(a) The department shall establish an annual harvest limit for surfclams that will control the maximum allowable harvest of surfclams that may be taken by mechanical means from the certified waters of the Atlantic Ocean for the period January 1st through December 31st. The annual harvest limit shall not exceed five percent of the fully recruited biomass based on the most recent surfclam population assessment (survey) for the Atlantic Ocean. In establishing the annual harvest limit, the department shall afford an opportunity for public comment and consider stock assessments, catch reports and other relevant biological and statistical information. The annual harvest limit shall be announced no later than November 15th of the year preceding its effective date of January 1st. This limit shall be established by written directive of the commissioner or commissioner's designee and written notice of any such directives shall be provided to all permit holders.

(b) An individual fishing quota system (IFQ) has been established which will allocate to each eligible vessel an annual individual fishing quota. The individual fishing quota shall be determined annually based on the annual harvest limit referenced in subdivision (a) of this section divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery. The IFQ assigned to an eligible vessel shall be nontransferable and each vessel can only be used to catch one quota allocation. No eligible vessel shall take or attempt to take more than one quota allocation of surfclams on any surfclam/ocean quahog Atlantic Ocean permit or take more than the cumulative equivalent of one quota allocation if identified as the eligible vessel on one or more surfclam/ocean quahog Atlantic Ocean permits when authorized pursuant to section 43-3.5 of this Part, during any calendar year. The IFQ will expire on December 31st of each year and any unused quota not taken prior to the end of the year will not roll over into the next year but will remain uncaught.

(c) No vessel assigned an IFQ may be used to harvest more than 28 standard cages of surfclams (equivalent to 896 industry standard bushels) in any one day.

(d) It is unlawful for any vessel assigned an IFQ to be used to catch another vessel's individual fishing quota.

(e) It is unlawful for any vessel to take, possess, land, offload, remove or otherwise transfer, or attempt to take, land, offload, remove or otherwise transfer surfclams that have been harvested from New York State waters under an IFQ on the same day that such vessel has been used to take surfclams from the Exclusive Economic Zone or from the waters of any state having a surfclam fishery.

(f) It is unlawful for any vessel to take, possess, land or attempt to take, land or offload any surfclams harvested pursuant to this Subpart in excess of, or without, an individual fishing allocation.

(g) In order to preserve and protect surfclams of less than legal size, the department may establish one or more areas, containing a total of no more than 15 percent of the estimated standing stock of surfclams, where harvesting is prohibited. In establishing such areas, the department shall consider the effect of any such areas on stocks in harvestable areas. In addition, the department shall consult with the Surf Clam/Ocean Quahog Management Advisory Board, afford an opportunity for public comment, and consider stock assessments, catch reports, and other relevant biological and statistical information. Such areas shall, by estimation, contain more than 50 percent sublegal size surfclams by number and, once established, any such area shall be re-evaluated within 18 months of establishment. In the event that any such area is not re- evaluated, such area shall become available for harvest. The establishment of any such area shall be by written directive of the commissioner or the commissioner's designee, and a minimum of 48 hours written notice of any such directive shall be provided to all permit owners.

(h) It shall be unlawful for any person to exceed the harvest restrictions set forth in this section or in any directive issued pursuant hereto.