ENV-44-15-00001-E Sanitary Condition of Shellfish Lands
1/27/16 N.Y. St. Reg. ENV-44-15-00001-E
NEW YORK STATE REGISTER
VOLUME XXXVIII, ISSUE 4
January 27, 2016
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY RULE MAKING
I.D No. ENV-44-15-00001-E
Filing No. 68
Filing Date. Jan. 12, 2016
Effective Date. Jan. 12, 2016
Sanitary Condition of Shellfish Lands
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Part 41 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 11-0303, 13-0307 and 13-0319
Finding of necessity for emergency rule:
Preservation of public health.
Specific reasons underlying the finding of necessity:
This rule making is necessary to protect the public health. DEC previously filed a Notice of Emergency Adoption and Proposed Rule Making on October 14, 2015 to designate certain shellfish growing areas as uncertified (closed) for the harvest of shellfish. These shellfish areas did not meet the bacteriological criteria for a certified (open) shellfish growing area; the emergency rule closed them for 90 days. The emergency rule will expire on January 11, 2016. The Notice of Adoption for the rule will not be published or in effect before the original emergency adoption expires. This current emergency rule making is necessary to keep the newly adopted shellfish closures in effect and prevent the harvest and subsequent consumption of shellfish from areas that do not meet the criteria for a certified area for shellfish harvest. Environmental Conservation Law section 13-0307 requires that DEC examines shellfish areas and certifies those that are in such sanitary condition that shellfish may be taken therefrom and used as food; all other areas must be designated as uncertified. Shellfish harvested from areas that do not meet the bacteriological standards for certified shellfish lands have an increased potential to cause illness in shellfish consumers.
Shellfish are filter feeders that consume plankton, other minute organisms, and particulate matter found in the water column. They are capable of accumulating pathogenic bacteria, viruses and toxic substances within their bodies. Consequently, shellfish harvested from areas that do not meet the bacteriological standards for certification have an increased potential to cause illness in shellfish consumers. Closures of shellfish lands that do not meet the water quality standards provide essential protection of public health. Some shellfish growing areas (SGA) will require being reclassified as seasonally uncertified. These areas are open during a portion of the year when water quality meets the criteria for certified classification. The seasonally open dates can vary between SGA because sample collection in each area is randomly selected and water quality results will determine when and if areas meet certified criteria for shellfish harvest. Water quality samples that meet criteria during a portion of the year (typically the colder months of the year) determine the seasonally uncertified open dates.
The 2015 evaluations of certain shellfish growing areas determined that portions of the following areas no longer meet the water quality criteria for a certified area: Mount Sinai Harbor, 200 acres (Town of Brookhaven); a portion of Long Island Sound, 72 acres (Towns of Brookhaven and Riverhead); Great Peconic Bay, 65 acres (Towns of Southold and Riverhead); Patchogue Bay, 1,028 acres (Towns of Brookhaven and Islip); Cold Spring Harbor, 99 acres (Towns of Huntington and Oyster Bay); Stony Brook Harbor, 300 acres (Towns of Brookhaven and Smithtown); Shinnecock Bay, 60 acres (Town of Southampton); and Acabonac Harbor, 20 acres (Town of East Hampton). These affected areas were closed October 14, 2015 by the original Notice of Emergency Adoption and Proposed Rule Making.
This emergency rule making is needed to maintain the current closures until the Notice of Adoption is published and in effect, prevent the harvest of shellfish from areas that fail to meet the water quality criteria for a certified area, and protect public health.
Subject:
Sanitary Condition of Shellfish Lands.
Purpose:
To reclassify shellfish lands to prohibit the harvest of shellfish.
Text of emergency rule:
6 NYCRR Part 41 is amended to read as follows:
Clause 41.2(b)(4)(vii)(‘a’) is amended to read as follows:
(‘a’) During the period January 1 through December 31, both dates inclusive, [All] all that area including tributaries south and east of a line extending southerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the western extremity of the white house (known as the Gale House) located on the shoreline immediately west of Cold Spring Beach (local landmark), on the campus of Cold Spring Harbor Laboratory.
