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Part 45: Transplanting Of Shellfish

(Statutory Authority: Environmental Conservation Law, Sections 11-0305, 11-2301, 13-0319 and 13-0321)

Contents:

Sec.

§45.1 Definitions

Unless the context otherwise requires, the following terms and their derivatives when used in this Part shall have the following meanings:

(a) Certified shellfish lands means shellfish lands from which the harvesting of shellfish for use as food is permitted by commissioner's order or by any applicable statute, regulation or ordinance passed by any other state or nation; provided further, however, that standards, methods and techniques used by any such state or nation to determine certification shall be found in the judgement of the commissioner to be substantially equal to those of the State of New York with regard to the protection of the public health and safety.

(b) Cleansing area means a relay area within certified shellfish lands which has been temporarily declared uncertified pursuant to this Part and within which shellfish may be deposited for the purpose of reducing the numbers of fecal coliform bacteria which may be present in such shellfish in order to make them safe for human consumption.

(c) Commissioner means the Commissioner of Environmental Conservation or his duly authorized representative.

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

(e) Fecal coliform means bacteria of the coliform group which will produce gas from EC medium when such medium is incubated for 26 hours or less at 44.5 degrees Celsius plus or minus 0.2 degrees Celsius in a water bath.

(f) Harvest area means shellfish lands from which shellfish are removed for transplanting purposes.

(g) Marine district means the waters of the Atlantic Ocean within three nautical miles of the coastline of the State and all tidal waters within the State including the Hudson River up to the Tappen Zee Bridge.

(h) Person means an individual, group of individuals, public or private corporation, industry, co-partnership, joint-stock company or other legal entity.

(i) Relay means that part of a shellfish transplant operation in which the shellfish harvested from one shellfish land area are deposited on another shellfish land area.

(j) Relay area means a shellfish land of the Marine and Coastal District to which shellfish are relayed.

(k) Shellfish transplant permit means a permit which authorizes the undertaking of a shellfish transplant.

(l) Shellfish transplant harvester's permit means a permit which allows a person to harvest shellfish in connection with activities allowed by a shellfish transplant permit.

(m) Shellfish means oysters, scallops and all kinds of clams and mussels.

(n) Shellfish lands means all tidal waters, the lands thereunder and such lands as are exposed at low tide, within and without the State of New York.

(o) Transplant means any transfer of shellfish from shellfish lands within or without the State to shellfish lands within the State, which requires the issuance of a permit pursuant to article 13 of the Environmental Conservation Law.

(p) Uncertified shellfish lands means shellfish lands from which the harvesting of shellfish for use as food has been prohibited by the commissioner's order or by statute, regulation or ordinance passed by any state or nation; provided further, however, that standards, methods and techniques used by any such state or nation to determine uncertification shall be found in the judgement of the commissioner to be substantially equal to those of the State of New York with regard to the protection of the public health and safety.

§45.2 General Prohibitions

(a) No person shall fail to comply with the provisions of this Part.

(b) No person shall remove shellfish from shellfish lands in the State for transplanting purposes, or receive or import shellfish into the State for such purposes, without first obtaining a shellfish transplant permit or a shellfish transplant harvester's permit or both, and a shellfish digger's permit when required.

(c) No person shall import shellfish into the State for transplanting purposes which are not of a quality which in the judgement of the commissioner will not adversely affect the existing shellfish resources or the public health and safety.

(d) No permittee shall violate the terms of his or her permit.

§45.3 Permits

(a) Permit requirements.

(1) A shellfish transplant permit and one or more shellfish transplant harvester's permits must be obtained for each transplant activity; except that shellfish transplant activities undertaken by municipalities or other political subdivisions shall be exempt from the requirements for obtaining shellfish transplant harvester's permits.

(2) All transplant permit applications shall be completed on a form and in a manner established by the department. Consistent with applicable procedural requirements of Part 175 this Title, applications shall be submitted within such time as will afford an adequate period for department review and, as required, the organization of supervision activities and the public notification of any permit that may be issued pursuant to this Part.

