ENV-10-11-00005-P Sanitary Condition of Shellfish Lands

3/9/11 N.Y. St. Reg. ENV-10-11-00005-P

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 10

March 09, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-10-11-00005-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 section 41.2 of Title 6 NYCRR.

Statutory authority:

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

Subject:

Sanitary Condition of Shellfish Lands.

Purpose:

To reclassify shellfish lands to allow the harvest of shellfish throughout the year.

Text of proposed rule:

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

Existing section 41.0 through sub-paragraph 41.2(b)(2)(v) remain unchanged.

Existing sub-paragraph 41.2(b)(3)(i) is repealed.

New sub-paragraphs 41.2(b)(3)(i) through 41.2(b)(3)(iii) are adopted to read as follows:

(i) Long Island Sound.

(a) All that area of Long Island Sound, including tributaries, lying northerly and westerly of a line extending northeasterly from the northernmost point of land at Prospect Point to the northernmost point of land at Matinecock Point; and, thence continuing in a northeasterly direction on a true bearing North 18 degrees East (magnetic bearing North 30 degrees East) from Matinecock Point to the New York-Connecticut State boundary.

(b) All tributaries of Long Island Sound, including Frost Creek, between Matinecock Point and Middle Chimney west of Oak Neck Point (local names, local landmarks).

(ii) Hempstead Harbor.

(a) All that area of Hempstead Harbor, including tributaries, lying southerly of a line extending northeasterly from the westernmost chimney on the seaward side of the large brown house (situated on the bluff within Sands Point Park and Preserve) located approximately 1300 yards northwesterly of Mott Point, to the western end of the rock jetty at Red Spring Point, on the opposite eastern shoreline, and then continuing along the northeasterly side of said jetty to the shore. Said jetty forms the northern enclosure of the private marina serving The Legend Yacht and Beach Club Community on Pembroke Drive, Glen Cove (local names, local landmarks).

(b) All that area of East Creek (the tidal creek and wetlands) located southerly of Prospect Point.

(c) All that area of West Pond and outer Hempstead Harbor lying southerly and easterly of a line extending northerly from the westernmost end of the rock jetty, located southerly of the mouth of West Pond, to the westernmost end of the rock jetty with adjacent wooden walkway, located on Dosoris Island, northerly of the mouth of West Pond (local names, local landmarks).

(iii) Dosoris Pond. All that area of Dosoris Pond.

Existing sub-paragraph 41.2(b)(4)(i) is repealed.

Existing sub-paragraphs 41.2(b)(4)(ii) through 41.2(b)(4)(iv) are renumbered 41.2(b)(4)(iv) through 41.2(b)(4)(vi).

New sub-paragraphs 41.2(b)(4)(i) through 41.2(b)(4)(iii) are adopted to read as follows:

(i) Long Island Sound.

(a) All that area of Long Island Sound, including tributaries, lying northerly and westerly of a line extending northeasterly from the northernmost point of land at Prospect Point to the northernmost point of land at Matinecock Point; and, thence continuing in a northeasterly direction on a true bearing North 18 degrees East (magnetic bearing North 30 degrees East) from Matinecock Point to the New York-Connecticut State boundary.

(b) All tributaries of Long Island Sound, including Frost Creek, between Matinecock Point and Middle Chimney west of Oak Neck Point (local names, local landmarks).

(ii) Hempstead Harbor.

(a) All that area of Hempstead Harbor, including tributaries, lying southerly of a line extending northeasterly from the westernmost chimney on the seaward side of the large brown house (situated on the bluff within Sands Point Park and Preserve) located approximately 1300 yards northwesterly of Mott Point, to the western end of the rock jetty at Red Spring Point, on the opposite eastern shoreline, and then continuing along the northeasterly side of said jetty to the shore. Said jetty forms the northern enclosure of the private marina serving The Legend Yacht and Beach Club Community on Pembroke Drive, Glen Cove (local names, local landmarks).

(b) All that area of East Creek (the tidal creek and wetlands) located southerly of Prospect Point.