Clause 41.2(b)(4)(vii)(‘b’) is renumbered 41.2(b)(4)(vii)(‘c’).
New clause 41.2(b)(4)(vii)(‘b’) is adopted to read as follows:
(‘b’) During the period May 1 through October 15, both dates inclusive, all that area including tributaries south and east of a line extending westerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the flag pole situated near the village hall of the Village of Laurel Hollow, 1492 Laurel Hollow Road (local landmark).
Clause 41.3(b)(2)(ii)(‘b’) is amended to read as follows:
(‘b’) During the period [May 1st through December 14th] May 1 through September 30, both dates inclusive, all that area of Great South Bay, Patchogue Bay and tributaries [within 500 yards in any direction from the foot of Dunton Avenue, West Bellport.] lying north of a line extending westerly from the southernmost tip of land at Howells Point (local landmark) to the southernmost tip of the fixed dock at the entrance to the boat basin at Sayville Yacht Club (local landmark).
Clause 41.3(b)(3)(ii)(‘b’) is amended to read as follows:
(‘b’) During the period [May 1st through December 14th] May 1 through September 30, both dates inclusive, all that area of Great South Bay, Patchogue Bay and tributaries [within 500 yards in any direction from the foot of Dunton Avenue, West Bellport.] lying north of a line extending westerly from the southernmost tip of land at Howells Point (local landmark) to the southernmost tip of the fixed dock at the entrance to the boat basin at Sayville Yacht Club (local landmark).
Clause 41.3(b)(4)(iii)(‘h’) is amended to read as follows:
(‘h’) During the period May 1[st] through November 30[th] (both dates inclusive) all that area, including tributaries of Heady Creek, lying north of a line extending [easterly] due west from the [northeast corner of the peaked roof of the beige Shinnecock Indian Reservation, old hatchery building, to a red brick chimney of a two-story residence at 509 Captains Neck Lane, known locally as “Colonnades,” on the opposite shoreline (said residence is a two-story structure with natural wood shingled siding and a natural wood shingled roof) (1993).] southernmost tip of land on the eastern side of Heady Creek directly across to the opposite shoreline.
Clause 41.3(b)(5)(x)(‘a’) is repealed:
New clause 41.3(b)(5)(x)(‘a’) is adopted to read as follows:
(‘a’) All that area of East Harbor (located in the southernmost portion of Acabonac Harbor) lying south of a line extending northwesterly from the southernmost point of the southernmost bulkhead located on the property at 73 Louse Point Road, to an orange marker on the opposite western shoreline.
Clauses 41.3(b)(5)(x)(‘c’) and (‘d’) are renumbered (‘d’) and (‘e’).
New clause 41.3(b)(5)(x)(‘c’) is adopted to read as follows:
(‘c’) All that area of Acabonac Harbor, Pussy’s Pond and an unnamed cove, including tributaries, lying west of a line heading north from an orange marker on the southern shore to an orange marker on the opposite northern shoreline. Said unnamed cove lies southerly of the Merrill Lake Sanctuary and northerly of Harbor Lane and Shipyard Lane (local landmarks in Springs).
Clause 41.3(b)(7)(xi)(‘a’) is amended to read as follows:
(‘a’) All that area of Brushs Creek, including tributaries and the entrance canal, and all that area of Great Peconic Bay within a [300] 1,000-yard radius of the southwesternmost corner of the bulkheading protecting the northern shoreline of the entrance to Brushs Creek.
New clause 41.3(b)(8)(iii)(‘b’) is adopted to read as follows:
(‘b’) All that area of Brushs Creek, including tributaries and the entrance canal, and all that area of Great Peconic Bay within a 1,000-yard radius of the southwesternmost corner of the bulkheading protecting the northern shoreline of the entrance to Brushs Creek.
