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Part 40 - Summer Flounder - Regulatory Impact Statement

1. Statutory authority:

Environmental Conservation Law (ECL) sections 3-0301, 13-0105, and 13-0340-b 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 summer flounder.

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:

This rulemaking is necessary for New York to remain in compliance with the Atlantic States Marine Fisheries Commission's (ASMFC) approved option in Addendum XXVII to the Summer Flounder Fishery Management Plan (FMP). The National Marine Fisheries Service (NMFS) has set the 2017 coast-wide recreational harvest limit (RHL) for summer flounder thirty percent lower than it was in 2016 in response to declining stock biomass. This rulemaking will make New York State's recreational regulations for summer flounder more restrictive to reduce harvest in response to the decrease in RHL.
DEC is adopting these changes by emergency rulemaking in order to protect the general welfare. The regulations currently in place for recreational harvest of summer flounder were developed for prior fishing years, and are not restrictive enough for the current fishing year. Current summer flounder regulations do not satisfy the latest reduction mandated by the ASMFC, and leaving them unchanged would likely result in the over-harvest of summer flounder by New York anglers. Falling out of compliance with the ASMFC requirements could result in federal sanctions and closure of the summer flounder fishery.
The normal rulemaking process would not be completed in time to have these changes in place for the season opening on May 17. Emergency rulemaking is necessary to have these provisions in place by May 17 in order to avoid over-harvest of summer flounder by New York 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:


7. Duplication:

The amendment does not duplicate any state or federal requirement.

8. Alternatives:

New York State marine recreational anglers had an opportunity to comment upon the ASMFC Addendum XXVII draft, including the measures proposed in this rulemaking, during the ASMFC's public comment period from December 22, 2016 through January 19, 2017. New York's anglers also had the opportunity to attend a public hearing on the Addendum at the Division of Marine Resources office in East Setauket on January 9, 2017. While some anglers questioned the need to reduce harvest at all, support was overwhelmingly in favor of the measures included in this rule making when compared to alternative reduction options.
"No action" alternative: If New York were to not adopt regulations that reduced recreational summer flounder harvest in 2017, 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 in this rulemaking are in compliance with the ASMFC and the Mid-Atlantic Fishery Management Council fishery management plan for summer flounder.

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.

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