(c) All that area of West Pond and outer Hempstead Harbor lying southerly and easterly of a line extending northerly from the westernmost end of the rock jetty, located southerly of the mouth of West Pond, to the westernmost end of the rock jetty with adjacent wooden walkway, located on Dosoris Island, northerly of the mouth of West Pond (local names, local landmarks).

(iii) Dosoris Pond. All that area of Dosoris Pond.

Renumbered sub-paragraphs 41.2(b)(4)(iv) through 41.2(b)(4)(vi) remain unchanged.

Existing sections 41.3 through 41.5 remain unchanged.

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

William Hastback, Department of Environmental Conservation, 205 North Belle Mead Road, 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 of Environmental Conservation.

Consolidated Regulatory Impact Statement

This Consolidated Regulatory Impact Statement is part of a rule making that will classify State shellfish lands as certified (open to shellfish harvesting) or uncertified (closed to shellfish harvesting) based on standards specified in 6 NYCRR Part 47.

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 (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 ensure that State shellfish resources located within lands that meet the sanitary criteria for a certified area are available for harvest. 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 form 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 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 1, 2010, the department had issued 1,868 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 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, sanitary surveys, 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 significant 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; harvesters must observe any new closure lines. 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

This Consolidated Regulatory Flexibility Analysis for Small Businesses and Local Governments is part of a rule making that will classify State shellfish lands as certified (open to shellfish harvesting) or uncertified (closed to shellfish harvesting) based on standards specified in 6 NYCRR Part 47.

Effect on small business and local government:

As of December 31, 2010, there were 1,868 licensed shellfish diggers in New York State. The number of permits issued for areas in the State is as follows: New York City, 37; Westchester, 5; Town of Hempstead, 111; Town of Oyster Bay, 125; Town of North Hempstead, 6; Town of Babylon, 72; Town of Islip, 130; Town of Brookhaven, 347; Town of Southampton, 182; Town of East Hampton, 259; Town of Shelter Island, 51; Town of Southold, 268; Town of Riverhead, 66; Town of Smithtown, 29; Town of Huntington, 164; other, 5.

Whenever shellfish lands are classified as uncertified (closed to shellfish harvesting), there may be some loss of income for shellfish diggers who harvest shellfish from the lands to be closed. This loss is determined by the acreage to be closed, the amount of time the shellfish land is closed (whether year-round or only closed seasonally), the species of shellfish present in the area, the area's productivity, and the market value of the shellfish resource present in the particular area.

When uncertified shellfish lands are found to meet the sanitary criteria for a certified shellfish land and are then classified as certified (open to shellfish harvesting), there is also a potential to affect the income of commercial shellfish diggers. More shellfish lands are made available for the harvest of shellfish, and there is a potential for an increase in shellfish harvest and in income. The effect of the re-opening a shellfish land on the income of a harvester is determined by the shellfish species present in the area, the area's productivity, and the market value of the shellfish resource present in the area.

Local governments on Long Island exercise management authority for shellfish lands within their boundaries and share law enforcement responsibility for shellfish with the State and the counties of Nassau and Suffolk. These are 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 the level of management and enforcement that they normally undertake; therefore, there should be no effect on local governments.

Compliance requirements:

There are no reporting or recordkeeping requirements for small businesses or local governments.

Professional services:

Small businesses and local governments will not require any professional services to comply with proposed rules.

Compliance costs:

There are no capital costs which will be incurred by small businesses or local governments.

Minimizing adverse impact:

The classification of shellfish lands as uncertified may have an adverse impact on the harvest opportunities available to commercial shellfish diggers. All harvesters in the towns affected by proposed closures will be notified by mail of the changes in classification of local shellfish lands, prior to the date the changes go into effect. To minimize any adverse effects of proposed closures, towns may request that uncertified shellfish lands be considered for a conditional shellfish harvest program or a shellfish transplant project. These programs allow shellfish harvesters to utilize shellfish resources present in areas uncertified for the harvest of shellfish, under the direction of the Department of Environmental Conservation (department). Shellfish harvesters will also be able to shift harvesting effort to nearby certified shellfish lands. Lastly, seasonal closures will be implemented whenever possible; harvest will be closed only those times during the year when an area fails to meet the sanitary criteria for a certified land. There should be no significant adverse impact on local governments from most changes in the classification of shellfish lands.

