PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:
Proposed Action:
Repeal of section 155.1; and addition of new section 155.1 to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0507(1), 11-1319 and 11-1909(2)
Subject:
Sale of Black Bass.
Purpose:
Expanding the sale of black bass for human consumption purposes.
Text of revised rule:
Existing section 155.1 is repealed and a new section 155.1 is added to read as follows:
155.1 Special regulations for the transport of black bass raised by private hatcheries
(a) Definitions. For the purposes of this Part, the following definitions shall apply:
(1) Black Bass Hatchery means any in-state or out-of-state facility permitted pursuant to ECL 11-1909 in which black bass are bred, propagated, or otherwise cultured for wholesale, retail sale or trade in New York State for stocking purposes, for exhibition purposes, for food purposes, or for any combinations of these three purposes. Facilities applying for a permit must demonstrate through the permit application that they possess appropriate hatchery rearing equipment including but not limited to ponds, buildings, tanks, raceways, or other structures.
(2) Black bass shall mean largemouth bass and smallmouth bass.
(3) Whole black bass shall mean black bass carcasses that are complete or that have had only the gills and viscera removed and remain recognizable.
(4) Retail sale shall mean the selling or offering for sale of black bass to any person who will consume the black bass, prepare the black bass for consumption, sell the black bass for scientific or exhibition purposes, or who will stock the black bass.
(5) Wholesale commerce shall mean the selling or offering for sale of black bass to any person other than those defined in retail sale of this Part.
(b) Black Bass Hatchery Permits.
(1) Only black bass originating from a black bass hatchery or otherwise as permitted by the Fish and Wildlife Law may be purchased or offered for sale in New York. Only largemouth black bass originating from a black bass hatchery or otherwise permitted by the Fish and Wildlife Law may be purchased or offered for sale for human consumption purposes in New York.
(2) Any permit issued pursuant to article 11-1909 of the Environmental Conservation Law or this Part may be issued with conditions. Conditions may be attached as necessary to assure that wild black bass are protected and that the intent and purposes of this Part will be carried out.
(3) Every permit issued pursuant to article 11-1909 of the Environmental Conservation Law or this Part shall contain the following conditions:
(i) The Commissioner or authorized department staff may enter and inspect a black bass facility, premises, books, papers, documents, or records of that facility, at all reasonable times, locations, and hours, whether announced or unannounced and to take representative samples, without payment, of any black bass for the purpose of ascertaining compliance or noncompliance with a permit, the ECL, and this Title. A receipt will be issued to the permittee documenting any black bass taken pursuant to this subparagraph.
(ii) The permittee shall keep copies of all black bass purchase receipts, black bass sales receipts and black bass fish health inspection reports. All purchase or sales receipts must contain the name and address of the seller and purchaser as well as the date of sale, the species, size, and number sold. Permittee shall make such records and fish health inspection reports readily available for inspection by the department for two years after each sale of black bass.
(iii) The permittee shall complete and send to the Bureau of Fisheries an annual report by January 31st of each year, indicating the name and address of each person from whom they purchased black bass, each person to whom they sold black bass, the species, size, number and date of each sale of black bass during the prior calendar year. No black bass hatchery permit will be renewed until this annual report is received by the Bureau of Fisheries.
(c) Transportation of Black Bass from a Private Black Bass Hatchery.
(1) Black bass that are sold by a black bass hatchery or sold in wholesale commerce originating from a black bass hatchery may be transported within the state in any number and in any size subject to the following conditions:
(i) All shipments of live or whole black bass must be accompanied by an original bill of sale that contains the name and address of the source black bass hatchery and the name and address of the buyer, the date of shipment, the size, number and species of black bass being shipped and the point of destination.
(ii) All shipments of live or whole black bass shall be in a container or containers marked black bass. Live black bass may be sold from a container or tank on the transporting vehicle provided the transporter retains a copy of all black bass bills of sale for black bass delivered that trip.
(iii) Any person engaged in retail sale of black bass that owns more than one retail location may divide black bass shipments into unmarked containers for distribution only to other retail locations owned by them provided they are the transporter and each shipment is accompanied by a copy of the original bill of sale.
