ENV-10-11-00005-A Sanitary Condition of Shellfish Lands
6/1/11 N.Y. St. Reg. ENV-10-11-00005-A
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 22
June 01, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-10-11-00005-A
Filing No. 439
Filing Date. May. 17, 2011
Effective Date. Jun. 01, 2011
Sanitary Condition of Shellfish Lands
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
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 allow the harvest of shellfish.
Text of final 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) remains unchanged.
Existing sub-paragraph 41.2(b)(3)(i) is repealed.
New subparagraphs 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).
(d) All that area of Hempstead Harbor lying within 250 yards of the seaward end of the rock jetty at the City of Glen Cove's Crescent Beach at the foot of Crescent Beach Road, on the eastern shore of Hempstead Harbor (local names, local landmarks).
(iii) Dosoris Pond. All that area of Dosoris Pond.
Existing subparagraph 41.2(b)(4)(i) is repealed.
New subparagraph 41.2(b)(4)(i) is 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).
Existing subparagraphs 41.2(b)(4)(ii) through 41.2(b)(4)(iv) are renumbered as 41.2(b)(4)(iv) through 41.2(b)(4)(vi).
New subparagraphs 41.2(b)(4)(ii) through 41.2(b)(4)(iii) are adopted to read as follows:
(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).
(d) All that area of Hempstead Harbor lying within 250 yards of the seaward end of the rock jetty at the City of Glen Cove's Crescent Beach at the foot of Crescent Beach Road, on the eastern shore of Hempstead Harbor (local names, local landmarks).
(iii) Dosoris Pond. All that area of Dosoris Pond.
Renumbered subparagraphs 41.2(b)(4)(iv) through 41.2(b)(4)(vi) remain unchanged.
Final rule as compared with last published rule:
Nonsubstantive changes were made in section 41.2(b)(3)(ii) and (4)(ii).
Text of rule and any required statements and analyses may be obtained from:
William Hastback, NYSDEC, Bureau of Marine Resources, Shellfisheries Section, 205 N Belle Mead Rd, Suite 1, East Setauket, NY 11733, (631) 444-0477, email: wghastba@gw.dec.state.ny.us
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with DEC.
Revised Regulatory Impact Statement
This statement explains why a revised consolidated Regulatory Impact Statement is not required to accompany this Notice of Adoption. The change made to the last published rule retains the current uncertified designation for approximately 20 acres of state underwater lands but does not affect the reclassification of approximately 2500 acres of state underwater lands as certified for the harvest of shellfish and does not necessitate a revision to the previously published Regulatory Impact Statement.
Revised Regulatory Flexibility Analysis
This statement explains why a revised consolidated Regulatory Flexibility Analysis is not required to accompany this Notice of Adoption. The change made to the last published rule retains the current uncertified designation for approximately 20 acres of state underwater lands but does not affect the reclassification of approximately 2500 acres of state underwater lands as certified for the harvest of shellfish and does not necessitate a revision to the previously published Regulatory Flexibility Analysis.
Revised Rural Area Flexibility Analysis
The change made to the last published rule does not necessitate a revision to the previously published Rural Area Flexibility Analysis statement which determined that no rural areas are affected by the proposed rule.
Revised Job Impact Statement
This statement explains why a revised consolidated Job Impact Statement is not required to accompany this Notice of Adoption. The change made to the last published rule retains the current uncertified designation for approximately 20 acres of state underwater lands but does not affect the reclassification of approximately 2500 acres of state underwater land as certified for the harvest of shellfish and does not necessitate a revision to the previously published Job Impact Statement.
Assessment of Public Comment
The New York State Department of Environmental Conservation (the department) proposed to amend 6NYCRR, Part 41 "Sanitary Condition of Shellfish Lands" to reclassify areas that were designated as uncertified (closed) for the harvest of shellfish to certified (open) year-round. The reclassification is based on a sanitary survey which included identification of actual and potential pollution sources, collection and examination of water samples and the evaluation of water quality data which determined the area meets the bacteriological standards for certified shellfish lands. A small area of approximately 20 acres, initially included in the initial proposed rule to reclassify approximately 2500 acres as certified for the harvest of shellfish, will be excluded from the reclassification and will remain uncertified based on new information.
Comments were received from several individuals and one municipality.
Comment: All those who submitted comments expressed agreement with the intent of the proposed rule to reclassify approximately 2500 acres as certified for the harvest of shellfish and that it would be beneficial to commercial and recreational harvesters.
Department's response: The department concurs.
Comment: The department should look into the cause of bathing beach closures due to elevated bacteria levels at the City of Glen Cove's Crescent Beach.
Department's response: The department concurs. Recently collected water quality data documented elevated fecal coliform levels in a small creek that discharges to Hempstead Harbor near the City of Glen Cove's bathing beach at the foot of Crescent Beach Road on the eastern shore of the Harbor. Those findings, in conjunction with water quality data provided by the county health department, require the department to amend its initial proposed rule making. The department's amended rule making will retain the existing uncertified classification in an area comprising approximately 20 acres around the mouth of the small creek. That area is located within a 250-yard radius centered on the seaward end of the rock jetty immediately adjacent to the municipal beach at the foot of Crescent Beach Road. That area is currently uncertified and will remain uncertified (closed) for the harvest of shellfish, to protect public health, under the amended rule.
