ENV-12-14-00006-P Sanitary Condition of Shellfish Lands

3/26/14 N.Y. St. Reg. ENV-12-14-00006-P

NEW YORK STATE REGISTER

VOLUME XXXVI, ISSUE 12

March 26, 2014

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-12-14-00006-P

Sanitary Condition of Shellfish Lands

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

Proposed Action:

Amendment of Part 41 of Title 6 NYCRR.

Statutory authority:

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

Subject:

Sanitary Condition of Shellfish Lands.

Purpose:

To reclassify underwater lands to prohibit the harvest of shellfish.

Text of proposed rule:

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

Clause 41.3(b)(1)(i)(‘e’) is amended to read as follows:

(‘e’) During the period May 15 through September 30, both dates inclusive, all that area of Great South Bay, including the Oak Island Channel, the State Boat Channel, and the "Lead" (local names), lying southerly and easterly of Oak Island and southerly of a line extending westerly from the westernmost point of land at Seganus Thatch at the former site of the State Channel Marina (local name), to the northernmost point of the bulkhead protecting the residence at number 58 Oak Island (said residence is a yellow, two-story house), continuing southeasterly around the northeast facing shoreline of Oak Island to its easternmost tip and continuing southwesterly to a point located immediately opposite the residence at number 8 Oak Island; and all that area lying easterly of a line extending southerly from the chimney at the western corner of the residence at number 8 Oak Island (said residence is a one-story wood shingle house with a green roof), proceeding southerly across "the Lead" (local name), to utility pole number 468 on the north side of Ocean Parkway, Jones Beach Island; and all that area lying northerly of a line extending easterly from utility pole number 468 to utility pole number 478 on the north side of Ocean Parkway, Jones Beach Island; and all that area lying westerly of a line extending northeasterly across the State Boat Channel to the southernmost point of land at Seganus Thatch, thence proceeding northwesterly along the shoreline to the westernmost point of land at Seganus Thatch.

Existing clause 41.3(b)(4)(vii)(‘a’) is amended to read as follows:

(‘a’) All that area, including tributaries, lying westerly of a line extending [northerly] northwesterly along the breakwater located at the entrance to Sag Harbor (local landmark) and thence continuing northerly from the northern end of the [break water] breakwater to the northeasternmost extremity of the timber bulkhead protecting the shoreline adjacent to 28 East Harbor Drive, North Haven (local landmark); and easterly of the westernmost portions of the fixed bridge connecting North Haven Peninsula and Sag Harbor (local landmark).

Existing clause 41.3(b)(5)(i)(‘a’) is amended to read as follows:

(‘a’) All that area, including tributaries, lying westerly of a line extending [northerly] northwesterly along the breakwater located at the entrance to Sag Harbor (local landmark) and thence continuing northerly from the northern end of the breakwater to the northeasternmost extremity of the timber bulkhead protecting the shoreline adjacent to 28 East Harbor Drive, North Haven (local landmark); and easterly of the westernmost portions of the fixed bridge connecting North Haven Peninsula and Sag Harbor (local landmark).

‘Note:’ All reference points in Sag Harbor in the Town of East Hampton taken from N.O.A.A. Nautical Chart No. 12358 dated [December 1, 1984] July 9, 2011, except as indicated as "local landmarks." N.O.A.A. charts are available from N.O.A.A.

Existing clause 41.3(b)(5)(ix)(‘a’) is repealed.

New clauses 41.3(b)(5)(ix)(‘a’), (‘b’) and (‘c’) are adopted to read as follows:

(‘a’) During the period January 1 through December 31, both dates inclusive, all that area of Northwest Creek and its tributaries lying south of a line extending between two orange markers located approximately 750 yards south of the inlet into Northwest Creek.

(‘b’) During the period May 1 through December 14, both dates inclusive, all that area of Northwest Creek lying south of a line extending east from the northernmost tip of land, exposed at mean high water, on the western side of the inlet connecting the creek into Northwest Harbor to the opposite shoreline, and northerly of the line described in clause (‘a’), above.

(‘c’) In the absence of the painted markers, all of Northwest Creek is uncertified.

Existing clause 41.3(b)(7)(iii)(‘c’) is repealed.

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

(‘c’) Wickham Creek

(‘1’) All that area northwest of a line extending westerly from an orange marker on the north shore (approximately 750 feet west of the marina) to an orange marker on the opposite shoreline.

(‘2’) During the period May 15 through October 31, both dates inclusive, all that area of lying southeast of a line extending westerly from an orange marker on the north shore (approximately 750 feet west of the marina) to an orange marker on the opposite shoreline.

(‘3’) In the absence of the orange markers all of Wickham Creek is uncertified.

Existing subparagraph 41.3(b)(7)(iv) is repealed.

New subparagraph 41.3(b)(7)(iv) is adopted to read as follows:

(iv) Mattituck Inlet and Mattituck Creek

(‘a’) During the period April 16 through January 14, both dates inclusive all that area north of a line extending easterly from an orange marker near the red shack on the south side of the entrance to Howards Creek (local landmark), to an orange marker near the flagpole serving the residence at 1085 West View Drive (local landmark), and the area of Howards Creek lying easterly of a line extending northwesterly from an orange marker near the dock serving the residence at 1175 Point Pleasant Road to an orange marker near the dock serving the residence located on Fox Hollow Road on the opposite shore.

(‘b’) All that area south of a line extending easterly from an orange marker near the red shack on the south side of the entrance to Howards Creek (local landmark), to an orange marker near the flagpole serving the residence at 1085 West View Drive (local landmark), and the area of Howards Creek lying west of a line extending northwesterly from an orange marker near the dock serving the residence at 1175 Point Pleasant Road to an orange marker near the dock serving the residence located on Fox Hollow Road on the opposite shore.

Clause 41.3(b)(7)(vii)(a) is amended to read as follows:

(a) During the period January 1 through December 31, both dates inclusive, all that area of Hashamomuck Pond and Long Creek lying west of a line extending southerly from the orange marker located on the shore at the Terrace Garden Colony Cottages to the opposite shoreline; and lying southerly of the line extending easterly from the orange marker located on the shoreline of the residence at [645] 1645 Mill Creek Drive to the orange marker on the opposite shore.

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

Melissa Albino Hegeman, NYS Department of Environmental Conservation, 205 N Belle Mead 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 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 from certified 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 the 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. 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 licensed 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 New York State Department of Environmental Conservation (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 amendments 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 New York State Department of Environmental Conservation (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.