Home » 2011 Issues » June 08, 2011 » ENV-23-11-00005-EP Emergency Closing of Carnivorous Marine Gastropod Harvesting Areas
ENV-23-11-00005-EP Emergency Closing of Carnivorous Marine Gastropod Harvesting Areas
6/8/11 N.Y. St. Reg. ENV-23-11-00005-EP
NEW YORK STATE REGISTER
VOLUME XXXIII, ISSUE 23
June 08, 2011
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
EMERGENCY/PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
I.D No. ENV-23-11-00005-EP
Filing No. 454
Filing Date. May. 20, 2011
Effective Date. May. 20, 2011
Emergency Closing of Carnivorous Marine Gastropod Harvesting Areas
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Proposed Action:
Addition of Part 50 to Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 3-0301(1)(t), 11-0325 and 13-0330
Finding of necessity for emergency rule:
Preservation of public health.
Specific reasons underlying the finding of necessity:
Bivalve shellfish (clams, mussels, oysters and scallops) are filter feeders that ingest phytoplankton from the water column. In areas where there are harmful algal blooms, they ingest toxin-producing algae that are present and may accumulate the algal toxins in their body tissues. These shellfish are likely to be unsafe for human consumption. Consequently, to protect public health, shellfish harvesting is prohibited in areas where biotoxins are detected at elevated levels in shellfish meats.
Bivalve shellfish are also the main food item of whelks, conchs and other predatory gastropods. Once these shellfish have bioaccumulated biotoxins from algal blooms, whelks which feed on the shellfish will also ingest and accumulate the biotoxins. Like shellfish, these gastropods will likely be unsafe for human consumption. DEC is proposing regulations to facilitate the prohibition of the harvest of gastropods in conjunction with shellfish closures in areas where elevated biotoxins are detected. The harvest prohibition is for the protection of public health, to protect consumers from the dangers of ingesting gastropods which may have elevated levels of biotoxins.
Paralytic shellfish poisoning, diarrhetic shellfish poisoning and other maladies have been associated with harmful algae blooms. The New England States and the Canadian Maritimes currently have the ability to close carnivorous snail fisheries in the event of harmful algae blooms.
Pursuant to the May 20, 2011 certification from the Commissioner of Health, DEC is taking all necessary measures, including this rule making, to protect human health.
Subject:
Emergency closing of carnivorous marine gastropod harvesting areas.
Purpose:
To establish Commissioner's authority to prohibit the harvest of carnivorous gastropods in areas affected by marine biotoxins.
Text of emergency/proposed rule:
New 6 NYCRR Part 50 is adopted to read as follows:
50 Miscellaneous marine species
50.1 Carnivorous marine gastropods hazardous for human consumption
When the commissioner, or the commissioner's designee authorized to designate shellfish lands as uncertified, determines that carnivorous gastropods may be hazardous for use as food for human consumption, due to the presence of marine biotoxins, he shall take such action as he deems necessary to protect the public health and welfare. The commissioner, or the commissioner's designee authorized to designate shellfish lands as uncertified, may prohibit activities such as, but not limited to, the taking, possessing, processing, packing, transporting, offering or exposing for sale carnivorous gastropods from areas that are designated as uncertified for the harvest of shellfish pursuant to 6 NYCRR Part 47.4 due to the presence of marine biotoxins in shellfish. The commissioner may advise the general public, the industry and public health officials that carnivorous gastropods may be hazardous for use as food.
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 17, 2011.
Text of rule and any required statements and analyses may be obtained from:
Kim McKown, Department of Environmental Conservation, 205 N. Belle Meade Rd., Suite 1, East Setauket, NY 11733, (631) 444-0454, email: kamckown@gw.dec.state.ny.us
Data, views or arguments may be submitted to:
Same as above.
Public comment will be received until:
45 days after publication of this notice.
Additional matter required by statute:
Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.
Regulatory Impact Statement
1. Statutory authority:
Environmental Conservation Law (ECL) 3-0301(1)(t) gives the Commissioner of the Department of Environmental Conservation (DEC, or the department) the authority to monitor the environment to afford more effective and efficient control practices, to identify changes and conditions in ecological systems and to warn of emergency conditions. ECL 11-0325 provides that when DEC and Department of Health jointly determine that a disease, which endangers the health and welfare of fish or wildlife populations, or of domestic livestock or of the human population, exists in any area of the state, or is in imminent danger of being introduced into the state, the department shall adopt any measures or regulations with respect to the taking, transportation, sale, offering for sale or possession of native fish or feral animals it may deem necessary in the public interest to prevent the introduction or spread of such disease. ECL 13-0330 gives DEC broad regulatory authority for whelk (Busycon spp.), including size limits, catch and possession limits, open and closed seasons, closed areas, and recordkeeping requirements. These regulations must be no less restrictive than requirements set forth in the law.
2. Legislative objectives:
The objective of ECL 3-0301(1)(t) is to give the commissioner the authority to protect the public as ecological system change. The objective of ECL 11-0325 is to give the commissioner the ability to protect resources and human health when there is an imminent danger of disease. The objective of ECL13-0330 is to give the Department the authority to manage the whelk resource for the benefit of the public.
3. Needs and benefits:
Bivalve shellfish are filter feeders that ingest the phytoplankton from the water column. In areas where there are harmful algal blooms, they ingest the algal cells present and may accumulate the algal toxins in their body meats. These shellfish are likely to be unsafe for human consumption. Consequently, shellfish harvest is prohibited in areas where biotoxins are detected in elevated levels in shellfish meats.
