To protect public health and to comply with ECL 13-0307, the Department's Bureau of Marine Resources conducts and maintains sanitary surveys of shellfish growing areas (SGA) in the marine district of New York State. Maintenance of these surveys includes the regular collection and bacteriological examination of water samples to monitor the sanitary condition of shellfish growing areas.

Recent sanitary surveys of shellfish lands in the Town of Southold show that changes in classification of certain shellfish lands are required. This rule will immediately designate shellfish lands that do not meet water quality standards as uncertified and close such lands to shellfishing. The rule will also certify (open) shellfish lands that were previously uncertified where water quality standards are now satisfied.

It is necessary to adopt this rule through emergency rule making to protect the public health and general welfare. The closure of shellfish lands which do not meet the bacteriological criteria for certification will help to ensure that shellfish found thereon are not harvested and marketed to the general public for consumption. Reopening of areas that meet criteria specified in Title 6 NYCRR Part 47 will preserve the general welfare by providing increased opportunity for shellfish harvesters and economic benefit to New York's shellfish industry.

Clause 41.3(b)(7)(iii)(c) is repealed, and a new clause 41.3(b)(7)(iii)(c) is adopted to read as follows:

(c) Wickham Creek. All that area of Wickham Creek including tributaries.

Statutory authority:

The statutory authority for designating shellfish lands as certified or uncertified is Environmental Conservation Law (ECL) Section 13-0307. Subdivision 1 of Section 13-0307 of the ECL requires the Department to periodically conduct examinations of shellfish lands within the marine district to ascertain the sanitary condition of said lands. Subdivision 2 of this section requires that the Department certify which shellfish lands are in such sanitary condition that shellfish may be taken for human consumption. Such lands are designated as certified shellfish lands. All other shellfish lands are designated as uncertified.

The statutory authority for promulgating regulations with respect to the harvest of shellfish is ECL Section 13-0319.

Legislative objectives:

There are two purposes of the legislation: to protect public health and to ensure that shellfish lands are appropriately classified as certified or uncertified for the harvest of shellfish. This legislation requires the Department to examine shellfish lands and determine which shellfish lands meet the sanitary criteria for a certified shellfish land, as set forth in regulation - Part 47 of Title 6 NYCRR. Shellfish lands which meet criteria must be designated as certified. Shellfish lands which do not meet criteria must be designated as uncertified to prevent the harvest of shellfish from those lands.

Needs and benefits:

To protect public health and to comply with ECL 13-0307, the Bureau of Marine Resources' shellfish sanitation program conducts and maintains sanitary surveys of shellfish growing areas (SGA) in the marine district of New York State. Maintenance of these surveys includes the regular collection and bacteriological examination of water samples to monitor the sanitary condition of shellfish growing areas.

Annually, water quality evaluation reports are prepared by the staff of the shellfish sanitation program for each SGA which contains certified shellfish lands. These reports present the results of statistical analyses of water quality data gathered by the program, and annual updates to the shoreline pollution source surveys. Each report includes a summary and recommendations for the appropriate classification of that particular shellfish growing area. The report summary may state that all or portions of an SGA should be designated as uncertified for the harvest of shellfish or that all, or portions of, an SGA should be designated as certified for the harvest of shellfish based on criteria in 6 NYCRR Part 47. These reports are on file at the Bureau of Marine Resources office in East Setauket, NY.

In “Cutchogue Harbor SGA #27 Triennial Water Quality Data Evaluation” dated February 2007, data analyses demonstrate that water quality in the uncertified portion of Cutchogue Harbor known as Lower Mud Creek/Haywater Cove now meet bacteriological criteria for certified shellfish lands during a portion of the year as specified in 6 NYCRR Part 47, “Certification of Shellfish Lands.” It recommends that this portion of Cutchogue Harbor be designated as certified for the harvest of shellfish during the months when water quality meets criteria. This change will open the area for a period from December 1 through April 30, thereby providing five additional months of harvesting opportunities each year.

