Home » 2011 Issues » June 29, 2011 » ENV-14-11-00011-A Transportation of Uncertified Bait Fish by Anglers, Sale of Bait Fish, Use of Bait Fish and Fish Health Inspection Requirements
ENV-14-11-00011-A Transportation of Uncertified Bait Fish by Anglers, Sale of Bait Fish, Use of Bait Fish and Fish Health Inspection Requirements
6/29/11 N.Y. St. Reg. ENV-14-11-00011-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 26
June 29, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-14-11-00011-A
Filing No. 517
Filing Date. Jun. 14, 2011
Effective Date. Jun. 29, 2011
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 action:
Action taken:
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 bait fish "green" list.
Text of final rule:
Part 10 of Title 6 of NYCRR is amended as follows:
A new subparagraph 10.1(f)(3)(iii) is added to Title 6 NYCRR Part 10 to read as follows:
(iii) bait fish taken for personal use from the defined water body adjacent to or a water body within the following overland transportation corridors may be transported overland only within that designated overland transportation corridor. Such bait fish must be used in the same water body, as defined in 10.1(f)(6) and 10.1(f)(7), from which the bait fish were taken.
(a) Upper Niagara River/Lake Erie Overland Transportation Corridor shall mean the geographical area associated with 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 mean the geographical area associated with 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 mean the geographical area associated with 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 where State Route 9W crosses I-87 in Greene County, then continuing north on State Route 9W to where State Route 9W crosses I-87 in Albany County, then continuing north on I-87 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.
Part 19 of Title 6 of NYCRR is amended as follows:
New paragraph 19.2(a)(16) is added and reads as follows:
(16) Eastern silvery minnow (Hybognathus regius)
Part 35 of Title 6 of NYCRR is amended as follows:
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.
Part 188 of Title 6 of NYCRR is amended to read as follows:
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.
Final rule as compared with last published rule:
Nonsubstantive changes were made in Part 10.
Text of rule and any required statements and analyses may be obtained from:
Shaun Keeler, Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8928, email: sxkeeler@gw.dec.state.ny.us
Additional matter required by statute:
A programmatic impact statement is on file with the Department of Environmental Conservation.
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not needed, as the original Regulatory Impact Statement, as published in the Notice of Proposed Rule Making, remains valid. It does not need to be amended.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis for small businesses and local governments Statement is not needed. The original Regulatory Flexibility Analysis for small businesses and local governments Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not needed. The original Rural Area Flexibility Analysis Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Revised Job Impact Statement
A revised Job Impact Statement is not needed. The original Job Impact Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Assessment of Public Comment
The following is a summary of the comments were received by the department during the public comment period associated with the revised rule making, and the department's responses.
Comments: Comments were received indicating that revising the laws/regulations to allow for transportation corridors is a step backwards in protecting all New York waters from invasive species, as a result of bait fish and the waters where they are transported being vectors and facilitating the spread of aquatic invasive species (AIS) from infected to uninfected waters. Comments were received expressing concern over uncertified bait fish reaching waters outside the corridors including reaching waters of the Adirondacks.
Response: The movement of bait fish not certified as being disease free (of the pathogens currently contained in regulation) between water bodies will still be prohibited. With compliance, this should not increase the risk for spreading AIS species into uninfected water bodies in other regions of the state. The Department will utilize education and outreach tools for achieving compliance, as well as partnering with the angling community in emphasizing the dangers of moving uncertified bait fish from one water body to another.
Comments: Comments were received indicating that the current regulations are effective and should not be changed.
Response: The strict prohibition on the overland (motorized) transport of uncertified bait fish by anglers (current regulation) was put into effect to ensure that the use of uncertified bait fish was limited to the same body of water from which it was collected. The department recognizes the personal collection of bait fish as a part of angling, which is highlighted on some specific waters where it is a very common practice. The department supports this practice on waters for which it is legally provided for and conducted in conformance with restrictions safeguarding against the spread of fish pathogens. Allowing transport within defined corridors will still contain the movement of bait fish, including retaining the requirement that uncertified bait fish only be used in the same body of water from which collected. With compliance, this should not increase the risk of the spread of Viral Hemorrhagic Septicemia (VHS) and other fish pathogens into uninfected water bodies.
