Several shellfish growing areas require reclassification as year-round uncertified and/or seasonally uncertified. Recent evaluations of current water quality data indicate that the bacteriological standards for certified shellfish lands are not being met in the affected areas, and an increased risk of illness exists for shellfish consumers.

Technical changes are also needed to clarify descriptions for enforcement purposes.

The promulgation of this regulation on an emergency basis is necessary to protect public health. If the Department of Environmental Conservation does not adopt this rule making on an emergency basis, areas that do not meet bacteriological standards will remain open for harvest, and the consumption of potentially harmful shellfish is foreseeable.

Southampton: An 8-acre expansion of the seasonally uncertified area in Eastern Moriches Bay will clarify the closure line to the southeasternmost point of land, at the southeast corner of the property located at 15 Fiske Avenue, Westhampton Beach.

Southampton: A 10-acre closure will uncertify a portion of Tiana Bay at the mouth of Romana Creek.

Southampton, East Hampton, & Shelter Island: A 29-acre closure will seasonally uncertify all of Little Northwest Creek and a 250-yard radius in outer Sag Harbor at the creek mouth.

East Hampton: Seasonal closure dates for the northern portion of Lake Montauk will be lengthened from May 15 through October 31 to May 1 through November 30.

Southold: A 2-acre expansion of the uncertified area in Greenport will include the waters between the Greenport Yacht & Ship Building Company and the fixed dock at 202 Carpenter Street Greenport, New York 11944.

Southold: The dates of the seasonal closure of Mill Creek and Budds Pond will be modified to May 1 through October 31 and the Budds Pond closure boundary line is being clarified.

Southold: 23-acres in Downs Creek will be downgraded to year-round uncertified.

Southold: The seasonally uncertified area at the Orient by the Sea boat basin is being expanded into Gardiners Bay with a 200-foot radial closure and the closure dates from May 15 through October 31 will be extended to May 1 through October 31.

Riverhead: A 74-acre expansion of the uncertified portion of Long Island Sound near Wading River Creek will extend easterly to the westernmost point of the bulkhead located at 158 North Side Road Wading River, New York 11792.

Riverhead: A 28-acre radial closure expansion at the mouth of Baiting Hollow Creek will uncertify an area extending 300-yards into Long Island Sound.

Smithtown & Huntington: A 27-acre expansion of the radial closure at the mouth of Crab Meadow Creek will extend the uncertified area within Smithtown Bay from 500-feet to 300-yards.

Smithtown & Huntington: A 207-acre, 700-yard radial closure extending from the northernmost tip of the rock jetty on the east side of Northport Basin.

The Department proposes to amend 6 NYCRR Part 41 to reclassify as certified (open to shellfish harvest) either year-round or seasonally the following shellfish lands:

Brookhaven: 7-acres in Bellport Bay near the former site of Old Inlet Marina will be upgraded from seasonally uncertified to certified.

Southold: 24-acres of Pirates Cove in West Harbor on Fishers Island will be upgraded from uncertified to seasonally uncertified. West Harbor and Pirates Cove will both be closed to shellfish harvesting from May 1 through September 30.

The Department will also be proposing technical changes to amend 6 NYCRR Part 41 to clarify descriptions for enforcement purposes. The waterbodies affected by the technical changes are: Atlantic Ocean, Hempstead Bay, South Oyster Bay, Oyster Bay Harbor, Great South Bay, Moriches Bay, Mecox Bay, Hashamomuck Pond, and Smithtown Bay.

1. Statutory authority:

The statutory authority for designating shellfish lands as certified or uncertified is Environmental Conservation Law (ECL) section 13-0307. ECL § 13-0307(1) requires the Department of Environmental Conservation (Department) to periodically conduct examinations of all shellfish lands within the marine district to ascertain the sanitary condition of these areas. ECL § 13-0307(2) requires the Department to certify which shellfish lands are in such sanitary condition that shellfish may be taken for food. 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 given in ECL § 13-0319.

2. Legislative objectives:

There are two purposes for the legislation: (1) to ensure that shellfish lands are appropriately classified and (2) to protect the public health by preventing the harvest and consumption of shellfish from lands that do not meet minimum standards for certification. Department staff examine shellfish lands and determine which shellfish lands meet the sanitary criteria for a certified shellfish land, as set forth in Part 47 of Title 6 NYCRR, entitled “Certification of Shellfish Lands.” Shellfish lands which meet these criteria must be designated as certified. Shellfish lands which do not meet criteria must be designated as uncertified.

3. Needs and benefits:

To protect the public health and to comply with ECL § 13-0307, the Department conducts and maintains sanitary surveys of shellfish growing areas (SGAs) in the marine district. Maintenance of these surveys includes the regular collection and bacteriological examination of water samples to monitor the sanitary condition of SGAs. Annual water quality evaluation reports written in 2018 were prepared by Department staff for each SGA. These reports present the results of statistical analyses of water quality data comprised of a minimum of 30 water quality data points. The years involved can vary based on the number of samples collected for each year and for each 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 or seasonally uncertified for the harvest of shellfish based on criteria in 6 NYCRR Part 47. Seasonally uncertified areas are closed for the harvest of shellfish during particular months that are specified in regulations, and those months can vary between SGAs.

