Home » 2012 Issues » July 25, 2012 » ENV-14-12-00005-A Exemption for Sale and Shipment of Cultivated Bay Scallops and Oysters of Less Than Legal Size for Consumption and Resale
ENV-14-12-00005-A Exemption for Sale and Shipment of Cultivated Bay Scallops and Oysters of Less Than Legal Size for Consumption and Resale
7/25/12 N.Y. St. Reg. ENV-14-12-00005-A
NEW YORK STATE REGISTER
VOLUME XXXIV, ISSUE 30
July 25, 2012
RULE MAKING ACTIVITIES
DEPARTMENT OF ENVIRONMENTAL CONSERVATION
NOTICE OF ADOPTION
I.D No. ENV-14-12-00005-A
Filing No. 683
Filing Date. Jul. 10, 2012
Effective Date. Jul. 25, 2012
Exemption for Sale and Shipment of Cultivated Bay Scallops and Oysters of Less Than Legal Size for Consumption and Resale
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of Parts 42, 48 and 49 of Title 6 NYCRR.
Statutory authority:
Environmental Conservation Law, sections 13-0316, 13-0319, 13-0323 and 13-0327
Subject:
Exemption for sale and shipment of cultivated bay scallops and oysters of less than legal size for consumption and resale.
Purpose:
To authorize the sale and shipment of cultivated bay scallops and oysters of less than legal size for consumption and resale.
Substance of final rule:
The Department of Environmental Conservation (the department) proposes to amend 6 NYCRR section 42.7 Recordkeeping requirements and section 42.11 Receiving, packing, repacking, and processing of shellfish. The following proposed changes will affect receiving and shipping records, commingling of shellfish and shellfish identification for shellfish dealers.
1. Shellfish dealers shall maintain receiving and shipping records that include the identification of shellfish as wild or farm-raised and the on/off-bottom culture permit number for farm-raised shellfish.
2. No person shall pack or repack shellfish that have been cultured or farm-raised from more than one culture or cultivation site or from more than one on/off-bottom culture permit holder within the State, in the same container.
3. No person shall pack or repack shellfish that have been cultured or farm-raised in the same container with wild shellfish that are taken from any cultivation site or harvest area within the State.
4. All shellfish dealer tags must include the following indelible statement, or an equivalent statement, on one side of the tag: "RETAILERS, INFORM YOUR CUSTOMERS: Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions."
5. All shellfish dealer tags must indicate whether the shellfish are wild or farm-raised and include the on/off-bottom culture permit number for shellfish cultured within the State.
6. An original shipper or packer must remove harvesters' tags from containers of shellfish, and keep them on file in an orderly manner for 90 days; except when the tag is required to remain attached.
The department proposes to amend 6 NYCRR Part 48 Marine Hatcheries, On-Bottom and Off-Bottom Culture of Marine Plant and Animal Life. The proposed changes relate to sale of cultivation products, marking and identification of cultivation products, and records and reporting requirements for the holders of marine hatchery, on-bottom and off-bottom culture permits.
1. Oysters and bay scallops produced through cultivation which are less than legal size or the sale of which is otherwise restricted through sections 13-0323 and 13-0327 of the Environmental Conservation Law and regulations adopted pursuant thereto, may be sold for consumption and resale under the following conditions. The exemption for sale of cultivated bay scallops of less than legal size is subject to the following provisions: a) the exemption shall only apply to such bay scallops that are cultivated under an off-bottom culture permit issued by the department; and b) that are offered for sale or sold as shellstock (unshucked) bay scallops. No exemption shall apply to cultivated bay scallops that are offered for sale or sold as shucked product.
2. The off-bottom culture permit holder shall report all purchases of bay scallop seed to the department on a form prescribed by the department within 15 days after purchase and receipt of seed scallops. Such report shall include all purchases of bay scallops measuring less than two and one quarter inches from the middle of the hinge to the middle of the bill and that do not contain an annual growth line which shall be subject to off-bottom culture under a permit issued by the department.