Bivalve shellfish are also the main food item of whelks, conchs and other predatory gastropods. Once these shellfish have bioaccumulated biotoxins from algal blooms, predatory gastropods which feed on the shellfish will also ingest and accumulate the biotoxins. Like shellfish, these gastropods will likely be unsafe for human consumption. DEC is proposing regulations to facilitate the prohibition of the harvest of gastropods in conjunction with shellfish closures in areas where elevated biotoxins are detected. The harvest prohibition is for the protection of public health, to prevent consumers from the dangers of ingesting gastropods which may have elevated levels of biotoxins.
Paralytic shellfish poisoning, diarrhetic shellfish poisoning and other maladies have been associated with harmful algae blooms. The New England States and the Canadian Maritimes currently have the ability to close carnivorous snail fisheries in the event of harmful algae blooms.
4. Costs:
The department may incur small costs associated with the notification of the regulated public. Law enforcement costs should not increase because the affected areas are already uncertified for the harvest of shellfish and are subject to patrol because of National Shellfish Sanitation Program requirements. There will be no new costs to local governments.
Whelk permit holders may incur costs due to temporary harvest closures due to biotoxin contamination if they are unable to move their harvesting to open areas. During 2010 there were 260 resident and 12 non-resident whelk permit holders in New York. Currently there are no regulations requiring landings reporting by New York whelk permit holders, but landings information from less than 10 percent of the permit holders reported harvesting more than 80,000 pounds of whelk during 2009. We have no information on the actual number of permit holders who actively harvest whelk and if active harvesters can easily move their harvesting operations to alternative open areas.
5. Local government mandates:
The proposed rule does not impose any mandates on local government.
6. Paperwork:
None.
7. Duplication:
The proposed amendment does not duplicate any state or federal requirement.
8. Alternatives:
No action alternative: Failure to adopt this rule will allow the harvest, sale and consumption of marine gastropods that may be unsafe for human consumption.
9. Federal standards:
Whelks are an inshore species, but are not considered migratory. Therefore they are not managed by the Atlantic States Marine Fishery Commission or the Regional Fisheries Management Councils.
10. Compliance schedule:
Regulated parties will be notified through appropriate news releases and via DEC's website of the changes to the regulations. The emergency regulations will take effect upon filing with the Department of State.
Regulatory Flexibility Analysis
1. Effect of rule:
Whelk permit holders who fish in areas that area temporarily closed due to biotoxins will be impacted by this rule. During 2010 there were 256 resident and 12 non-resident whelk permit holders in New York. The Department of Environmental Conservation (DEC, or the department) does not have any information on the number of permit holders who actively harvest whelk and if active harvesters can easily move their harvesting operations to alternative open areas. New York shippers and dealers may also be impacted by this rule if the landings and sales of whelk decrease due to temporary area closures. During 2010 there were 423 Food Fish and Crustacea Shipper and Dealers licenses, 23 Shellfish Processors licenses, 104 Shellfish Reshippers licenses and 174 Shellfish Shipper licenses.
2. Compliance requirements:
None.
3. Professional services:
None.
4. Compliance costs:
None.
5. Economic and technological feasibility:
The proposed regulations do not require any expenditure on the part of affected businesses in order to comply with the changes. The changes required by the proposed regulations may reduce the income of whelk permit holder and shippers and dealers if whelk landings and sales decrease due to the temporary area closures.
There is no additional technology required for small businesses, and this action does not apply to local governments; there are no economic or technological impacts for either.
6. Minimizing adverse impact:
The promulgation of this regulation is necessary for DEC to protect public health. The department has consulted with whelk permit holders and the Shellfish Advisory Committee on whelk regulations, including the authority to close areas due to biotoxins. There was no consensus but some were in favor of the proposed regulation to protect the consumers' confidence in the product.
Rural Area Flexibility Analysis
The Department of Environmental Conservation has determined that this rule will not impose an adverse impact on rural areas. There are no rural areas within the marine and coastal district. The commercial whelk fisheries that are directly affected by the proposed rule are entirely located within the marine and coastal district, and are not located adjacent to any rural areas of the state. Further, the proposed rule does not impose any reporting, record-keeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by the proposed amendments of 6 NYCRR Part 40, a Rural Area Flexibility Analysis is not required.
Job Impact Statement
1. Nature of impact:
The promulgation of this regulation is necessary for the Department of Environmental Conservation (DEC, the department) to protect public health from potential exposure to whelk contaminated with biotoxins. The proposed rule will temporarily close areas to whelk harvest when the department has closed the area due to shellfish due to biotoxins. Some whelk permit holders, as well as shippers and dealers, may be affected by these regulations if areas are closed and whelk permit holders cannot divert harvest effort to alternative open areas.
2. Categories and numbers affected:
Whelk permit holders who harvest in areas that are temporarily closed due to the detection of marine biotoxins will be impacted by this rule. During 2010 there were 256 resident and 12 non-resident whelk permit holders in New York. DEC does not have any information on the number of permit holders who actively harvest whelk and if active harvesters can easily divert their harvesting operations to alternative open areas. New York shippers and dealers may also be impacted by this rule if the landings and sales of whelk decrease due to these temporary area closures. During 2010 there were 423 Food Fish and Crustacea Shipper and Dealers licenses, 23 Shellfish Processors licenses, 104 Shellfish Reshippers licenses and 174 Shellfish Shipper licenses.
3. Regions of adverse impact:
The regions most likely to receive any adverse impact are within the marine and coastal district of the State of New York. This area included all the waters of the Atlantic Ocean within three nautical miles from the coast line and all other tidal waters within the state, including Long Island Sound and the Hudson River up to the Tappan Zee Bridge.
4. Minimizing adverse impact:
The promulgation of this regulation is necessary for DEC to protect public health. The department has consulted with whelk permit holders and the Shellfish Advisory Committee on whelk regulations, including the authority to close areas due to biotoxins. There was no consensus but some were in favor of the proposed regulation to protect the consumers' confidence in the product.
