VHS was first confirmed in New York waters in May 2006 when it was linked to the death of round gobies and muskellunge in Lake Ontario and the St. Lawrence River. Most recently, VHS caused the death of walleye in Conesus Lake. The virus has now been confirmed in round goby, burbot, smallmouth bass, muskellunge, pumpkinseed, rock bass, bluntnose minnow, emerald shiner and walleye in infected waters in New York State.

Due to the potential adverse effects of the disease on fish populations and the desire to prevent or delay its spread to other states, a Federal Order was issued (October 24, 2006) by the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) that prohibits the importation of certain species of live fish from Ontario and Quebec and the interstate movement of the same fish species from eight states bordering the Great Lakes.

The Federal Order does not, however, address the movement of fish within New York State. In-state movement of fish could potentially lead to the spread of VHS in New York and significant adverse impacts to the state's fish resources. Moreover, the spread of VHS in New York could result in negative impacts to the state economy. More than a million New Yorkers hold state fishing licenses. Freshwater sportfishing contributes an estimated $1.4 billion annually to the state's economy, supporting over 17,000 jobs.

Therefore, the Department is adopting regulations which address the commercial collection of bait fish, personal possession and use of bait fish, and requirements for fish health inspection reports. The promulgation of this regulation on an emergency basis is necessary in order to prevent the spread of VHS in New York and to protect New York's fish resources. It is also necessary to prevent negative impacts to the state's economy that would be associated with the spread of VHS in New York.

(1) Bait fish taken for personal use from any water body shall only be possessed or used in the same water body from which such bait fish were taken, and shall not be possessed or used in any other water body, except as provided in paragraph 2 of this subdivision.

(2) Bait fish taken for personal use in the marine and coastal district, as defined in Environmental Conservation Law Section 13-0103, shall only be possessed or used in waters of the marine and coastal district and the Hudson River as defined in 10.1(f)(x), and shall not be possessed or used in a water body outside the marine and coastal district, except the Hudson River as defined in 10.1(f)(x).

(3) Bait fish taken for personal use from any water body shall not be transported overland, except:

(i) bait fish taken pursuant to Section 10.5 of this Part may be transported overland. Such fish, which are transported overland, shall not be used as bait; or

(ii) bait fish taken for personal use in the marine and coastal district, as defined in Environmental Conservation Law Section 13-0103, may be transported overland only for use in waters of the marine and coastal district.

(4) Environmental conservation officers may seize any bait fish possessed in violation of this subdivision. No action for damages shall lie for such seizure, and disposition of seized bait fish shall be at the discretion of the Department.

(5) For purposes of this subdivision, “transported overland” shall mean transport by motorized vehicle other than on the water body where the fish were taken.

(6) For purposes of this subdivision, “water body” shall mean any lake, river, pond, stream or any other distinct mass of water existing in the State of New York, whether publicly or privately owned, including the banks and shores thereof. A water body shall also include all tributaries upstream to the first impassable barrier including the banks and shores thereof. For the purposes of this subdivision, locks and dams shall be considered impassable barriers.

(7) Notwithstanding the definition of water body in paragraph 6 or this subdivision, each of the following combined water bodies, including all tributaries up to the first barrier impassable by fish, shall be considered the same water body for purposes of this subdivision only:

(i) Lake Ontario in combination with the Lower Niagara River and the St. Lawrence River;

(ii) Lake Erie in combination with the Upper Niagara River, Black Rock Canal, and waters of the Erie Barge Canal from the Upper Niagara River to Lock E-35 in Lockport;

(iii) Oswego River from Lock 7 to junction with Oneida River & Seneca River at Three Rivers;

(iv) Oneida River downstream of Caughdenoy dam and Erie Barge Canal from Lock E23 to the junction with Oswego and Seneca Rivers;

(v) Oneida Lake and Erie Barge Canal downstream to Lock E23 and upstream to Lock E22, and the Oneida River downstream to Caughdenoy Dam;

(vi) Mohawk River from Barge Canal in Rome upstream to Delta Dam;

(vii) Erie Barge Canal from Lock E22 east to Lock E6;

(viii) Hudson River from the Federal Dam at Troy to Bakers Falls in the City of Hudson Falls, and the Champlain Canal up to but not above Lock 7 in Fort Edward, and the Erie Barge Canal up to but not above Lock E6 in Waterford;

(ix) Lake Champlain including the Champlain Canal up to, but not above Lock 12;

(x) Hudson River downstream from the Federal Dam at Troy to the Battery at the southern tip of Manhattan Island.