Subparagraph 41.3(b)(8)(‘iv’) is amended to read as follows:
(‘iv’) All that area of Long Island Sound within [a 500-yard radius of the northernmost point of the rock jetty (local landmark) located at the mouth of Wading River Creek.] 500 yards of the shoreline, beginning at a point 200 yards west of the westernmost point of the west jetty at the Shoreham Canal to the westernmost point of the paved parking lot at Wading River Beach located on Creek Road (Hamlet of Wading River).
Subparagraph 41.3(b)(9)(iii) is amended to read as follows:
(iii) [Mt.] Mount Sinai Harbor.
Clauses 41.3(b)(9)(iii)(‘a’) through (‘d’) are repealed.
New clauses 41.3(b)(9)(iii)(‘a’) and (‘b’) are adopted to read as follows:
(‘a’) During the period May 1 through October 31, both dates inclusive, all that area of Mount Sinai Harbor, including tributaries, lying southerly of a line extending easterly from the northernmost point of the west jetty at the harbor entrance to the northernmost point of the east jetty at the harbor entrance.
(‘b’) During the period January 1 through December 31, both dates inclusive, all that area of Mount Sinai Harbor, including tributaries lying south of a line extending westerly from the northernmost point of the bulkhead at the Town of Brookhaven access point known locally as Satterly Landing (located on the northern side of Shore Road and west of the residence at 182 Shore Road, local landmarks) to the northernmost end of the small white building known locally as “Adee’s Boathouse” (local landmark), located on the opposite western shoreline.
Clause 41.3(b)(9)(iv)(‘e’) is amended to read as follows:
(‘e’) During the period [May 15th through October 31st] May 1 through December 31, both dates inclusive, all that area of Stony Brook Harbor and tributaries lying south of a line extending southeasterly from the southernmost red brick chimney on the Knox School located at 541 Long Beach Road in the incorporated Village of Nissequogue (said school is a three-story red brick building, local landmark) to the southernmost chimney on the residence at 121 Harbor Road in the incorporated Village of Head of the Harbor (said residence is a white three-story structure with dark shutters and three chimneys and is located on the Thatch Meadow Farm property, local landmark).
Clause 41.3(b)(9)(‘vi’) is amended to read as follows:
(‘vi’) All that area of Long Island Sound within [a 500-yard radius of the northernmost point of the rock jetty (local landmark) located at the mouth of Wading River Creek.] 500 yards of the shoreline, beginning at a point 200 yards west of the westernmost point of the west jetty at the Shoreham Canal to the westernmost point of the paved parking lot at Wading River Beach located on Creek Road (Hamlet of Wading River).
Clause 41.3(b)(10)(ii)(‘d’) is amended to read as follows:
(‘d’) During the period [May 15th through October 31st] May 1 through December 31, both dates inclusive, all that area of Stony Brook Harbor and tributaries lying south of a line extending southeasterly from the southernmost red brick chimney on the Knox School located at 541 Long Beach Road in the incorporated Village of Nissequogue (said school is a three-story red brick building, local landmark) to the southernmost chimney on the residence at 121 Harbor Road in the incorporated Village of Head of the Harbor (said residence is a white three-story structure with dark shutters and three chimneys and is located on the Thatch Meadow Farm property, local landmark).
Existing clause 41.3(b)(11)(iv)(‘a’) is amended to read as follows:
(‘a’) During the period January 1 through December 31, both dates inclusive, [All] all that area including tributaries south and east of a line extending southerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the western extremity of the white house (known as the Gale House) located on the shoreline immediately west of Cold Spring Beach (local landmark), on the campus of Cold Spring Harbor Laboratory.
Clause 41.3(b)(11)(iv)(‘b’) is renumbered to 41.3(b)(11)(iv)(‘c’).
New clause 41.3(b)(11)(iv)(‘b’) is adopted to read as follows:
(‘b’) During the period May 1 through October 15, both dates inclusive, all that area including tributaries south and east of a line extending westerly from the seaward end of the dock serving the Cold Spring Harbor Beach Club (local landmark) to the flag pole situated near the village hall of the Village of Laurel Hollow, 1492 Laurel Hollow Road (local landmark).
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ENV-44-15-00001-EP, Issue of November 4, 2015. The emergency rule will expire March 11, 2016.