Comments: Comments were received stating that the allowance for the overland transport of bait fish within the three corridors was unenforceable.
Response: The proposed modifications will still retain a strong enforceability component in that the transport of uncertified bait fish will be illegal outside of the identified transportation corridors (with the exception of the Marine District). The department's Division of Law Enforcement will monitor the use of bait fish including any abuse of the movement of uncertified bait fish outside of the defined corridors. Future regulatory action will be considered to address any problems that emerge. In addition, the department will utilize education and outreach tools for achieving compliance, as well as partnering with the angling community in emphasizing the dangers of moving uncertified bait fish from one water body to another.
Comments: Comments were received indicating that sale of uncertified bait fish should be restricted, including limited to just wholesalers who sell to bait shops only, as well as prohibiting all commercial netting of bait fish.
Response: The department does not support limiting the sale of uncertified bait fish to just wholesalers. Retailers can also be monitored. With requirements in place, at both the federal and state level, the department does not support prohibiting the collection of bait fish for commercial sale purposes, for either in-state or out-of-state sale. Commercial collection and sale are governed by established laws and regulations.
Comments: Comments were received pertaining to the boundaries of the corridors including that they provide for possession of uncertified bait fish at home by some, but not others.
Response: The primary purpose for establishing the corridors is to provide for transport of bait fish by anglers to assist anglers in using bait fish on three principal water bodies where the use of bait fish is a prominent part of angling, and where the movement (overland transport) of uncertified bait fish for fishing those individual bodies of water is not a risk of spreading fish diseases to other waters of the state. Providing for the home possession of uncertified bait fish was not a primary intent of the regulation changes. To the fullest extent possible, major roadways were used in establishing boundaries for the transportation corridors, to both facilitate monitoring compliance and to avoid complexity. In some instances secondary roads needed to be used, particularly within some cities and villages. While home possession of uncertified bait fish in the rest of the state is largely prohibited (as is overland transport) possession is being allowed for within the corridors, as part of providing for the use of uncertified bait fish in these defined areas (use restricted to the same body from which collected). Regardless of where the boundaries are drawn, there will always be anglers outside of the corridor. This is unavoidable and boundaries were finalized from the combination of factors described above. One modification has been made to the western boundary of the Hudson River Overland Transportation Corridor, where another major road (i.e. State Route 9W) is available and can be used to provide more travel flexibility and travel options for anglers fishing the Hudson River. As a result of this, some additional residents in the communities of Ravena and Selkirk will be included inside the corridor.
Comments: Suggestions were made for other corridors, many of which are larger in scope than the single "water bodies" as currently defined in the regulation, such as combining the Great Lakes and using a watershed approach.
Response: While the proposed modifications provide for some overland (motorized) transport of uncertified bait fish, anglers are still required to use bait fish only on the same water body from which they were collected. As part of establishing this requirement earlier, some larger combination "water bodies" that are obvious as far as being a shared water (e.g. Upper Niagara River and Lake Erie) were defined. Natural and manmade restrictions to fish passage are used to define individual water bodies, and individual water bodies include all tributaries upstream to the first impassable barrier. Natural and manmade restrictions to fish passage were also used in defining the larger combination water bodies (e.g. Niagara Falls was used). Using the previously defined "water body", including defining the larger combination water bodies, continues to be important as a basis for restricting the use of uncertified bait fish to the same water body from which collected. The combination suggested could increase the risk of VHS and other pathogens moving between the two water bodies.
Comments: Providing overland transport on the other waters of the State (conditioned by that the personally collected bait fish are only used on the same body of water from which they were collected) was suggested, including for the Ausable River and Lake Champlain. Providing for more overland transport in St. Lawrence County was suggested, as well as dropping the overland transport prohibition all together (i.e. statewide).
