Mr. Gordon Colvin of DEC provided the Council with background information on the proposed regulations for recreational harvest limits on fluke, scup and black sea bass. All three species are managed under a joint federal and state plan that establishes a process for setting annual harvest quotas. Each species’ quota is subdivided into commercial and recreational components according to formulas stated in the management plan. The commercial quota is managed on an annual basis, with any excess harvested in one year directly subtracted from the next year’s quota. Recreational harvests are managed with projections based on catches in the preceding year or years. If projected harvests exceed the quota, a combination of season closures, size limits and bag limits are imposed to reduce the catch. At Councilor Melton’s suggestion, information was to be presented on all three species before MRAC would vote on any of the measures.

Black Sea Bass

For black sea bass, the projection for 2001 was that the catch would exceed the quota by 38%. Consequently both the Atlantic States Marine Fisheries Commission (ASMFC) and the Mid-Atlantic Fishery Management Council (MAFMC) adopted a single set of regulations to be applied coast-wide: 11" minimum size limit, 25-fish possession bag limit, and a split open season of 10 May - 31 December and 1 January - 28 February. NMFS was expected to adopt these regulations immediately. Mr. John Mason of the DEC said that a new commercial size limit had been considered but was not being proposed at this time. The 2001 coastwide black sea bass commercial quota for 2001 would have been 3,024,742 lbs. The 2000 above-quota commercial harvest was 382,000 lbs., so the final 2001 commercial black sea bass quota is 2,642,000 lbs.

Scup

Options for recreational measures for scup in state waters in 2001 are based on ASMFC’s determination of the necessary reduction in recreational catches of this species. An examination of the last three years of scup recreational catches suggests that the quota has been exceed by 33% on a coastwide basis. The states must develop individual management measures to achieve a 33% reduction in catches in 2001. DEC is working on New York-specific open seasons but with coast-wide possession and minimum size limits. The MAFMC has made its recommendations for scup in federal waters, and NMFS has not yet formally adopted the final federal specifications, but is expected to do so shortly.

John Mason explained the various season, size limit, and bag limit combination options available to New York to achieve the necessary 33% reduction in recreational scup catches in 2001. Implementing the ASMFC-recommended 50-fish coastwide possession limit and 9" minimum size limit would achieve a 17.2% catch reduction; an additional 15.8% reduction would be needed through a season closure to achieve the 33% target. Even a substantial reduction in the scup recreational possession limit (e.g., to 30 fish) provided very little additional mortality reductions. Mr. Mason presented and the Council discussed tables specifying how much additional mortality reduction "credit" was achieved for each day of a closed season at different times of the year and the overall additional mortality reductions achieved by several alternative open seasons. He told the Council that the seasonal closure options had been discussed with representatives of the charter and party boat industry and, among that group, there had been a clear preference expressed for an option involving one minimum size limit in the first part of the open season and a larger minimum size limit later in the open season. A 9" minimum size through August 31 followed by a 10" minimum size to the end of the season was under consideration. Two open seasons were under consideration: 28 May - 11 November and 16 May - 28 October. Councilor Somma commented that a 9" size limit would mean shutting out the west end and all party boats. Mr. Mason said that there was insufficient information to allow calculation of the mortality reduction impacts of a 9.5" minimum size. Mr. Colvin noted that federal rules for scup in the Exclusive Economic Zone, applicable to all those who hold a federal scup permit, are 50 fish, 10", and 15 August – 31 October open season.

Mr. Wise polled the audience on its views of trading off a larger size limit and a longer open season against a smaller size limit and a shorter open season and the idea of a dual size limit that increased part-way through the season. Many of the charter and party boat captains in the audience preferred this last approach because it would allow running their boats longer. However, a number felt that finding 10" scup might be difficult, especially on the North Shore and in the South Shore bays. There was no unanimity among fishermen from the western and eastern parts of Long Island as to whether it was more important to open the season as early as possible or close it as late in the year as possible (none of the options allowed for both!). However, a majority preferred splitting the size limit and extending the season as long as possible.

Councilor McBride moved that MRAC recommend that the DEC propose the following regulations for the 2001 recreational scup fishery in state waters: 50-fish possession limit; open season of 28 May – 11 November; minimum size limit beginning at 9" and going to 10" on 01 September. Councilor Schwab said he would abstain from a vote on such a motion because he considered a 50-fish possession limit to be excessive. The Council adopted the motion by a vote of 9 in favor: 0 opposed; 2 abstentions.

