Part 40, Section 1 - Marine Fish - Open Seasons, Size and Catch Limits (Tautog) - Regulatory Impact Statement

Regulatory Impact Statement

1. Statutory Authority:

Environmental Conservation Law (ECL) Sections 3-0301, 13-0105 and 13-0340-d authorize the Department of Environmental Conservation (DEC or Department) to establish, by regulation, the open season, size and catch limits, possession and sale restrictions, and manner of taking for tautog.

2. Legislative Objectives:

It is the objective of the above-cited legislation that DEC manage marine fisheries to optimize resource use for commercial and recreational harvesters, consistent with marine fisheries conservation and management policies and interstate Fishery Management Plans (FMPs) .

3. Needs and Benefits:

The Department is adopting amendments to 6 NYCRR Part 40 which will implement a reduction in the possession limit and shortening of the recreational tautog season. These regulations are necessary in order for New York to maintain compliance with the FMP for Tautog as adopted by the Atlantic States Marine Fisheries Commission (ASMFC).

Pursuant to §13-0371 of the ECL, New York State is a party to the Atlantic States Marine Fisheries Compact which established the Atlantic States Marine Fisheries Commission. The Commission facilitates cooperative management of marine and anadromous fish species among the fifteen member states. The principal mechanism for implementation of cooperative management of migratory fish are ASMFC's Interstate Fishery Management Plans 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.

Under the provisions of the Atlantic Coastal Fisheries Cooperative Management Act (ACFCMA), ASMFC determines if states have implemented, in a timely manner, provisions of FMPs with which they are required to comply. If ASMFC determines that a state is non-compliant with an FMP, it so notifies the U.S. Secretary of Commerce. If the Secretary concurs in the non-compliance determination, the Secretary promulgates and enforces a complete prohibition on all fishing for the subject species in the waters of the non-compliant state until the state comes into compliance with the FMP.

In addition to federal requirements, Environmental Conservation Law Section 13-0340-d, which authorizes the Department to adopt regulations for the management of tautog, provides that such regulations must be consistent with the fishery management plans for tautog adopted by ASMFC and with applicable provisions of fishery management plans adopted pursuant to the Federal Fishery Conservation and Management Act.

Addendums IV and V to the Fishery Management Plan (FMP) for Tautog require that New York implement measures which will achieve a reduction in the harvest of tautog for 2008 equivalent to a 25.6% reduction in total landings, relative to the base year. (The base year is calculated by using an average of the tautog landings in 2003, 2004 and 2005.) In order to accomplish this reduction, the Department is: 1) lowering the current recreational possession limit from ten (10) fish to four (4) fish; and 2) shortening the open season, which currently runs from October 1st through May 30th, to a two-part season running from October 1st through December 20th and from January 17th through April 30th.

Failure by New York to adopt these amendments could result in a determination of non-compliance by ASMFC and the Secretary of Commerce and the imposition of a tautog fishery closure - a complete ban on fishing for tautog in New York. The promulgation of this regulation on an emergency basis is necessary in order for the Department to meet compliance deadlines and avoid closure of the tautog fishery and the economic hardship that would be associated with such closure.

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.

Certain regulated parties (party/charter vessels, bait and tackle shops) may experience some adverse economic effects due to the loss of several days in the fishing season. Some charter operations may have already booked fishing trips for tautog in the time frame affected by the season closure. Some bait and tackle shops may have ordered and purchased bait, and bait dealers may have done the same. There may be some economic loss to these businesses. It is also possible that the reduction of the bag limit from 10 to 4 may result in fewer angler trips for tautog, which has the potential to negatively affect the number of angler trips taken aboard party and charter boats.

(d) Costs to the regulating agency for implementation and continued administration of the rule:

The Department of Environmental Conservation 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:

The following significant alternatives have been considered by the Department and rejected for the reasons set forth below:

(1) Reduce exploitation in the commercial fishery at the same rate as the recreational fishery. Addendum IV to the tautog FMP specified that reductions taken in the fishery in order to meet the fishing mortality target must come solely from the recreational sector, but Addendum V changed that to allow states to take reductions in the commercial fishery as well. If New York had chosen this option, the measures imposed on the recreational fishery could have been somewhat less restrictive, as the total reduction in exploitation was spread over both the recreational and commercial fisheries. However, the commercial fishery in New York is currently capped at a 25-fish possession limit, resulting in reported annual landings of 60,000 pounds or less. These landings constitute about 10-12% of the combined recreational and commercial landings. Department staff believe that this level of exploitation is consistent with a sustainable fishery and does not see the need for a reduction in the commercial fishery at this time.

(2) Alternative season closures and bag limit. The Marine Resources Advisory Council (MRAC) provided a recommendation for an open season of October 16^th through April 30^th and a bag limit of 5 fish, with no reduction in the commercial fishery. The Department is concerned that moving the season opening further into the fall favors the party and charter fishing modes over the private and rental boat and shore fishing modes. The Department would like to maintain the October 1 opening date to avoid this situation. In addition, the 5-fish bag limit was recommended by MRAC because the party and charter industry believe that a lower limit will discourage participation. The Department disagrees, and the 4-fish limit will match that of Connecticut, a state with which New York shares the waters of Long Island Sound.

(3) No Action (no amendment to regulations).

The "no action" alternative would leave current regulations in place and put New York in a position to exceed the fishing mortality target and over-harvest the resource. This result would be contrary to the objectives of the FMP and subject New York to the potential for a determination of non-compliance and a federally imposed closure of the fishery for tautog in New York. For these reasons, this alternative was rejected.

9. Federal Standards:

The amendments to Part 40 are in compliance with the ASMFC fishery management plan for tautog.

10. Compliance Schedule:

The emergency regulations will take effect immediately upon filing with the Department of State. Regulated parties will be notified of the changes to the regulations by mail, through appropriate news releases and via the Department's website.