ENV-22-12-00008-EP Sanitary Condition of Shellfish Lands

5/30/12 N.Y. St. Reg. ENV-22-12-00008-EP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 22

May 30, 2012

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. ENV-22-12-00008-EP

Filing No. 457

Filing Date. May. 15, 2012

Effective Date. May. 15, 2012

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.

Text of emergency/proposed rule:

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

Section 41.0 through subparagraph 41.2(b)(2)(iii) remain unchanged.

Existing subparagraph 41.2(b)(2)(iv) is repealed.

New subparagraph 41.2 (b)(2)(iv) is adopted to read as follows:

('iv') Tobay Marina-Boat Basin (local name).

New clauses 41.2 (b)(2)(iv)('a') and 41.2 (b)(2)(iv)('b') are adopted to read as follows:

('a') All that area of Tobay Heading (local name) and its tributaries in the western boat basin of the Town of Oyster Bay Tobay Marina.

('b') During the period May 15 through September 30, both dates inclusive, all that area of the eastern boat basin at the Town of Oyster Bay Tobay Marina (local name) and its tributaries.

Existing subparagraph 41.2(b)(2)(v) through clause 41.2(b)(3)(i)('a') remain unchanged.

Existing clause 41.2(b)(3)(i)('b') is repealed.

New clause 41.2(b)(3)(i)('b') is adopted to read as follows:

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

Existing subparagraphs 41.2(b)(3)(ii) through 41.2(b)(3)(iii) remain unchanged.

New subparagraph 41.2(b)(3)(iv) is adopted to read as follows:

(iv) Frost Creek. All that area of Frost Creek and all that area of Long Island Sound within 400 yards in all directions of the northernmost end of the jetty located on the eastern side of the entrance to Frost Creek.

Existing paragraph 41.2(b)(4) through clause 41.2(b)(4)(i)('a') remain unchanged.

Existing clause 41.2(b)(4)(i)('b') is repealed.

New clause 41.2(b)(4)(i)('b') is adopted to read as follows:

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

Existing subparagraphs 41.2(b)(4)(ii) through 41.2(b)(3)(iii) remain unchanged.

Subparagraphs 41.2(b)(4)(iv) through 41.2(b)(4)(vi) are renumbered 41.2(b)(4)(v) through 41.2(b)(4)(vii).

New subparagraph 41.2(b)(4)(iv) is adopted to read as follows:

(iv) Frost Creek. All that area of Frost Creek and all that area of Long Island Sound within 400 yards in all directions of the northernmost end of the jetty located on the eastern side of the entrance to Frost Creek.

Renumbered subparagraphs 41.2(b)(4)(v) and 41.2(b)(4)(vi) remain unchanged.

Renumbered subparagraph 41.2(b)(4)(vii) is repealed.

New subparagraph 41.2(b)(4)(vii) is adopted to read as follows:

(vii) Cold Spring Harbor

('a') 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 located on the shoreline immediately west of Cold Spring Beach (local landmark).

('b') During the period May 1 through October 31, both dates inclusive, all that area of Eel Creek (local name) located at the Sagamore Hill National Historic Site and all that area within 250 yards in any direction of the southeastern corner of the bulkheading surrounding the stand of trees on the northern side of the entrance to the boat basin located immediately south of the Sagamore Hill National Historic Site.

Existing section 41.3 through clause 41.3(b)(3)(iii)('b') remain unchanged.

Existing clause 41.3(b)(3)(iii)('c') is repealed.

New clause 41.3 (b)(3)(iii)('c') is adopted to read as follows:

('c') During the period May 15 through December 31, both dates inclusive, all that area of Bellport Bay, lying north and east of a line extending southeast from the from the flagstaff serving the Bellport Yacht Club, located at the foot of Bellport Lane in Bellport, to the westernmost point of John Boyle Island and continuing southerly to the northernmost point of land east of the dock at Old Inlet and west of Hospital Island.

Existing clause 41.3(b)(3)(iii)('d') through clause 41.3(b)(3)(iii)('f') remain unchanged.

Existing clause 41.3(b)(3)(iii)('g') is repealed.

Subparagraph 41.3(b)(3)(iv) through clause 41.3(b)(4)(x)('a') remain unchanged.

Existing subclause 41.3(b)(4)(x)('a')('1') is amended to read as follows:

('1') All that area of Alwewife Creek (local name) and North Sea Harbor lying south and west of a line extending southeasterly from the northeasternmost point of land at Conscience Point, to the easternmost end of the bulkhead located at 319 Noyack Road, a two-story, wood shingled residence with three flag poles and a gambrel roof on an unnamed point of land, west of the entrance to Fish Cove (local names, local landmarks) and, all that area of North Sea Harbor lying east of a line extending northerly from the easternmost end of the bulkhead located at 319 Noyack Road to the southernmost point of land located at the residence of 102 Towd Point Road, on the opposite shoreline. The residence is 2-story and light in color, with a stand of trees between the shoreline and the residence.