Regulations which designate shellfish lands as certified, as is proposed for a portion of the Cutchoge Harbor SGA, benefit the general welfare by ensuring that shellfish resources on underwater lands which meet the sanitary criteria are available for both commercial and recreational use. The classification of previously uncertified lands as certified may provide additional sources of income to shellfish diggers by increasing the amount of harvest area available.

In the “Cutchogue Harbor SGA #27 Triennial Water Quality Data Evaluation” report dated February 2007, data analyses demonstrate that water quality in a portion of the growing area known as Wickham Creek no longer meets bacteriological criteria for certified shellfish lands as specified in 6 NYCRR Part 47. It recommends that Wickham Creek be designated as uncertified throughout the year.

Regulations which designate shellfish lands as uncertified, as proposed for Cutchogue Harbor, are needed to prevent the harvest and subsequent sale for consumption of shellfish from lands which do not meet the criteria for certified shellfish lands. The direct harvest of shellfish for use as food is allowed from certified shellfish lands only. Shellfish harvested from uncertified shellfish lands have a greater potential to cause human illness due to the possible presence of pathogenic bacteria or viruses which may cause the transmission of infectious disease to the shellfish consumer.

Costs:

There will be no costs to state or local governments. No direct costs will be incurred by regulated commercial shellfish harvesters in the form of initial capital investment or initial non-capital expenses, in order to comply with these proposed regulations. The reopening of uncertified shellfish lands is likely to provide economic benefit to commercial shellfish harvesters whose livelihoods depend on access to certified shellfish lands.

The Department cannot provide an estimate of potential lost income to shellfish harvesters when areas are designated as uncertified, due to a number of variables that are associated with commercial shellfish harvesting; nor can the potential benefits be estimated when areas are reopened. Those variables are listed in the following three paragraphs.

As of December 31, 2006, the Department had issued 1,770 New York State shellfish digger's permits. However, the actual number of those individuals who harvest shellfish commercially full time is not known. Recreational harvesters who wish to harvest more than the daily recreational limit of 100 hard clams, with no intent to sell their catch, can only do so by purchasing a New York State digger's permit. The number of individuals who hold shellfish diggers permits for that type of recreational harvest is unknown. The Department's records do not differentiate between full-time and part-time commercial or recreational shellfishing.

The number of harvesters working in a particular area cannot be estimated for the reason stated above. In addition, the number of harvesters in a particular area is dependent upon the season, the amount of shellfish resource in the area, the price of shellfish and other economic factors, unrelated to the Department's proposed regulatory action.

The Department's actions to designate areas as certified or uncertified are not dependent on the amount of shellfish resources in a particular area. They are based solely on public health concerns and legal mandates.

This rulemaking does not impose any new costs on the Department. Administration and enforcement of the proposed amendment are covered by existing programs.

Local government mandates:

The proposed rule does not impose any mandates on local government.

Paperwork:

No new paperwork is required.

Duplication:

The proposed amendment does not duplicate any state or federal requirement.

Alternatives:

There are no significant alternatives. By law (ECL Section 13-0307), once the Department has determined that an area no longer meets the sanitary criteria for a certified shellfish land, the Department must designate that land as uncertified for the harvest of shellfish. This is necessary to protect public health. Conversely, once the Department has determined that an uncertified shellfish land meets the sanitary criteria, the Department must designate the land as certified and open the area to shellfish harvesting.

Federal standards:

There are no federal standards regarding the certification of shellfish lands. New York and other shellfish producing and shipping states participate in the National Shellfish Sanitation Program (NSSP) which provides guidelines intended to promote uniformity in shellfish sanitation standards among members. The NSSP is a cooperative program consisting of the federal government, states and the shellfish industry. Participation in the NSSP is voluntary - each state adopts its own standards. The U.S. Food and Drug Administration (FDA) evaluates state programs and standards relative to NSSP guidelines. Substantial non-conformity with NSSP guidelines can result in sanctions being taken by FDA and the NSSP, including removal of a state's shellfish shippers from the Interstate Certified Shellfish Shippers List. This would effectively bar a non-conforming state's product from interstate commerce.

Compliance schedule:

Immediate compliance with any regulation designating shellfish lands as uncertified is necessary to protect public health. Shellfish harvesters are notified of changes to SGA classification by mail either prior to, or concurrent with, the adoption of new regulations.

