ENV-47-13-00002-EP Sanitary Condition of Shellfish Lands
11/20/13 N.Y. St. Reg. ENV-47-13-00002-EP
NEW YORK STATE REGISTER
VOLUME XXXV, ISSUE 47
November 20, 2013
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-47-13-00002-EP
Filing No. 1082
Filing Date. Nov. 01, 2013
Effective Date. Nov. 01, 2013
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 Part 41 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 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. Recent evaluations of current water quality data indicate that the bacteriological standards are not met in the affected areas and an increased risk of illness exists for shellfish consumers. The promulgation of this regulation on an emergency basis is necessary because the normal rule making process would not prevent the harvest and consumption of potentially harmful shellfish in a timely manner.
Subject:
Sanitary Condition of Shellfish Lands.
Purpose:
To reclassify underwater lands to prohibit the harvest of shellfish.
Substance of emergency/proposed rule (Full text is posted at the following State website:www.dec.ny.gov):
The New York State Department of Environmental Conservation proposes to amend 6 NYCRR Part 41 to classify as uncertified (closed to shellfish harvest) either year round or seasonally the following shellfish lands in the towns of Hempstead, Islip, Brookhaven, Southampton, East Hampton and Southold. The amendment is described below:
6 NYCRR 41.2(b)(1)(ii): In Hempstead Bay in the Town of Hempstead, approximately 900 acres shall be reclassified as certified (open) and 1,089 acres will be reclassified as uncertified (closed) for the harvest of shellfish year-round.
Subparagraph 41.3(b)(2)(i) and Subparagraph 41.3(b)(3)(i): In Nicoll Bay, in the Towns of Islip and Brookhaven, approximately 1,204 acres shall be designated as uncertified for the harvest of shellfish year-round.
Subparagraph 41.3(b)(3)(v): In Moriches Bay, in the Town of Brookhaven, approximately 17 acres shall be designated as seasonally uncertified for the harvest of shellfish during the period May 15 to September 30.
Subparagraph 41.3(b)(4)(iii): In Shinnecock Bay (Daves Creek), in the Town of Southampton, approximately 10 acres shall be designated as uncertified to the harvest of shellfish year-round.
Subparagraph 41.3(b)(4)(xv): In Cold Spring Pond, in the Town of Southampton, approximately 15 acres shall be designated as seasonally uncertified to the harvest of shellfish during the period May 1 to November 30.
Subparagraph 41.3(b)(5)(iv): In Three Mile Harbor (Hands Creek), in the Town of East Hampton, approximately 15 acres shall be designated as uncertified to the harvest of shellfish year-round.
Subparagraph 41.3(b)(5)(x): In Acabonac Harbor, in the Town of East Hampton, approximately 14 acres shall be designated as seasonally uncertified to the harvest of shellfish during the period May 1 through November 30.
Subparagraph 41.3(b)(7)(ix): In Gull Pond, in the Town of Southold, approximately 3 acres shall be designated as uncertified to the harvest of shellfish.
Subparagraph 41.3(b)(7)(xi): In Deep Hole Creek (Great Peconic Bay), in the Town of Southold, approximately 75 acres shall be designated as seasonally uncertified to the harvest of shellfish during the period May 1 through November 30.
Subparagraph 41.3(b)(9)(iv), 41.3(b)(10)(i) and 41.3(b)(10)(ii): In the Towns of Brookhaven and Smithtown (north shore), in Stony Brook Harbor, approximately 14 acres shall be designated as uncertified year-round and approximately 30 acres shall be designated seasonally uncertified from May 1 through October 31. In Smithtown Bay, approximately 195 acres shall be designated as seasonally uncertified from May 1 through October 31.
Subparagraph 41.3(b)(11)(vi): In Lloyd Harbor, in the Town of Huntington, approximately 170 acres shall be designated as seasonally uncertified from May 1 through October 31.
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 January 29, 2014.
Text of rule and any required statements and analyses may be obtained from:
Gina M. Fanelli, NYS Department of Environmental Conservation, 205 N. Belle Mead Road, Suite 1, East Setauket, NY 11733, (631) 444-0482, email: gmfanell@gw.dec.state.ny.us
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 is on file with the Department.
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:
The legislative objectives are 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.
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 fromcertified shellfish lands only.
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 September 17, 2013, the department had issued 1,725 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 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. 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.
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. 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 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, record keeping 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 September 17, 2013 there were 1,725 licensed shellfish diggers in New York State. The numbers of permits issued for areas in the State are as follows: New York City, 44; Westchester, 4; Town of Hempstead, 94; Town of Oyster Bay, 115; Town of North Hempstead, 5; Town of Babylon, 53; Town of Islip, 132; Town of Brookhaven, 290; Town of Southampton, 169; Town of East Hampton, 265; Town of Shelter Island, 39; Town of Southold, 235; Town of Riverhead, 61; Town of Smithtown, 33; Town of Huntington, 165; other, 21.
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 rule making 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.
Consolidated Rural Area Flexibility Analysis
Amendments to 6 NYCRR 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.
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 surf clams or ocean quahogs in the Atlantic Ocean.
As of September 17, 2013 there were 1,725 licensed shellfish diggers in New York State. The numbers of permits issued for areas in the State are as follows: New York City, 44; Westchester, 4; Town of Hempstead, 94; Town of Oyster Bay, 115; Town of North Hempstead, 5; Town of Babylon, 53; Town of Islip, 132; Town of Brookhaven, 290; Town of Southampton, 169; Town of East Hampton, 265; Town of Shelter Island, 39; Town of Southold, 235; Town of Riverhead, 61; Town of Smithtown, 33; Town of Huntington, 165; other, 21.
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, Suffolk County, and a portion of the Long Island Sound north and east of New York City. 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 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.
