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:

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Section 188.1 is repealed, and new sections 188.1 and 188.2 are added to read as follows:

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 orders on November 14, 2006 and May 4, 2007. 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. Other than catch and release angling on international and interstate waterbodies, 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 on October 24, 2006, followed by amended orders on November 14, 2006 and May 4, 2007. 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 from eight states bordering the Great Lakes. Other than catch and release angling on interstate and international waterbodies, 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.

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 October 24, 2006 and was amended on November 14, 2006 and May 4, 2007. 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. Other than catch and release angling on interstate and international waterbodies, 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. In 2007, the Department developed an informational brochure, which was distributed to commercial bait fish license holders and sport fishing license issuing agents.

1. Types and Estimated Numbers or 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; 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, the Department 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. In 2007, the Department developed and distributed informational brochures to commercial bait fish license holders and sport fishing license issuing agents.

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 amended orders on November 14, 2006 and May 4, 2007. 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. Other than catch and release angling on interstate and international waterbodies, 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.

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 the revised 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: The required receipt for the purchase and possession of bait fish, at the retail sale level and for personal use, should be extended beyond the 7 day limit.

Response: The time restriction is intended to limit the potential for abuse. Allowing the receipt to be valid for more than 7 days would increase the risk that the receipt might be used to transport uncertified bait fish. The limit of seven days is intended to give the purchaser adequate time to use leftover bait fish on another fishing trip while minimizing the risk that the will be used to transport uncertified bait fish.

Comment: The Department should allow overland transport of alewives and herring for use as bait fish on the Hudson River, for both personal and commercial use. The Department should establish a permit system to allow for overland transport, particularly for the use of herring as bait fish on the Hudson River.

Response: While much of the herring used as bait fish are likely utilized in the Hudson River system, herring are used in other waters as well (e.g. for striped bass fishing in the Delaware River; or as cut bait for fishing for other species in other waters, like catfish). Thus, it should not be assumed that all herring being used for bait will be used in the Hudson River. The general prohibition on overland transport of uncertified bait fish is intended to limit the potential for uncertified bait being used in a water body other than the water body from which the fish were taken. If uncertified bait fish could be transported by car, it would become very difficult for law enforcement personnel to determine where the person in possession intended to use the fish. This would increase the risk that diseased fish could be used in a way that would spread VHS in New York waters. The family Clupeidae (herring and alewife) is known to be susceptible to VHS.

Comment: The Department should test and certify water ways as disease free, where wild bait fish subsequently can be collected, transported and used as bait fish in other waters.

Response: Individual bodies of water can not be determined to be disease free. Natural bodies of water can have immigration and emigration of fish, and inflow from connected bodies of water. This activity and the lack of a controlled environment would undermine the reliability or certainty of the test results, at least for any meaningful period of time. Current disease testing protocols call for testing of a defined group of isolated fish - a “lot.”

Comment: The Department should implement a license or permit system to allow untested minnows from backyard ponds to be used in certain waters.

Response: The most likely pathway to spread VHS and other fish diseases is through the introduction of diseased fish. Untested fish have an unknown disease status and movement of these fish may infect additional waters.

Comment: The Department should allow overland transport of bait fish, for both personal and commercial use, for use in Great Lake's waters.

Response: The general prohibition on overland transport of uncertified bait fish is intended to limit the potential for uncertified bait being used in a water body other than the water body from which the fish were taken. If uncertified bait fish could be transported by car, it would become very difficult for law enforcement personnel to determine where the person in possession intended to use the fish. This would increase the risk that diseased fish could be used in a way that would spread VHS in New York waters.

Comment: Bait fish shops located in the vicinity of the Marine and Coastal District should be exempt from the fish health certification report and receipt requirements for bait fish if they are sold only for use in the marine and coastal district.

Response: The revised rule has been modified to no longer require certification prior to sale, or the issuance of receipts at the time of sale, for bait fish that are to be used only in the marine and coastal district.

Comment: The Department should allow for the sale of uncertified bait fish to be used only in the marine and coastal district along with the sale of certified bait from the same location.