Existing subclauses 41.3(b)(4)(x)('a')('2') and ('3') remain unchanged.

New subclause 41.3(b)(4)(x)('a')('4') is adopted to read as follows:

('4') All that area of Davis Creek (local name) lying east of a line extending southeasterly, from the westernmost footbridge that provides foot access to Little Peconic Bay (located in the vicinity of the residence at 40D Cedar Crest Road), and all that area lying west of line extending southerly from a monument located on the northern shore of Davis Creek, immediately west of Turtle Cove (local name), to a monument located on the southern shore of Davis Creek.

Existing clause 41.3(b)(4)(x)('b') remains unchanged.

Existing subclause 41.3(b)(4)(x)('b')('1') is repealed.

New subclause 41.3(b)(4)(x)('b')('1') is adopted to read as follows:

('1') All that area of Davis Creek (local name) lying west of a line extending southeasterly, at the westernmost footbridge that provides foot access to Little Peconic Bay (located in the vicinity of the residence at 40D Cedar Crest Road) and continuing towards the Towd Point Road Bridge, including the entrance of said creek.

Existing subparagraphs 41.3(b)(4)(xi) through 41.3(b)(5)(vii) remain unchanged.

Existing subparagraph 41.3(b)(5)(viii) is amended to read as follows:

(viii) Northwest Harbor.

('a') All that area of Alewife Pond, including entrance channel and all that area of Northwest Harbor, within 50 yards in all directions from the inlet of Alewife Pond.

New clause 41.3(b)(5)(viii)('b') is adopted to read as follows:

('b') All that area of Northwest Harbor within a 200 yard radius from the western point of the spit of land on the southerly side of the entrance to the old Mile Hill Marina (local name), including the old Mile Hill Marina and the unnamed creek located immediately south of the old marina, which are all located southerly of Mile Hill Road.

Existing subparagraph 41.3(b)(5)(ix) through clause 41.3(b)(7)(ii)('b') remain unchanged.

Existing clause 41.3(b)(7)(iii)('a') is repealed.

New clause 41.3(b)(7)(iii)('a') is adopted to read as follows:

('a') Schoolhouse Creek: All that area of Schoolhouse Creek including all that area of Cutchogue Harbor within 100 yards in all directions of the easternmost point of the bulkheading on the south side of the entrance to Schoolhouse Creek.

Existing clause 41.3(b)(7)(iii)('b') through Section 41.3(b)(9) remains unchanged.

Existing subparagraph 41.3(b)(9)(i) is amended to read:

('i') Port Jefferson Harbor, Setauket Harbor and Conscience Bay.

Existing clauses 41.3(b)(9)(i)(a) and 41.3(b)(9)(i)(b) remain unchanged.

Existing clause 41.3(b)(9)( i)('c') is repealed.

New clause 41.3(b)(9)(i)('c') is adopted to read as follows:

('c') During the period May 1st through October 31st, both dates inclusive all that area of Port Jefferson Harbor and Setauket Harbor, including tributaries, lying southerly and westerly of a line extending easterly from the northernmost chimney of the residence at 10 Preston Lane, Strong's Neck, (said residence is a two story house protected by a seawall) to channel Marker buoy G "5" FI G 4s BELL and thence continuing southeasterly to the flagpole located at the foot of Washington Street (Village of Poquott).

Existing clause 41.3(b)(9)(i)('d') remains unchanged.

New clause 41.3(b)(9)(i)('e') is adopted to read as follows:

('e') During the period January 1 through December 31, both dates inclusive: all that area of Setauket Harbor, including Little Bay and all other tributaries, lying south and west of a line extending westerly from utility pole "NYT #29," located near the shoreline adjacent to Van Brunt Manor Road at Poquott, to the highest point of the turret of the residence at 18 John's Road at Strong's Neck, on the opposite shoreline.

Existing subparagraph 41.3(b)(9)(ii) is repealed in its entirety.

Existing subparagraphs 41.3(b)(9)(iii) through 41.3(b)(9)(viii) are renumbered 41.3(b)(9)(ii) through 41.3(b)(9)(vii).

Existing paragraph 41.3(b)(10) through 41.3(b)(11)(iii) remain unchanged.

Existing subparagraph 41.3(b)(11)(iv) is repealed.

New subparagraph 41.3(b)(11)(iv) is adopted to read as follows:

(iv) Cold Spring Harbor.

('a') 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 located on the shoreline immediately west of Cold Spring Beach (local landmark).

('b') During the period May 1 through October 31, both dates inclusive, all that area of Eel Creek (local name) located at the Sagamore Hill National Historic Site and all that area within 250 yards in any direction of the southeastern corner of the bulkheading surrounding the stand of trees on the northern side of the entrance to the boat basin located immediately south of the Sagamore Hill National Historic Site.