(3) Each shellfish transplant permit and each associated shellfish transplant harvester's permit shall indicate applicable information on names, addresses, permit numbers and the following:

(i) the specific area or areas from which shellfish shall be removed;

(ii) the manner or method that shall be used in their removal;

(iii) the time period during which the operation shall take place;

(iv) the manner and method of relaying that shall be employed;

(v) the manner of transportation that shall be employed;

(vi) the area to which shellfish shall be relayed and a description thereof;

(vii) the species of shellfish which shall be transported;

(viii) any additional provisions or conditions which the commissioner may deem necessary to protect the health and welfare of the people of the State of New York.

(b) Permit restrictions. The department reserves the right to physically retain the digger's permits and shipper's permits held by shellfish transplant permittees.

(c) The procedures relating to permit modifications, suspensions and revocations contained in Part 621 of this Title shall govern permit modifications, suspensions and revocations under this Part.

§45.4 Transplanting of Shellfish

(a) Periods of transplanting.

(1) Subject to department approval and permit conditions, shellfish from certified areas without the state may be transplanted into the state throughout the year.

(2) Except as provided in paragraph (3) of this subdivision, shellfish from uncertified areas shall not be transplanted between the dates of October 11 and March 31 unless deemed necessary by the department to protect such shellfish from destruction by tides, winds or other natural or man-made causes.

(3) Subject to permit conditions, the department may allow shellfish which it determines to be of a small enough size as not to be marketable as a human food product to be transplanted no earlier than March 1 and no later than October 31. For hard clams (Mercenaria mercenaria) this size shall be less than one-half inch in thickness; for American oysters (Crassostrea virginica) it shall be less than two inches in length. For other species the maximum size shall be established as a permit condition.

(b) Supervision. All harvesting, transporting and relaying of shellfish in connection with transplant operations shall be subject to such supervision as the commissioner deems necessary to protect the public health and safety and to conform with the regulations of this Part.

(c) Transportation.

(1) All shellfish being transported for transplanting purposes shall be transported by such means as the commissioner deems necessary to protect the public health and safety.

(2) Notwithstanding the provisions of paragraphs (1) and (2) of subdivision (b) of this section 42.8 of this Title, transporters shall carry a bill of lading, or other document provided by the department, adequately identifying such shellfish as being transported in connection with a shellfish transplant project, their number and destination.

(d) Except as specifically authorized as a permit condition, all shellfish shall be relayed the same day as harvested.

(e) Relay area certification.

(1) Except as specified in paragraph (2) of this subdivision, certified areas to which shellfish from uncertified areas are to be relayed shall be declared uncertified by restriction placed upon permits issued pursuant to this Part. Additionally, for all public cleansing areas, notification of the uncertified area designation shall be undertaken by the department as provided in subdivision f of this section. As defined in subdivision 45.1(b) of this Part, a cleansing area is a relay area within certified shellfish lands which has been temporarily declared uncertified. This designation shall become effective on the commencement of transplanting activities and, for all public cleansing areas, following notice as provided in subdivision f of this section. This designation shall remain in effect throughout the period of the transplanting activities. As required by subparagraph 45.3(a)(3)(vi) of this Part, each shellfish cleansing area shall be specifically identified in the associated shellfish transplant permit. Cleansing areas into which shellfish have been transplanted shall not be declared certified before the water temperature in such areas has maintained a temperature of 50 degrees Fahrenheit (10 degrees Celsius) or higher for a minimum period of 21 consecutive days following the relay of the last shellfish thereon. If determined necessary by the department, the designation as uncertified may be extended for whatever period of time is required for the protection of the public health. For all public cleansing areas, the extension shall be effective following notice as provided in subdivision f of this section.

(2) Relay areas shall not need to be declared uncertified when the shellfish to be transplanted thereto are of such a small size as to not be marketable as a human food product. For hard clams (Mercenaria mercenaria) this size shall be less than one-half inch in thickness; for American oysters (Crassostrea virginica) it shall be those which are less than two inches in length.

(3) Notwithstanding any other provision of this Subchapter, no relay area to which shellfish have been relayed shall be designated certified until any marketable size shellfish relayed thereto have been in such area for a minimum of 21 consecutive days at a water temperature of 50 degrees Fahrenheit or higher.