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 and local town officials. Through their representatives, shellfish harvesters 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 with the Department of State.

Economic and technological feasibility:

As specified above, there are no reporting, recordkeeping or affirmative acts that small businesses or local governments must undertake to comply with the proposed rules which result in the reclassification of shellfish harvesting areas as certified or uncertified. 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.

Consolidated Rural Area Flexibility Analysis

This Consolidated Rural Area Flexibility Analysis statement is part of a rule making that will classify State shellfish lands as certified (open to shellfish harvesting) or uncertified (closed to shellfish harvesting) based on standards specified in 6 NYCRR Part 47. This statement is attached to explain why a Rural Area Flexibility Analysis is not required for this type of rule.

Amendments to Part 41 of 6 NYCRR Sanitary Conditions of Shellfish Lands 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 (department) 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 to Part 41 of 6 NYCRR, the department has determined that a Rural Area Flexibility Analysis is not required.

Consolidated Job Impact Statement

This Consolidated Job Impact Statement is part of a rule making that will classify State shellfish lands as certified (open to shellfish harvesting) or uncertified (closed to shellfish harvesting) based on standards specified in 6 NYCRR Part 47.

Nature of impact:

The proposed rule will amend 6 NYCRR Part 41 and classify shellfish lands as certified or uncertified for the harvest of shellfish based on sanitary criteria specified in 6 NYCRR Part 47.

When a shellfish land is classified as certified (open to shellfish harvesting), there may be increased job opportunities for shellfish harvesters due to the increased area available for harvest, a positive impact on jobs. In the event an area is classified as uncertified (closed to shellfish harvesting) there may be a decrease in harvesting opportunities due to the decrease in area available for harvest and negative impacts on jobs for shellfish harvesters. The extent of the impact on shellfish harvesters will be determined by the amount of area opened or closed, the amount of time during the year the area is closed (year-round or seasonally), the area's productivity, and the market value of the shellfish present in the area. In general, any negative impacts are small because the Department of Environmental Conservation (department) 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 fishing effort to adjacent certified areas.

The department does not have specific information regarding the specific locations in which individual diggers harvest shellfish, and therefore is unable to assess the specific job impacts on individual shellfish diggers.

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, 2010, there were 1,868 licensed shellfish diggers in New York State. The number of permits issued for areas in the State is as follows: New York City, 37; Westchester, 5; Town of Hempstead, 111; Town of Oyster Bay, 125; Town of North Hempstead, 6; Town of Babylon, 72; Town of Islip, 130; Town of Brookhaven, 347; Town of Southampton, 182; Town of East Hampton, 259; Town of Shelter Island, 51; Town of Southold, 268; Town of Riverhead, 66; Town of Smithtown, 29; Town of Huntington, 164; other, 5. It is estimated that ten (10) to twenty-five (25) percent of the diggers are full-time harvesters. The remainder is seasonal or part-time harvesters.

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 Atlantic Ocean south and east of New York City. There is no potential adverse impact to jobs in any other areas of New York State.

Minimizing adverse impact:

There are no adverse impacts when areas are classified as certified.

Shellfish lands are classified 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. As resources allow, the department may operate 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 identifying when the area meets the sanitary criteria. Additionally, the department operates transplant harvesting programs which allow removal of shellfish from uncertified areas for relay and cleansing in certified areas, thereby recovering a valuable resource. Conditional and transplant programs increase harvesting opportunities by making the resource in uncertified areas available to harvest under controlled conditions.

Self-employment opportunities:

A large majority of shellfish harvesters in New York State are self-employed. Rule makings to amend the classification of shellfish lands may have an impact on self-employment opportunities. The impact is dependent on the amount of area affected by the amendment, the productivity of the affected area, the type of shellfish present in the area and the availability of adjacent lands for shellfish harvesting.