(xi) Susquehanna River downstream of dam in Oakland, Pennsylvania and Chenango River.

Part 35 of Title 6 of NYCRR is amended as follows:

Paragraph 35.2(d)(16) is amended to read as follows:

(16) Franklin County. [Big Salmon River, Town of Fort Covington;] Floodwood Pond; Lake Clear Outlet; Middle Pond, Town of Santa Clara; Lake Colby; Lake Flower; Little Colby Pond; [Little Salmon River, from mouth at Fort Covington to dam at South Bombay;] Lower, Middle, Upper Saranac Lakes; Middle Pond; Town of Santa Clara; Lyon Brook and tributaries; [Pike Creek, Towns of Bombay and Fort Covington;] Raquette River, Town of Tupper Lake; Saranac River, from Middle Saranac Lake to dam at Union Falls; Simon Pond, Town of [Altamont] Tupper Lake; Tupper Lake; Weller Pond, Town of Santa Clara.

Paragraph 35.2(d)(23) is amended to read as follows:

(23) Livingston County. [Conesus Lake] Hemlock Lake.

New Sections 35.3 and 35.4 are added to read as follows:

(1) “Water body” shall mean any lake, river, pond, stream or any other distinct mass of water existing in the State of New York, whether publicly or privately owned, including the banks and shores thereof. A water body shall also include all tributaries upstream to the first impassable barrier including the banks and shores thereof. For the purposes of this section, locks and dams shall be considered impassable barriers.

(i) Lake Ontario in combination with the Lower Niagara River and the St. Lawrence River;

(ii) Lake Erie in combination with the Upper Niagara River, Black Rock Canal, and waters of the Erie Barge Canal from the Upper Niagara River to Lock E-35 in Lockport;

(iii) Oswego River from Lock 7 to junction with Oneida River & Seneca River at Three Rivers;

(iv) Oneida River downstream of Caughdenoy dam and Erie Barge Canal from Lock E23 to the junction with Oswego and Seneca Rivers;

(v) Oneida Lake and Erie Barge Canal downstream to Lock E23 and upstream to Lock E22, and the Oneida River downstream to Caughdenoy Dam;

(vi) Mohawk River from Barge Canal in Rome upstream to Delta Dam;

(vii) Erie Barge Canal from Lock E22 east to Lock E6;

(viii) Hudson River from the Federal Dam at Troy to Bakers Falls in the City of Hudson Falls, and the Champlain Canal up to but not above Lock 7 in Fort Edward, and the Erie Barge Canal up to but not above Lock E6 in Waterford;

(ix) Lake Champlain including the Champlain Canal up to, but not above Lock 12;

(x) Hudson River downstream from the Federal Dam at Troy to the Battery at the southern tip of Manhattan Island.

(xi) Susquehanna River downstream of dam in Oakland, Pennsylvania and Chenango River.

(2) “Transported overland” shall mean transport by motorized vehicle other than on the water body where the fish were taken.

(3) “Bait fish” shall mean those listed under subdivision 35.2 (a) of this Part, and shall include both live and dead bait fish except dead bait fish packaged for commercial purposes and preserved by any method other than freezing only.

(4) “Retail sale” shall mean the sale of bait fish to any person in the state for any purpose other than for resale.

(1) as provided in subdivision d of this section;

(2) pursuant to permit issued by the Department in its discretion; or

(3) bait fish may be possessed, sold, offered for sale, bartered or transferred for use as bait in any water body if: (i) the use of bait fish is allowed in such water body pursuant to section 10.3 of this Title, and (ii) all applicable requirements of subdivisions (f), (g) and (h) of this section have been satisfied.

(1) bait fish taken in the marine and coastal district, as defined in Environmental Conservation Law Section 13-0103, may be transported overland only for use in waters of the marine and coastal district;

(2) pursuant to permit issued by the Department in its discretion; or

(3) bait fish may be transported overland if all applicable requirements of subdivisions (g) and (h) of this section have been satisfied.

(1) a copy of the fish health certification report as defined in 188.2 for the bait fish sold to the purchaser; and

(2) a receipt, containing the name of the seller, the date of the retail sale transaction, the species of fish sold, and the quantity of each species of fish sold. A copy of both the fish health certification report and the receipt shall be retained by the purchaser or transferee for 30 days or until the fish are sold or transferred, whichever is greater.