3. The holder of a marine hatchery, on-bottom or off-bottom culture permit shall report all purchases of oyster seed to the department on a form prescribed by the department within 15 days after purchase and receipt of seed oysters. Such report shall include all purchases of oysters measuring less than three inches in longest diameter which shall be subject to cultivation under a permit issued by the department.
4. The department shall establish an exemption for the sale of cultivated oysters of less than legal size. The exemption shall apply to oysters that are cultivated under a marine hatchery, on-bottom or off-bottom culture permit issued by the department pursuant to section 13-0316 of the Environmental Conservation Law. Cultivated oysters of any size may be offered for sale or sold to commercial markets for consumption or resale.
5. The department shall establish the following tagging requirements for the sale of cultivated shellfish for consumption or resale:
a) Prior to sale of cultivated shellfish for consumption or resale, except for shellstock (unshucked) bay scallops, to the holder of a valid class A or B shellfish dealer's permit who has a place of business in the County of Nassau or Suffolk, the culturist shall affix to each container a shellfish tag required by the provisions of paragraph 42.13(a)(5) of this Title. In addition to the tagging requirements in paragraph 42.13(a)(5), each shellfish tag must indicate, in waterproof ink, the following: 1) the marine hatchery, on-bottom or off-bottom culture permit number and identification as "farm-raised" and 2) the statement "Keep Refrigerated" or an equivalent statement.
b) Prior to the sale and shipment of cultivated shellfish for consumption or resale, except for shellstock (unshucked) bay scallops, the culturist shall affix to each container a shellfish dealer tag as required by the provisions of paragraph 42.11(a)(3) of this Title. In addition to the tagging requirements in paragraph 42.11(a)(3), each shellfish tag must indicate, in waterproof ink, the following: 1) the marine hatchery, on-bottom or off-bottom culture permit number and identification as "farm-raised" and 2) the statement "Keep Refrigerated" or an equivalent statement.
c) Prior to the sale and shipment of cultivated shellstock (unshucked) bay scallops authorized pursuant to the provisions of subdivision 48.4(c) of this Part to commercial markets for consumption or resale, the culturist shall affix to each container a shellfish dealer tag as required by the provisions of paragraph 42.11(a)(3) of this Title. In addition to the tagging requirements in paragraph 42.11(a)(3), each shellfish dealer tag shall be yellow in color with black lettering and must indicate, in waterproof ink, the following: 1) the off-bottom culture permit number and identification as "farm-raised" and 2) the statement "Keep Refrigerated" or an equivalent statement. The shellfish dealer tag affixed to each container of cultivated shellstock bay scallops shall remain attached to such container until the bay scallops are prepared for final consumption or sold to the final consumer.
6. No culturist shall be in possession of cultivated shellstock (unshucked) bay scallops and wild bay scallops on the same day.
7. No culturist shall pack cultivated shellfish from more than one cultivation site, as specified on a permit issued pursuant to this Part, in the same container.
8. No culturist shall pack cultivated shellfish in the same container with wild shellfish, when taken from any cultivation site or harvest area in the State.
9. The department shall establish reporting requirements for the holders of marine hatchery, on-bottom and off-bottom culture permits as follows: a) the holder of a marine hatchery, on-bottom or off-bottom culture permit shall file a report to the department on a form prescribed by the department of all sales of bay scallops of less than legal size that are sold to the holders of marine hatchery, on-bottom or off-bottom culture permits issued pursuant to section 13-0316 of the Environmental Conservation Law. The report shall be filed 15 days after the end of the month in which bay scallop seed sales were undertaken; and b) the holder of a marine hatchery, on-bottom or off-bottom culture permit issued pursuant to section 13-0316 of the Environmental Conservation Law shall file a report of all sales of oysters and shellstock (unshucked) bay scallops subject to the exemption authorized under subdivision 48.4(c) on a form prescribed by the department 15 days after the end of each month. A report shall not be required to be filed for any month where sales of bay scallops or oysters, under such exemption, were not undertaken by the holder pursuant to this Part.