(iv) All black bass hatchery permittees and persons engaged in the wholesale commerce of black bass must retain copies of any bill of sale and make such records readily available for inspection by the Department for two years after each sale of black bass.
(d) Additional requirements for persons engaged in the wholesale commerce of black bass.
(1) Black bass purchased from different black bass hatcheries by a wholesaler may be combined into one tank or container for sale but the wholesaler must generate a new original bill of sale that contains the name and address of the wholesaler and the name and address of the buyer, the date of shipment, the size, number and species of black bass being shipped, and the point of destination.
(2) Persons engaged in the wholesale commerce of black bass must maintain a bound book, or use other methods approved by the department, at their place of business listing the name, address and telephone number of all black bass hatcheries or other black bass wholesalers that they purchase black bass from and the name and address of all black bass wholesalers or black bass retailers to whom they sell black bass. The list must include the date of transaction, number and species of black bass bought and or sold and if the black bass were live or whole black bass. All required records must be completed by the end of the business day in which the transaction occurred.
(e) Retail sale of black bass; requirements.
(1) Any person selling black bass in retail sale must issue a receipt to the purchaser containing the name of the retail seller, the date of the retail sale, the name of the species of black bass sold and the quantity of each species sold. This section does not apply to on premises human consumption of black bass.
(2) Any person selling largemouth bass in retail sale for human consumption must retain a copy of the bill of sale for all black bass purchased by them during the preceding two years and must make those records readily available for inspection by the department during normal business hours.
(3) Any person selling black bass in retail sale, for purposes other than for human consumption, must retain a copy of the bill of sale for all black bass purchased and sold by them during the preceding two years and must make those records readily available for inspection by the department during normal business hours.
(4) Any person who buys black bass in retail sale must retain the issued receipt while in possession of the black bass. Any person who buys largemouth bass in retail sale for human consumption purposes must retain the issued receipt while in possession of the largemouth bass until it is prepared for human consumption.
(5) Live largemouth bass sold in retail sale for human consumption shall be killed by the retail seller before transferring possession of the fish.
(f) General prohibitions.
(1) No person shall operate a black bass hatchery except under permit from the department.
(2) No person shall operate a black bass hatchery except in compliance with all the hatchery permit terms and conditions.
(3) No person shall buy, sell, import, export, offer for sale, possess or transport black bass from a black bass hatchery except as authorized by this Part.
(4) No person shall buy, sell, import, export, offer for sale, possess or transport black bass from a person engaged in the wholesale commerce of black bass except as authorized by this Part.
(5) No person shall possess or transport black bass unless accompanied by an original bill of sale, or copy of original bill of sale that contains the information as required in this Part, or as otherwise permitted by the Fish and Wildlife Law.
(6) No person engaged in the retail sale of black bass for human consumption shall sell or offer for sale any black bass other than the species largemouth bass.
(7) No person engaged in the retail sale of black bass for human consumption shall fail to kill a largemouth bass prior to transferring possession of the fish to the retail purchaser.
(8) No person shall purchase, sell or offer for sale black bass unless the black bass originated from a permitted black bass hatchery.
(9) No person shall sell or offer for sale a largemouth bass with the head removed, skin removed or filleted. This section does not apply to largemouth bass prepared for on site consumption.
(10) No person shall fail to maintain complete and accurate records of all black bass transactions as required by this Part.
Revised rule compared with proposed rule:
Substantial revisions were made in section 155.1(a)(2), (b)(1), (e)(2), (3), (4) and (f)(6).
Text of revised proposed rule and any required statements and analyses may be obtained from
Phil Hulbert, New York State Department of Environmental Conservation, 625 Broadway, Albany, NY 12233, (518) 402-8894, email: pxhulber@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
30 days after publication of this notice.
Revised Regulatory Impact Statement
1. Statutory Authority
Section 11-0507-1 empowers the department to provide for the liberation and stocking of fish by permit. Section 11-1319 empowers the department to provide for the sale of black bass by permit, while taking measures through permitting to guard against the exploitation of wild black bass. Section 11-1909 empowers the department, at its discretion to issue hatchery permits for the purposes of propagating, raising and selling black bass, as well as establishing regulations governing the transportation of black bass raised under permit.
