ENV-40-08-00006-EP Sanitary Condition of Shellfish Lands

10/1/08 N.Y. St. Reg. ENV-40-08-00006-EP

NEW YORK STATE REGISTER

VOLUME XXX, ISSUE 40

October 01, 2008

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-40-08-00006-EP

Filing No. 864

Filing Date. Sept. 15, 2008

Effective Date. Sept. 15, 2008

Sanitary Condition of Shellfish Lands

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 41.3 of Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 13-0307 and 13-0319

Finding of necessity for emergency rule:

Preservation of public health.

Specific reasons underlying the finding of necessity:

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.

Recent bacteriological water quality testing in the areas of Flax Pond in the Town of Brookhaven and Spring Pond in the Town of Southold have shown elevated levels of coliform bacteria. These areas now no longer meet the bacteriological water quality standards specified in 6 NYCRR Part 47. The presence of high levels of coliform bacteria indicate the potential presence of disease causing bacteria and viruses in the water. Shellfish are filter feeders and have the ability to concentrate large amounts of bacteria or viruses from the water into their bodies. This significantly increases the risk of illness to the shellfish consuming public. Shellfish lands that do not meet the bacteriological water quality standards must be closed immediately to keep potentially harmful shellfish from reaching consumers and to prevent recreational harvesters from consuming contaminated shellfish. This emergency closure of shellfish lands is essential to protect the public health.

Subject:

Sanitary Condition of Shellfish Lands.

Purpose:

To prohibit the harvest of shellfish from areas that do not meet water quality standards.

Text of emergency/proposed rule:

6 NYCRR Part 41, Sanitary Condition of Shellfish Lands, is amended to read as follows:

Section 41.0 through clause 41.3 (b)(7)(xiii)(‘d’) remain unchanged.

New clause 41.3(b)(7)(xiii)(‘e’) is adopted to read as follows:

(‘e’) Spring Pond. During the period January 1 through December 31, both dates inclusive, all that area of Spring Pond including tributaries.

New clause 41.3(b)(7)(xiii)(‘f’) is adopted to read as follows:

(‘f’) During the period January 1 through December 31, both dates inclusive, all that area in Orient Harbor within 500 feet in all directions of the southeastern end of the easternmost bulkhead at the entrance to Spring Pond.

Subparagraph 41.3(b)(7)(xiv) through subparagraph 41.3(b)(9)(ii) remain unchanged.

Subparagraph 41.3(b)(9)(iii) is repealed.

New subparagraph 41.3(b)(9)(iii) is adopted to read as follows:

During the period January 1 through December 31, both dates inclusive, all that area of Flax Pond, including tributaries, lying southerly of a line extending easterly from the northernmost point of the western jetty to the northernmost point of the eastern jetty at the inlet.

Subparagraph 41.3(b)(9)(iv) through the end of Part 41 remain unchanged.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire December 13, 2008.

Text of rule and any required statements and analyses may be obtained from:

Melissa Albino, Department of Environmental Conservation, 205 N. Belle Meade Rd., Suite 1, East Setauket, NY 11733, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Additional matter required by statute:

Pursuant to the State Environmental Quality Review Act, a Negative Declaration and a short Environmental Assessment Form is on file with the Department of Environmental Conservation. A Coastal Assessment Form was prepared.

Regulatory Impact Statement

Statutory authority:

The statutory authority for designating shellfish lands as certified or uncertified is Environmental Conservation Law (ECL) section 13-0307. Subdivision 1 of section 13-0307 of the ECL requires the department to periodically conduct examinations of shellfish lands within the marine district to ascertain the sanitary condition of said lands. Subdivision 2 of this section requires that the department 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 section 13-0319 of the ECL.

Legislative objectives:

There are two purposes of the legislation: to protect public health and to ensure that shellfish lands are appropriately classified as certified or uncertified for the harvest of shellfish. 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.

Needs and benefits:

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 of New York State. Maintenance of these surveys includes the regular collection and bacteriological examination of water samples to monitor the sanitary condition of shellfish growing areas and shoreline surveys to document actual and potential pollution sources.

Annually, water quality evaluation reports are prepared by the staff of the shellfish sanitation program for each SGA which contains certified shellfish lands. These reports present the results of statistical analyses of water quality data gathered by the program, and annual updates to the shoreline pollution source surveys. Each report includes a summary and recommendations for the appropriate classification of that particular shellfish 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 for the harvest of shellfish based on criteria in 6 NYCRR Part 47. These reports are on file at the Bureau of Marine Resources office in East Setauket, New York.

The most recent Annual Review of Central Long Island Sound, dated April 2008, indicates that water quality in the certified portion of Flax Pond no longer meets bacteriological criteria for certified shellfish lands, as specified in 6 NYCRR Part 47, year round. It recommends that all of Flax Pond be designated as uncertified year round and the harvesting of shellfish will no longer be permitted.

Additionally, the most recent Annual Review of Orient Harbor, dated February 2008, indicates that water quality in Spring Pond no longer meets bacteriological criteria for certified shellfish lands, as specified in 6 NYCRR Part 47, year round. It recommends that all of Spring Pond, including a radial closure around the mouth, be designated as uncertified year round and the harvesting of shellfish will no longer be permitted.

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 designated 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 December 31, 2007, the department had issued 1,727 New York State shellfish digger's permits. 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 diggers 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 shellfishing.

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. 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 designate areas as certified or uncertified are not dependent on the resources in a particular area. They are based solely on public health concerns and legal mandates.

There is no cost to the department. Administration and enforcement of the proposed amendment are covered by existing programs.

Local government mandates:

The proposed rule does not impose any mandates on local government.

Paperwork:

No new paperwork is required.

Duplication:

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

Alternatives:

There are no significant alternatives. By law (ECL section 13-0307), when the department has determined that an certified shellfish land fails to meet the sanitary criteria for certified shellfish lands, the department shall designate the land as uncertified and close the area to shellfish harvesting.

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 - each state adopts its own standards. The United States 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 and the NSSP, 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 product from interstate commerce.

Compliance schedule:

Immediate compliance with any regulation designating shellfish lands as uncertified is necessary to protect public health. Shellfish harvesters are notified of changes to SGA classification by mail either prior to, or concurrent with, the adoption of new regulations.

Compliance with new regulations designating areas as certified or uncertified does not require additional capital expense, paperwork, record keeping or any action by the regulated parties in order to comply, except that harvesters must observe the new closure lines. Therefore, immediate compliance can be readily achieved.

Regulatory Flexibility Analysis

A regulatory flexibility analysis is not submitted with this notice because this rule is subject to a consolidated regulatory flexibility analysis that was previously printed under a notice of proposed rule making, I.D. No. ENV-25-08-00001-P, Issue of June 18, 2008.

Rural Area Flexibility Analysis

Amendments to Part 41 will not impose an adverse impact on rural areas. Only the State's marine district will be directly affected by regulatory initiatives to open or close shellfish lands. 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, record keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by amendments of Part 41 "Sanitary Condition of Shellfish Lands" of Title 6 NYCRR, the Department of Environmental Conservation has determined that a Rural Area Flexibility Analysis is not required.

Job Impact Statement

A job impact statement is not submitted with this notice because this rule is subject to a consolidated job impact statement that was previously printed under a notice of proposed rule making, I.D. No. ENV-25-08-00001-P, Issue of June 18, 2008.