Existing clause 41.3(b)(11)(v) through Section 41.5 remains 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 August 12, 2012.

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

Gina M. Fanelli, NYS 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 is on file with the department.

Regulatory Impact Statement

1. 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.

2. 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.

3. 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, NY. The most recent Triennial Review of Shellfish Growing Area (SGA) #2, dated March 2012, indicates that water quality in southern South Oyster Bay no longer meets bacteriological criteria for seasonally certified shellfish lands, as specified in 6NYCRR Part 47, during the period October 1 through May 14. It recommends that this area shall be reclassified as uncertified year-round for the harvest of shellfish. The most recent Triennial Review of SGA #7, dated January 2012, indicates the water quality in a portion of northern Bellport Bay no longer meets the bacteriological criteria for certified shellfish lands year-round. It recommends that this area be reclassified as seasonally certified from January 1 - May 14. The portion of Bellport Bay that is seasonally certified from December 15 - May 14, no longer meets bacteriological criteria during the last two weeks in December. The report recommends that the seasonally certified dates be changed to seasonally certified from January - May 14. The most recent Triennial Review of SGA #17, dated March 2012, indicates that an unnamed creek in Northwest Harbor, (in the NYS Environmental Conservation Area) no longer meets the bacteriological criteria for certified shellfish lands year round. The report recommends that this area be reclassified as seasonally certified from December 15 - April 30. The most recent Annual Review of Shellfish Growing Area #27 (Cutchogue Harbor), indicates that the water quality of the mouth of Schoolhouse Creek no longer meets the criteria for certified shellfish lands. It is recommended that this area be reclassified as uncertified for the harvest of shellfish year-round. The most recent Triennial Review of SGA #33, dated July 2011, indicates that that the water quality of the outer Setauket Harbor no longer meets bacteriological criteria for certified shellfish lands year round. It is recommended that the area be reclassified as seasonally certified from November 1-April 30. The most recent Triennial Review of SGA #34 (Western Long Island Sound), dated March 2012, indicates that the water quality at the mouth of Frost Creek no longer meets the bacteriological criteria for certified shellfish lands. It recommends that the area be reclassified as uncertified for the harvest of shellfish. The most recent Triennial Review of SGA #48(Cold Spring Harbor), dated October 2011,indicates that the mouth of Eel Creek and the adjacent private boat basin no longer meet the bacteriological criteria for certified shellfish lands, it recommends that the area be reclassified as seasonally certified November 1- April 30. The most recent Triennial; Review of SGA #63, dated March 2012, indicates that a portion of North Sea Harbor and Davis Creek no longer meet the bacteriological criteria for certified and seasonally uncertified shellfish lands, respectively. It recommends that these areas be reclassified as uncertified to the harvest of shellfish.

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 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 April 25, 2012, the department had issued 1,505 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.

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 reasonable 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. Failing to close these areas would allow the harvest of shellfish from areas that do not meet the water quality standards for the safe harvest of shellfish for human consumption and would put New York's program out of compliance with the NSSP. Failure to comply with the NSSP will result in interstate commerce of NYS shellfish to cease 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. 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 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.

10. 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

1. Effect on small business and local government:

As of April 25, 2012 there were 1,505 licensed shellfish diggers in New York State. The number of permits issued for areas in the State is as follows: New York City, 38; Westchester, 2; Town of Hempstead, 92; Town of Oyster Bay, 110; Town of North Hempstead, 4; Town of Babylon, 50; Town of Islip, 102; Town of Brookhaven, 252; Town of Southampton, 170; Town of East Hampton, 212; Town of Shelter Island, 29; Town of Southold, 217; Town of Riverhead, 54; Town of Smithtown, 26; Town of Huntington, 136; other, 11.

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 a number of diggers who may be harvesting shellfish from the lands to be closed. This loss is 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. 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 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 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:

As specified above, 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. Under appropriate conditions, shellfish may be harvested from uncertified lands and microbiologically cleansed in a shellfish depuration plant. 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 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 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.

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

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 therefrom 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 April 25, 2012 there were 1,505 licensed shellfish diggers in New York State. The numbers of permits issued for areas in the State are as follows: New York City, 38; Westchester, 2; Town of Hempstead, 92; Town of Oyster Bay, 110; Town of North Hempstead, 4; Town of Babylon, 50; Town of Islip, 102; Town of Brookhaven, 252; Town of Southampton, 170; Town of East Hampton, 212; Town of Shelter Island, 29; Town of Southold, 217; Town of Riverhead, 54; Town of Smithtown, 26; Town of Huntington, 136; other, 11.

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 transplant harvesting programs which allow removal of shellfish from closed areas for cleansing in certified areas, thereby recovering a valuable resource. Conditional and 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.