for scup.

10. Compliance schedule:

These regulations are being adopted by emergency rule making and therefore will take effect immediately upon filing with Department of State. Regulated parties will be notified of the changes to the regulations through publication in the State Register, appropriate news releases, and through the Department’s website.

1. Effect of rule:

This rule making will allow an incidental bycatch for scup of 2,000 pounds from April 15 through June 15 pursuant to recent revisions to the applicable Fishery Management Plan (FMP) by the Atlantic States Marine Fisheries Commission (ASMFC) and Mid-Atlantic Fishery Management Council (MAFMC). The goal of this measure is to eliminate?the?discarding of scup inadvertently caught and killed in the small mesh squid fishery. Allowing an increased incidental bycatch for scup will prevent scup from being discarded during the time period when they are most abundant in New York’s waters.

2. Compliance requirements:

None.

3. Professional services:

None.

4. Compliance costs:

None.

5. Economic and technological feasibility:

The proposed regulations do not require any expenditure on the part of affected businesses to comply with the changes. The proposed regulations will likely increase the income of some commercial fishermen, marinas, seafood dealers, restaurants, marine bait and tackle shops and other businesses that depend upon the commercial scup fishery.

6. Minimizing adverse impact:

This rule making will not impose any adverse impacts on the regulated community.

7. Small business and local government participation:

Scup?are one of four species jointly managed by?ASMFC?and MAFMC. Any regulation adopted by the Department must be consistent with the compliance requirements of the Fishery Management Plan (FMP). The general public, including small businesses and local governments, can submit comments during the FMP amendment process and during this rulemaking process.

8. For rules that either establish or modify a violation or penalties associated with a violation:

Pursuant to SAPA § 202-b(1-a)(b), no such cure period is 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 the general welfare of the public and the resource is protected.

9. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:

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

The Department of Environmental Conservation (Department) has determined that this rule will not impose any adverse impacts on rural areas. This rule making only affects the Marine and Coastal District of the State; there are no rural areas within the Marine and Coastal District. The scup fishery is entirely located within the Marine and Coastal District and is not located adjacent to any rural areas of the State. The proposed rule will 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 to 6 NYCRR Part 40, the Department has determined that a Rural Area Flexibility Analysis is not required.

1. Nature of impact:

This rule making will allow an incidental bycatch for scup of 2,000 pounds from April 15 through June 15 pursuant to recent revisions to the applicable Fishery Management Plan (FMP) by the Atlantic States Marine Fisheries Commission (ASMFC) and Mid-Atlantic Fishery Management Council (MAFMC). The goal of this measure is to eliminate the discarding of scup inadvertently caught and killed in the small mesh squid fishery. Allowing an increased incidental bycatch for scup will prevent scup from being discarded during the time period when they are most abundant in New York’s waters. Scup typically do not survive when removed from the mesh nets of the squid fishery. The scup population is very healthy and can easily sustain any additional fishing pressure that may result from this change.

2. Categories and numbers affected:

In 2018, there were 949 commercial Food Fish License holders, 496 permitted NYS Food Fish and Crustacea dealers, many retail and wholesale marine bait and tackle shops and other related businesses operating in New York. Data available from the 2017 New York State Scup Compliance Report show that there were 3,464,423 pounds of scup landed and sold by commercial harvesters. According to dealer reports from the Standard Atlantic Fisheries Information System (SAFIS), there were 12,350 commercial fishing trips in New York in 2018 that involved the harvest and sale of scup. NOAA Fisheries’ annual Fisheries Economics of the United States Report provides economic information related to U.S. commercial and recreational fishing activities and fishing-related industries. The 2015 report indicates that in New York, 6.2 billion dollars in sales were generated by commercial and recreational fishing. In the U.S., commercial fishing alone creates a rough total of 1.18 million jobs, $39.7 billion dollars in income, $144.2 billion dollars in sales, $60.6 billion dollars in value and $5.2 billion dollars in revenue.

An individual harvester making 2 trips per week would be able to catch 4000 pounds of marketable scup. At approximately $2 per pound, harvesters could potentially make an additional $8,000.00 per week in 2019 while the increased bycatch is in effect.

3. Regions of adverse impact:

There are no anticipated adverse impacts. The proposed amendment increases the number of scup commercial harvesters can catch and sell as bycatch instead of discarding the dead fish overboard. This will result in a significant increase in revenue for commercial permit holders, retail and wholesale bait and tackle shops, and other associated businesses in the scup fishery.

4. Minimizing adverse impact:

There are no anticipated adverse impacts.

5. Self-employment opportunities:

Commercial harvesters, bait and tackle shops, marinas, seafood dealers and other related businesses are, in many cases, small businesses, owned and often operated by a single owner. The commercial fishing industry is mostly self-employed. This rule will not have a negative effect upon opportunities for businesses related to the harvest of scup. However, failing to adopt this rule making will prevent New York commercial harvesters of scup from taking advantage of the opportunity for increased income allowed under the scup FMP and result in them being at a competitive disadvantage compared to harvesters in neighboring states.

6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:

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