(1) a copy of the fish health certification report as defined in 188.2 for the bait fish sold to the purchaser; and

(2) a receipt, containing the name of the seller, the date of the retail sale transaction, the species of fish sold, and the quantity of each species of fish sold. A copy of both the fish health certification report and the receipt shall be retained by the purchaser or transferee for 30 days or until the fish are sold or transferred, whichever is greater.

Part 188 of Title 6 of NYCRR, entitled “Fish Health Inspection Requirements” is amended as follows:

Section 188.1 is repealed, and new sections 188.1 and 188.2 are added to read as follows:

(1) in the marine and coastal district, as defined in Environmental Conservation Law Section 13-0103; or

(2) pursuant to permit issued by the Department in its discretion.

(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:

(i) Aeromonas salmonicida (Furunculosis);

(ii) Yersinia ruckeri (Enteric Red Mouth);

(iii) Infectious Pancreatic Necrosis Virus (IPN);

(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.

(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).

(1) American Fisheries Society certified fish pathologists;

(2) American Fisheries Society certified fish health inspectors;

(3) licensed veterinarians with demonstrated capability to perform sample collection and fish health inspections;

(4) government employees with demonstrated capability to perform sample collection and fish health inspections;

(5) university or college personnel with demonstrated capability to perform sample collection and fish health inspections; or

(6) private laboratory personnel with demonstrated capability to perform sample collection and fish health inspections.

Statutory authority:

The Commissioner of Environmental Conservation, pursuant to Environmental Conservation Law (ECL) Sections 3-0301, 11-0303, and 11-0305, has authority to protect the fish and wildlife resources of New York State.

Environmental Conservation Law Section 11-0325 provides the Department of Environmental Conservation (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.

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.

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.

Needs and benefits:

Viral hemorrhagic septicemia virus (VHS) is a serious pathogen of fish that is causing an emerging disease in the Great Lakes region of the United States and Canada. This disease causes the hemorrhaging of the fish's tissues, including internal organs, and affects all sizes of fish. Not all infected fish develop the disease, but they can continue to carry it and spread it to others. There is no known cure for VHS.

VHS was first confirmed in New York waters in May 2006 when it was linked to the death of round gobies and muskellunge in Lake Ontario and the St. Lawrence River. In the summer of 2006, VHS caused the death of walleye in Conesus Lake. The virus has now been confirmed in round goby, burbot, smallmouth bass, muskellunge, pumpkinseed, rock bass, bluntnose minnow, emerald shiner and walleye in infected waters in New York State.

Due to the potential adverse effects of Viral Hemmorhagic Septicemia (VHS) on fish populations and the desire to prevent or delay its spread to other states, the USDA Animal and Plant Health Inspection Service (APHIS) issued a federal Order on October 24, 2006, as well as an amended order on November 14, 2006. The Amended Order prohibits the importation of certain species of live fish from Ontario and Quebec and restricts the interstate movement of the 37 fish species identified in the order from eight states bordering the Great Lakes: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin. Movement of fish from these eight states is limited to certified VHS free fish or fish destined for a fish processing facility that meets specified standards.

The Federal Order does not, however, address the movement of fish within New York State. The in-state movement of fish could potentially lead to the spread of VHS as well as other fish pathogens, in New York. In addition to VHS, Spring Viremia of Carp Virus (Infectious carp dropsy) and Infectious Hematopoietic Necrosis Virus (IHN) are internationally reportable diseases to the World Organization of Animal Health. Because they are a threat to fish hatcheries in New York and possibly to the freshwater fish populations of New York, Aeromonas salmonicida (Furunculosis), Yersinia ruckeri (Enteric Red Mouth) and Infectious Pancreatic Necrosis Virus (IPN) have been included in the proposed regulations. All pathogens identified in the regulations are considered pathogens of concern by the Great Lakes Fishery Commission Fish Health Committee and by the New England Fish Health Committee.

The spread of VHS in New York, as well as other fish pathogens, could lead to significant adverse impacts to the state's fish resources. Moreover, the spread of these diseases in New York could result in negative impacts to the state economy. More than one million New Yorkers hold state fishing licenses. Freshwater sportfishing contributes an estimated $1.4 billion annually to the state's economy, supporting over 17,000 jobs.