The department proposes to add new subdivision 49.1(h) to 6 NYCRR Part 49 Shellfish Management. The proposed change allows for an exemption for cultivated bay scallops as follows:
1. Exemption for cultivated bay scallops. The harvest, possession and sale of bay scallops of less than legal size that are cultivated under a marine hatchery, on-bottom or off-bottom culture permit issued by the department, and subject to the provisions of section 13-0316 of the Environmental Conservation Law and Part 48 of this Title, shall be exempt from the provisions of subdivisions 49.1(b) through 49.1(f) of this Part.
Final rule as compared with last published rule:
Nonsubstantive changes were made in sections 42.11(a)(2), 48.5(b)(1), (c)(1) and (d)(1).
Text of rule and any required statements and analyses may be obtained from:
Debra Barnes, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, (631) 444-0483, email: dabarnes@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 the department.
Revised Regulatory Impact Statement
A revised Regulatory Impact Statement is not required to accompany this Notice of Adoption. A non-substantive change was made to the text of the proposed rule in paragraph 42.11(a)(2) to clarify that cultivated (farm-raised) shellfish may not be packed or repacked in the same container with wild shellfish when taken from any cultivation site or harvest area in the State. This is consistent with the applicable sections of 6 NYCRR Part 42 that pertain to tagging, receiving, packing, repacking and processing of shellfish, and recordkeeping requirements for receipt and shipment of wild and farm-raised shellfish. Non-substantive changes were made to section 48.5 to eliminate the term "cultured" from the tagging requirements and only use the term "farm-raised" which is consistent with the proposed text for amendments to 6 NYCRR Part 42. The original Regulatory Impact Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Revised Regulatory Flexibility Analysis
A revised Regulatory Flexibility Analysis is not required to accompany this Notice of Adoption. A non-substantive change was made to the text of the proposed rule in paragraph 42.11(a)(2) to clarify that cultivated (farm-raised) shellfish may not be packed or repacked in the same container with wild shellfish when taken from any cultivation site or harvest area in the State. This is consistent with the applicable sections of 6 NYCRR that pertain to tagging, receiving, packing, repacking and processing of shellfish, and recordkeeping requirements for receipt and shipment of wild and farm-raised shellfish. Non-substantive changes were made to section 48.5 to eliminate the term "cultured" from the tagging requirements and only use the term "farm-raised" which is consistent with the proposed text for amendments to 6 NYCRR Part 42. The original Regulatory Flexibility Analysis for small businesses and local governments Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Revised Rural Area Flexibility Analysis
A revised Rural Area Flexibility Analysis is not required to accompany this Notice of Adoption. The commercial cultivation of oysters and scallops is primarily undertaken in marine waters located within the counties of Nassau and Suffolk. The department has determined that there are no rural areas within the marine and coastal district. Therefore, the department has determined that this rule does not impact rural areas or any public or private entities located within rural areas. Furthermore, the proposed rule does not impose any reporting, record keeping, or other compliance requirements on public or private entities in rural areas. A revised Rural Area Flexibility Analysis was not required.
Revised Job Impact Statement
A revised Job Impact Statement is not required to accompany this Notice of Adoption. A non-substantive change was made to the text of the proposed rule in paragraph 42.11(a)(2) to clarify that cultivated (farm-raised) shellfish may not be packed or repacked in the same container with wild shellfish when taken from any cultivation site or harvest area in the State. This is consistent with the applicable sections of 6 NYCRR Part 42 that pertain to tagging, receiving, packing, repacking and processing of shellfish, and recordkeeping requirements for receipt and shipment of wild and farm-raised shellfish. Non-substantive changes were made to section 48.5 to eliminate the term "cultured" from the tagging requirements and only use the term "farm-raised" which is consistent with the proposed text for amendments to 6 NYCRR Part 42. The original Job Impact Statement, as published in the Notice of Proposed Rule Making, remains valid and does not need to be amended.
