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Part 43 - Subpart 43. 2: Atlantic Ocean

(Statutory authority: Environmental Conservation Law, §§ 11-0305, 13-0308, 13-0309)

[This regulation was last amended 12/23/09.]

Contents:

Sec.

§43-2.1 Purpose

The purpose of this Subpart is to promote and support the maintenance of viable surfclam and ocean quahog populations in the Atlantic Ocean portion of the Marine and Coastal District. The Marine and Coastal District includes the waters of the Atlantic Ocean within three nautical miles from the coastline and all other tidal waters within the State, including the Hudson River up to the Tappan Zee Bridge. The provisions of this Subpart require surfclam and ocean quahog mechanical harvesting permits, establish specific controls over the possession and design of mechanical harvesting gear, set daily vessel harvest limits and annual harvest limits, establish an Individual Fishing Quota system for each eligible surfclam vessel, establish container and cage tagging requirements and require record keeping and reporting, implement mandatory Vessel Monitoring System requirements and establish rules for confidentiality of fisheries data. Such requirements are intended to support the continuation of a viable fishery in the involved waters of the Atlantic Ocean so that the fishery continues to operate in balance with available surfclam and ocean quahog stocks.

§43-2.2 Applicability

The provisions of this Subpart apply to waters of the Marine and Coastal District lying within the Atlantic Ocean.

§43-2.3 Definitions

The following terms and derivatives when used in this Subpart shall 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) "Cage tag" means a serially numbered and tamper-evident tag required to be affixed to all standard cages or industry standard bushel containers, or portion thereof, of surfclams harvested by mechanical means from the New York State certified waters of the Atlantic Ocean which is obtained from the department or a vendor approved by the department.

(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) Commissioner means the Commissioner of the New York State Department of Environmental Conservation.

(e) Department means the New York State Department of Environmental Conservation.

(f) Digger's permit means a permit issued pursuant to Section 13-0311 of the Environmental Conservation Law.

(g) Effective fishing area means that area of the sea bottom from which harvesting gear collects shellfish, including: the width or cutting area of blades, bars, wires, suction heads or similar structures or openings, including any water jet area, which affect the swath or overall width of the path from which surfclams and ocean quahogs are taken.

(h) "Individual Fishing Quota" means the annual allocation of surfclam quota that is assigned to each eligible surfclam vessel based on the annual harvest limit divided equally by the number of eligible vessels authorized to participate in the Atlantic Ocean surfclam fishery.

(i) Industry standard bushel means a unit of measure which is 1.88 cubic feet in volume.

(j) Operator means an individual who may be held responsible for the fishing activities of a vessel. An operator is commonly referred to as the captain or master of a vessel.

(k) Person means an individual, partnership, corporation or any other legal entity.

(l) Resident means a person whose domicile is within New York State.

(m) Standard cage means a container which is 60 cubic feet in volume and holds 32 industry standard bushels of surfclams and ocean quahogs in the shell.

(n) "Vessel Monitoring System" means a vessel monitoring system or unit that is installed on board a vessel for monitoring and transmitting the vessel's position as required by this Subpart.

§43-2.4 Permit requirements; issuance and revocation procedures

(a) Each person participating in harvest operations on board a vessel harvesting surfclams and ocean quahogs from the Atlantic Ocean shall possess a New York State shellfish digger's permit.

(b) Any owner or lessee of a vessel eligible to take surfclams and ocean quahogs by mechanical means from the Atlantic Ocean shall obtain a Surfclam/Ocean Quahog Atlantic Ocean permit prior to harvesting. This permit shall authorize a holder to take surfclams or ocean quahogs, or both, with the vessel identified on the permit. Nonresidents of the state and foreign corporations may be issued a Surfclam/Ocean Quahog Atlantic Ocean permit provided that the vessel identified on the permit is registered in a state which accords reciprocal clamming privileges to residents of New York and provided that such nonresident is a resident of a state which accords such reciprocal privileges and, in the case of a foreign corporation, it is organized under the laws of a state which accords reciprocal privileges.

