Parts 42, 48 and 49 - Sanitary Control Over Shellfish; Marine Hatcheries, On-Bottom and Off-Bottom Culture of Marine Plant and Animal Life; and Shellfish Management - Express Terms Adopted July 25, 2012
Express Terms
Existing section 42.1 through subdivision 42.2(m) remain unchanged.
Existing subdivisions 42.2(n) through 42.2(p) are renumbered 42.2(o) through 42.2(q) and existing subdivisions 42.2(q) through 42.2(ay) are renumbered 42.2(s) through 42.2(ba).
New subdivisions 42.2(n), (r) and (bb) are adopted to read as follows:
(n) "Culture or cultivation" means the controlled or partially controlled raising, breeding, growing, planting and containment of marine plant or animal life in any marine hatchery or through on-bottom or off-bottom culture.
(r) "Farmed or farm-raised" means any shellfish subject to culture or cultivation as permitted under a permit issued by the department pursuant to Part 48 of this Title.
(bb) "Wild" means any marine plant or animal life existing in a wild or natural state that are not subject to culture or cultivation under a permit issued by the department pursuant to Part 48 of this Title.
Renumbered subdivisions 42.2(o) through 42.2(q) and 42.2(s) through 42.2(ba) remain unchanged.
Section 42.3 through clause 42.7(c)(3)(i)("f") remain unchanged.
Existing clause 42.7(c)(3)(i)("g") is amended to read as follows:
("g") area of harvest; [and]
Existing clause 42.7(c)(3)(i)("h") is renumbered to 42.7(c)(3)(i)("j").
New clauses 42.7(c)(3)(i)("h") and 42.7(c)(3)(i)("i") are added to read as follows:
("h") wild or farm-raised;
("i") the on/off-bottom culture permit number for farm-raised shellfish; and
Renumbered clause 42.7(c)(3)(i)("j") remains unchanged.
Existing subparagraph 42.7(c)(3)(ii) through clause 42.7(c)(4)(i)("c") remain unchanged.
Existing clauses 42.7(c)(4)(i)("d") through 42.7(c)(4)(i)("g") are renumbered to 42.7(c)(4)(i)("f") through 42.7(c)(4)(i)("i").
New clauses 42.7(c)(4)(i)("d") and 42.7(c)(4)(i)("e") are adopted to read as follows:
("d") wild or farm-raised;
("e") the on/off-bottom culture permit number for farm-raised shellfish;
Renumbered clauses 42.7(c)(4)(i)("f") through 42.7(c)(4)(i)("i") remain unchanged.
Existing subparagraph 42.7(c)(4)(ii) through subparagraph 42.11(a)(2)(i) remain unchanged.
Existing subparagraphs 42.11(a)(2)(ii) and 42.11(a)(2)(iii) are renumbered to subparagraphs 42.11(a)(2)(iv) and 42.11(a)(2)(v).
New subparagraphs 42.11(a)(2)(ii) and 42.11(a)(2)(iii) are added to read as follows:
(ii) No person shall pack or repack shellfish that have been cultured or farm-raised from more than one culture or cultivation site or from more than one on/off-bottom culture permit holder within the State, in the same container.
(iii) No person shall pack or repack shellfish that have been cultured or farm-raised in the same container with wild shellfish that are taken from any cultivation site or harvest area within the State.
Renumbered subparagraphs 42.11(a)(2)(iv) and 42.11(a)(2)(v) remain unchanged.
Existing paragraph 42.11(a)(3) through clause 42.11(a)(3)(i)("c") remain unchanged.
Existing clause 42.11(a)(3)(i)("d") is repealed.
New clause 42.11(a)(3)(i)("d") is adopted to read as follows:
("d") The following indelible statement, or an equivalent statement, shall appear on one side of the tag: "RETAILERS, INFORM YOUR CUSTOMERS: Consuming raw or undercooked meats, poultry, seafood, shellfish, or eggs may increase your risk of foodborne illness, especially if you have certain medical conditions."
Existing clause 42.11(a)(3)(i)("e") remains unchanged.
Existing clause 42.11(a)(3)(i)("f") is repealed.
New clauses 42.11(a)(3)(i)("f") and 42.11(a)(3)(i)("g") are adopted to read as follows:
("f") No person shall fail to indicate whether the shellfish are wild or farm-raised.
("g") No person shall fail to include the on/off-bottom culture permit number for shellfish cultured within the State.
Existing clause 42.11(a)(3)(ii)("a") remains unchanged.
Existing clause 42.11(a)(3)(ii)("b") is repealed.