Therefore, the Department is adopting regulations which address the commercial collection of bait fish, personal possession and use of bait fish, and requirements for fish health inspection reports. The promulgation of this regulation on an emergency basis is necessary in order to prevent the spread of VHS in New York and to protect New York's fish resources. It is also necessary to prevent negative impacts to the state's economy that would be associated with the spread of VHS in New York.

Costs:

Commercial hatchery operators, bait fish dealers, and other entities that possess or transport fish intended for release in New York waters, will incur costs associated with fish health inspection reports required by these regulations.

The estimated cost for testing a “lot” of fish (i.e. 60 fish) for the pathogens that are required to be tested ranges from approximately $500 to $1,000.

Local government mandates:

Testing for a group of pathogens will be required for local governments that raise fish to be released to the water of the State. Since the testing will need to be conducted by qualified testers, the local government facilities will not need to establish any new technology at their facilities. The costs of the testing is described above.

Paperwork:

Commercial hatchery operators, bait fish dealers, and other entities that possess or transport fish intended for release in New York waters, will be required to maintain documentation associated with fish health inspections. Bait fish dealers will be required to provide receipts of their sales.

Duplication:

The proposed amendment does not duplicate any state or federal requirement.

Alternatives:

No Action: The Department has considered and rejected the option of taking no action to address VHS. Failing to act to address VHS would allow the disease to spread unchecked to other waters of the state. The spread of VHS could compromise the health of New York's freshwater fish populations and could have significant economic impacts on commercial and recreational activities associated with the state's freshwater fish populations.

Federal standards:

The United States Department of Agriculture-Animal and Plant Health Inspection Service (USDA-APHIS) issued a federal order (October 24, 2006), followed by an Amended Order on November 14, 2006, that prohibits the importation of certain species of live fish from Ontario and Quebec, and restricts interstate movement of the same fish species from eight states bordering the Great Lakes to certified VHS free fish or fish destined to a fish processing facility that meets specified standards.

Compliance Schedule:

Immediate compliance will be required.

1. Effect of rule:

The proposed rule is intended to prevent the spread of viral hemorrhagic septicemia virus (VHS), a serious pathogen of fish that is causing an emerging disease in the Great Lakes region of the United States and Canada.

Due to the potential adverse effects of the disease on fish populations and the desire to prevent or delay its spread to other states, a federal Order was issued by the Animal and Plant Health Inspection Service (APHIS) of the United States Department of Agriculture (USDA) on November 14, 2006. The Order prohibits the importation of certain species of live fish from Ontario and Quebec and restricts the interstate movement of the 37 fish species identified in the order from eight states bordering the Great Lakes: Illinois, Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin. Movement of fish from these eight states is limited to certified VHS free fish or fish destined for a fish processing facility that meets specified standards.

For licensed commercial bait fish dealers (approximately 400), this rulemaking will limit the collection and sale of wild bait fish from New York waters for use on the same water unless permitted by the Department, and require that any other fish to be released in the waters of New York be certified as disease free.

In addition to commercial bait fish operators, private hatchery operations will also be affected by this rule. This year, DEC issued 35 licenses to rear/sell trout and salmon, and 25 licenses to rear/sell black bass (in-state). These operations will now be required to certify that fish in their possession are disease free, prior to release to the waters of New York.

2. Compliance requirements:

Fish being sold for release to state waters, largely by commercial bait fish dealers and hatcheries, must be accompanied by fish health inspection reports, from a qualified tester, certifying that the fish have been tested for the required pathogens and are disease free. Bait fish dealers will be required to provide receipts of their sales.

3. Professional services:

A fish health inspection report, issued by an independent, qualified inspector, certifying that the fish are disease free, will be required before such fish may be released into the waters of New York by any of the regulated parties. An independent qualified inspector will also be required for obtaining the fish samples to be tested.

4. Compliance costs:

Commercial hatchery operators, bait fish dealers, and other entities that possess or transport fish intended for release in New York waters, will incur costs associated with fish health inspection reports required by these regulations.

The estimated cost for testing a “lot” of fish (i.e. 60 fish) for the pathogens that are required to be tested ranges from approximately $500 to $1,000.

5. Economic and technological feasibility:

Testing for a group of pathogens will be required for the small businesses that sell fish to be released to the waters of New York and for local governments that raise fish to be released to the water of the State. Since the testing will need to be conducted by qualified testers, the small businesses and local government facilities will not need to establish any new technology at their facilities. The costs of the testing is described above.

