ENV-23-11-00005-A Emergency Closing of Carnivorous Marine Gastropod Harvesting Areas

8/17/11 N.Y. St. Reg. ENV-23-11-00005-A

NEW YORK STATE REGISTER

VOLUME XXXIII, ISSUE 33

August 17, 2011

RULE MAKING ACTIVITIES

DEPARTMENT OF ENVIRONMENTAL CONSERVATION

NOTICE OF ADOPTION

 

I.D No. ENV-23-11-00005-A

Filing No. 708

Filing Date. Aug. 02, 2011

Effective Date. Aug. 17, 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:

Action taken:

Addition of Part 50 to Title 6 NYCRR.

Statutory authority:

Environmental Conservation Law, sections 3-0301(1)(t), 11-0325 and 13-0330

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 or summary was published

in the June 8, 2011 issue of the Register, I.D. No. ENV-23-11-00005-EP.

Final rule as compared with last published rule:

No changes.

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

Kim McKown, New York State Department of Environmental Conservation, 205 North Belle Mead Road, Suite 1, East Setauket, New York 11733, [phone], email: [e-mail]

Additional matter required by statute:

Pursuant to the State Environmental Quality Review Act, a negative declaration is on file with the department.

Assessment of Public Comment

1. Comment: The Department of Environmental Conservation (DEC or department) received one written comment, dated July 10, 2011, questioning whether DEC had data that showed that carnivorous gastropods had harmful levels of biotoxins, whether the gastropods were tested, are there any existing reports of anyone from New York or elsewhere getting sick from eating carnivorous gastropods, how will DEC determine when to open the area (will the gastropods be tested, what test will be used, and is it approved?), and will nearby uncertified shellfish areas be reopened to trapping conch. There were also questions about whether DEC will require new tagging requirements for carnivorous gastropods and if DEC has information on the number of harvesters, landings and the market value to estimate the economic impacts of the regulations. The comment recommended not adopting the rule until reliable information on biotoxin levels and reports of illnesses in carnivorous gastropods were available.

DEC response: Scientific research indicates that carnivorous gastropods can become contaminated by marine biotoxins by feeding on contaminated shellfish. There have been cases in New England and globally of illnesses caused by ingesting carnivorous gastropods contaminated with biotoxins. The New England States and the Canadian Maritimes currently have the ability to close carnivorous snail fisheries in the event of harmful algal blooms. The department is taking a precautionary approach and closing marine gastropod fisheries when areas are closed to shellfish harvest due to biotoxins, as is done in New England. To reopen the fishery, the state of Maine tests the gastropods using the same testing procedures used on clams. New York does not have the resources to conduct marine gastropod testing; therefore the gastropod fishery will be re-opened based on the testing of bivalve shellfish meats. This may not be a precautionary approach, since biotoxin levels may take longer to decrease in carnivorous gastropods meats then in bivalve shellfish meats. The department is unaware of any research that indicates that carnivorous gastropods concentrate harmful viruses or bacteria in their meats as do bivalve shellfish; the gastropod fishery will re-open in both shellfish certified and uncertified areas.

The comment about requiring tagging to identify harvest area, date and harvester is good, and DEC will consider adding this to a future rule. This would help enforce area closures.

The DEC requires a permit to commercially harvest whelk, 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 to compensate for temporary closures.

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 marine biotoxins. Therefore, DEC is taking a precautionary approach based on scientific research and protocols developed in New England and Maritime Canada.

2. Comment: DEC received one phone comment supporting the rule.