New clause 42.11(a)(3)(ii)("b") is adopted to read as follows:
("b") An original shipper or packer must remove harvesters' tags from containers of shellfish, and keep them on file in an orderly manner for 90 days; except when the tag is required to remain attached.
Existing subparagraph 42.11(a)(3)(iii) is repealed.
Existing paragraph 42.11(a)(4) through subdivision 48.1(k) remain unchanged.
New subdivisions 48.1(l) through 48.1(s) are adopted to read as follows:
(l) "Cultivation site" means the specific location in which cultivation activities may be undertaken as identified on a marine hatchery, on-bottom or off-bottom culture permit issued pursuant to this Part.
(m) "Culturist" means any person authorized to conduct culture or cultivation activities under a permit issued by the department pursuant to this Part.
(n) "Shellfish dealer tag" means a tag required to be affixed to a container of cultivated shellfish prior to sale and shipment for consumption or resale consistent with the provisions of section 42.11(a)(3) of this Title.
(o) "Shellfish tag" means a tag required to be affixed to a container of cultivated shellfish prior to sale for consumption or resale consistent with the provisions of section 42.13(a)(5) of this Title.
(p) "Shellstock" means any shellfish that have not been processed or released from one or both shells and remains as a whole animal in the shell.
(q) "Shucked" means to have processed or released shellfish from one or both shells.
(r) "Wild bay scallops" means all bay scallops existing in a wild or natural state that are not subject to culture or cultivation under a permit issued by the department pursuant to this Part.
(s) "Wild shellfish" means all shellfish existing in a wild or natural state that are not subject to culture or cultivation under a permit issued by the department pursuant to this Part.
Existing section 48.2 through subdivision 48.2(c) remain unchanged.
Existing subdivision 48.2(d) is amended to read as follows:
(d) No person shall sell, offer for sale or trade in any manner, marine plant or animal life of less than legal size, as defined in sections 13-0323, 13-0325, 13-0327, 13-0329, 13-0339 and 11-0303 of the Environmental Conservation Law or regulations adopted pursuant thereto, except as expressly allowed pursuant to the provisions of section 13-0316 of the Environmental Conservation Law and this Part.
Existing section 48.3 through subdivision 48.4(b) remain unchanged.
New subdivision 48.4(c) is adopted to read as follows:
(c) Subject to the provisions of Part 49 of this Title and section 48.5 of this Part, oysters and bay scallops produced through cultivation which are less than legal size or the sale of which is otherwise restricted through sections 13-0323 and 13-0327 of the Environmental Conservation Law and regulations adopted pursuant thereto, may be sold for consumption and resale under the following conditions:
(1) Exemption for sale of cultivated bay scallops of less than legal size.
(i) The exemption shall only apply to such bay scallops that are cultivated under an off-bottom culture permit issued by the department; and
(ii) That are offered for sale or sold as shellstock (unshucked) bay scallops.
(iii) No exemption shall apply to cultivated bay scallops that are offered for sale or sold as a shucked product.
(2) Bay scallop and oyster seed purchases.
(i) The off-bottom culture permit holder shall report all purchases of bay scallop seed to the department on a form prescribed by the department within 15 days after purchase and receipt of seed scallops. Such report shall include all purchases of bay scallops measuring less than two and one quarter inches from the middle of the hinge to the middle of the bill and that do not contain an annual growth line which shall be subject to off-bottom culture under a permit issued by the department.
(ii) The holder of a marine hatchery, on-bottom or off-bottom culture permit shall report all purchases of oyster seed to the department on a form prescribed by the department within 15 days after purchase and receipt of seed oysters. Such report shall include all purchases of oysters measuring less than three inches in longest diameter which shall be subject to cultivation under a permit issued by the department.
(3) Exemption for sale of cultivated oysters.
(i) The exemption shall apply to oysters that are cultivated under a marine hatchery, on-bottom or off-bottom culture permit issued by the department pursuant to section 13-0316 of the Environmental Conservation Law.
(ii) Cultivated oysters of any size may be offered for sale or sold to commercial markets for consumption or resale.
Existing section 48.5 through subdivision 48.5(a) remain unchanged.
Existing subdivisions 48.5(b) through 48.5(f) are renumbered to 48.5(h) through 48.5(l).