Regulations that designate shellfish lands as certified are needed to allow the harvest of shellfish from lands that meet the sanitary criteria for a certified area. Shellfish are a valuable state resource and, where possible, should be available for commercial and recreational harvest. The classification of previously uncertified shellfish lands as certified may provide additional sources of income for commercial shellfish diggers by increasing the amount of areas available for harvest. The direct harvest of shellfish for use as food is allowed from certified shellfish lands only. Recreational harvesters also benefit by having increased harvest opportunities and the ability to make use of a natural resource readily available to the public.

Regulations that designate shellfish lands as uncertified are needed to prevent the harvest and consumption of shellfish from lands that do not meet the sanitary criteria for a certified area. Shellfish harvested from uncertified shellfish lands have a greater potential to cause human illness due to the possible presence of pathogenic bacteria or viruses.

These regulations also protect the shellfish industry. Commercial shellfish harvesters and seafood wholesalers, retailers, and restaurants are adversely affected by public reaction to instances of shellfish related illness. By prohibiting the harvest of shellfish from lands that fail to meet the sanitary criteria, these regulations can ensure that only wholesome shellfish are allowed to be sold to the shellfish consumer.

Additionally, these regulations include changes to the shellfish growing area descriptions that will update, clarify, and correct them to match the current physical appearance and names of local landmarks cited in the descriptions and to achieve better consistency within 6 NYCRR Part 41. These changes will aid harvesters and law enforcement officials in determining which areas are uncertified for the harvest of shellfish.

4. 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 Department cannot provide an estimate of potential lost income to shellfish harvesters when areas are classified 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.

In 2018, there were 1,692 licensed shellfish diggers in New York State. As of April 12, 2019, there are 1,354 licensed shellfish diggers for the year 2019. 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 digger’s 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 shellfish harvesters.

The number of harvesters working in a particular area cannot be estimated for the reasons 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. When a particular area is classified as uncertified, harvesters can shift their efforts to other certified areas.

Estimates of the existing shellfish resource in a particular embayment are not known. Recent shellfish population assessments have not been conducted by the Department. Without this information, the Department cannot determine the effect a closure or reopening would have on the existing shellfish resource.

The Department’s actions to classify areas as certified or uncertified are not dependent on the shellfish resources in a particular area. They are based solely on the results of water quality analyses, the need to protect public health, and statutory requirements.

There is no cost to the Department. Administration and enforcement of the proposed amendment are covered by existing programs.

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:

There are no acceptable alternatives. ECL § 13-0307 mandates that when the Department has determined that a shellfish land meets the sanitary criteria for certified shellfish lands, the Department must designate the land as certified and open to shellfish harvesting. All other shellfish lands must be designated as uncertified and closed to shellfish harvesting. These actions are necessary to protect public health. Failure to comply with the National Shellfish Sanitation Program (NSSP) guidelines could result in a ban on New York State shellfish in interstate commerce and would cause undue hardship to the commercial harvesting industry.

9. 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 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, but participating states agree to follow NSSP water quality standards. Each state adopts its own regulations to implement a shellfish sanitation program consistent with the NSSP. 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 the FDA, including removal of the state's shellfish shippers from the Interstate Certified Shellfish Shippers List. This effectively bars a non-conforming state's shellfish products from interstate commerce.

10. Compliance schedule:

Compliance with any new regulations designating areas as certified or uncertified does not require additional capital expense, paperwork, record keeping or any action by the regulated parties. Immediate compliance with any regulation designating shellfish lands as uncertified is necessary to protect public health. Shellfish harvesters are notified of changes in the classification of shellfish lands by mail either prior to, or concurrent with, the adoption of new regulations.

1. Effect of rule:

In 2018, there were 1,692 licensed shellfish diggers in New York State. As of April 12, 2019, there are 1,354 licensed shellfish diggers for the year 2019. The numbers of permits issued for areas in the State for 2019 are as follows: Town of Babylon, 37; Town of Brookhaven, 240; Town of East Hampton, 183; Town of Hempstead, 87; Town of Huntington, 106; Town of Islip, 97; Town of North Hempstead, 6; Town of Oyster Bay, 72; Town of Riverhead, 68; Town of Shelter Island, 33; Town of Smithtown, 28; Town of Southampton, 149; Town of Southold, 208; New York City, 33; and Other, 7.

The Department of Environmental Conservation (Department) periodically conducts examinations of all shellfish lands within the marine district to ascertain the sanitary condition of these areas. As a result of these examinations, the Department designates lands as certified or uncertified for the harvest of shellfish. 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 shellfish diggers who are harvesting shellfish from the lands to be closed. This loss may be determined by the acreage to be closed, the type of closure (whether year-round or seasonal), the species of shellfish present in the area, the area’s productivity, and the market value of the shellfish resource in the particular area.

