Home » 2011 Issues » April 06, 2011 » ENV-14-11-00011-P Transportation of Uncertified Bait Fish by Anglers, Sale of Bait Fish, Use of Bait Fish, and Fish Health Inspection Requirements
ENV-14-11-00011-P Transportation of Uncertified Bait Fish by Anglers, Sale of Bait Fish, Use of Bait Fish, and Fish Health Inspection Requirements
4/6/11 N.Y. St. Reg. ENV-14-11-00011-P
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 14
April 06, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-14-11-00011-P
Transportation of Uncertified Bait Fish by Anglers, Sale of Bait Fish, Use of Bait Fish, and Fish Health Inspection Requirements
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action:
Amendment of Parts 10, 19, 35 and 188 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 3-0301, 11-0303, 11-0305 and 11-0325
Subject:
Transportation of uncertified bait fish by anglers, sale of bait fish, use of bait fish, and fish health inspection requirements.
Purpose:
Provide some allowances for the transportation of uncertified bait fish by anglers, and adjust baitfish "green" list.
Text of proposed rule:
A new subparagraph 10.1(f)(iii) is added to Title 6 NYCRR Part 10 to read as follows:
(iii) bait fish taken for personal use from within the following overland transportation corridors may be transported overland within the designated overland transportation corridors only. Such baitfish must be used in the same water body from which the bait fish were taken.
(a) Upper Niagara River/Lake Erie Overland Transportation Corridor shall the portion of the water body as defined in 10.1(f)7(ii) west of and including a line starting at I-90 at the Pennsylvania border, then continuing east to its intersection with I-290, then continuing north along I-290 to its intersection with State Route 62, then continuing west to its intersection with I-190, then north to its intersection with the Lower Niagara River.
(b) Lower Niagara River/Lake Ontario/St. Lawrence River Overland Transportation Corridor shall include the portion of the water body as defined in 10.1(f)7(i) starting at the intersection of I-190 and the Lower Niagara River, then continuing eastward to its intersection with State Route 104, then continuing eastward to its intersection with State Route 3, then continuing east on State Route 3 to its intersection with State Route 104, then continuing eastward on State Route 104 to its intersection with State Route 11, then continuing north on State Route 11 to its intersection with State Route 56, then continuing north along State Route 56 to its intersection with State Route 37, then continuing east along State Route 37 to its intersection with Racquette Point Road, then continuing north on Racquette Point Road to its intersection with Ransom Road, and then continuing west on Ransom Road and terminating at the St. Lawrence River.
(c) Hudson River Overland Transportation Corridor shall include the portion of the water body as defined in 10.1(f)(7)(x) starting at the eastern shore of the Hudson River at the Federal Dam in Troy, continuing east on W Glenn Avenue in Troy to its intersection with State Route 4, then continuing south on State Route 4 to its intersection with State Routes 9 & 20, then continuing easterly to its intersection with State Route 9, then continuing east on State Route 82, then continuing east on State Route 82 to its intersection with the Taconic State Parkway, then continuing south on the Taconic State Parkway to its intersection with the Sprain Brook Parkway, then continuing south on the Sprain Brook Parkway to its intersection with I-287, then continuing west on I-287 across the Tappan Zee Bridge to I-87 North, then continuing north on I-87 to its intersection with State Route 7, and then continuing east on State Route 7 to its intersection with I-787, and then continuing north on I-787 to its intersection with Tibbets Avenue, and then continuing east on Tibbets Avenue to its intersection with Delaware Avenue, then proceeding in a straight line to the west edge of the Troy Dam.
New paragraph 19.2(a)(16) is added and reads as follows:
(16) Eastern silvery minnow (Hybognathus regius)
A new paragraph 35.3(a)(5) is added to read as follows:
(5) Overland Transportation Corridors shall mean those as defined in Part 10.1(f)
Subparagraph 35.3(f)(1)(i) is amended to read as follows:
(i) the name of the water body in which the bait fish [may] must be used; and
Subparagraph 35.3(f)(1)(ii) is amended to read as follows:
(ii) a warning to the purchaser that the fish may not be transported by car or other motorized vehicle except as specified in (iii) of this paragraph.
New subparagraph 35.3(f)(1)(iii) is added as follows:
(iii) receipts issued by sellers permitted pursuant to subdivision (c)(2) of this Part must specify the overland transportation corridor identified in their permit, and contain the warning that the bait fish may only be transported overland within that overland transportation corridor.