(c) Application for a permit may be made by fully completing the application form provided by the department for that purpose.

(d) A permit issued to a vessel owner or lessee shall identify the vessel to be used in the harvest of surfclams and ocean quahogs. No vessel may be used in the surfclam and ocean quahog fishery without being specifically identified on a permit issued in the name of the owner or lessee of the vessel. Only a vessel owned by a resident may be identified on a permit issued to a resident.

(e) If an application is made by a domestic corporation, the application must be signed by the members of the board of directors of such corporation. If all members of the board of directors and all stockholders are residents, such corporation shall be eligible for a resident Surfclam/Ocean Quahog Atlantic Ocean permit. If any member of the board of directors or any stockholder is not a resident, such corporation shall be eligible for a nonresident Surfclam/Ocean Quahog Atlantic Ocean permit.

(f) The holder of a surfclam/ocean quahog Atlantic Ocean owner's permit that has been issued to a domestic corporation must provide written notification to the department immediately following any change in ownership, principal officers, members of the board of directors and shareholders. In the event that there is a change in ownership of a corporation which holds such permit, the new corporate president or principal officer must complete, sign and submit an application for a surfclam/ocean quahog Atlantic Ocean owner's permit to the department for re-issuance of such permit. The application must be signed by all members of the board of directors and a list, with the names and addresses of all shareholders, along with a Certificate of Incorporation must be provided to the department.

(g) Only those persons who were issued a surfclam/ocean quahog Atlantic Ocean owner's permit in the previous year shall be eligible to be issued such permit provided that the vessel meets the eligibility requirements set forth in Subpart 43-3. This permit must be renewed annually in order to maintain eligibility to participate in the Atlantic Ocean fishery.

(h) Any operator or captain of a vessel eligible to take surfclams and ocean quahogs by mechanical means from the Atlantic Ocean shall obtain a Surfclam/Ocean Quahog Atlantic Ocean Captain/Operator permit. This permit authorizes the resident permit holder to operate a vessel used to take surfclams or ocean quahogs, or both, by mechanical means. Nonresidents of the state may be issued a Surfclam/Ocean Quahog Atlantic Ocean Captain/Operator permit provided that the nonresident is a resident of a state which accords reciprocal clamming privileges to residents of New York. No vessel may be used in the surfclam and ocean quahog mechanical fishery without there being a person on board such vessel whose permit identifies the permit holder as captain or operator.

(i) Permits issued pursuant to this subdivision shall expire on December 31 of the year of issuance.

(j) Licenses or permits issued pursuant to this Part may be revoked by the department pursuant to the provisions of Part 175 of this Title.

(k) Nothing in this Subpart precludes or affects the commissioner's authority to issue summary abatement orders pursuant to Environmental Conservation Law, Section 71-0301, and rules and regulations adopted pursuant thereto, or to take emergency actions summarily suspending a permit as provided in Section 401(3) of the State Administrative Procedure Act.

§43-2.5 Gear restrictions

(a) The size and design of dredges or other mechanically operated harvesting gear are restricted as follows:

(1) dredges or other mechanically operated harvesting gear must not exceed 126 inches in overall width; and

(2) the effective fishing area of dredges or other mechanically operated harvesting gear must not exceed 100 inches.

(b) No vessel may have on board more than one dredge or other type of mechanical harvesting gear during operations undertaken pursuant to this Subpart.

§43-2.6 Harvest restrictions; surfclams

(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 1 through December 31. The annual harvest limit shall not exceed 5 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 1. This limit shall be established by written directive of the commissioner or commissioner's designee and written notice of any such directive shall be provided to all permit holders.

(b) Effective January 1, 2010, an Individual Fishing Quota system (IFQ) shall be established which will allocate to each eligible surfclam 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 surfclam vessel shall be nontransferable and each vessel can only be used to catch one quota allocation. The IFQ will expire on December 31 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 fifteen 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 Surfclam/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 fifty percent sublegal size surfclams by number and, once established, any such area shall be re-evaluated within eighteen 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 direction of the commissioner or the commissioner's designee, and a minimum of 48 hours written notice of any such directive will 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 by the department pursuant hereto.