Assessment of Public Comment
The New York State Department of Environmental Conservation (DEC) received a total of eight written comments on the proposed rule making to amend 6 NYCRR Parts 42, 48 and 49 to provide an exemption for sale of cultivated shellstock bay scallops and oysters of less than legal size for consumption and resale and establish tagging, reporting and record keeping requirements for shellfish culturists and shippers. Six of the comments were supportive of the proposed rule making as having a positive economic impact on the aquaculture industry. One of the supporters of the proposed rule making also expressed concern about the record keeping requirements for oyster culture. One comment expressed concerns with the proposed rule raising the issue of sovereignty rights on Indian Nation lands and potential infringement with Interstate Commerce. One comment also recognized the sovereignty rights of a federally-recognized Indian Nation but expressed the desire to work collaboratively to assure the safety of shellfish related activity and supply.
The comments are summarized below, followed by the department's response:
1. Comment: Although supportive of the general purpose of the regulatory change, the increased amount of record keeping, especially for oysters, is considered to be onerous for both the grower and the regulators.
DEC response: DEC acknowledges that there will be an increase in record keeping associated with the purchase of seed oysters and sale of cultured (farm-raised) oysters of less than legal size under the exemption. However, the record keeping requirements are necessary to assist law enforcement with compliance requirements for the exemption and to trace cultured products from initial seed purchase to final sale to commercial markets for consumption. The new record keeping requirements are expected to minimize the potential for poaching of sub-legal sized wild harvest oysters and their illegal sale as cultured products and allow for traceability of cultured shellfish in commercial markets. DEC does not consider these record keeping requirements to be burdensome on the aquaculture industry and will allow for greater flexibility and marketability of cultured products when offered for sale at any size.
2. Comment: The proposed rule will help to sustain the community of marine life animals such as shellfish and the individuals consuming these products. Additionally, the rule ensures that products are fresh and packaged in the right manner.
DEC response: DEC expects this rule to have positive impacts on the economic viability of the shellfish aquaculture industry by creating an exemption that will allow for increased production of cultured (farm-raised) shellfish products that may be sold to commercial markets for consumption. The new requirements for tagging of cultured (farm-raised) and wild harvest shellfish by shippers will provide additional information to consumers on the origin of the shellfish.
3. Comment: The change in the rule on oysters and bay scallops of less than legal size for sale for aquaculturists is a positive move for the shellfish industry which creates opportunities to establish niche markets. Additional product for New York shellfish producers would be good especially since there is already a market being served by growers from out-of-state. Out-of-state growers currently supply the niche market for whole, live bay scallops in the New York Metropolitan Region. Adoption of the rule changes will enable farmers to cultivate an additional shellfish species that grows quickly on their leased grounds in the Peconic Estuary; take advantage of the marketing opportunity that exists in the greater New York Metropolitan Region; and increase the viability and profitability of their operations. They commend the DEC in this effort to amend regulations to allow for the sale of cultivated shellfish of less than legal size.
DEC response: DEC concurs with this comment and expects the rule to have a positive economic impact on the shellfish aquaculture industry.
4. Comment: The rule changes will also clarify an inconsistency in the regulations by providing an exemption that allows for the sale of cultivated oysters of less than legal size for consumption and resale. These changes would be a positive step that would allow for greater opportunities for current and future shellfish farmers that are participating in the Suffolk County Lease Program in Peconic and Gardiners Bays. They support this rule change in an effort to promote the shellfish aquaculture industry in the state.
DEC response: DEC concurs.
5. Comment: This rule will be a benefit for fishermen, suppliers of seed and materials, and the consumer. This will help to sustain their operations in an ever increasingly expensive environment since they will have increased opportunities for creation of niche markets.
DEC response: DEC concurs with this comment and expects the rule to have a positive economic impact on the shellfish aquaculture industry with little or no impacts to wild fisheries.
6. Comment: The proposed amendment infringes on the sovereignty rights of a federally-recognized Indian nation because it would require cultured oysters to be identified by a shellfish tag that includes the "on-bottom or off-bottom culture permit number" of the permit issued by New York State. The State lacks jurisdiction over Indian nation lands and the imposition of a New York State permit requirement for oyster farming on federally-recognized Indian nation lands would be invalid. The tagging requirements for cultured oysters apply to any oysters that are destined and delivered for export outside of the United States, and/or outside of the State of New York, and as such, a New York conflicting local tag requirement may violate the Interstate Commerce Clause of the Constitution of the United States.