Paragraph 188.2(a) is amended to read as follows:
(a) All fish species. (1) A fish health certification report shall certify that the fish being placed into the waters of the State are free of:
(i) Viral Hemorrhagic Septicemia (VHS):
(ii) Spring Viremia of Carp Virus (Infectious carp dropsy);
[(2) Until January 1, 2009, a fish health certification report shall also certify the presence or absence of the following pathogens:]
[(3) Effective January 1, 2009, a fish health inspection report shall certify that the fish are free of the pathogens listed in paragraph (2) of this subdivision.]
Paragraph 188.2(b) is amended to read as follows:
(b) Additional fish health inspection requirements for Salmonidae.
(1) In addition to the requirements of subdivision (a) of this section, a fish health certification report for Salmonidae shall certify that the fish are free of:
(i) Myxobolus cerebralis (whirling disease);
(ii) Infectious Hematopoietic Necrosis Virus (IHN)[.];
[(2) Until January 1, 2009, a fish health certification report for Salmonidae shall also certify the presence or absence of Renibacterium salmoninarum (bacterial kidney disease).
(3) Effective January 1, 2009, a fish health certification report shall certify that the Salmonidae fish are free of Renibacterium salmoninarum (bacterial kidney disease).]
Paragraph 188.2(c) is amended to read as follows:
(c) [Effective January 1, 2009,] N[n]o fish shall be placed into the waters of the State unless a fish health certification report certifies that such fish are free of all pathogens identified in this section.
Text of proposed rule and any required statements and analyses may be obtained from:
Shaun Keeler, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8928, email: sxkeeler@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
A Programmatic Impact Statement pertaining to these actions is on file with the Department of Environmental Conservation.
This action was not under consideration at the time this agency's regulatory agenda was submitted.
Regulatory Impact Statement
1. Statutory authority:
Section 3-0301 of the Environmental Conservation Law (ECL) establishes the general functions, powers and duties of the Department of Environmental Conservation (department) and the Commissioner, including general authority to adopt regulations. Sections 11-0303 and 11-0305 of the ECL authorize the department to provide for the management and protection of the State's fisheries resources, taking into consideration ecological factors, public safety, and the safety and protection of private property. Section 11-1319 of the ECL governs possession of fish taken in the waters of the State.
The Commissioner of the Department of Environmental Conservation (Commissioner), pursuant to ECL sections 3-0301, 11-0303, and 11-0305, has authority to protect the fish and wildlife resources of New York State.
ECL section 11-0325 provides the department with authority to take action necessary to protect fish and wildlife from dangerous diseases. If the department determines that an epizootic disease which endangers the health and welfare of native fish populations exists in any area of the State, or is in imminent danger of developing or being introduced into the State, the department is authorized to adopt measures or regulations necessary to prevent the development, spread or introduction of such disease.
2. Legislative objectives:
The legislative objective of ECL sections 3-0301, 11-0303, and 11-0305 is to grant the Commissioner the powers necessary for the department to protect New York's natural resources, including fish resources, in accordance with the environmental policy of the State. Regulating the manner of taking fish including establishing limitations on the use of bait fish for angling are tools used by the department in achieving the legislation referenced above.
The legislative objective of ECL section 11-0325 is to provide the department with broad authority to respond to the presence or threat of a disease that endangers the health or welfare of fish or wildlife populations.
3. Needs and benefits:
Changes to the "fish health-bait fish" and "sportfishing' regulations including those pertaining to the use of bait fish are intended to provide for optimum angler opportunities consistent with resource conservation and protection. This includes safeguarding against the spread of fish pathogens to uninfected waters by the use of bait fish as part of angling.
The emergence of viral hemorrhagic septicemia (VHS), a serious pathogen of fish, as a disease in New York waters starting in May of 2006, led the department to put in place regulations (an emergency rule making in November of 2006 followed by an adoption rule making in November of 2007) protecting against the spread of the VHS virus as well as additional fish pathogens to uninfected waters, including resulting from the movement of bait fish between water bodies. These regulations included prohibitions on the overland (motorized) transport of uncertified bait fish as a measure towards obtaining compliance with the requirement of using uncertified bait fish only on the same water body from which it was collected.