§43-2.7 Harvest restrictions; ocean quahogs

(a) No vessel may be used to harvest more than 14 standard cages of ocean quahogs (equivalent to 448 industry standard bushels) in any one day.

(b) It shall be unlawful for any person to exceed the harvest restrictions set forth in this section.

§43-2.8 Container and tagging requirements

(a) Surfclams and ocean quahogs must be landed in standard cages or industry standard bushels only.

(b) In addition to the tagging information required by the provisions of section 42.13(a)(5) of this Title, the permittee must clearly identify the federally documented name or state registration number of the vessel used in the harvest of the shellfish on a tag affixed to each standard cage or industry standard bushel.

(c) Effective January 1, 2010, all surfclam cages or industry standard bushel containers, or portion thereof, must be tagged with a cage tag prior to offloading from the vessel. Such tag must be firmly attached on or near the upper crossbar of the cage or affixed to an industry standard bushel container. A cage tag is required for every 60 cubic feet of cage volume of a standard cage, or portion thereof, or each container holding an industry standard bushel or portion thereof. Each cage tag shall indicate the state issuing the tag, the year issued, the Federal documentation number or State registration number of the vessel assigned the Individual Fishing Quota (IFQ), and the serialized number assigned to that tag in ascending order.

(d) The owner of a vessel assigned an Individual Fishing Quota shall be eligible to purchase cage tags from the department or from a vendor authorized by the department. The number of cage tags will be based on the IFQ assigned to a vessel on an annual basis and the containers used to land surfclams. The holder of an IFQ must complete a declaration annually that specifies whether the surfclams taken from the certified waters of the Atlantic Ocean will be landed in standard cages or industry standard bushel containers. Each cage tag represents either 32 industry standard bushels of surfclam allocation held in standard cages or 1 industry standard bushel of surfclam allocation, or a portion thereof.

(e) It is unlawful to reuse, alter, sell, offer for sale or transfer any cage tag issued under this section. Once a vessel owner's allocation of cage tags is used, that vessel may no longer take surfclams by mechanical means from the New York State certified waters of the Atlantic Ocean.

(f) Cage tags will expire at the end of the fishing year for which they are issued unless rendered null and void by the department. Loss or theft of tags must be reported by the vessel owner, numerically identifying the tags to the department in writing within 24 hours of such loss or theft. Immediately following written notification to the department, the reported tags shall no longer be valid for use pursuant to this section.

(g) Lost or stolen tags may be replaced by the department or an authorized vendor if proper notice of the loss is provided by the person to whom the tags were issued. Replacement tags may be purchased from the department or authorized vendor to cover the allocation of lost or stolen tags as determined by the department.

(h) It is unlawful to land, offer for sale or sell surfclams taken by mechanical means from the New York State certified waters of the Atlantic Ocean in a standard cage or industry standard bushel container which are not properly tagged as described in this section. A cage tag or tags must not be removed from any standard cage or industry standard bushel container until the cage or standard bushel container is emptied by the processor, at which time the processor must promptly remove and retain the tag(s) for 60 days beyond the end of the calendar year, unless otherwise directed by the department or state and federal law enforcement agents.

(i) It is unlawful to possess any empty standard cages or industry standard bushel containers on any vessel that have a cage tag affixed to such containers as required by this section.

§43-2.9 Vessel Monitoring System requirements

(a) Effective January 1, 2011, all persons eligible to be issued a surfclam/ocean quahog Atlantic Ocean owner's permit for surfclam harvest under an Individual Fishing Quota (IFQ) must have installed on the vessel an operational Vessel Monitoring System (VMS) unit that is approved by the department prior to the issuance of such permit. The vessel owner must activate the VMS unit and provide verification of vendor activation from a department approved VMS vendor. All VMS vendors that are on an approved federal list maintained by the National Marine Fisheries Service (NMFS) for the surfclam Individual Transferable Quota program in the Exclusive Economic Zone (EEZ) will be deemed acceptable for use in the New York State surfclam IFQ fishery provided such vendors continue to satisfy the criteria as a NMFS-approved vendor. Verification of vendor activation may be undertaken by completing, signing, and mailing or faxing a VMS certification form to the department.

