Clause 41.2(b)(1)(ii)(e) is amended to read as follows:

(e) [All] During the period of November 1 through April 30, both dates inclusive, all that area of East Bay and all other bays, creeks, canals and tributaries lying [east and within the boundaries north of a line extending southerly from the westernmost point of land at Big Crow Island at Neds Creek to the southwestern corner of the Fundy Channel Bridge of the Meadowbrook Parkway on West Crow Island, and] north of a line extending easterly from the southwestern corner of the Fundy Channel Bridge of the Meadowbrook Parkway on West Crow Island to the northwestern tip of the Sloop Channel Bridge of the Wantagh State Parkway connecting Green Island with Jones Beach State Park, and west of a line extending northerly along the western shoreline of Green Island to the southwestern tip of the Goose Creek Bascule Bridge of the Wantagh State Parkway, connecting Green Island with Great (Low) Island, [and south of a line extending westerly to the westernmost point of land of Big Crow Island on Neds Creek.] then continuing northerly along the shoreline to the westernmost point of Great (Low) Island, and continuing northwesterly to the southernmost point of land at Whaleneck Point, and lying south and east of a line extending southwesterly to the northernmost tip of Big Crow Island at Neds Creek, continuing along the western shore of Big Crow Island, to the southwestern corner of the Fundy Channel Bridge of the Meadowbrook Parkway on West Crow Island.

Clause 41.2(b)(3)(ii)(c) is amended to read as follows:

(c) All that area of West Pond and that portion of Hempstead Harbor lying [southerly and easterly of a line extending northerly from the westernmost end of the rock jetty, located southerly of the mouth of West Pond, to the westernmost end of the rock jetty with adjacent wooden walkway, located on Dosoris Island, northerly of the mouth of West Pond (local names, local landmarks).] between lines extending 500 feet northwesterly from the seaward ends of the rock jetties on each side of the entrance to West Pond (local names, local landmarks).

Clause 41.2(b)(4)(ii)(c) is amended to read as follows:

(c) All that area of West Pond and that portion of Hempstead Harbor lying [southerly and easterly of a line extending northerly from the westernmost end of the rock jetty, located southerly of the mouth of West Pond, to the westernmost end of the rock jetty with adjacent wooden walkway, located on Dosoris Island, northerly of the mouth of West Pond (local names, local landmarks).] between lines extending 500 feet northwesterly from the seaward ends of the rock jetties on each side of the entrance to West Pond (local names, local landmarks).

Subparagraph 41.3(b)(4)(xiv) is amended to read as follows:

(xiv) [Noyac] Noyack Creek. During the period May [1st] 1 through November [30th] 30 (both dates inclusive) all that area of [Noyac] Noyack Creek lying southerly of a line extending southwesterly from the southwesternmost point of land on Clam Island to the opposite shoreline located at Morton National Wildlife Refuge in Noyack.

Clauses 41.3(b)(4)(xv)(a), (b) and (c) are amended to read as follows:

(a) During the period May [15th] 1 through [October 15th] November 30 (both dates inclusive), all that area of Cold Spring Pond within the former Lobster Inn Boat Basin (local names, local landmark), lying northwest of a line extending northeasterly along the fixed wooden dock of the former Lobster Inn Restaurant to the opposite shoreline, and all that area lying southeast of a line extending southwesterly from the northwesternmost point of land on the unnamed peninsula bordering the northeastern side of the cove, continuing southwesterly to the opposite shoreline (adjacent to the former Lobster Inn Restaurant).

(b) During the period January [1st] 1 through December [31st] 31 (both dates inclusive), all that area of the former Lobster Inn Boat Basin lying southeast of a line extending northeasterly along the fixed wooden dock of the former Lobster Inn Restaurant to the opposite shoreline.

(c) During the period May [1st] 1 through November [30th] 30, both dates inclusive, all that area of Cold Spring Pond lying northeast of a line extending southeasterly from an orange marker located on the northern shoreline in the northeastern corner of the pond to another orange marker located on the eastern shoreline adjacent to Shrubland Road.

