Part 43 - Subpart 43.3: Atlantic Ocean Surf Clam Fishery; Limit on Entry of New Vessels
(Statutory authority: Environmental Conservation Law, §§ 11-0305, 13-0308, 13-0309)
- 43-3.1 Purpose
- 43-3.2 Applicability
- 43-3.3 Definitions
- 43-3.4 Vessels; eligibility to participate in the harvest of surf clams
- 43-3.5 Sale and replacement of vessels
- 43-3.6 Prohibition
The purpose of this Subpart is to conserve the surf clam resource and prevent an increase in fishing effort directed toward surf clams in the Atlantic Ocean by establishing a limit on the entry of additional vessels into the fishery until such time as a surf clam management plan is adopted pursuant to section 13-0308 of the Environmental Conservation Law.
The provisions of this Subpart apply only to that area of the Marine and Coastal District lying within the Atlantic Ocean.
The following terms and derivatives when used in this Subpart have the following meanings:
(a) Atlantic Ocean means all those waters of the Marine and Coastal District, excluding bays and harbors, which are seaward of Long Island's south shore and, at the east end, are southerly of a line between Montauk Point, Long Island, and Southeast Point, Block Island; and, at the west end, are easterly of a line between Rockaway Point, Long Island, and the most northerly tip of Sandy Hook, New Jersey.
(b) Department means the New York State Department of Environmental Conservation.
(c) Certified waters means waters which are certified to be in such sanitary condition that shellfish therefrom may be taken for use as food pursuant to Part 41 of this Title.
(d) Directed fishery means a fishing operation which is conducted with the primary intent to harvest for sale surf clams from the certified waters of New York's Atlantic Ocean.
(e) Land means to begin offloading surf clams, to offload surf clams, or to arrive in port with the intention of offloading surf clams.
§43-3.4 Vessels; eligibility to participate in the harvest of surf clams
(a) Only those vessels which have been used in a directed fishery to harvest surf clams by mechanical means from certified waters of New York's Atlantic Ocean between January l, 1993 and August 25, 1993, both dates inclusive, and those vessels which have replaced such vessels pursuant to the provisions of section 43-3.5 of this Part shall be eligible to be used to harvest surf clams. Vessels found ineligible by the department in 1996 and thereafter pursuant to the provisions of former subdivision (e) of this section shall continue to be ineligible (former subdivision [e] of this section provided that a vessel which was not used to harvest 5,000 bushels or more of surf clams in a calendar year would thereafter be ineligible for participation in the fishery). An owner or lessee of a vessel shall submit documentation acceptable to the department demonstrating that such vessel was used to harvest surf clams by mechanical means from the certified waters of the Atlantic Ocean while owned or leased by such person. Documentation submitted pursuant to this section shall be signed by the owner or lessee and shall contain a form notice stating that false statements therein are punishable pursuant to Section 201.45 of the Penal Law. Acceptable documentation for demonstrating that the eligibility requirements of this subdivision have been met include, but are not limited to, the following:
(1) A copy of the ship's log providing harvest information documenting the use of that vessel, while owned or leased by the applicant, in undertaking a directed fishery for surf clams as specified above.
(2) A copy of a harvester's or shipper's written record which identifies the vessel used to harvest.
(3) A copy of a dock's record, shipping invoice, receipt for payment, bill of lading or similar record which identifies the vessel used to harvest.
(4) Other written documentation acceptable to the department.
(b) The department shall establish a list of vessels meeting the eligibility requirements specified in subdivision (a) of this section. Such list shall identify the vessel and the owner or lessee of the vessel. Only those vessels identified on such list shall be eligible to be used to harvest surf clams from certified waters by mechanical means.
(c) The owner or lessee of a vessel which is not identified on the list of eligible vessels established pursuant to the provisions of subdivision (b) of this section may appeal such determination in writing to the department.
(d) It is the burden of the owner or lessee of a vessel for which an appeal is made to establish in a manner satisfactory to the department that such vessel meets the eligibility requirements set forth in subdivision (a) of this section.
§43-3.5 Sale and replacement of vessels
(a) The owner or lessee of an eligible vessel may replace such vessel with another vessel at any time for any reason, provided that the vessel being replaced becomes ineligible for use in the fishery, unless such replaced vessel is used to replace another eligible vessel.
(b) Unless used in place of another eligible vessel, an eligible vessel shall become ineligible for use in the fishery upon sale or transfer by the owner or lessee of the eligible vessel. However, an eligible vessel that is owned by an individual may be transferred to a corporation of which the individual is a majority stockholder and does not become ineligible for continued use in the fishery.
(c) An owner or lessee of an eligible vessel shall notify the department in writing at least ten (10) days prior to the sale, transfer or replacement of an eligible vessel. Such notice shall identify the action to be taken and the effective date of such action, and shall include the identity of the vessel or vessels involved. Such notice shall be signed by the owner or lessee and shall include a form notice stating that false statements made therein are punishable pursuant to Section 210.45 of the Penal Law.
No vessel except a vessel eligible to participate in the harvest of surf clams pursuant to this Subpart shall be used to harvest surf clams by mechanical means from the Atlantic Ocean or be used to land surf clams taken from such waters.