DEC is adopting these changes to preserve the general welfare of New York State residents by easing recreational fishing regulations that were in place during 2018 and optimizing New York recreational fishing opportunities while simultaneously maintaining their sustainability. Failure to readopt the regulations would deny New York recreational fishers and related industries an economic opportunity that is already available in neighboring states and federal waters.

This first emergency readoption is necessary so there is no lapse of the regulation during the party and charter boat season while DEC works on permanently adopting the regulation. Any lapse in the emergency regulation, before the end of the current party and charter boat season, would deny New York recreational fishers and related industries an opportunity currently in effect in New York and in neighboring states.

Species Striped bass (except the Hudson River north of George Washington Bridge) through Winter flounder remain the same.

Species Scup (porgy) licensed party/charter boat anglers**** and Scup (porgy) all other anglers are amended to read as follows:

40.1(f) Table A – Recreational Fishing.

1. Statutory authority:

Environmental Conservation Law (ECL) §§ 13-0105, 13-0339, and 13-0340-e authorizes 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 an objective of the above-cited statutes, specifically ECL subdivision 13-0105(1)(a), that the Department, in managing marine fisheries, “shall optimize the benefits of resource use so as to provide valuable recreational experiences” in a manner that is consistent with marine fisheries conservation and management policies and interstate fishery management plans.

3. Needs and benefits:

This rule making would implement a year-round recreational scup season and increase the possession limit for party and charter boat fishing trips in the fall. These changes will promote the general welfare of New York State citizens by increasing access to recreational fishing opportunities in New York State and providing economic opportunities to businesses associated with fishing, such as party and charter boat operators. These regulations will not compromise the sustainability of the fishery. The proposed amendments will provide New York State recreational fishers with more chances to fish for scup and will likely result in increased revenue for related fishing industries, including party and charter boat businesses. In addition, neighboring states have already adopted these changes; consequently, New York State party and charter boat operators will be at a competitive disadvantage when booking fishing trips for the fall if DEC does not implement the same provisions for New York. This emergency measure is intended to provide the New York State for-hire industry and their customers with sufficient time to plan and book fishing trips for the fall with the increased possession limit.

Scup are one of four species jointly managed by the Atlantic States Marine Fisheries Commission (ASMFC) and the Mid-Atlantic Fishery Management Council (MAFMC). The new proposed regulations were developed in response to a large 2019 recreational harvest limit for scup that will allow New York State to reduce constraints on recreational scup harvest. This amendment proposes to allow increased access to the recreational scup fishery through expanding the recreational scup season and increasing the fall possession limit for licensed party and charter boat anglers while remaining in compliance with ASMFC and MAFMC Fishery Management Plans.

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 fishers, party and charter boat operators, and other recreational fishing associated businesses of the new rules.

5. Local government mandates:

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

6. Paperwork:

None.

7. Duplication:

The amendment does not duplicate any state or federal requirements.

8. Alternatives:

“No action” alternative: Failure to adopt these regulations would deny New York recreational fishers the opportunity to harvest scup year-round in New York State, which would put New York State’s recreational fishing related businesses at an economic disadvantage to those that operate in neighboring states and federal waters.

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 would permit earlier access to the recreational scup fishery in comparison to the current start of the recreational fishery by expanding the season to year-round, and will increase the scup possession limit, for licensed party and charter boat anglers, by 5 fish (increase from 45 to 50 fish) from September 1 through October 31.

In 2018, there were 515 licensed party and charter businesses, and a number of retail and wholesale marine bait and tackle shops operating in New York State. Data available from 2017 New York State Vessel Trip Reports shows that there were 2,547 party and charter trips that caught and kept scup. These statistics do not include federally permitted recreational vessels operating out of New York State. The National Oceanic and Atmospheric Administration’s Marine Recreational Information Program estimates that there were 1,078,023 recreational trips targeting scup in New York during 2018. The proposed amendment would increase the number of days recreational fishing for scup is permitted and the amount of scup that can be kept on licensed party and charter boats from September 1 through October 31. This rule would create additional opportunities for recreational fishers in New York and will likely result in an increase in revenue for party and charter businesses, marinas, and marine bait and tackle shops that supply the recreational scup fishery.

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 party and charter businesses, marinas, and marine bait and tackle shops that supply the recreational 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:

On February 5, 2019 the ASMFC approved New York’s proposal to adjust their 2019 recreational harvest management measures based on the high harvest limit and robust scup population. These management measures were approved by the Management Board and supported by the Technical Committee for Scup. These meetings are open to the public through online and telephone conference. The public, including small businesses and local governments, are invited to submit comments during the public comment period associated with this rule making.

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

Pursuant to the State Administrative Procedure Act (SAPA) § 202-b(1-a)(b), 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 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 would permit earlier access to the recreational scup fishery in comparison to the current start of the recreational fishery by expanding the season to year-round and will increase the scup possession limit for licensed party and charter boat anglers by 5 fish (from 45 to 50 fish) from September 1 through October 31. This rule is expected to have a positive impact on jobs by increasing opportunities to generate revenue for scup related businesses.

2. Categories and numbers affected:

In 2018, there were 515 licensed party and charter businesses, and a number of retail and wholesale marine bait and tackle shops operating in New York State. Data available from 2017 New York State Vessel Trip Reports shows that there were 2,547 party and charter trips that caught and kept scup. These statistics do not include federally permitted recreational vessels operating out of New York State. The National Oceanic and Atmospheric Administration’s (NOAA) Marine Recreational Information Program estimates that there were 1,078,023 recreational trips targeting scup in New York during 2018. NOAA’s 2014 report on The Economic Contribution of Marine Angler Expenditures on Durable Goods in the United States estimates that there were 693,000 total recreational anglers that year. The report estimates that 2014 recreational angler expenditures contributed 7,417 jobs to the state’s economy, and $567 million to the state’s gross domestic product.

3. Regions of adverse impact:

There are no anticipated adverse impacts.

4. Minimizing adverse impact:

There are no anticipated adverse impacts.

5. Self-employment opportunities:

Party and charter boat businesses, bait and tackle shops, and marinas are, for the most part, small businesses that are owned and often operated by a single owner. The recreational fishing industry is mostly self-employed. This rule will likely have a positive effect upon businesses related to the recreational harvest of scup by providing more opportunities to fish and increasing the amount of scup that can be kept on party and charter boat fishing trips in the fall. Failure to adopt this rule making will place New York businesses related to the recreational harvest of scup at a disadvantage to neighboring states and businesses that operate in federal waters.

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).