Text of rule and any required statements and analyses may be obtained from:
Matt Richards, New York State Department of Environmental Conservation, 205 Belle Meade Rd., Suite 1, East Setauket, NY 11733, (631) 444-0491, email: matt.richards@dec.ny.gov
Additional matter required by statute:
The action is subject to SEQR as an Unlisted action and a Short EAF was completed. The Department has determined that an EIS need not be prepared and has issued a negative declaration. The EAF and negative declaration are available upon request.
Consolidated Regulatory Impact Statement
1. Statutory authority:
The statutory authority for designating shellfish lands as certified or uncertified is given in Environmental Conservation Law (ECL) section 13 0307. Subdivision 1 of section 13 0307 of the ECL requires the Department of Environmental Conservation (the department) to periodically conduct examinations of all shellfish lands within the marine district to ascertain the sanitary condition of these areas. Subdivision 2 of this section requires the department to certify which shellfish lands are in such sanitary condition that shellfish may be taken for food. Such lands are designated as certified shellfish lands. All other shellfish lands are designated as uncertified. The statutory authority for promulgating regulations with respect to the harvest of shellfish is given in ECL section 13 0319.
2. Legislative objectives:
There are two purposes of the legislation: to ensure that shellfish lands are appropriately classified as either certified or uncertified and to protect public health by preventing the harvest and consumption of shellfish from lands that do not meet the standards for a certified shellfish land. This legislation requires the department to examine shellfish lands and determine which shellfish lands meet the sanitary criteria for a certified shellfish land, as set forth in Part 47 of Title 6 NYCRR, promulgated pursuant to section 13 0319 of the ECL. Shellfish lands which meet these criteria must be designated as certified. Shellfish lands which do not meet criteria must be designated as uncertified to prevent the harvest of shellfish from those lands.
3. Needs and benefits:
Regulations that designate shellfish lands as certified are needed to allow the harvest of shellfish from lands that meet the sanitary criteria for a certified area. Shellfish are a valuable state resource and, where possible, should be available for commercial and recreational harvest. The classification of previously uncertified shellfish lands as certified may provide additional sources of income for commercial shellfish diggers by increasing the amount of areas available for harvest. Recreational harvesters also benefit by having increased harvest opportunities and the ability to make use of a natural resource readily available to the public. The direct harvest of shellfish for use as food is allowed from certified shellfish lands only.
To protect public health and to comply with ECL 13-0307, the Bureau of Marine Resources’ Shellfish Sanitation Program conducts and maintains sanitary surveys of shellfish growing areas (SGA) in the marine district in New York State. Maintenance of these surveys includes the regular collection and bacteriological examination of water samples to monitor the sanitary condition of SGAs. Triennial water quality evaluation reports written in 2015 are prepared by the staff of the Shellfish Sanitation Program for each SGA. These reports present the results of statistical analyses of water quality data comprised of a minimum of 30 water quality data points. The years involved can vary based on the number of samples collected for each year, for each growing area.
The report summary may state that all or portions of an SGA should be designated as uncertified for the harvest of shellfish or that all, or portions of an SGA should be designated as certified or seasonally uncertified for the harvest of shellfish based on criteria in 6 NYCRR Part 47.
Regulations that designate shellfish lands as uncertified are needed to prevent the harvest and consumption of shellfish from lands that do not meet the sanitary criteria for a certified area. Shellfish harvested from uncertified shellfish lands have a greater potential to cause human illness due to the possible presence of pathogenic bacteria or viruses. These pathogens may cause the transmission of infectious disease to the shellfish consumer.
These regulations also protect the shellfish industry. Seafood wholesalers, retailers, and restaurants are adversely affected by public reaction to instances of shellfish related illness. By prohibiting the harvest of shellfish from lands that fail to meet the sanitary criteria, these regulations can ensure that only wholesome shellfish are allowed to be sold to the shellfish consumer.
