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Part 40 Summer Flounder and Scup RIS

Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 11-0303, 13-0105, 13-0340-b, and 13-0340-e authorize the Department of Environmental Conservation (DEC) to establish by regulation the open season, size, catch limits, possession and sale restrictions, and manner of taking for scup and summer flounder.

2. Legislative objectives:

It is the objective of the above-cited legislation that DEC manages marine fisheries to optimize resource use for recreational harvesters 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 is necessary for New York State to liberalize the recreational harvest of scup and summer flounder by the start of the 2018 recreational fishing season, and remain in compliance with the Atlantic States Marine Fisheries Commission (ASMFC). The new proposed regulations were developed in response to the ASMFC and Mid-Atlantic Fishery Management Council (MAFMC) increasing the recreational harvest limits for scup and summer flounder for 2018.This amendment proposes to address these increases to the recreational harvest limits for scup through changes to the size limit, and for summer flounder through a season extension and increase to the possession limit.
DEC is adopting these changes in order to protect the general welfare of New York state citizens by complying with the ASMFC, and maintaining the sustainability of an important recreational fishery. The proposed rules are more liberal than recreational regulations that were in place during the 2017 fishing season for both species. However, the emergency rule that was in place for summer flounder during 2017 was never permanently adopted because the season had ended by the time the emergency rule expired. Current summer flounder regulations are not in compliance with ASMFC requirements. If ASMFC determines that New York is non-compliant, it notifies the U.S. Secretary of Commerce. The Secretary could then promulgate and enforce a complete closure of New York's summer flounder fishery if they concur with the non-compliance determination.
Ultimately, the proposed amendment is a relaxation of regulations in place during the 2017 fishing season which should stimulate interest from the recreational fishing community, and could result in increases in revenue to recreational fishing industries in New York.

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 related 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:


7. Duplication:

The proposed amendment does not duplicate any state or federal requirement.

8. Alternatives:

New York State marine recreational fishers had an opportunity to comment upon these new recreational fishing measures for scup and summer flounder, including the measures proposed in this rule making, during the Marine Resource Advisory Council (MRAC) meeting on March 6, 2018. Alternative management measures, which included various combinations of possession limits, size limits, and seasons, were suggested and discussed. While some fishers questioned why measures couldn't be even less restrictive, support was in favor of the measures included in this rule making when compared to alternative liberalization options. The proposed regulations in this rule making were agreed to by consensus of the Marine Resource Advisory Council members on March 6, 2018.

"No action" alternative: if New York were to not adopt these proposed regulations in 2018, New York would be denied the potential benefits of increased recreational fishing opportunities. In addition, the emergency rule in place during 2017 for recreational summer flounder fishing has expired and current regulations are not in compliance with ASMFC requirements. An out of compliance determination by ASMFC could result in the complete closure of New York's summer flounder fishery.

9. Federal standards:

The amendments to Part 40 are in compliance with the ASMFC and MAFMC scup and summer flounder Fishery Management Plans.

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 must comply immediately and will be notified of the changes to the regulations through appropriate news releases, by mail, and through DEC's website.

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