6. Minimizing adverse impact:

The rulemaking does not prohibit the collection of bait fish from waters in New York. Collection and sale of bait fish are still allowed provided the fish remain on the same water body (no overland transport). In addition, the regulations authorize the Department in its discretion to issue a permit allowing for overland transport, possession and sale of bait fish. The rulemaking also allows the commercial hatcheries to sell freshwater fish for release into the waters of New York once they have been determined to be disease free. The Department is assisting hatcheries in New York by offering to temporarily test their fish for at least one year, thus saving hatcheries the cost of having to hire independent testing contractors.

7. Small business and local government participation:

The Department's outreach efforts on this rulemaking included the issuance of a statewide news release (10/31/06) informing the public of this crisis and indicating that the Department was contemplating measures that could be taken to address VHS. On December 18, 2006, the Department issued a statewide news release announcing 11 informational meetings, subsequently held at nine locations across the State in January, 2007. In addition, DEC forwarded copies of a VHS New York information sheet, the APHIS Industry Alert, and the APHIS federal Order to the holders of Fishing Preserve Licenses in New York, licensed Private Hatchery Operators, holders of Great Lakes commercial fishing licenses, and those licensed by the Department to collect and/or sell bait fish.

1. Types and Estimated Numbers of Rural Areas:

The proposed rule will affect all rural areas in New York. Most commercial bait fish dealers and licensed fish hatcheries and most of their customers that are seeking to stock private waters pursuant to a Department permit are located in rural areas. The number of commercial bait fish licenses (allowing for the collection and/or selling of bait) that have been issued, statewide, by DEC is approximately 400. In addition to commercial bait fish operators, private hatchery operations will also be affected by this rule. This year, DEC issued 35 licenses to rear/sell trout and salmon, and 25 licenses to rear/sell black bass (in-state). Some rural counties own and operate trout hatcheries. Examples include Essex County and Warren County.

2. Reporting, Recordkeeping, and Other Compliance Requirements; and Professional Services:

Commercial hatchery operators, bait fish dealers, and other entities that possess or transport fish intended for release in New York waters, will be required to maintain documentation associated with fish health inspections. Bait fish dealers will be required to provide receipts of their sales.

3. Costs:

Commercial hatchery operators, bait fish dealers, and other entities that possess or transport fish intended for release in New York waters, will incur costs associated with fish health inspection reports required by these regulations.

The estimated cost for testing a “lot” of fish (i.e. 60 fish) for the pathogens that are required to be tested ranges from approximately $500 to $1,000.

4. Minimizing Adverse Impact:

The rulemaking does not prohibit the collection of bait fish from waters in New York. Collection and sale of bait fish are still allowed provided the fish remain on the same water body (no overland transport). In addition, the regulations authorize the Department in its discretion to issue a permit allowing for overland transport, possession and sale of bait fish. The rulemaking also allows the commercial hatcheries to sell freshwater fish for release into the waters of New York once they have been determined to be disease free. The Department is assisting hatcheries in New York by offering to temporarily test their fish for at least one year, thus saving hatcheries the cost of having to hire independent testing contractors.

5. Rural Area Participation:

The Department's outreach efforts on this rulemaking included the issuance of a statewide news release (10/31/06) informing the public of this crisis and indicating that the Department was contemplating measures that could be taken to address VHS. On December 18, 2006, the Department issued a statewide news release announcing 11 informational meetings, subsequently held at nine locations across the State in January, 2007. In addition, DEC forwarded copies of a VHS New York information sheet, the APHIS Industry Alert, and the APHIS federal Order to the holders of Fishing Preserve Licenses in New York, licensed Private Hatchery Operators, holders of Great Lakes commercial fishing licenses, and those licensed by the Department to collect and/or sell bait fish.

The Department has determined that this emergency rulemaking will not have a substantial adverse impact on jobs and employment opportunities, and that by its nature and purpose (protecting the freshwater fish species resource), the proposed rule will protect jobs and employment opportunities. Therefore, the Department has determined that a job impact statement is not required.