4. Costs:
There will be no costs to State or local governments. No direct costs will be incurred by regulated commercial shellfish harvesters in the form of initial capital investment or initial non capital expenses, in order to comply with these proposed regulations. The department cannot provide an estimate of potential lost income to shellfish harvesters when areas are classified as uncertified, due to a number of variables that are associated with commercial shellfish harvesting; nor can the potential benefits be estimated when areas are reopened. Those variables are listed in the following three paragraphs.
As of August 5, 2015, the department had issued 1,649 New York State shellfish digger's permits for the year 2015. However, the actual number of those individuals who harvest shellfish commercially full time is not known. Recreational harvesters who wish to harvest more than the daily recreational limit of 100 hard clams, with no intent to sell their catch, can only do so by purchasing a New York State digger’s permit. The number of individuals who hold shellfish digger’s permits for that type of recreational harvest is unknown. The department’s records do not differentiate between full time and part-time commercial or recreational shellfish harvesters.
The number of harvesters working in a particular area cannot be estimated for the reason stated above. In addition, the number of harvesters in a particular area is dependent upon the season, the amount of shellfish resource in the area, the price of shellfish and other economic factors, unrelated to the department’s proposed regulatory action. When a particular area is classified as uncertified (closed to shellfish harvesting), harvesters can shift their efforts to other certified areas.
Estimates of the existing shellfish resource in a particular embayment are not known. Recent shellfish population assessments have not been conducted by the department. Without this information, the department cannot determine the effect a closure or reopening would have on the existing shellfish resource.
The department’s actions to classify areas as certified or uncertified are not dependent on the shellfish resources in a particular area. They are based solely on the results of water quality analyses, the need to protect public health, and statutory requirements.
There is no cost to the department. Sampling requirements will likely be reduced when an area is reclassified from certified or seasonally uncertified to seasonally uncertified or uncertified year-round. Administration and enforcement of the proposed amendment are covered by existing programs.
5. Local government mandates:
The proposed rule does not impose any mandates on local government.
6. Paperwork:
No new paperwork is required.
7. Duplication:
The proposed amendment does not duplicate any state or federal requirement.
8. Alternatives:
There are no acceptable alternatives. ECL section 13 0307 stipulates that when the department has determined that a shellfish land meets the sanitary criteria for certified shellfish lands, the department must designate the land as certified and open to shellfish harvesting. All other shellfish lands must be designated as uncertified and closed to shellfish harvesting. These actions are necessary to protect public health. Failure to comply with the National Shellfish Sanitation Program (NSSP) guidelines could result in a ban on New York State shellfish in interstate commerce and would cause undue hardship to the commercial harvesting industry.
9. Federal standards:
There are no federal standards regarding the certification of shellfish lands. New York and other shellfish producing and shipping states participate in the National Shellfish Sanitation Program (NSSP) which provides guidelines intended to promote uniformity in shellfish sanitation standards among members. The NSSP is a cooperative program consisting of the federal government, states and the shellfish industry. Participation in the NSSP is voluntary, but participating states agree to follow NSSP water quality standards. Each state adopts its own regulations to implement a shellfish sanitation program consistent with the NSSP. The U.S. Food and Drug Administration (FDA) evaluates state programs and standards relative to NSSP guidelines. Substantial non conformity with NSSP guidelines can result in sanctions being taken by FDA, including removal of a state's shellfish shippers from the Interstate Certified Shellfish Shippers List. This would effectively bar a non conforming state's shellfish products from interstate commerce.
10. Compliance schedule:
Compliance with any new regulations designating areas as certified or uncertified does not require additional capital expense, paperwork, recordkeeping or any action by the regulated parties. Immediate compliance with any regulation designating shellfish lands as uncertified is necessary to protect public health. Shellfish harvesters are notified of changes in the classification of shellfish lands by mail either prior to, or concurrent with, the adoption of new regulations. Therefore, immediate compliance can be readily achieved.