Fluke

Mr. Colvin distributed information to the Council on 2001 Total Allowable Landings (TAL) and quotas for fluke, pointing out that the coastwide management picture for fluke was still very dynamic and unsettled; there was a great deal of new information. ASMFC and the MAFMC/NMFS have established different total coastwide fluke quotas for 2001. The federal quota was set at 17.91 million lbs. in order to comply with a court order, which resolved a federal lawsuit brought by environmental organizations. These organizations had successfully argued that the 1999 and 2000 fluke quotas were too large and had less than a 50% statistical probability of attaining the conservation goals of the fluke fishery management plan. Thus, their argument ran, these quotas were unlawful, allowed excessive harvests to fluke in those years, and 2001 fluke catches should be sufficiently limited to make up for these excessive harvests. The federal quota would allocate 7.16 million lbs. for the recreational fluke fishery and 10.75 million lbs. for the commercial fishery. The MAFMC recommended to NMFS the following 2001 recreational measures for fluke: 15.5" size limit; 3-fish possession limit; open season of 25 May - 04 September.

Mr. Colvin noted that ASMFC was not part of the above lawsuit nor its settlement, and the states were not bound by its terms. Through ASMFC, the states decided last fall to adopt a TAL for fluke in 2001 of 20.5 million lbs., which hit the 50% probability for achieving the target fishing mortality rate for 2001. However, this larger coastwide quota does not pay back the difference between where the 1999 and 2000 quotas were set and where they would have been set at 50% probability. This "payback" was in the federal court order and is the difference between the state and federal quotas. Under ASMFC’s TAL, the coastwide commercial fluke quota in 2001 would be 12.3 million lbs.; the recreational quota would be 8.2 million lbs. ASMFC will allow state conservation equivalency to achieve the reduction in 2001 recreational fluke catches. There is no single, coastwide set of minimum size, possession limit, and open season measures being proposed by ASMFC; each state is required to set its own measures based on its own recreational fluke harvest data from 1998-2000. New York’s projected 2001 landings were 32% higher than allowed, so New York’s 2001 regulations must produce a 32% reduction in the recreational harvest of fluke.

NMFS has informed the states that the environmental groups who won the lawsuit are insisting that NMFS do "anything within its legal power" to assure that the 17.91 million lbs. quota will not be exceeded in 2001, regardless of what ASMFC has proposed for 2001 recreational fluke management. If NMFS fails to employ all its legal options to achieve the 17.91 million lbs. quota, the environmental organizations will initiate contempt proceedings against the Secretary of Commerce. NMFS is considering three options to deal with this scenario. One option is to persuade the states/ASMFC to reduce their TAL to the federal 17.91 million lbs. Quota. This would raise New York’s required 2001 reduction in recreational fluke catches from 32% to 41%. A second option is to close the EEZ to all fluke fishing for the rest of 2001. Third, NMFS could pre-empt the states’ authority to manage fluke in the Territorial Sea (0-3 miles offshore). To further complicate matters, the North Carolina Fisheries Association, a group representing the commercial fishing industry in that state, has filed another lawsuit to force NMFS to adopt and enforce the 2001 quotas officially and immediately and to address the issue of recreational overages. This would forestall a complete EEZ closure to fluke fishing, which would apply to recreational and commercial fishermen alike.

Mr. Colvin stated that NMFS is expected to adopt final fluke regulations the week of 12 March 2001, and may close the EEZ unless ASMFC lowers its 2001 TAL for fluke to 17.9 million lbs. The ASMFC Fluke Board had not been willing to do this and wants to focus on long-term resolution of the issue through an expedited, facilitated consensus-forging process among all the parties with interest in fluke. The Fluke Board has recently determined that the original tables for state-by-state conservation equivalency erroneously allowed "credit" for regulations already in place. The ASMFC Fluke Technical Committee and ASMFC have revised the tables to remove such credit, but the tables are still preliminary and subject to change.

John Mason pointed out that the fluke minimum size/possession limit/open season tables were organized similarly to those previous reviewed for scup. He noted that, at a previous meeting with charter and party boat captains, the idea of a split open season incorporating a weeklong closure in late July was discussed but few supported it. Councilor Mason said that since losing a solid week mid-season would be very bad for the party boats, couldn’t just a single day a week be closed for seven consecutive weeks? Mr. Mason responded that any closure for less than a whole week would be ineffective and would not be approved by ASMFC. Mr. Colvin added that there was a limit to how many options DEC could/should generate for review, especially given that the tables they are working off are not yet final. He noted that the recreational fluke catch had greatly exceeded the quota for four years running. Last year the overage was almost double the quota. ASMFC will not favor tepid measures; these recreational fluke quota overages must be stopped. Councilor McBride, who owns and captains a charter boat, said that his industry’s position was that the fluke fishery was a public resource, which should be distributed equitably, which does not mean equally among all users. He suggested that DEC look at apportioning the required recreational fluke reductions based on the volume of fish caught by the different recreational fishing sectors: party/charter; private boat; shore/bank/; etc. Party and charter boats account for approximately 20% of New York’s recreational fluke fishery. Mr. Colvin responded that the Department had not approached the matter in this fashion and only a very strong recommendation from the Council would prompt DEC to consider it. Councilor McBride reiterated his concern that differentiation among modes in the regulatory measures would be equitable; a recreational private boat angler would need less fish than a party boat, and a party boat would need less than a commercial trawler in order to stay in business.