2. Legislative Objectives
Regulating black bass raised in licensed private hatcheries achieves providing for the raising of black bass sold for stocking purposes, and as now being proposed, to be sold as food fish in live fish markets. The purpose is to provide aquaculturists increased opportunity for live fish sales for human food in New York and largemouth bass is the species identified by aquaculturists for sales for human consumption in New York.
To do so, and to prevent the exploitation of wild black bass, existing regulations need to be amended to provide a means of identifying black bass reared in hatcheries during transportation, and follow those fish through the supply chain. Such action will facilitate sales and distribution of largemouth bass to food markets, as occurs for example with trout that are sold for food.
Section 11-1909 maintains that "the department shall establish by order, regulations governing the transportation of black bass raised under such a permit." This proposed rule adjusts existing black bass transportation provisions to clearly provide for the retail sale of fish raised under a department issued hatchery permit while including provisions to minimize the potential infiltration and marketing of wild caught black bass in the food industry.
3. Needs and Benefits
Black bass raised in licensed private hatcheries are widely sold for stocking purposes, but are also sold as food fish in live fish markets in some states. Aquaculturists seek to increase the opportunity for live fish sales for human food in New York. To do so, existing regulations need to be amended to provide a means of identifying black bass reared in hatcheries during transportation, and follow those fish through the supply chain. Such action will facilitate sales and distribution of largemouth bass to food markets, as occurs for example with trout that are sold for food.
4. Costs:
No cost to DEC or local governments. Aquaculturists will incur minor costs associated with maintaining routine business records, plus costs to purchase tags if they elect to utilize tags to identify hatchery-reared black bass (tags not required however).
5. Local Government Mandates
These amendments of 6 NYCRR will not impose any programs, services, duties or responsibilities upon any county, city, town, village, school district or fire district.
6. Paperwork
The additional recordkeeping for the purposes of tracking the transportation and sale of black bass should be a part of existing business practices for those engaged in the sale of black bass.
7. Duplication
There are no Federal regulations which govern the transportation of black bass raised in private hatcheries.
8. Alternatives
Do not amend existing Part 155. Existing Part 155 does not provide for secondary sales of hatchery reared largemouth bass in commercial food markets. Without the amendment, only licensed hatchery operators are clearly eligible to sell black bass, a situation which has persisted for over a decade, and which is not conducive to the development of an active market in urban areas. The proposed rule elaborates on transportation labeling requirements and specifically addresses retail sales for food purposes of properly identified hatchery reared largemouth bass by persons other than hatchery operators.
9. Federal Standards
There are no minimum Federal standards that apply to the transportation of black bass raised in private hatcheries.
10. Compliance Schedule
These regulations, if adopted, will become effective immediately. It is anticipated that the regulated parties will be able to comply as soon as their businesses are able to make black bass available for sale, including largemouth bass for human consumption.
Revised Regulatory Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing the transportation and sale of hatchery reared black bass (largemouth bass and smallmouth bass) in New York State to primarily facilitate marketing largemouth bass for human consumption purposes. Under current law (ECL), black bass may only be sold by holders of a Black Bass Hatchery or Fishing Preserve License. Regulations pertaining to the transportation of hatchery-reared bass must be expanded to provide for proper identification of these fish through retail markets while minimizing the opportunity for wild New York largemouth bass to enter the food market.
The department has determined that the proposed rules will not impose an adverse impact as far as additional reporting, recordkeeping, or other compliance requirements on small businesses or local governments. There will be no impacts to local governments. For small businesses, the additional recordkeeping for the purposes of tracking the transportation and sale of black bass should be a part of existing business practices from those engaged in the sale of black bass.
Those that become engaged in the sale of black bass, wholesale or retail, are likely the only entities and small businesses directly affected and impacted by changes to regulations pertaining to the transportation and sale of hatchery reared black bass in New York State (for facilitating marketing largemouth bass for human consumption purposes). Positive impacts are anticipated for these businesses because the proposed regulations would enhance the likelihood for the sale of black bass.