Response: Having uncertified bait fish at the same facility as certified bait fish creates a significant risk due to the potential for mixing fish. This restriction is necessary in order to prevent disease from spreading.

Comment: Establish zones around water bodies, where overland transport of bait fish collected from that water body would be allowed for personal use.

Response: The general prohibition on overland transport of uncertified bait fish is intended to limit the potential for uncertified bait being used in a water body other than the water body from which the fish were taken. If uncertified bait fish could be transported by car, it would become very difficult for law enforcement personnel to determine where the person in possession intended to use the fish. This would increase the risk that diseased fish could be used in a way that would spread VHS in New York waters. The creation of zones around waterbodies where baitfish could be transported overland would severely limit the ability of law enforcement staff to enforce the regulation because there would be no reasonable way to determine the source of the bait fish.

Comment: Temporarily ban all bait fish use.

Response: The Department took into consideration a large number of factors and concerns in proposing these regulations. Among these were the risks of disease transmission, effects on anglers, and impacts to commercial bait fish operators. In order to minimize negative effects as much as possible, it was determined that the use of bait fish would be acceptable if they are certified to be free of the diseases listed in the regulation or are used on the water where the bait fish were collected.

Comment: The regulation regarding dead, processed bait is vague and favors commercial dealers. The personal salting of bait fish, on site of collection, should be allowed.

Response: The Department is concerned that the salting of bait fish by an angler for personal use may not be an effective and adequate method for preventing the spread of VHS. There is uncertainty about this preservation process and the likelihood that individuals' treatments would be sufficiently rigorous to kill the virus. Therefore, it was determined that commercial preservation and packing, several of which render the fish incapable of harboring the virus, was the only viable option.

Comment: The Department should allow for a one year grace period before aquaculture facilities are required to use standard DEC health certificate forms because testing at these facilities occurs only once a year.

Response: Standard forms were required because of the need to quickly and easily identify test results. The use of differing forms has created confusion in the past.

Comment: The Department should allow for limited time use of in-lake holding structures (e.g., cages or pens) for wild caught baitfish during and after disease testing.

Response: In-lake holding structures separate fish physically, but because the bait fish are in lake waters, the structure do not prevent bait fish from being exposed to pathogens during the holding period. This practice was deemed a risk.

Comment: The Department should allow the importation of uncertified baitfish from “VHS-free” states.

Response: If fish have not been tested, then their disease status is unknown. Introducing fish into the waters of the state with an unknown disease status presents an unacceptable risk.

Comment: The Department should classify Lake Erie, the Niagara River, and Lake Ontario as one waterbody for the purposes of this regulation.

Response: Niagara Falls presents a barrier to fish movement between Lakes Erie and Ontario. To remain consistent with the rest of the regulation, these waters should be kept separate. Combining these waters could facilitate movement of fish between these water bodies which could not occur naturally due to the barrier. Thus, such a combination could increase the risk of VHS moving between the two water bodies.

Comment: The Department should allow fish to be moved and released across political lines on the same waterbody.

Response: The revised rule making has been modified to allow fish that have been captured in border waters to be transported to and released in the New York State portion of the waterbody.

Comment: The Department should prohibit wild fish from New York waters from being introduced into border waters with Vermont.

Response: The only wild fish that DEC is allowing into border waters from other New York waters are fish that have been certified free of the diseases listed in the regulation in accordance with AFS or OIE disease testing standards. These are the same standards used in aquaculture facilities and the risks for disease transmission are considered to be the same.

Comment: The Department should allow fish to be moved away from the waterbody for tournament weigh-in.

Response: The regulation does not allow for overland transport of uncertified fish without a permit from the Department. This rule must remain consistent in order to ensure that it is enforceable and to minimize the potential for abuse. If tournament organizers are planning to transport fish overland for tournament purposes, then they are required to obtain a permit from the appropriate Regional Fisheries Manager.

Comment: The Department should provide bait fish dealers with a quick and easy standard receipt.

Response: DEC will consult with members of the bait fish industry to determine if a standard receipt is desirable.