Mr. Wise requested to hear from the audience which measures they thought would work best. First, should a weeklong closure in mid-summer be part of New York’s approach? Only one individual spoke on behalf of such a measure. Several party and charter boat captains said that even a brief closure in mid-summer would be impossible for them. Mr. Colvin noted that Connecticut was looking at a 16.5" recreational minimum size limit for fluke; he would investigate how that would affect New York’s season. A 16.5" minimum size and 6-fish possession limit might produce around a 27% reduction; 15_" and 5-fish would yield 29%. The additional reduction required to reach the 32% target would have to come from shortening the season. There was a general view expressed that the open season should be kept as long as possible by manipulating possession limits and minimum sizes. A 5-fish possession limit and 16.5" minimum size were not considered unworkable. Mr. Wise said that the 6 fish at 17" or 4 fish at 16_" might avoid a closed season altogether.

Mr. Wise polled the audience but found no agreement on whether it was preferred to see the recreational fluke fishery season start earlier or end later. As in the scup discussion, fluke are available to different parts of Long Island at different times. Capt. Neil Delanoy said that the end of the season was most important for him, with the best fishing in September and October. Mr. Wise asked the party and charter boat representatives present what would be the reaction of their customers to a four fish, 16" size limit? Capt. Kevin Brazier responded that such restrictions would drive charter/party boat customers in western Long Island waters to New Jersey; he never saw 16" fluke in the waters he fishes. Councilor McBride suggested that DEC consider exempting party/charter boat customers from some or all aspects of the proposed recreational fluke regulations. Councilor Sullivan thought a special exemption might be discriminatory against other fluke anglers. Mr. Wise pointed out that the striped bass possession limit regulations set a precedent for differentiating between modes of recreational fishing. Mr. Schwab stated that there should be equal opportunity to access the resource.

Councilor McBride moved that the Council recommend that DEC arrive at a combination of measures that provided a fluke recreational possession limit of at least 4 fish and kept the season open as long as possible. Councilor Dearborn asked if the motion was intended to leave the minimum size determination up to DEC. Councilor McBride agreed that the DEC would have to determine the minimum size figure. Mr. Colvin suggested the Council might want to consider giving the Department guidance on the largest minimum size it should consider. Councilor Schwab seconded the motion, pointing out that a 4-fish possession limit and a minimum size of 16.5" together almost obtained the required 32% reduction, so the season would not have to be shortened by much over its present duration. Roughly approximating from the tables, John Mason said that at 4 fish and 16.5," the season could open around 12 May; if the closure were taken off the other end, the season would close on 24 or 25 September. He could also work both ends of the season. Mr. Wise pointed out that 4 fish at 16.5 almost eliminated the necessity of any season closure, but 4 fish at 16" would require making up 11% by substantially shortening the season. A slight majority of the audience favored a minimum size limit of 16.5" and the longer season. Mr. Wise repeated that the DEC could pursue a mix of measures with a bag limit of four fish that would preserve the current season as much as possible. Mr. Colvin stated that the only way to get back the first 12 days of May and the end of October would be to raise the size limit to 17". Most charter and party boat operators in attendance felt that a minimum size limit greater than 16.5" was too large. Councilor McBride agreed to amend his motion: recommend that DEC pursue a minimum possession limit of 4 fish, a minimum size limit no larger than 16.5", and an open season of the greatest duration possible within these two constraints. The amended motion passed 8 in favor: 3 opposed; 0 abstentions.

Councilor Sullivan asked what would happen if the ASMFC agreed to reduce its 2001 TAL for fluke to NMFS’ 17.91 million lbs. quota, changing New York’s target recreational fluke reduction from 32% to 41%? Mr. Colvin answered that then measures would have to be worked out to achieve it. He indicated that New York would promulgate the 2001 recreational regulations for black sea bass, scup, and fluke by emergency action in early April at the latest, as soon as ASMFC resolved the mortality reduction tables. Emergency action was necessary to meet the proposed open season start dates.