Since the department's proposed rule making will not impose an adverse impact on small businesses or local governments, including little effect on current reporting, recordkeeping, or other compliance requirements, the department has concluded that a regulatory flexibility analysis is not required for this regulatory proposal.
Revised Rural Area Flexibility Analysis
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing the transportation and sale of hatchery reared black bass (largemouth bass and smallmouth bass) in New York State to primarily facilitate marketing largemouth bass for human consumption purposes. Under current law (ECL), black bass may only be sold by holders of a Black Bass Hatchery or Fishing Preserve License. Regulations pertaining to the transportation of hatchery-reared bass must be expanded to provide for proper identification of these fish through retail markets while minimizing the opportunity for wild New York largemouth bass to enter the food market.
The department has determined that the proposed rules will not impose an adverse impact as far as additional reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. The additional recordkeeping for the purposes of tracking the transportation and sale of black bass should be a part of existing business practices for those engaged in the sale of black bass.
Those that become engaged in the sale of black bass, wholesale or retail, are likely the only entities directly affected and impacted by changes to regulations pertaining to the transportation and sale of hatchery reared black bass in New York State (for facilitating marketing largemouth bass for human consumption purposes). Positive impacts are anticipated for these businesses because the proposed regulations would enhance the likelihood for the sale of black bass.
Since the department's proposed rule making will not impose an adverse impact on public or private entities in rural areas and will have little 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.
Revised Job Impact Statement
The purpose of this rule making is to amend and update the Department of Environmental Conservation's (department) general regulations governing the transportation and sale of hatchery reared black bass (largemouth bass and smallmouth bass) in New York State to primarily facilitate marketing largemouth bass for human consumption purposes. Under current law (ECL), black bass may only be sold by holders of a Black Bass Hatchery or Fishing Preserve License. Regulations pertaining to the transportation of hatchery-reared bass must be expanded to provide for proper identification of these fish through retail markets while minimizing the opportunity for wild New York largemouth bass to enter the food market.
The proposed regulations will provide additional opportunities for the wholesale and retail sale of hatchery raised black bass. Positive impacts are anticipated for these businesses because the proposed regulations will provide for additional opportunities for the sale of black bass. Not only will this not result in any anticipated loss of jobs, it will provide for additional business opportunities which may likely include an increase in jobs. While the current allowance for selling smallmouth bass for human consumption directly from licensed hatcheries will no longer be provided for, communication with members of the industry indicates that this is of little concern in New York as largemouth bass are the black bass species conducive to being raised for food (versus smallmouth bass).
Based on the above, the department has concluded that the proposed regulatory changes will not have an adverse impact on jobs or employment opportunities in New York, and that a job impact statement is not required.
Assessment of Public Comment
The following comments were received by the Department of Environmental Conservation (DEC or department) during the public comment period associated with the proposed rule making. Some comments have been grouped together because they are related or for convenience in providing an efficient response. The department's response is provided for each comment or group of comments.
Comment: Black bass should not be sold in New York as this provides an opportunity for fish disease to be introduced into wild, healthy populations.
Response: Under current regulations all fish that are to be stocked into the waters of New York are required to come from sources that have been inspected and found free of serious fish pathogens. The proposed regulation does not diminish that requirement. Under the proposed regulation fish that are to be sold for food purposes must be killed before being transferred to the final retail customer purchasing them for food, further reducing the likelihood that fish diseases will be transferred to wild populations via retail sales for human consumption.
Comment: The proposed regulation will foster development of a black market for wild black bass and those fish will be illegally sold.
Response: The recordkeeping requirements incorporated into the proposed regulation are intended to aid enforcement of the regulation and limit the entry of wild fish into the market for food. Sellers of wild fish will not have the required records that trace farm reared bass back to a licensed black bass hatchery. Enforcement efforts will include checking to make sure that sellers of black bass can produce documentation indicating the origin from a lawful source. With compliance, expanding the opportunity for farm reared bass to be sold should not impact wild bass populations.
Comment: Some people will keep more than the lawful daily limit of angler caught bass, and will sell the extra fish to establishments that do not follow the requirements in the proposed regulation.