Since the inception of these regulations, the overland (motorized) transport prohibition has received much objection by anglers, particularly in areas where the use of personally collected bait fish has historically been a prominent part of angling. In the summer of 2010, the department sought public input on this issue including conducting three public meetings. Utilizing the feedback obtained, the department is now proposing providing for the overland (motorized) transport of bait fish by anglers, within specific defined transportation corridors, provided the movement of these bait fish to other water bodies can be protected against (note that any commercial sale of uncertified bait fish is still subject to permit by the department). The three corridors outlined in the proposed rule-making provide opportunity for the overland (motorized) transport of uncertified bait fish by anglers, to accommodate the movement of bait fish for use at different locations on the same water body within these corridors.
4. Costs:
Enactment of the regulation modifications described herein will not result in increased expenditures by the State, local government, or the general public. It will potentially reduce costs of fishing for some anglers as it will provide the opportunity to collect, possess and transport (overland), by motorized vehicle, personally collected baitfish for use on the same body of water, within some specific defined transport corridors. This will result in the opportunity for anglers to replace previously commercially purchased certified baitfish with those that are personally collected and can now be transported (reverting to conditions that existed prior to November, 2006 for some areas of the State).
As far as licensed bait fish sellers, in some areas of the State some bait fish dealers selling certified bait fish may have reduced sales as a result of anglers now being able to transport bait fish (uncertified) that they've collected themselves. On the other hand, some licensed bait fish sellers may benefit, as within the defined corridors, anglers will also now have the opportunity to overland transport uncertified bait fish purchased from commercial bait fish sellers (provided that the bait fish seller is permitted by the department to sell uncertified bait).
5. Local government mandates:
The proposed rule does not impose any mandates on local government.
6. Paperwork:
No additional paperwork will be required as a result of these proposed changes in regulations.
7. Duplication:
The proposed amendment does not duplicate any State or Federal requirement.
8. Alternatives:
There are two principle alternatives that have been identified: a "No Action" alternative and the alternative of "eliminating the current overland (motorized) transport prohibition statewide". The "No Action" alternative would preclude providing for the overland (motorized) transport of uncertified bait fish, including wild bait fish collected by anglers, within a defined area, for use on the same water body. The alternative eliminating the overland (motorized) transport restriction, statewide, is much wider in scope than establishing defined transportation corridors as defined in this rule making. Total elimination of the current restriction would provide less capability to guard against the movement of uncertified bait fish between water bodies. A more restricted approach, such as the proposed, is needed to safeguard against the spread of fish pathogens compromising the health of New York's freshwater fish populations and causing significant economic impacts to the commercial and recreational activities associated with the State's freshwater fish populations.
9. Federal standards:
The United States Department of Agriculture-Animal and Plant Health Inspection Service (USDA-APHIS) issued a Federal order (October 24, 2006) that prohibits the importation of certain species of live fish from Ontario and Quebec and interstate movement of the same fish species from eight states bordering the Great Lakes. This prohibition remains unaffected by the change of being more permission in the intrastate overland (motorized) transport of uncertified baitfish.
10. Compliance schedule:
Immediate compliance will be required.
Regulatory Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) regulations pertaining to the use of bait fish and fish health. Restricting the use of uncertified bait fish to the same body of water from which collected is a principle means towards preventing the spread of viral hemorrhagic septicemia (VHS) and other pathogens to additional water bodies, and "fish health-bait fish regulations" were put in place in 2006 and 2007 for this. The current regulations contain a prohibition on the overland (motorized) transport of uncertified bait fish. Since the inception of the regulations the overland (motorized) transport prohibition on personally collected bait fish has received much objection from anglers, particularly in areas where the use of personally collected bait fish is a prominent part of angling. As part of this objection, many anglers point out that there is little risk for overland transport as long as the bait fish are used on the same water body from which they are collected. The proposed rule making addresses this by providing for the overland (motorized) transport of personally collected bait fish by anglers, as well as for the angler transport of commercially purchased (uncertified) bait fish within defined transportation corridors [any commercial sale of uncertified bait fish remains subject to permit from the department].
The department has determined that the proposed regulations will not impose an adverse impact or any new or additional reporting, recordkeeping or other compliance requirements on small businesses or local governments. Receipt issuing requirements for the sale of bait fish remain in place as previously established. Since small businesses and local governments have no management or compliance role in the regulation of sport fisheries including the use of bait fish as a part of angling, there is no impact upon these entities. Small businesses may, and town or village clerks do issue fishing and sportsman licenses. However, the department's rule making proposal does not change this process.