Due to the potential adverse effects of Viral Hemmorhagic Septicemia (VHS) on fish populations and the desire to prevent or delay its spread to other states, the USDA Animal and Plant Health Inspection Service (APHIS) issued a federal Order on October 24, 2006, as well as an amended order on November 14, 2006. The Amended Order restricts the importation of certain species of live fish from Ontario and Quebec and interstate movement of the same species from eight states bordering the Great Lakes, including New York, requiring that the fish be VHS free or be destined for a fish processing facility that meets specified standards.

This rulemaking is necessary to protect New York's freshwater fish species and their populations from VHS and other determined fish pathogens, by preventing the spread of these fish pathogens to additional waters, thereby safeguarding the health of the freshwater fisheries of New York State. In addition to VHS, Spring Viremia of Carp Virus (Infectious carp dropsy) and Infectious Hematopoietic Necrosis Virus (IHN) are internationally reportable diseases to the World Organization of Animal Health. Because they are a threat to fish hatcheries in New York and possibly to the freshwater fish populations of New York, Aeromonas salmonicida (Furunculosis), Yersinia ruckeri (Enteric Red Mouth) and Infectious Pancreatic Necrosis Virus(IPN) have been included in the proposed regulations. All pathogens identified in the regulations are considered pathogens of concern by the Great Lakes Fishery Commission Fish Health Committee and by the New England Fish Health Committee.

Preventing the spread of these fish pathogens is intended to safeguard New York's freshwater sportfishing industry which currently contributes an estimated $1.4 billion annually to the state's economy and supports over 17,000 jobs. Some additional jobs are likely to be generated, in order to accommodate the required fish collection, sampling and testing.

Commercial bait fish dealers and private hatchery operators are the two employment areas that will most likely be affected by this rulemaking.

For licensed commercial bait fish dealers (approximately 400), this rulemaking will limit the collection and sale of wild bait fish from NY waters for use on the same water unless permitted by the Department, and require that any other release of fish in the waters of New York be certified as disease free. However, it is unlikely that these restrictions will result in a substantial adverse impact on jobs due to several qualifying factors. First, not all licensed dealers engage in the restricted activities. For example, some licensees may operate retail establishments that do not collect fish from the waters of New York or release fish to the wild. Second, a portion of the licensed commercial baitfish dealers 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 viable even without the sale of bait. Third, allowance is made for sale of bait fish on the same water body as collected, but no overland transport of their fish. Fourth, by permit, the Department has the discretion to allow for overland transport, possession and sale in special situations with low risk. Fifth, many bait fish operators purchase fish from a disease free source (e.g. fish farms) and therefore will not need to test the fish for disease.

Private hatchery operators will also be affected by the restrictions on fish movement noted above. In 2006, DEC issued 35 licenses to rear/sell trout and salmon, and 25 licenses to rear/sell black bass in New York. The regulations will require that these operations certify their fish as disease free if the fish are to be sold for bait or for use in the waters of the State of New York. The estimated cost for testing a “lot” of fish (i.e. 60 fish) for the pathogens that are required to be tested ranges from approximately $ 500 to $ 1,000. While this is not an insignificant sum, the presence of VHS in New York will likely dictate a market in which buyers require certification from sellers that the fish are disease free. Therefore, the testing requirements in the proposed regulations will likely contribute to the marketability of the hatchery operator's product.

In addition, the Department is assisting the private hatcheries in New York by temporarily offering to conduct the required disease testing, for up to one year. For this reason, it does not appear that the Department's regulations on disease testing will result in a loss of fish hatchery jobs.

The Department has determined that this emergency rulemaking will not have a substantial adverse impact on jobs and employment opportunities, and that by its nature and purpose (protecting the freshwater fish species resource), the proposed rule will in fact protect jobs and employment opportunities dependent on New York's fishery resources. While it is difficult to determine exactly how many jobs may be affected by this rulemaking, based on the above, the Department does not believe it will 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.

The following comments were received by the Department during the public comment period associated with this proposed rulemaking. 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: The Department should increase the allowable available number of bait fish for personal use.

Response: The Department has revised its original proposal to remove the limit on the number of bait fish for personal use. Given the other restrictions contained in the revised rulemaking, this change should not pose any increased risk of VHS movement to new water bodies.

Comment: The Department should allow collection and use of bait fish in waters which are directly connected.

Response: The Department has revised its original proposal to specify that tributaries of a water body are considered part of the water body for purposes of this proposal. In addition, the revised rulemaking lists certain connected waters that have been grouped together for purposes of this rulemaking, thus allowing bait fish to be moved between such waters. Since these waters are already connected, these revisions to the proposal should pose no increased risk of spreading VHS to new waters.