DEC response: DEC respectfully disagrees with this comment. The State recognizes and respects the sovereignty rights of the nation, and would not, as such, impose its jurisdiction on shellfish harvested and consumed by the nation's citizens. However, any shellfish that are sold in interstate commerce must meet the requirements established under the National Shellfish Sanitation Program (NSSP) and all DEC regulations that have been adopted to be consistent with these requirements in order to protect the public health of consumers of raw molluscan shellfish. The State's shellfish program is administered consistent with the stringent guidelines established under the NSSP that are designed to protect the public health of consumers of shellfish. The NSSP is the federal/state cooperative program recognized by the U.S. Food and Drug Administration and the Interstate Shellfish Sanitation Conference for the sanitary control of shellfish produced and sold for human consumption. The NSSP Guide for the Control of Molluscan Shellfish consists of the Model Ordinance which includes guidelines to ensure that the shellfish produced in States are in compliance with the uniform standards for public health protection of consumers which includes a national standard for the tagging of shellfish that are sold in interstate commerce. The purpose of the NSSP is to promote and improve the sanitation of shellfish sold in interstate commerce through federal/state cooperation and uniformity of State shellfish programs. The requirement for a shellfish aquaculture permit for any cultured (farm-raised) shellfish that are sold in intra or interstate commerce is consistent with the Model Ordinance under the NSSP and would apply to an Indian nation involved in the sale of cultured oysters in commerce. Furthermore, DEC's proposed tagging requirements for cultured or farm-raised shellfish are consistent with the guidelines in the NSSP and also other states that allow an exemption for sale of cultured shellfish of less than legal size. This tagging requirement is not a conflicting local tag but consistent with a national standard for tagging of shellfish offered for sale or sold in interstate commerce for consumption. Other states that allow for exemptions for cultured shellfish use a similar tagging requirement as DEC has proposed in the regulatory amendment that is pending adoption. Additionally, the U.S. Department of Agriculture's (USDA) Country of Origin Labeling law (COOL) requires all shellfish that are sold at retail to be labeled with the country of origin and indicate if they are "wild" or "farm-raised" so that this information is readily available to consumers. DEC's proposed regulations will incorporate the minimum requirements of the USDA COOL labeling law and minimum guidelines in the NSSP for tagging of all shellfish to readily identify "wild" versus "cultured (farm-raised)" and also allow for increased traceability of product back to its initial harvest area or culture site in the event of a shellfish-related illness. Since the Shinnecock Indian Nation does not have an international agreement (Memorandum of Understanding) with the U.S. FDA for foreign nations under the NSSP, the Nation will need to comply with New York State's regulations for their shellfish to be sold in interstate commerce and also be listed on the Interstate Certified Shellfish Shippers List. DEC's regulations for tagging requirements of shellfish apply to all shellfish sold in intrastate or interstate commerce.
7. Comment: A federally-recognized Indian nation expressed a desire to continue to pursue safe approaches to shellfish cultivation and harvesting, in the exercise of all sovereign and aboriginal fishing rights in and about its homelands. Farming and fishing the seas are ancestral activities of the nation; these and related activities continue to this day for food supply and as recreational, ceremonial and income-producing activities. The tribal trustees should be contacted to assure appropriate collaborative efforts to assure the safety of shellfish related activity and supply.
DEC response: DEC acknowledges and respects the sovereignty and federal recognition and rights of the Indian nation and their desire to work collaboratively to assure the safety of shellfish related activity and supply. The State's shellfish program is administered consistent with the stringent guidelines established under the National Shellfish Sanitation Program (NSSP) that are designed to protect the public health of consumers of shellfish. The purpose of the NSSP is to provide a uniform standard for public health protection of consumers of shellfish and also to ensure that both wild and cultured (farm-raised) shellfish are harvested from shellfish lands that meet an acceptable bacteriological standard (certified for shellfish harvest) and adheres to permitting requirements that allow for traceability of shellfish from approved sources. DEC is eager to work collaboratively with the Indian nation to ensure that any shellfish cultured or harvested and sold in commerce is safe for consumption and meets the requirements of the NSSP for sanitary control over shellfish.