(b) It is unlawful to tamper with or input false positions or fishery-related information into any VMS required under this section. The VMS shall be fully automatic and operational at all times, regardless of weather and environmental conditions, unless exempted by the department.

(c) The VMS shall be capable of tracking vessels in the waters of the marine and coastal district and all U.S. waters in the Atlantic Ocean from the shoreline of each coastal state to a line 15 nm offshore and shall provide position accuracy to within 400 m (1,300 ft). The VMS shall be capable of transmitting and storing information including vessel identification, date, time, and latitude/longitude.

(d) The VMS shall provide accurate position transmissions at a frequency of every 15 minutes of every day of the year unless otherwise directed or exempted by the department. In addition, the VMS shall allow polling of individual vessels or any set of vessels at any time, and receive position reports in real time. For the purposes of this section, "real time" shall constitute data that reflect a delay of 15 minutes or less between the displayed information and the vessel's actual position.

(e) The VMS shall be capable of providing network message communications between the vessel and shore. The VMS shall allow the department to initiate communications or data transfer at any time.

(f) The VMS shall be capable of providing vessel locations relative to the demarcation line of the New York State boundary and waters of the EEZ.

(g) The VMS vendor must be capable of transmitting position data to a department designated computer system via a modem and in a file format acceptable to the department. The VMS vendor shall be capable of archiving vessel position histories for a minimum of 1 year and providing transmission to the department of specified portions of archived data in response to any and all requests from the department.

(h) It is unlawful for any vessel to take, possess, offload or attempt to take, possess or offload surfclams under an IFQ without a fully operational and approved VMS.

(i) All VMS units installed on a vessel operating under an IFQ must transmit a signal indicating the vessel's accurate position at least every 15 minutes, 24 hours per day, throughout the year unless exempted by the department. A vessel owner may apply for a letter of exemption from the VMS transmitting requirements of this section by sending a written request to the department. In order for a vessel to be considered for exemption, one or more of the requirements must be met: The vessel must be continuously out of the water for more than 72 consecutive hours or the vessel will not engage in harvest of surfclams from the New York State waters of the Atlantic Ocean for a minimum period of 30 consecutive days. The following information must be included in such written request: Identification of the vessel requesting the exemption; the location of the vessel during the time an exemption is sought; the exact time period for which an exemption is needed indicating the time the VMS signal will be turned off and turned on again; and, reason supporting the request for exemption. Any requests for exemption shall be subject to approval by the Chief of the Bureau of Marine Resources.

(j) Any vessel exempted from the VMS transmitting requirements of this section must keep a copy of the letter of exemption onboard the vessel at all times, and the vessel may not turn off the VMS signal until the letter of exemption has been received. It is unlawful for any vessel granted an exemption to be used to harvest, possess or offload surfclams taken from the certified waters of the Atlantic Ocean.

(k) If a new or replacement VMS is necessary, the vessel owner must submit documentation to the department, within 3 days of the installation and prior to the vessel's next trip, verifying that the new VMS unit is an operational, approved system as described in this section. Vessel owners must confirm the VMS operation and communications service to the department as required under this section.

(l) If a VMS unit fails to transmit a signal of the vessel's position every 15 minutes, the vessel shall be deemed in violation of this section unless there is sufficient evidence documenting that the failure of the VMS to transmit was due to an unavoidable malfunction or disruption of the transmission.

(m) Vessel owners or captain/operators issued a surfclam/ocean quahog permit under this section for fishing in the IFQ program are required to declare their intended fishing activity via VMS prior to leaving port. Owners or operators that are transiting between ports or fishing in a fishery other than the New York State surfclam fishery must either declare out of fisheries or declare the appropriate fishery, if required, via the VMS unit before leaving port. No vessel shall attempt to take, harvest, possess or offload surfclams from the certified waters of the Atlantic Ocean unless they have complied with the declaration and notification requirements of this section.