Compliance with new regulations designating areas as certified or uncertified does not require additional capital expense, paperwork, recordkeeping or any action by the regulated parties in order to comply, except that harvesters must observe the new closure lines. Therefore, immediate compliance may be readily achieved.

Effect on small business and local government:

As of December 31, 2006, there were 1,770 licensed shellfish diggers in New York State. The number of permits issued for areas in the state is as follows: New York City, 53; Westchester, 2; Town of Hempstead, 145; Town of Oyster Bay, 176; Town of North Hempstead, 5; Town of Babylon, 69; Town of Islip, 110; Town of Brookhaven, 277; Town of Southampton, 185; Town of East Hampton, 239; Town of Shelter Island, 32; Town of Southold, 211; Town of Riverhead, 35; Town of Smithtown, 26; Town of Huntington, 194; other, 11.

Any change in the designation of shellfish lands may have an effect on shellfish diggers. Each time shellfish lands or portions of shellfish lands are designated as uncertified, there may be some loss of income for a number of diggers who may be harvesting shellfish from the lands to be closed. This loss is determined by the acreage to be closed, the type of closure (whether year-round or seasonal), the species of shellfish present in the area, its productivity, and the market value of the shellfish resource in the particular area.

When uncertified shellfish lands are found to meet the sanitary criteria for a certified shellfish land, and are then re-designated as certified, there is also an effect on shellfish diggers. More shellfish lands are made available for the harvest of shellfish, and there is a potential for an increase in income. Again, the effect of the re-opening of a harvesting area is determined by the shellfish species present, the area's productivity, and the market value of the shellfish resource in the area.

Changes in the classification of shellfish lands impose no additional requirements on local governments above what level of management and enforcement that they normally undertake; therefore, there should be no effect on local governments.

Compliance requirements:

There are no reporting or recordkeeping requirements for small businesses or local governments.

Professional services:

Small businesses and local governments will not require any professional services to comply with proposed rules.

Compliance costs:

There are no capital costs which will be incurred by small businesses or local governments.

Minimizing adverse impact:

The designation of shellfish lands as uncertified may have an adverse impact on commercial shellfish diggers. All diggers in the towns affected by proposed closures will be notified by mail of the designation of shellfish lands as uncertified, prior to the date the closures go into effect. Shellfish lands which fail to meet the sanitary criteria during specified times of the year will be designated as uncertified only during those times. At other times, shellfish may be harvested from those lands (seasonally certified). To further minimize any adverse effects of proposed closures, towns may request that uncertified shellfish lands be considered for conditionally certified designation or for a shellfish transplant project. Under appropriate conditions, shellfish may be harvested from uncertified lands and microbiologically cleansed in a shellfish depuration plant. Shellfish diggers will also be able to shift harvesting effort to nearby certified shellfish lands. There should be no significant adverse impact on local governments from most changes in the classification of shellfish lands.

Small business and local government participation:

Impending shellfish closures are discussed at regularly scheduled Shellfish Advisory Committee meetings. This committee, organized by the Department, is comprised of representatives of local baymen's associations and local town officials. Through their representatives, shellfish harvesters can express their opinions and give recommendations to the department concerning shellfish land classification. Local governments, state legislators, and baymen's organizations are notified by mail and given the opportunity to comment on any proposed rulemaking prior to filing with the Department of State.

Economic and technological feasibility:

As specified above, there are no reporting, recordkeeping or affirmative acts that small businesses or local governments must undertake to comply with the proposed rules which result in the reclassification of shellfish harvesting areas as certified or uncertified. Similarly, small businesses and local governments will not have to retain any professional services or incur any capital costs to comply with such rules. As a result, it should be economically and technically feasible for small businesses and local governments to comply with this rule.