Comment: The department should limit harvesting to weekdays to avoid conflicts with recreational boaters in the area proposed for reclassification as certified for the harvest of shellfish.
Department's response: The department does not concur. The department does not believe that it is necessary to limit shellfish harvesting to weekdays only to avoid conflicts with recreational boating on weekends. Shellfish harvesting is permitted seven days per week in approximately 1 million acres of certified area and the department has not received reports of conflicts with increased recreational boating activities on weekends. The department has no information to indicate that shellfish harvesting in this area is more likely to result in conflicts than in other certified areas where shellfish harvesting and recreational boating take place.
Comment: The department should defer reclassification of the area until December to avoid conflicts with recreational boaters in the area during the summer months.
Department's response: The department does not concur. The department believes that it is not appropriate to delay reclassification of the area until December. As previously stated, the department has no information to support the assertion that there will be conflicts between commercial shellfish harvesters, who typically work onboard stationary boats, and recreational boaters. Additionally, deferring the reclassification until December would adversely affect recreational harvesters who typically harvest shellfish during the months when weather and water temperatures are warmer. It would also adversely affect part-time commercial harvesters who work during the summer months for extra income.
Comment: The department should impose a daily harvest limit on the amount of shellfish that can be harvested in this area to prevent the price of shellfish from being depressed by excessive supply.
Department's response: The department does not concur. Regulations specify daily harvest limits to manage particular shellfish resources, such as surfclams and bay scallops. The department does not have the authority to limit shellfish harvests for economic or market purposes. The department can not address concerns about the market price of shellfish. Commercial harvesters are free to determine how much shellfish they can take each day and subsequently sell to wholesale buyers, retail markets or food service establishments based on their communications and relationships with the purchasers of the shellfish they harvest. The environmental conservation law specifies to whom an individual possessing a valid shellfish diggers permit, or valid class D shippers permit, may sell the shellfish the individual harvests from certified shellfish lands.
Comment: If there is a substantial amount of shellfish resources in the area, harvesters may work on weekends and may improperly store their weekend catch until Monday.
Department response: The department does not concur. Harvesters currently harvest shellfish on weekends, including Sundays, in certified areas in state waters and within several Long Island towns. Harvesters have several options for selling their catch. Harvesters may sell their catch to a state permitted shellfish dealer. Harvesters who hold a Class "D" shellfish shipper permit issued by the department may sell their own catch to retail food stores or restaurants within Nassau and Suffolk Counties, many of which are open on weekends, including Sundays. All holders of a New York State shellfish diggers permit are provided with a copy of "Shellfish Harvesting, Handling and Storage." This document summarizes proper handling and storage methods for shellfish and provides a link to the web page with the complete regulations in 6 NYCRR, Part 42 "Sanitary Control over Shellfish." Those regulations specify in detail how commercial shellfish harvesters are required to properly tag, store and handle their catch, including the requirement to place shellfish under refrigeration within a specified number of hours after harvest to prevent excessive growth of bacteria. Harvesters who do not comply with the regulations on handling and storage are subject to fines and possible revocation of their permit.
Comment: There is little access to the area in the form of boat ramps and dock space in Hempstead Harbor.
Department response: The department does not concur. Three municipal boat launching ramps provide access directly to Hempstead Harbor. The Town of Oyster Bay allows non-residents to use the town boat ramp at Tappen Marina for a daily fee during the summer season, approximately Memorial Day through Labor Day, but charges no fee during the remainder of the year. The City of Glen Cove allows non-residents to use the city boat ramp at Garvies Point Road for a daily fee during the summer season, Memorial Day through Labor Day, but charges no fee during the remainder of the year. Commercial shellfish harvesters who currently work in the certified area of Long Island Sound immediately east of Matinecock Point are known to travel to that area by boat from Oyster Bay Harbor, Cold Spring Harbor or the Huntington-Northport Bay Complex where there are additional municipal boat launching ramps in the Towns of Oyster Bay and Huntington. The northeasternmost section of outer Hempstead Harbor that is proposed for reopening is immediately adjacent to the currently certified area lying east of Matinecock Point. Therefore, harvesters traveling by boat from the east, through Long Island Sound, have access to outer Hempstead Harbor by traveling a few more minutes to the south and west around Matinecock Point. Additionally there is one town marina on the eastern shore of Hempstead Harbor with dock space for over 150 boats and two private marinas with dock space for more than 400 boats in Glen Cove Creek, a tributary of Hempstead Harbor, at which harvesters may pay a fee to dock their boats. The Town marina has resident and non-resident fee schedules for marina patrons.
Comment: The department should do a small survey of shellfish resources in the area.
Department's response: The department does not have the resources to perform a scientifically valid survey that could accurately determine the extent of shellfish resources in the area.