§43-2.10 Reporting and record keeping requirements

(a) Each holder of a permit which identifies such holder as an owner or lessee must, for each Sunday through Saturday period, report ocean quahog harvesting and sales activities to the department by the completion and submission of a report on a form provided by the department or a designee.

(b) The report must be signed by the individual(s) providing it and must include the following information: name, vessel's documented name or registration number, quantity of ocean quahogs harvested on each day, area of harvest, port of landing, to whom sold and estimated fishing time for each day of fishing.

(c) If hand delivered or transmitted as a telefacsimile message (FAX), the report must be received by the department no later than Friday of the week following the report period; or, if mailed, the report must be postmarked no later than Tuesday of the week following the report period. Upon written notice to each holder of a permit which identifies such holder as an owner or lessee, reports may be required less frequently as directed by the department.

(d) The department may require that the holder of a permit which identifies such holder as an owner or lessee must report harvesting activity to the department on a daily basis. Written notice of such requirement must be provided to each affected permit holder.

(e) The owner or lessee of a vessel assigned an Individual Fishing Quota allocation shall file accurate and complete harvesting reports of their surfclam harvesting activities, regardless of whether or not the permit holder has exercised the privilege of their permit, on forms to be provided by the department or its designee. Failure to comply with the harvest report requirements may result in the suspension of the current surfclam/ocean quahog Atlantic Ocean owner/lessee permit and/or the denial of future surfclam/ocean quahog Atlantic Ocean owner/lessee permits issued pursuant to this section.

(f) The surfclam vessel harvest reports identified in subdivision 43-2.10(e) must be completed and filed with the department on a monthly basis on a form supplied by the department or a designee. Reports for each month shall be submitted to the department within 15 days after the end of each month. The report must be signed by the captain/operator or owner of the vessel and must include the following information: name, vessel's documented name or registration number, quantity of surfclams harvested on each day, area of harvest, port of landing, serial number(s) of cage tags used, to whom sold and estimated fishing time for each day of fishing.

(g) The captain/operator of the vessel must maintain a logbook with the daily harvest reports indicated in subdivision 43-2.10(f) and have that information immediately available to the department or an enforcement officer upon request.

§43-2.11 Tolerance of under size surfclams

(a) surfclams less than four inches in the longest diameter may not be taken from certified waters. When unintentionally and unavoidably taken, surfclams of less than four inches in the longest diameter may comprise, by number, no more than twenty percent of any catch.

(b) For the purpose of determining compliance with this section, not less than one representative U.S. standard bushel may be taken from a container or from any lot for examination. If the amount taken for examination is found to contain a number of surfclams of less than four inches in the longest diameter in excess of twenty percent by count, the container or lot from which such sample was taken is deemed to contain in excess of twenty percent of surfclams of less than four inches in the longest diameter.

(c) If the procedure specified in subdivision (b) of this section establishes that more than ten percent of containers which comprise a vessel's total catch contain in excess of twenty percent of surfclams of less than four inches in the longest diameter, all containers comprising such total catch are deemed to contain in excess of twenty percent of surfclams less than four inches in the longest diameter.

§43-2.12 Confidentiality of fisheries data

Surfclam harvest data, statistics or other information collected from individual permit holders by the department or the Federal government shall be confidential and shall not be disclosed except to an authorized user or when required under court order; provided, however, that the department may release or make public any statistics in an aggregate or summary form (with no less than three license holders contributing to that statistic) which does not directly or indirectly disclose the identity of any person who submits such statistics. For the purposes of these regulations, an "authorized user" is any person that is employed by or under contract to the department or who is employed by or under contract with the National Marine Fisheries Service, and has been designated by such agency to require confidential data as a means to fulfill their job responsibilities related to surfclam management and conservation.