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

Regulatory Impact Statement

1. Statutory authority:

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

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.

3. Needs and benefits:

These regulations are necessary in order for New York to maintain compliance with the Fishery Management Plan (FMP) for Summer Flounder, and Scup as adopted by the Atlantic States Marine Fisheries Commission (ASMFC).

Pursuant to section 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 (ASMFC). 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 the ASMFC's Interstate Fishery Management Plans for individual species or groups of fish. The Fisheries Management Plans (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 a state to be in non-compliance 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.

ECL sections 13-0105, 13-0340-b and 13-0340-e, which authorize the adoption of regulations for the management of summer flounder and scup, provide that such regulations must be consistent with the FMPs for these species adopted by the Atlantic States Marine Fisheries Commission and with applicable provisions of fishery management plans adopted pursuant to the Federal Atlantic Coast Fishery Conservation and Management Act.

Under the FMP for summer flounder, ASMFC assigns each state an annual harvest target or quota. In addition, a projection is made for each state as to its expected harvest if the state's regulations remained unchanged and harvest patterns and rates remained the same as the previous year. ASMFC reviews each state's regulations and determines if they are compliant with the FMP. If the projected harvest for a state exceeds that state's assigned quota, the state is required to amend its harvest regulations so that they are sufficiently restrictive to prevent the state from exceeding its assigned quota. Failure by a state to adopt, in a timely manner, revised regulations may result in a determination of non-compliance by ASMFC and the Secretary of Commerce, and the imposition of a total closure of fishing for summer flounder in that state, which could result in significant adverse impacts to the state's economy.

New York's assigned recreational harvest limit for 2008 is 360,000 fish. Under current regulations, New York's projected recreational harvest of summer flounder in 2008 would exceed the state's assigned quota by 46 percent. The promulgation of this regulation on an emergency basis is necessary in order for the Department to maintain compliance with the FMP for summer flounder and to avoid closure of the summer flounder fisheries and the economic hardship that would be associated with such closure. The regulatory changes in this emergency rule are calculated, and have been approved by ASMFC, to achieve a harvest reduction of approximately 64 percent for summer flounder and to therefore achieve compliance with the FMP.

For the past three years, the states from New York to Massachusetts, which collectively take 97 percent of the recreational scup harvest on the coast, have agreed to a regional management approach whereby the four states adopt identical minimum length, possession limits and open seasons of the same duration (dates vary by state). In 2008, the region is required to achieve a 53 percent reduction in harvest in order to meet the requirements of the FMP for scup. Anglers and representatives from the marine fisheries agencies of each of the four states met in January and agreed to adopt regulations designed to achieve the required reductions.

Specific major changes to the regulations include the following:

1. Summer Flounder (Fluke):

a) Implement an open season for the summer flounder recreational fishery of May 15 through September 1. (The current fishing season for summer flounder is closed.)

b) Implement a minimum size limit 20.5 inches Total Length.

c) Implement a possession limit of four fish.

2. Scup (porgy):

a) Change the open season for the scup recreational fishery from June 1 through October 31 to May 24 through September 26;

b) Change the open season for the scup party/charter boat sector from June 1 through October 31 to June 12 through October 15;

c) Raise the size limit for anglers fishing aboard party and charter vessels from 10.5 inches Total Length to 11 inches Total Length;

d) Lower the possession limit from 25 fish per angler to 10 fish per angler, except that anglers fishing aboard party and charter vessels during the 45-day "bonus season," which runs from September 1 through October 15, may possess up to 45 fish per angler.

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.

There are no new costs to regulated parties resulting from this action. Certain regulated parties (party/charter vessels, bait and tackle shops) may experience some adverse economic effects through lost economic opportunities due to the increased size-limit restrictions on summer flounder and smaller bag limit for scup.

(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:

Summer Flounder.

1. One alternative considered was to keep the summer flounder size limit at 19.5 inches TL with a 2 or 3 fish possession limit. This would avoid aggravating the asymmetrical socio-economic impacts on the fishery, whereby higher size limits discriminate against shore-based anglers and those boating anglers who are restricted to fishing inside the bays where large fish are harder to find. The needed reduction in harvest would have to have come from shortening the season from the proposed 109 days to approximately 30 days. This alternative seems to provide the greater likelihood of achieving our management objectives for the stock. However, the potential economic consequences of such a limited season for one of the most important recreational fisheries in New York are believed to be particularly damaging to the industry, resulting in significant economic loss to bait and tackle shops, party and charter boat businesses and the supporting local economy. In addition, the closure of a significant portion of the summer flounder fishing season would shift fishing effort onto other species, the local populations of which may not respond positively to an increase in fishing effort. This analysis resulted in a rejection of this alternative.

2. Another alternative considered and rejected was to raise the summer flounder size limit to 20 inches total length with a 2 fish possession limit and a two-month fishing season. Again, the potential large economic impacts and shift of effort resulting from shortening the season were the reason this alternative was rejected.

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

The "no action" alternative would leave current summer flounder regulations in place (closure) and forfeit any socio-economic benefits to the fishery. This option would, however, be a significant step toward achieving our management objectives for the stock. Because of the much more severe economic impact from leaving the fishery closed as opposed to opening it under tighter restrictions, therefore, this option was rejected.

Scup.

1. An alternative considered and rejected was for New York to separate from the four-state region that has been in place for the last three years and manage its own harvest limit with measures specific only to New York. This strategy was rejected because it is the one currently used for summer flounder management, which is statistically flawed, and would potentially engender more severe restrictions than those under the regional approach. New York benefits from managing its scup fishery as part of a region, and would benefit if the same approach were applied to the summer flounder recreational fishery.

2. No Action (no amendment to scup regulations).

The "no action" alternative would leave current scup regulations in place and defer short-term adverse socio-economic impacts to the fishery. This option would, however, impede the Department's ability to achieve its management objectives for the stock and likely result in a Federal non-compliance determination, which would bring about a closure of all fishing for scup in New York under ACFCMA. This would have a much more severe economic impact than the imposition of tighter restrictions, therefore, this option was rejected.

9. Federal Standards:

The amendments to Part 40 are in compliance with the ASMFC and Regional Fishery Management Council FMPs.

10. Compliance Schedule:

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