New subdivisions 48.5(b) through 48.5(g) are adopted to read as follows:
(b) Prior to the sale of cultivated shellfish for consumption or resale, except for shellstock (unshucked) bay scallops, to the holder of a valid class A or B shellfish dealer's permit who has a place of business in the County of Nassau or Suffolk, the culturist shall affix to each container a shellfish tag as required by the provisions of paragraph 42.13(a)(5) of this Title. In addition to the tagging requirements in paragraph 42.13(a)(5), each shellfish tag must indicate, in waterproof ink, the following:
(1) The marine hatchery, on-bottom or off-bottom culture permit number and identification as "farmed-raised"; and
(2) The statement "Keep Refrigerated" or an equivalent statement.
(c) Prior to the sale and shipment of cultivated shellfish for consumption or resale, except for shellstock (unshucked) bay scallops, the culturist shall affix to each container a shellfish dealer tag as required by the provisions of paragraph 42.11(a)(3) of this Title. In addition to the tagging requirements in paragraph 42.11(a)(3), each shellfish tag must indicate, in waterproof ink, the following:
(1) The marine hatchery, on-bottom or off-bottom culture permit number and identification as "farmed-raised"; and
(2) The statement "Keep Refrigerated" or an equivalent statement.
(d) Prior to the sale and shipment of cultivated shellstock (unshucked) bay scallops authorized pursuant to the provisions of subdivision 48.4(c) of this Part to commercial markets for consumption or resale, the culturist shall affix to each container a shellfish dealer tag as required by the provisions of paragraph 42.11(a)(3) of this Title. In addition to the tagging requirements in paragraph 42.11(a)(3), each shellfish dealer tag shall be yellow in color with black lettering and must indicate, in water proof ink, the following:
(1) The off-bottom culture permit number and identification as "farmed-raised"; and
(2) The statement "Keep Refrigerated" or an equivalent statement.
The shellfish dealer tag affixed to each container of cultivated shellstock bay scallops shall remain attached to such container until the bay scallops are prepared for final consumption or sold to the final consumer.
(e) No culturist shall be in possession of cultivated shellstock (unshucked) bay scallops and wild bay scallops on the same day.
(f) No culturist shall pack cultivated shellfish from more than one cultivation site, as specified on a permit issued pursuant to this Part, in the same container.
(g) No culturist shall pack cultivated shellfish in the same container with wild shellfish, when taken from any cultivation site or harvest area in the State.
Renumbered subdivision 48.5(h) remains unchanged.
Renumbered subdivision 48.5(i) is amended to read as follows:
(i) The individual tagging of cultured hybrid food fish, or parts thereof, is not required. Documentation of each consignment or sale of cultured hybrid food fish is required and must conform to the provisions of subdivision [(d)] (j) of this section and [section] subdivision 48.6(b) of this Part.
Renumbered subdivisions 48.5(j) through 48.5(l) remain unchanged.
Existing subdivision 48.6(a) remains unchanged.
Existing subdivision 48.6(b) is amended to read as follows:
(b) Culturists, seafood wholesalers and seafood retailers must keep records of invoices or shipping labels describing their receipts and disbursements of cultured food fish. These records must include all information as required in subdivision [section 48.5(d)] 48.5(j) of this Part. Such records shall be maintained for a period of one year from the date of consignment or sale.
Existing subdivision 48.6(c) remains unchanged.
New section 48.7 is added to read as follows:
Section 48.7 Reporting.
(a) The holder of a marine hatchery, on-bottom or off-bottom culture permit shall file a report to the department on a form prescribed by the department of all sales of bay scallops of less than legal size that are sold to the holders of marine hatchery, on-bottom or off-bottom culture permits issued pursuant to section 13-0316 of the Environmental Conservation Law. The report shall be filed 15 days after the end of the month in which bay scallop seed sales were undertaken.
(b) The holder of a marine hatchery, on-bottom or off-bottom culture permit issued pursuant to section 13-0316 of the Environmental Conservation Law shall file a report of all sales of oysters and shellstock (unshucked) bay scallops subject to the exemption authorized under subdivision 48.4(c) on a form prescribed by the department 15 days after the end of each month. A report shall not be required to be filed for any month where sales of bay scallops or oysters, under such exemption, were not undertaken by the permit holder pursuant to this Part.
Existing section 49.1 through subdivision 49.1(g) remain unchanged.
New subdivision 49.1(h) is added to read as follows:
(h) Exemption for cultivated bay scallops. The harvest, possession and sale of bay scallops of less than legal size that are cultivated under a marine hatchery, on-bottom or off-bottom culture permit issued by the department, and subject to the provisions of section 13-0316 of the Environmental Conservation Law and Part 48 of this Title, shall be exempt from the provisions of subdivisions 49.1(b) through 49.1(f) of this Part.
Existing section 49.2 through paragraph 49.2(c)(4) remain unchanged.