Comment: The Department should develop zones, regions, or use watersheds to allow for broader use of bait fish.

Comment: The Department should implement these requirements only in VHS (Viral Hemorrhagic Septicemia) positive regions of the states.

Response: The Department has revised its original proposal to specify that tributaries of a water body are considered part of the water body for purposes of this proposal. In addition, the revised rulemaking lists certain connected waters that have been grouped together for purposes of this rulemaking, thus allowing bait fish to be moved between such waters. Any further allowance for the movement of bait fish between waters is not acceptable to the Department because it would increase the risk of spreading the VHS virus.

Comment: The Department should ban personal bait fish collection and use in known VHS positive waters.

Comment: Commercial collection of bait fish on VHS positive waters should be allowed for, and sale for use in the same waters.

Comment: The allowance for the personal collection on VHS positive waters and non allowance for the commercial collection of bait fish on VHS positive waters is unfair.

Response: The revised rulemaking reestablishes Great Lake's waters for the commercial collection and use of bait fish provided that the bait fish collected are sold on the same water body from which they were collected. Because the fish remain within the same water body, this change should not increase the risk of spreading the VHS virus.

Comment: Dead bait fish do not harbor active virus so the Department should not restrict the collection and use of dead bait fish.

Comment: Dead bait fish can harbor active virus, so the Department should tighten restrictions on commercially sold dead bait fish.

Comment: The Department should allow for the collection, possession, sale and use of salted minnows. The commercial industry of providing salted minnows, including those collected from VHS positive waters, should be allowed.

Response: Current science indicates that the virus can survive in dead fish, particularly in freshly killed and/or frozen fish. Such science further suggests that the virus does not survive when fish are processed by methods such as salting. The revised rulemaking allows for dead bait fish that are packaged for commercial purposes, and preserved by methods other than freezing only, to be possessed, sold, offered for sale, bartered, and transported overland for purposes of being used as bait in any water of the state, where the use of bait fish is allowed, without being certified disease free of the pathogens required by this rulemaking.

In the revised rulemaking, the collection, sale and use of bait fish is restricted to use on the same water body from which they were taken, unless permitted by the Department. In cases where the activities pose little or no risk of spreading the VHS virus, the Department retains the discretion to consider issuing a permit.

Comment: The elimination of commercial harvest of bait fish from VHS positive waters will result in overpopulation of bait fish and a subsequent risk of disease.

Response: The commercial harvest of bait fish in New York State is limited to a group of select waters (as listed in Title 6 NYCRR Section 35.2). The Department has not observed substantial die offs of bait fish in waters where the commercial harvest of bait fish is not allowed.

Comment: Commercial operators should provide documentation of bait fish source to retailers/customers.

Response: The revised rulemaking requires that bait fish seller provide a receipt to the purchaser. The required contents of this receipt will enable the purchaser to track the bait fish back to their source.

Comment: The supply of bait fish will be limited by these regulations.

Comment: Commercially sold bait fish will become to expensive, partially due to supply problems.

Response: Information collected to date, including direct contact with those in the industry and affected parties, suggests that there has not been an interruption in the bait fish supply since the filing of the Emergency Rulemaking in November, 2006.

Comment: The restriction on not moving fish between water bodies is problematic to organized tournaments.

Comment: The Department should allow fish to be moved freely throughout connected waters without an inspection requirement.

Comment: The restriction on fish crossing state lines is problematic to tournaments on some waters (e.g. Lake Champlain).

Response: The Department has revised its original proposal to specify that tributaries of a water body are considered part of the water body for purposes of this proposal. In addition, the revised rulemaking lists certain connected waters that have been grouped together for purposes of this rulemaking, thus allowing bait fish to be moved between such waters. These revisions should alleviate much of the concerns voiced about the initial rulemaking, including those related to fishing tournament activity. However, further allowance for the movement of bait fish between waters within New York State would not be acceptable to the Department because of the associated risk of spreading the VHS virus. Inter-State movement of fish is governed by federal order issued by USDA APHIS.

Comment: The proposed regulations will result in economic hardships to bait fish operations, chartered fishing businesses, private hatcheries, and fishing preserves.

Comment: Regulations will cause region wide economic hardship, including as a result to impacts to angling practices such as tournaments.