Based on the above, the department has determined that a regulatory flexibility analysis is not required.
Rural Area Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) regulations pertaining to the use of bait fish and fish health. Restricting the use of uncertified bait fish to the same body of water from which collected is a principle means towards preventing the spread of viral hemorrhagic septicemia (VHS) and other pathogens to additional water bodies, and "fish health-bait fish regulations" were put in place in 2006 and 2007 for this. The current regulations contain a prohibition on the overland (motorized) transport of uncertified bait fish. Since the inception of the regulations the overland (motorized) transport prohibition on personally collected bait fish has received much objection from anglers, particularly in areas where the use of personally collected bait fish is a prominent part of angling. As part of this objection, many anglers point out that there is little risk for overland (motorized) transport as long as the bait fish are used on the same water body from which they are collected. The proposed rule making addresses this by providing for the overland (motorized) transport of personally collected bait fish by anglers, as well as the angler transport of commercially purchased (uncertified) bait fish, within defined transportation corridors [any commercial sale of uncertified bait fish remains subject to permit from the department].
The department has determined that the proposed regulations will not impose an adverse impact or any new or additional reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. Receipt issuing requirements for the sale of bait fish remain in place as previously established. All reporting or recordkeeping requirements associated with sportfishing are administered by the department. The proposed regulations are not anticipated to negatively change the number of participants or the frequency of participation in regulated activities. To the contrary, the allowances being made for the overland (motorized) transport of uncertified bait fish by anglers may enhance freshwater fishing participation in the defined areas of the State where this is being provided for.
Small businesses may, and town or village clerks do issue fishing and sportsman licenses. However, the department's rule making proposal does not change this process.
Since the department's proposed rule making will not impose an adverse impact on public or private entities in rural areas and will have no effect on current reporting, recordkeeping, or other compliance requirements, the department has concluded that a rural area flexibility analysis is not required for this regulatory proposal.
Job Impact Statement
The Department of Environmental Conservation (department) has determined that this proposed rule making will not have a substantial adverse impact on jobs and employment opportunities. Providing for the overland (motorized) transport of bait fish by anglers within limited defined travel corridors, for the purposes of accommodating angling practices on specific water bodies, will have limited impact on jobs and employment opportunities. Therefore, the department has determined that a job impact statement is not required.
Commercial baitfish dealers currently selling certified bait fish may be affected by this rule making as anglers will once again be allowed to transport personally collected bait fish overland in a few defined areas of the state (i.e. within specifically defined transportation corridors).
Rule makings in 2006 and 2007 established a statewide ban on the overland (motorized) transport of uncertified bait fish by anglers. This was established as part of protecting New York's freshwater fish species and their populations from (viral hemorrhagic septicemia (VHS) by preventing the spread of this virus to additional waters. While the ability for anglers to personally collect their own baitfish would now be provided for, it will still be restricted (e.g. uncertified personally collected baitfish can only be used on the same water body from which collected). Commercial sales of (certified) baitfish, serving anglers fishing these waters of the State since 2006/2007 could partially be replaced by personally collected bait fish, thus affecting bait fish sale levels that might have become elevated by the statewide ban put on the overland (motorized) transport of uncertified bait fish four years ago.
Some of licensed commercial bait fish dealers may benefit as the rule making also includes a provision for anglers to now transport uncertified baitfish (overland) that is commercially purchased from a bait fish dealer. This is conditioned by the requirement that the commercial baitfish dealer be permitted by the Department to sell uncertified baitfish within one of defined transportation corridors (and with the bait fish only for use on the same body from which obtained).
In addition, there are several other factors that buffer potential fiscal impacts to the State's licensed bait fish dealers. Only a portion of anglers collect their own bait fish, and some of those that do still purchase bait fish as well. Secondly, the regulation is not statewide in scope, and many of the state's commercial bait fish sellers (approximately 400 statewide) will be largely unaffected. In addition, a portion of the licensed commercial baitfish operators sell bait as just one component of their business (e.g. in conjunction with selling fishing tackle, fishing clothing, operating a marina), and would therefore remain very viable even without the sale of bait fish.
The department has determined that this proposed rule making will not have a substantial adverse impact on jobs and employment opportunities. While it is difficult to determine exactly if and how many jobs may be affected by this rule making, based on the above, the department believes that it will be very few and will not result in the decrease of more than one hundred jobs (or the equivalent). Therefore, the department has determined that a job impact statement is not required.