Response: Establishments that will be selling black bass must be able to document the lawful origin of the fish they sell, and anglers will not be able to produce that documentation. Enforcement efforts across the state will include spot checks to determine compliance with daily harvest limits for bass, as currently occurs.
Comment: Wild fish cannot be distinguished from hatchery reared fish and this will make it easier for wild fish to be exploited for commercial purposes. Mandatory tagging of individual fish should be required as a means of identifying hatchery or farm reared fish.
Response: The department recognizes that external appearance will not provide a reliable means of distinguishing wild bass from hatchery reared bass. Bass being sold in the wholesale or retail food market must be traceable via records to a legal source. Requirements to tag individual live fish were not included in the proposed regulation due to industry concerns that tagging would be harmful to fish being sold live and that tagging would be costly. There are other states that allow for black bass to be sold for food, without a requirement for tagging, and those states have not reportedly experienced any adverse impacts to wild bass populations.
Comment: Consumers may unintentionally increase their health risks by eating wild caught bass from waters with fish consumption advisories that are sold as farm reared bass.
Response: The department does not anticipate that large numbers of wild bass will enter food markets. Additionally, most waters in New York have fish consumption advisories that follow the general recommendation to eat up to four meals per month.
Comment: Proponents of this regulation are only interested in selling largemouth bass for food, not smallmouth bass. Therefore, remove the provision for smallmouth bass to be sold for human food.
Response: The department contacted the New York Aquaculture Association and New York Farm Bureau to more fully assess interest in the species to be sold for human food. Their responses indicated that sales of smallmouth bass for human food could be prohibited without adverse impact to aquaculture interests. Based on that information, the department will revise the regulation and limit sales for human consumption to largemouth bass only. Both smallmouth bass and largemouth bass may continue to be sold for other purposes, such as stocking, as current regulations allow.
Comment: DEC does not have adequate resources to conduct effective enforcement of regulations that will allow hatchery reared bass to be sold for food.
Response: DEC law enforcement personnel have assisted in the development of the proposed regulation and recognize the high value placed on New York's black bass fishery resources. Resources will be directed to enforcement of the proposed regulations.
Comment: Allowing for the sale of commercially raised black bass will decimate wild bass populations in New York. DEC does not have the means to replace any wild bass populations that might be depleted due to illegal exploitation, therefore do not allow the sale of either hatchery reared or wild black bass for consumption.
Response: The sale of wild black bass will continue to be prohibited, and DEC does not anticipate wild populations will be depleted if the proposed regulations are adopted. It is already legal for hatchery reared black bass to be sold for stocking or for food purposes in New York by hatchery license holders. Such sales must be direct to retail customers or to other black bass hatchery license holders. Under the proposed regulations, hatchery reared bass may also be sold by wholesale distributors and in food markets.
Comment: Fishery resources in and around New York City and on Long Island are very fragile and the proposed regulation will harm those resources as people will illegally sell bass to the many restaurants in and around the city.
Response: Enforcement efforts will take specific geographic concerns into consideration and step up efforts as needed.
Comment: The reporting requirements of the proposed regulation are onerous and small operators will not be able to keep up with the necessary recordkeeping. Use your DEC website for permit holders to log all of their purchases and sales.
Response: Recordkeeping is necessary for enforcement purposes to establish the origin of bass being sold. The proposed regulation requires paper sales slips and receipts to document purchases and sales. Currently a web-based reporting system is not available and not all individuals have ready access to computers and internet connections. At a future time though, development of such capability may be a desirable option for some businesses.
Comment: Quarterly or annual audits of the required paperwork must be conducted to ensure compliance.
Response: Black bass hatchery permit holders are currently required to report sales to the department. This reporting requirement will also be required in the proposed regulation, and enforcement efforts will also include spot checks of those selling bass to reinforce the compliance requirements.
Comment: DNA testing of bass shipments and bass inventories of purchasers should be required to identify hatchery versus wild caught fish.
Response: The proposed regulation authorizes department staff to enter and inspect a black bass facility and take representative samples of fish for the purpose of ascertaining compliance or noncompliance. Specific techniques that would be used to ascertain compliance are not identified in the proposed regulation, thus the department would have the flexibility to use any technology deemed useful and appropriate.