Subparagraph 41.3(b)(5)(vii) is amended to read as follows:

(vii) [During the period May 15th through October 15th (both dates inclusive), all] Devon Yacht Club. All that area of the Devon Yacht Club Boat Basin (local name), located on the southern side of Napeague Bay.

Clause 41.3(b)(5)(viii)(a) is amended to read as follows:

(a) Alewife Pond. All that area of Alewife Pond, including entrance channel and all that area of Northwest Harbor, within [50] 300 yards in all directions from the inlet of Alewife Pond.

Clause 41.3(b)(5)(ix)(c) is amended to read as follows:

(c) In the absence of [the] one or both painted markers, all of Northwest Creek is uncertified.

Clause 41.3(b)(7)(iii)(c) is amended to read as follows:

(c) Wickham Creek. During the period of May 15 through October 31, both dates inclusive, all that area of Wickham Creek and its tributaries.

Subclauses 41.3(b)(7)(iii)(c)(1) and (2) are repealed.

Subclause 41.3(b)(7)(iii)(c)(3) is renumbered Subclause 41.3(b)(7)(iii)(c)(1).

Clause 41.3(b)(7)(xi)(e) is amended to read as follows:

(e) West Creek. During the period of [May 1st through November 30th] January 1 through December 31, both dates inclusive, all that area of West Creek [including], and all that area of Great Peconic Bay within 750 feet in all directions of the southernmost point of the jetty on the east side of the mouth of West Creek.

Subclause 41.3(b)(7)(xii)(b)(2) is amended to read as follows:

(2) During the period [April 15th to December 31] May 1 through November 30, both dates inclusive, all that area of Jockey Creek, Town Creek and tributaries, lying west of a line extending southerly from the south end of Terry Road directly to the opposite shore.

Clause 41.3(b)(7)(xii)(d) is amended to read as follows:

(d) Goose Creek. During the period [April 15th through December 31st] May 1 through November 30, both dates inclusive, all that area of Goose Creek lying south and west of the Goose Creek Bridge (local landmarks).

Clause 41.3(b)(7)(xiii)(a) is amended to read as follows:

(a) Oyster Ponds. During the period May [15th] 1 through October 31[st], both dates inclusive, all that area of Orient Harbor [lying east of a line extending northerly from the tip of the northwesternmost dock of the Orient Yacht Club to the northernmost corner of the bulkhead at the shoreline at the foot of the Harbor River road] and its tributaries lying north and east of the fixed dock at Orient Yacht Club and then east of a line extending northerly from the northwestern corner of the northwestern most dock of the Orient Yacht Club to an orange marker on the beach 275 yards northwest of the northernmost corner of the bulkhead at the foot of Harbor River Road and all that area of Oyster Ponds in its entirety.

Clauses 41.3(b)(7)(xiii)(c) and (d) are repealed.

Clause 41.3(b)(7)(xiii)(e) is renumbered Clause 41.3(b)(7)(xiii)(c).

Renumbered Clause 41.3(b)(7)(xiii)(c) is amended to read as follows:

(c) Spring Pond. During the period January 1[st] through December 31[st], both dates inclusive, all that area of Spring Pond including tributaries, and all that area of Orient Harbor within 500 feet in all directions of the southeastern end of the easternmost bulkhead at the entrance to Spring Pond.

Clause 41.3(b)(7)(xiii)(f) is repealed.

Subparagraph 41.3(b)(7)(xv) is amended to read as follows:

(xv) Little Peconic Bay. Richmond Creek. During the period [April 1st] May 1 through October 31[st], both dates inclusive, all that area of Richmond Creek lying west of a line extending north from the easternmost point of land at the south side of the mouth of Richmond Creek to the opposite shore.

Paragraph 41.3(b)(10) is amended to read as follows:

(10) Town of [Smith Town] Smithtown

Clauses 41.3(b)(10)(i)(a) and (b) are amended to read as follows:

(a) All that area of Smithtown Bay, including the Nissequogue River and its tributaries and Sunken Meadow Creek, lying south of a line extending northeasterly from the flagpole at the East Bath House at Sunken Meadow State Park (local landmark) to Buoy BW "NR", located (at coordinates 40° 55.395′ N latitude and 73° 13.745′ W longitude), approximately one mile north of the mouth of the Nissequogue River, thence southeasterly to the flagpole located at the Town of Smithtown Beach at Short Beach (local landmark).