Consolidated Regulatory Flexibility Analysis
1. Effect on small business and local government:
As of August 5, 2015 there were 1,649 licensed shellfish diggers in New York State for the year 2015. The numbers of permits issued for areas in the State are as follows: Town of Babylon, 49; Town of Brookhaven, 285; Town of East Hampton, 239; Town of Hempstead, 107; Town of Huntington, 150; Town of Islip, 128; Town of North Hempstead, 4; Town of Oyster Bay, 111; Town of Riverhead, 60; Town of Shelter Island, 33; Town of Smithtown, 158; Town of Southampton, 158; Town of Southold, 227; New York City, 44; Westchester, 3; other, 16.
Any change in the designation of shellfish lands may have an effect on shellfish diggers. Each time shellfish lands or portions of shellfish lands are designated as uncertified, there may be some loss of income for shellfish diggers who are harvesting shellfish from the lands to be closed. This loss may be determined by the acreage to be closed, the type of closure (whether year-round or seasonal), the species of shellfish present in the area, the area’s productivity, and the market value of the shellfish resource in the particular area.
When uncertified shellfish lands are found to meet the sanitary criteria for a certified shellfish land, and are then designated as certified, there is also an effect on shellfish diggers. More shellfish lands are made available for the harvest of shellfish, and there is a potential for an increase in income for shellfish diggers. Again, the effect of the re opening of a harvesting area is determined by the shellfish species present, the area's productivity, and the market value of the shellfish resource in the area.
Local governments on Long Island exercise management authority and share law enforcement responsibility for shellfish with the State and the counties of Nassau and Suffolk. These include the towns of Hempstead, North Hempstead and Oyster Bay in Nassau County and the towns of Babylon, Islip, Brookhaven, Southampton, East Hampton, Southold, Shelter Island, Riverhead, Smithtown and Huntington in Suffolk County. Changes in the classification of shellfish lands impose no additional requirements on local governments above what level of management and enforcement that they normally undertake; therefore, there should be no effect on local governments.
2. Compliance requirements:
There are no reporting or recordkeeping requirements for small businesses or local governments.
3. Professional services:
Small businesses and local governments will not require any professional services to comply with proposed rules.
4. Compliance costs:
There are no capital costs which will be incurred by small businesses or local governments.
5. Economic and technological feasibility:
There are no reporting, recordkeeping, or affirmative actions that small businesses or local governments must undertake to comply with the proposed rules. Similarly, small businesses and local governments will not have to retain any professional services or incur any capital costs to comply with such rules. As a result, it should be economically and technically feasible for small businesses and local governments to comply with rules of this type.
6. Minimizing adverse impact:
The designation of shellfish lands as uncertified may have an adverse impact on commercial shellfish diggers. All diggers in the towns affected by proposed closures will be notified by mail of the designation of shellfish lands as uncertified prior to the date the closures go into effect. Shellfish lands which fail to meet the sanitary criteria during specified times of the year will be designated as uncertified only during those times. At other times, shellfish may be harvested from those lands (seasonally certified). To further minimize any adverse effects of proposed closures, towns may request that uncertified shellfish lands be considered for conditionally certified designation or for a shellfish transplant project. Shellfish diggers will also be able to shift harvesting effort to nearby certified shellfish lands. There should be no significant adverse impact on local governments from most changes in the classification of shellfish lands.
7. Small business and local government participation:
Impending shellfish closures are discussed at regularly scheduled Shellfish Advisory Committee meetings. This committee, organized by the department, is comprised of representatives of local baymen’s associations, shellfish shippers and local town officials. Through their representatives, shellfish harvesters and shippers can express their opinions and give recommendations to the department concerning shellfish land classification. Local governments, state legislators, and baymen’s organizations are notified by mail and given the opportunity to comment on any proposed rulemaking prior to filing the Notice of Adoption with the Department of State.
8. Cure period or other opportunity for ameliorative action:
Pursuant to SAPA 202-b (1-a)(b), no such cure period is included in the rule because of the potential adverse impact that could have on the health of shellfish consumers. Immediate compliance is required to ensure the general welfare of the public is protected.