Response: The Department continues to acknowledge the need to safeguard against the spread of fish diseases into uninfected waters and to limit the allowance of overland transport of bait fish to a few select areas. The transportation corridors are intended to help serve angler needs in using bait fish on three principal water bodies where the use of bait fish is a prominent part of angling, and where the movement (overland transport) of uncertified bait fish for fishing those individual bodies of water is not a risk of spreading fish diseases to other waters of the state. The department will monitor activity and conduct further evaluation for determining if a broader application (of removing the overland transport requirement) if reasonable or if it needs to be reestablished for the three defined corridors.
Comments: Comments were received stating that it makes more sense to implement these regulations where fish kills have been located, not in areas where no issues have been identified, and that transportation of bait fish should be allowed in areas that don't have disease (e.g. Susquehanna River, Delaware watershed). It was also suggested that the State be divided up into certified and non-certified areas.
Response: Regardless of location and where fish kills have evolved and not evolved, the use of bait fish (uncertified) is restricted to being used only on the same body of water from which collected. As far as areas of the state where fish kills have not occurred, if the fish have not been tested then the disease status for a particular water is unknown. Introducing fish into the waters of the State with an unknown disease status presents an unacceptable risk.
Comments: A comment was received suggesting a change to the northern section of the proposed Upper Niagara River/Lake Erie Overland Transportation Corridor (i.e. where it meets the Lower Niagara River), and that the proposed location does not make sense since there is no access to the Lower River there, and that the corridor should be extended to the Lewiston Town Boat launch since this is the first location in the Lower Niagara River where a boat can be launched. This would also allow shore anglers to use bait caught in the Upper River at the fishing access locations at Artpark.
Response: It is important to safeguard against the movement of uncertified bait fish between water bodies including between the Upper Niagara River and the Lower Niagara River (note that the Lake Erie -Upper Niagara River is currently defined as one water body in regulation and the Lower Niagara River-Lake Ontario-St. Lawrence River is defined as a separate water body). Since use of bait fish from the Upper Niagara River is prohibited in the Lower Niagara River, accommodating access onto the Lower Niagara River in defining a transportation corridor for the purpose of accommodating the use of bait fish for only within the Lake Erie-Upper Niagara River Corridor is not wise from a disease prevention standpoint. Secondly, using major roadways provides well recognized boundaries facilitating an understanding of the corridor by anglers. Thirdly, it is evident from the public input received by anglers, which overwhelmingly endorses the proposed boundary for the Lake Erie-Upper Niagara River Corridor, that the corridor, as proposed, accommodates angling activity within the Lake Erie-Upper Niagara River, as intended.
Comments: Comments were received requesting more clarification of the description of the corridors.
Response: The previous definitions of the corridors have been modified to make them clearer.
Comment: Modifying the regulation to allow anglers to purchase smelt at a bait shop in the Adirondacks for fishing Adirondack lakes was requested.
Response: Because the use of bait fish is a common pathway for the spread of fish pathogens to uninfected waters, the use of uncertified bait fish on a body of water other than from which collected remains prohibited.
Comments: Comment was received stating that the movement of fish diseases through bait fish transportation is a concern for commercial fish growers, whose own populations can become infected if diseases are introduced to new waterways.
Response: The movement of bait fish (not certified as being disease free of the pathogens currently defined in regulation) between water bodies will still be prohibited. Bait fish used only on the same body of water from which they were collected should not increase the risk of introduction of fish diseases into uninfected waterways. Education and outreach will be used to seek compliance, as well as partnering with the angling community in emphasizing the dangers of moving uncertified bait fish from one water body to another. The department will monitor activity to ensure that the establishment of these corridors does not increase the risk of the spread of fish diseases into uninfected waters. Further evaluation will help determine if a broader application (of removing the overland transport requirement) is feasible, or if it needs to be reestablished in the three areas currently defined.