Amendments to Part 41 will not impose an adverse impact on rural areas. Only the State's marine district will be directly affected by regulatory initiatives to open or close shellfish lands. The Department of Environmental Conservation has determined that there are no rural areas within the marine district, and no shellfish lands within the marine district are located adjacent to any rural areas of the state. The proposed regulations will not impose reporting, recordkeeping, or other compliance requirements on public or private entities in rural areas. Since no rural areas will be affected by amendments of Part 41 “Sanitary Condition of Shellfish Lands” of Title 6 NYCRR, the Department of Environmental Conservation has determined that a Rural Area Flexibility Analysis is not required.

Nature of impact:

Environmental Conservation Law section 13-0307 requires that the Department examine shellfish lands and certify which shellfish lands are in such sanitary condition that shellfish may be taken therefrom for use as food. Shellfish lands that do not meet the criteria for certified (open) shellfish lands must be designated as uncertified (closed) to protect public health.

Rulemaking to amend 6 NYCRR 41, Sanitary Condition of Shellfish Lands, can potentially have a positive or negative effect on jobs for shellfish harvesters. Amendments to reclassify areas as certified may increase job opportunities, while amendments to reclassify areas as uncertified may limit harvesting opportunities.

The Department does not have specific information regarding the locations in which individual diggers harvest shellfish, and therefore is unable to assess the specific job impacts on individual shellfish diggers. In general terms, amendments of 6 NYCRR Part 41 to designate areas as uncertified can have negative impacts on harvesting opportunities. The extent of the impact will be determined by the acreage closed, the type of closure (year-round or seasonal), the area's productivity, and the market value of the shellfish. In general, any negative impacts are small because the Department's actions to designate areas as uncertified typically only affect a small portion of the shellfish lands in the state. Negative impacts are also diminished in many instances by the fact that shellfish harvesters are able to redirect effort to adjacent certified areas.

Categories and numbers affected:

Licensed commercial shellfish diggers can be affected by amendments to 6 NYCRR Part 41. Most harvesters are self-employed, but there are some who work for companies with privately controlled shellfish lands or who harvest surf clams or ocean quahogs in the Atlantic Ocean.

As of December 31, 2006, there were 1,770 licensed shellfish diggers in New York State. The number of permits issued for areas in the state is as follows: New York City, 53; Westchester, 2; Town of Hempstead, 145; Town of Oyster Bay, 176; Town of North Hempstead, 5; Town of Babylon, 69; Town of Islip, 110; Town of Brookhaven, 277; Town of Southampton, 185; Town of East Hampton, 239; Town of Shelter Island, 32; Town of Southold, 211; Town of Riverhead, 35; Town of Smithtown, 26; Town of Huntington, 194; other, 11. It is estimated that ten (10) to twenty-five (25) percent of the diggers are full-time harvesters. The remainder are seasonal or part-time harvesters.

Regions of adverse impact:

Certified shellfish lands that could potentially be affected by amendments to 6 NYCRR Part 41 are located in or adjacent to Nassau County, Suffolk County, and a portion of the Atlantic Ocean south and east of New York City. There is no potential adverse impact to jobs in any other areas of New York State.

Minimizing adverse impact:

Shellfish lands are designated as uncertified to protect public health as required by the Environmental Conservation Law. Some impact from rulemakings to close areas that do not meet the criteria for certified shellfish lands is unavoidable.

To minimize the impact of closures of shellfish lands, the Department evaluates areas to determine whether they can be opened seasonally during periods of improved water quality. The Department also operates Conditional Harvesting Programs at the request of, and in cooperation with, local governments. Conditional Harvesting Programs allow harvest in uncertified areas under prescribed conditions, determined by studies, when bacteriological water quality is acceptable. Additionally, the Department operates transplant harvesting programs which allow removal of shellfish from closed areas for cleansing in certified areas, thereby recovering a valuable resource. Conditional and transplant programs increase harvesting opportunities by making the resource in a closed area available under controlled conditions.

In this particular rule-making, a number of the areas affected have only been closed seasonally. This is intended to minimize the adverse impact on individual shellfish diggers.

Self-employment opportunities:

A large majority of shellfish harvesters in New York State are self-employed. Rulemaking to change the classification of shellfish lands can have an impact on self-employment opportunities. The impact is dependent on the size and productivity of the affected area and the availability of adjacent lands for shellfish harvesting.