When uncertified shellfish lands are found to meet the Department’s sanitary criteria and are designated by the Department as certified, there is a benefit to shellfish diggers. More shellfish lands are made available for the harvest of shellfish, and there is a potential for an increase in income for shellfish diggers. 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.

Shellfish growing area descriptions will be updated, clarified and corrected to match the current physical appearance and names of local landmarks cited in the descriptions and to achieve better consistency within 6 NYCRR Part 41. These changes will aid harvesters and law enforcement officials in determining which areas are uncertified for the harvest of shellfish.

Local governments on Long Island exercise management authority and share law enforcement responsibility for shellfish with the State and the counties of Nassau and Suffolk. These include the towns of Hempstead, North Hempstead, and Oyster Bay in Nassau County, and the towns of Babylon, Islip, Brookhaven, Southampton, East Hampton, Southold, Shelter Island, Riverhead, Smithtown, and Huntington in Suffolk County. Changes in the classification of shellfish lands impose no additional requirements on local governments above the level of management and enforcement that they currently perform; therefore, the Department expects that there will be no effect on local governments.

2. Compliance requirements:

The proposed regulation would not require reporting or recordkeeping requirements for small businesses or local governments.

3. Professional services:

Small businesses and local governments would not require any professional services to comply with the proposed regulation.

4. Compliance costs:

Under the proposed regulation, there are no capital costs which would be incurred by small businesses or local governments.

5. Economic and technological feasibility:

There is no reporting, recordkeeping, or affirmative actions that small businesses or local governments must undertake to comply with the proposed regulation. Similarly, small businesses and local governments would not have to retain any professional services or incur any capital costs to comply with the regulation. As a result, it should be economically and technically feasible for small businesses and local governments to comply with this regulation.

6. 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, or concurrent with the date the closures go into effect. Shellfish lands which fail to meet the sanitary criteria during specific months of the year will be designated as uncertified only during those months. To 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. 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 these changes in the classification of shellfish lands.

7. 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, shellfish shippers, and local town officials. Through their representatives, shellfish harvesters and shippers 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 rule making.

8. (IF APPLICABLE) For rules that either establish or modify a violation or penalties associated with a violation:

None.

9. (IF APPLICABLE) Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:

The rule will be reviewed in three years.

The Department of Environmental Conservation (Department) has determined that this rule will not impose an adverse impact on rural areas. This rule making only affects the marine and coastal district of the State; there are no rural areas within the marine and coastal district. The shellfish fishery is entirely located within the marine and coastal district and is not located adjacent to any rural areas of the State. The proposed rule will 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, the Department has determined that a Rural Area Flexibility Analysis is not required.

1. Nature of impact:

Environmental Conservation Law (ECL) § 13-0307 requires that the Department of Environmental Conservation (Department) examine shellfish lands and certify which shellfish lands are in such sanitary condition that shellfish may be taken 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.

Rule makings to amend Part 41 of Title 6 of the Official Compilation of Codes, Rules, and Regulations of New York (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 is therefore unable to assess the specific job impacts of the proposed regulation 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.

Amendments of 6 NYCRR Part 41 to designate areas as certified can have positive impacts on harvesting opportunities. This action results in financial benefits for commercial fisherman and increased opportunities for recreational shellfish harvesters. Increasing the amount of certified shellfish harvesting areas can provide a financial benefit due to the increased availability of shellfish resources.

2. 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.

In 2018, there were 1,692 licensed shellfish diggers in New York State. As of April 12, 2019, there are 1,354 licensed shellfish diggers for the year 2019. The numbers of permits issued for areas in the State for 2019 are as follows: Town of Babylon, 37; Town of Brookhaven, 240; Town of East Hampton, 183; Town of Hempstead, 87; Town of Huntington, 106; Town of Islip, 97; Town of North Hempstead, 6; Town of Oyster Bay, 72; Town of Riverhead, 68; Town of Shelter Island, 33; Town of Smithtown, 28; Town of Southampton, 149; Town of Southold, 208; New York City, 33; and Other, 7. 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.

3. Regions of adverse impact:

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

4. Minimizing adverse impact:

Shellfish lands are designated as uncertified to protect public health as required by the ECL. Some impact from rule makings 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 shellfish transplant harvesting programs which allow removal of shellfish from closed areas for bacterial cleansing in certified areas. Conditional harvesting and shellfish transplant programs increase harvesting opportunities by making the resource in a closed area available under controlled conditions.

5. Self-employment opportunities:

A large majority of shellfish harvesters in New York State are self-employed. Rule makings 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.

6. Initial review of the rule, pursuant to SAPA § 207 as amended by L. 2012, ch. 462:

The rule will be reviewed in three years.