Response: Where possible, without interfering with measures that are necessary to preventing the spread of the VHS virus, the Department has made adjustments in the revised rulemaking to address economic and business related concerns. The commercial collection of bait fish on waters where fish have been tested positive for VHS is now permissible, provided that the fish collected are used on the same water and are not transported overland. The definition of “water body” in the revised rulemaking will alleviate some of the previous restraints on the Chartered fishing businesses, in that it will allow for movement of fish (on the water) between certain connected waters. In addition, in cases where the activities pose little or no risk of spreading the VHS virus, the Department retains the discretion to consider issuing a permit.

The Department will offer to assist hatcheries in New York by temporarily conducting disease testing for their fish for at least one year, thus saving hatcheries the cost of having to hire independent testing contractors.

The revised rulemaking now requires that fish be tested for five pathogens (with three additional pathogens for salmonids). One of the pathogens required for testing in the original proposed rulemaking is no longer required (i.e. heterosporis). Under the terms of the revised regulations, fish that test positive for four of the original nine pathogens are not precluded from being released into the waters of the State until January 1, 2009. This will lessen the economic hardship to private hatcheries because they may sell some bait fish that would have been prohibited under the terms of the original proposal.

With regard to regional economic impacts, the Department has revised its original proposal to specify that tributaries of a water body are considered part of the water body for purposes of this proposal. In addition, certain connected waters that have been grouped together for purposes of this rulemaking, thus allowing bait fish to be moved between such waters. These revisions should alleviate much of the concerns voiced about impacts to fishing tournament activity. In certain cases, a permit might also be available under the revised rulemaking, thereby lessening potential for negative economic impacts.

Comment: The Department should tighten inspection requirements for fish being imported into New York State. Fish en route can be exposed to different environmental stresses, such as changes in water and water temperature, making them susceptible to disease while be transported.

Response: The Department requires that fish health inspections be conducted in accordance with the testing methods and procedures recognized by the American Fisheries Society or the World Organization of Animal Health. The adherence to these procedures, including not adding fish to a “lot” of fish, and not moving the fish to another water body, while in transport, should adequately prevent disease problems from occurring.

Comment: The Department should allow for the movement of fish among private bodies of water within property boundaries.

Response: The revised regulations propose restrictions on movement of fish between bodies of water because such movement is a recognized and principal pathway for transmitting the disease. The revised rulemaking does allow for some movement of fish, by permit, in the discretion of the Department.

Comment: The Department should make procedural changes to pre-analytical situations (e.g. allow facility inspections, require third party inspection).

Response: Regarding testing methods and procedures, the Department will continue to call for requirements that conform with the testing methods and procedures recognized by the American Fisheries Society and the World Organization of Animal Health. The revised rulemaking requires that fish sample collection be made by an independent qualified inspector. Facility inspections are provided for in the procedures of the World Organization of Animal Health.

Comment: The Department should adjust the requirements for health certificates. There may be misuse of these (e.g. as one that is issued may be used as a cover document for other fish that are uncertified).

Response: Where a copy of the fish health inspection report is required to transfer fish under the revised regulations, a receipt is also required. The receipt shall contain the name of the selling vendor, the date sold, species of fish sold and quantity of fish sold. The receipts for sale and transfer are also only valid for a limited period of time. These requirements will minimize the potential for misuse of health certificates.

Comment: The regulation should only put requirements in place for the VHS virus and not all the other pathogens.

Comment: The Department should make changes to laboratory protocols and testing requirements (specifically, there is no AFS or OIE protocol for heterosporis).

Response: The requirement for testing for heterosporis is not included in the revised rulemaking. All pathogens identified in the regulations are considered pathogens of concern by the Great Lakes Fishery Commission Fish Health Committee and by the New England Fish Health Committee. Efforts to reduce the incidence and distribution of these pathogens are dependent upon the information provided by fish health inspections.

The Department will continue to call for requirements that conform with the testing methods and procedures recognized by the American Fisheries Society and the World Organization of Animal Health.

Comment: The testing requirements will decrease the availability of fish for stocking purposes.

Response: The Department has tested all lots of fish that it plans to stock and none of the pathogens identified in the regulations was detected. Therefore, there will be no impact to the number of fish available for stocking from DEC hatcheries. Testing results from licensed, private and public New York hatcheries, though incomplete to date, indicate nearly all are free of the pathogens identified in the regulations. Thus, these fish will be available for stocking.