(f) Notification describing the location and reclassification of all public cleansing areas declared uncertified pursuant to this Part shall be provided by the department as follows:

(1) prior written notice shall be posted in the department's regional office(s) in whose jurisdiction the affected shellfish lands are located;

(2) prior written notice, for posting purposes, shall be provided to the main office of the political subdivision within whose jurisdiction the affected shellfish lands are located;

(3) prior written notice shall be mailed to the holders of valid State digger's permits resident in the political subdivision within whose jurisdiction the affected shellfish lands are located; and

(4) prior to the commencement of transplanting activities, uncertified area designation signs shall be posted at the location of the affected shellfish lands.

§45.5 Transplant Supervision Fees and Security Requirements

(a) Any person possessing a shellfish transplant permit, pursuant to the provisions of this Part, must pay a supervision fee and maintain financial security, as specified in subdivisions (b)-(j) of this section. Municipalities or other political subdivisions are exempt from the provisions of this section.

(b) When a supervision fee is required, a surety bond or other negotiable security satisfactory to the department, with a value of no less than $5,000, shall be obtained and presented to the department by a permit applicant prior to the department's issuance of a shellfish transplant permit. All or part of such bond or other security shall be payable to the State of New York Department of Environmental Conservation to implement and, to ensure the payment of any outstanding amounts due the department by reason of a permittee's failure to comply with the supervision fee requirements of this Part.

(c) A supervision fee is required in any instance of shellfish transplanting from public to private lands within or without the State and, also, in any other instance in which the shellfish being transplanted are of a size determined by the department, pursuant to paragraph (2) of subdivision (a) of section 45.4 of this Part, to have reasonable potential to be used as a human food product.

(d) A supervision fee may be required, at the discretion of the department, in other instances of shellfish transplanting.

(e) The minimum supervision fee equals the current entry-level biweekly salary for the job title of laborer, plus the cost of fringe benefits and a program overhead charge of 15 percent of the total of salary and fringe benefits.

(f) If the reasonable costs to the department of supervision over the removal of shellfish from uncertified areas exceed the minimum fee, additional fees sufficient to reimburse the department for such additional costs will be assessed as follows:

(1) the cost of overtime resulting from on-site supervision; and/or

(2) the costs incurred by the department through the assignment of additional on-site supervisors. Such additional assessments will be based upon the number of hours actually worked, with a provision that the minimum fee for each additionally assigned supervisor will be based on 4 hours per day.

(3) The cost of fringe benefits, holiday time, meal and travel expenses will be assessed and a program overhead charge based upon 15 percent of their total plus 15 percent of the total of additional salaries will be assessed.

(g) As a part of the permit application process, a written description of the scope and degree of supervision and the cost of such supervision to be required shall be signed by an appropriate department representative and the permit applicant. The department reserves the right to assign an effective starting date for a permit which is six weeks or less from the date of its approval of a complete permit application. Subsequent biweekly payments are due on the 14th day after the commencement date of the permitted shellfishing activity and every 14th day thereafter. Payment of any additional fee required under subdivision (f) of this section is due within 15 days of receipt of notice of its assessment.

(h) In the event of project initiation delay due to an applicant's actions or the voluntary termination of a permit application or a permit, supervision fee reimbursement to the applicant or permittee shall be determined as follows:

(1) If a permit application is withdrawn by an applicant prior to six weeks before the activities assigned commencement date, the department shall return the associated supervision fee.

(2) If within six weeks prior to the permit commencement date identified on a permit application an applicant withdraws said application or, if the department, with just cause, cancels said application, the fee shall be forfeited.

(3) If a project does not commence within a period of two weeks following the commencement date identified in the approved permit application, the initial application fee received by the department shall be forfeited and a new non-refundable initial payment shall be required prior to project commencement.

(4) In the event of voluntary termination of a permit, supervision fee reimbursement to the permittee shall be prorated on the number of days remaining in the period for which payment has previously been received. However, to receive reimbursement the permittee must have given the department a minimum of 10 working days written notice of the intent to terminate.

(i) If the permittee fails to pay a basic biweekly payment within 10 days of its becoming due, the transplant permit may be revoked.

(j) If a transplant permit is suspended or revoked, no supervision fees previously paid will be refunded, and all fees for which payment is due will remain due.

§45.6 Penalties

(a) Any person violating any provision of this Part shall be subject to the penalties of the Environmental Conservation Law.

(b) Any person who has had a permit suspended pursuant to subdivision (b) of section 45.3 of this Part may have a permit revoked, and may be denied a transplant permit for a period to be determined appropriate by the commissioner following a hearing.