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Part 43 - Page 2: Atlantic Ocean

(Statutory authority: Environmental Conservation Law, §§ 11-0305[2], 13-0308, 13-0309, 13-0316)

[This regulation was last amended 03/24/04.]

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 weekly vessel harvest limits and annual harvest limits, establish container and tagging requirements and require record keeping and reporting. 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) 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.

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

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

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

(f) 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.

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

(h) 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.

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

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

(k) 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.

§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) 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 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.

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

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

(i) 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 annual harvest limit for surfclams in the certified waters of the Atlantic Ocean shall be 500,000 bushels in the aggregate, provided however, that the department may direct that the maximum quantity of surfclams be taken from certified waters during a given calender year be increased or decreased. In establishing such adjustment, the department shall afford an opportunity for public comment and consider stock assessments, catch reports and other relevant biological and statistical information. If made, such such adjustment shall be announced no later than November 15 of the year preceding its effective date of January 1. Any such adjustment shall be by written directive of the commissioner or the commissioner's designee and written notice of any such directive shall be provided to all permit holders.

(b) The maximum quantity of surfclams to be taken in a calendar year pursuant to subdivision (a) of this section shall be allocated by percent into four calendar quarters as follows:

First Quarter (January, February, March) -- 25 percent

Second Quarter (April, May, June) -- 25 percent

Third Quarter (July, August, September) -- 25 percent

Fourth Quarter (October, November, December) -- 25 percent.

(c) Any quantity allowed to be taken pursuant to subdivision (b) of this section not taken during a calendar quarter shall be allowed to be taken in the next calendar quarter and shall be in addition to the quantity allocated to that quarter.

(d) Any quantity taken in excess of the quantity allowed to be taken pursuant to subdivision (c) of this section during a calendar quarter shall be deducted from the quantity allowed to be taken in the next calendar quarter.

(e) If it is determined by the department that the maximum allowable harvest of surfclams pursuant to subdivision (b), (c), or (d) of this section may be met before the end of any given calendar quarter, harvesting from certified waters will be terminated for the remainder of that calendar quarter. Any such termination shall be by directive of the commissioner or the commissioner's designee, and no less than 48 hours written notice of any such directive shall be provided to all permit holders.

(f) No vessel may be used to harvest more than 28 standard cages of surfclams (equivalent to 896 industry standard bushels) in any one week. However, in order to minimize the duration of a fishery closure, no vessel may be used to harvest more then such quantity of surfclams as the commissioner or the commissioner's designee shall direct in any weekly, Sunday through Saturday, or biweekly period. Harvest limits shall be by the directive of the commissioner or the commissioner's designee, and no less than 48 hours written notice of any such directive shall be provided to all permit holders.

(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 42.7(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) The department may require that each standard cage or industry standard bushel also be tagged with a tag supplied by the department. Notice of such requirement will be given to each permit holder in writing.

§43-2.9 Reporting

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

(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 surfclams and 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.

§43-2.10 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.