(b) All that area within a one-half mile radius of Buoy BW "NR", (at coordinates 40° 55.395′ N latitude and 73° 13.745′ W longitude), approximately one mile north of the mouth of the Nissequogue River.

1. Statutory authority:

The statutory authority for designating shellfish lands as certified or uncertified is given in Environmental Conservation Law (ECL) section 13-0307. Subdivision 1 of section 13-0307 of the ECL requires the Department of Environmental Conservation (the department) to periodically conduct examinations of all shellfish lands within the marine district to ascertain the sanitary condition of these areas. Subdivision 2 of this section 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 section 13-0319.

2. Legislative objectives:

There are two purposes of the legislation: to ensure that shellfish lands are appropriately classified as either certified or uncertified and to protect public health by preventing the harvest and consumption of shellfish from lands that do not meet the standards for a certified shellfish land. 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 Part 47 of Title 6 NYCRR, promulgated pursuant to section 13-0319 of the ECL. Shellfish lands which meet these 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.

3. Needs and benefits:

To protect public health and to comply with ECL 13-0307, the Division of Marine Resources’ Shellfish Sanitation Program conducts and maintains sanitary surveys of shellfish growing areas (SGA) in the marine district in New York State. 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 2017 are prepared by the staff of the Shellfish Sanitation Program 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, 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 6NYCRR 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 from SGA to SGA.

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 pathogens may cause the transmission of infectious disease to the shellfish consumer.

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 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.

As of December 31, 2016, the department had issued 1,746 New York State shellfish digger’s permits for the year 2016. 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 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. When a particular area is classified as uncertified (closed to shellfish harvesting), 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:

No new paperwork is required.

7. Duplication:

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

8. Alternatives:

There are no acceptable alternatives. ECL section 13-0307 stipulates 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 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, 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 FDA, including removal of the state's shellfish shippers from the Interstate Certified Shellfish Shippers List. This would effectively bar 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. Therefore, immediate compliance can be readily achieved.

1. Effect of rule:

As of December 31, 2016, there were 1,746 licensed shellfish diggers in New York State for the year 2016. The numbers of permits issued for areas in the State are as follows: Town of Babylon, 47; Town of Brookhaven, 286; Town of East Hampton, 235; Town of Hempstead, 108; Town of Huntington, 156; Town of Islip, 139; Town of North Hempstead, 9; Town of Oyster Bay, 108; Town of Riverhead, 69; Town of Shelter Island, 52; Town of Smithtown, 38; Town of Southampton, 173; Town of Southold, 251; New York City, 46; and Other, 16.

The Department of Environmental Conservation (the 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 will designate lands as certified for the harvest of shellfish 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 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 normally undertake; therefore, there should be no effect on local governments.

2. Compliance requirements:

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

3. Professional services:

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

4. Compliance costs:

There are no capital costs which will 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 rules. 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.

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. During the other months, shellfish may be harvested from those lands when they are 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. 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 rulemaking. The department will consider any such comments prior to filing a Notice of Adoption with the Department of State.

8. Cure period or other opportunity for ameliorative action:

Pursuant to SAPA 202-b (1-a)(b), no such cure period is included in the rule because of the potential adverse impact that it could have on the health of shellfish consumers. Immediate compliance is required to ensure that public health is protected.

9. 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 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 of 6 NYCRR Part 41, DEC has determined that a Rural Area Flexibility Analysis is not required.

1. 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 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 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.

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.

As of December 31, 2016, there were 1,746 licensed shellfish diggers in New York State for the year 2016. The numbers of permits issued for areas in the State are as follows: Town of Babylon, 47; Town of Brookhaven, 286; Town of East Hampton, 235; Town of Hempstead, 108; Town of Huntington, 156; Town of Islip, 139; Town of North Hempstead, 9; Town of Oyster Bay, 108; Town of Riverhead, 69; Town of Shelter Island, 52; Town of Smithtown, 38; Town of Southampton, 173; Town of Southold, 251; New York City, 46; and Other, 16.

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 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 Environmental Conservation Law. 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, thereby recovering a valuable resource. 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.