Rural Area Flexibility Analysis
Amendments to 6 NYCRR Part 41, Sanitary Condition of Shellfish Lands, will not impose an adverse impact on rural areas. The marine district will be directly affected by regulatory initiatives to open or close shellfish lands to harvest. The Department of Environmental Conservation has determined that there are no rural areas within the marine district, and no shellfish lands within the marine district are located adjacent to any rural areas of the state. The proposed regulations will not impose reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by amendments of Part 41, the Department of Environmental Conservation has determined that a Rural Area Flexibility Analysis is not required.
Consolidated Job Impact Statement
1. Nature of impact:
Environmental Conservation Law section 13-0307 requires that the department examine shellfish lands and certify which shellfish lands are in such sanitary condition that shellfish may be taken for use as food. Shellfish lands that do not meet the criteria for certified (open) shellfish lands must be designated as uncertified (closed) to protect public health.
Rule makings to amend 6 NYCRR 41, Sanitary Condition of Shellfish Lands, can potentially have a positive or negative effect on jobs for shellfish harvesters. Amendments to reclassify areas as certified may increase job opportunities, while amendments to reclassify areas as uncertified may limit harvesting opportunities.
The department does not have specific information regarding the locations in which individual diggers harvest shellfish, and therefore is unable to assess the specific job impacts on individual shellfish diggers. In general terms, amendments of 6 NYCRR Part 41 to designate areas as uncertified can have negative impacts on harvesting opportunities. The extent of the impact will be determined by the acreage closed, the type of closure (year-round or seasonal), the area’s productivity, and the market value of the shellfish. In general, any negative impacts are small because the department’s actions to designate areas as uncertified typically only affect a small portion of the shellfish lands in the state. Negative impacts are also diminished in many instances by the fact that shellfish harvesters are able to redirect effort to adjacent certified areas.
2. Categories and numbers affected:
Licensed commercial shellfish diggers can be affected by amendments to 6 NYCRR Part 41. Most harvesters are self-employed, but there are some who work for companies with privately controlled shellfish lands or who harvest surfclams or ocean quahogs in the Atlantic Ocean.
As of August 5, 2015 there were 1,649 licensed shellfish diggers in New York State. The numbers of permits issued for areas in the State are as follows: Town of Babylon, 49; Town of Brookhaven, 285; Town of East Hampton, 239; Town of Hempstead, 107; Town of Huntington, 150; Town of Islip, 128; Town of North Hempstead, 4; Town of Oyster Bay, 111; Town of Riverhead, 60; Town of Shelter Island, 33; Town of Smithtown, 158; Town of Southampton, 158; Town of Southold, 227; New York City, 44; Westchester, 3; other, 16.
It is estimated that ten (10) to twenty-five (25) percent of the diggers are full-time harvesters. The remainders are seasonal or part-time harvesters.
3. Regions of adverse impact:
Certified shellfish lands that could potentially be affected by amendments to 6 NYCRR Part 41 are located in or adjacent to Nassau County and Suffolk County. There is no potential adverse impact to jobs in any other areas of New York State.
4. Minimizing adverse impact:
Shellfish lands are designated as uncertified to protect public health as required by the Environmental Conservation Law. Some impact from rule makings to close areas that do not meet the criteria for certified shellfish lands is unavoidable.
To minimize the impact of closures of shellfish lands, the department evaluates areas to determine whether they can be opened seasonally during periods of improved water quality. The department also operates conditional harvesting programs at the request of, and in cooperation with, local governments. Conditional harvesting programs allow harvest in uncertified areas under prescribed conditions, determined by studies, when bacteriological water quality is acceptable. Additionally, the department operates shellfish transplant harvesting programs which allow removal of shellfish from closed areas for bacterial cleansing in certified areas, thereby recovering a valuable resource. Conditional harvesting and shellfish transplant programs increase harvesting opportunities by making the resource in a closed area available under controlled conditions.
5. Self-employment opportunities:
A large majority of shellfish harvesters in New York State are self-employed. Rule makings to change the classification of shellfish lands can have an impact on self-employment opportunities. The impact is dependent on the size and productivity of the affected area and the availability of adjacent lands for shellfish harvesting.
Assessment of Public Comment
The agency received no public comment since publication of the last assessment of public comment.
