§ 13-0309 — Taking, handling and importation of shellfish; general provisions

§ 13-0309. Taking, handling and importation of shellfish; general\n provisions.\n 1. a. Shellfish shall not be taken from uncertified lands except as\nprovided in sections 13-0319 and 13-0321.\n b. Shellfish from uncertified lands of other states shall not be\npossessed, transported or trafficked in within this state, except\npursuant to permit as provided in sections 13-0319 and 13-0321.\n c. Shellfish shall not be shipped or transported into this state\nexcept as provided in sections 13-0319 and 13-0321 unless such shellfish\nare harvested from certified shellfish lands whose quality is equivalent\nto or better than that described in regulations promulgated pursuant to\nsection 13-0319.\n 2. a. Shellfish shall not be taken from sunset to sunrise from any\nshellfish lands of this state.\n b. During the period from one hour after sunset until sunrise, no\nperson, except pursuant to a permit issued by the department, shall\npossess on board a vessel, or off-load from a vessel, more than the\nquantities of shellfish allowed to be possessed pursuant to subdivision\nfive of section 13-0311 of this title. Possession of shellfish during\nthe period from one hour after sunset until sunrise in quantities\nexceeding those set forth in subdivision five of section 13-0311 of this\ntitle shall be presumptive evidence of a violation of paragraph a of\nthis subdivision.\n 3. No dredge or scrape or other device operated by power or by boats\npropelled by motor or other mechanical means may be used for the taking\nof shellfish from public or unleased lands under water except that\n a. Sea scallops (Pecten magellanicus) may be taken from the waters of\nthe Atlantic Ocean by any means.\n b. In the taking of soft clams (Mya arenaria) on lands below low tide,\nthe practice of churning with a propeller may be employed.\n c. Surf, sea, hen or skimmer clams (Spisula solidissima; Spisula\npolynyma) and ocean quahogs (Arctica islandica) may be taken by\nmechanical means from the waters of the marine and coastal district,\nexcept as limited by any regulations promulgated pursuant to subdivision\ntwelve of this section.\n d. The department may permit the taking of shellfish for purposes of\ntransplanting only pursuant to section 13-0321, by mechanical means,\nexcept that in the waters of Richmond county the department may permit\nsuch taking in waters at a mean low water mark of thirty feet or more.\n e. Subject to the provisions of section 13-0327, bay scallops (Pecten\nirradians) may be taken with a dredge or scrape, having an opening at\nthe mouth not to exceed thirty-six inches in width, when towed by a boat\noperated by mechanical power, or other means provided that such dredge\nor scrape is brought aboard by hand power without the use of a\nmechanical device.\n f. The department may issue permits for the taking of mussels (Mytilus\nedulis) from underwater lands as hereinafter described by means of\ndredges not to exceed thirty-six inches in width, which may be equipped\nto be returned to boatside by means of power or mechanical devices.\nMussels (Mytilus edulis) may be taken by such means in the following\nareas:\n (1) In Long Island Sound generally easterly of a line extending due\nnorth from Herod Point on Long Island including those waters surrounding\nFishers Island.\n (2) In the Atlantic Ocean easterly of a line extending due south from\nthe rock jetty on the east side of Shinnecock Inlet.\n (3) In the bays with state-owned bottomland easterly from the Town of\nRiverhead to and including Block Island Sound.\n (4) The limit on mussels (Mytilus edulis) taken in such a manner is\nfifteen bushels per person per day, not to exceed thirty bushels taken\nper boat per day. Possession of other shellfish or possession of mussels\non a vessel possessing a dredge is presumptive evidence that such\nshellfish or mussels were taken by such dredge.\n g. In the taking of hard clams (Mercenaria mercenaria), a pot hauler\nmay be used onboard a vessel to assist in hauling or retrieving a clam\nrake from the water, provided that the basket attached to the clam rake\nshall not exceed twenty-six inches in width. For the purposes of this\nsection, "pot hauler" shall mean a mechanically operated device,\nincluding but not limited to a winch, reel, windlass or capstan, which\nis used to haul or retrieve a clam rake from the water and return it to\nthe harvest vessel.\n 4. No person shall take, carry away, interfere with or disturb\nshellfish of another, lawfully possessed, planted or cultivated; nor\nremove any stakes, buoys or boundary marks of lawfully possessed,\nplanted or cultivated lands. The possession of dredges, rakes or tongs\noverboard on any such lands shall be deemed presumptive evidence of a\nviolation of this subdivision.\n 5. All boats, houses and other places, containers and equipment used\nin the handling of shellfish shall be maintained in a sanitary condition\nas provided in section 13-0319.\n 6. Shellfish shall not be treated by the process known as drinking,\nfloating, plumping or swelling, and shellfish so treated shall not be\npossessed, bought, sold or exposed for sale; provided, however, that\nshellfish may be retained in water storage as provided in section\n13-0319 and provided, further, that nothing herein shall be deemed to\nprohibit or render unlawful the practice of off-bottom culture of\nshellfish under permit issued pursuant to section 13-0316 hereof.\n 7. Shellfish in the shell, or shucked, shall not be washed preparatory\nto marketing except by the use of water from a water supply approved by\nthe department.\n 8. The operation, use or placing, for whatever purpose, of dredges,\nrakes, tongs or other devices for the taking of shellfish in uncertified\nshellfish lands, except as provided in sections 13-0319 and 13-0321, is\nprohibited. The department may suspend or cancel the digger's permit of\nany person who is convicted of a violation of this subdivision or who\nsigns an acknowledgment of a violation of this subdivision for the\npurpose of effecting a settlement by civil compromise or by stipulation.\n 9. No person shall in any way alter, damage, mutilate, move or carry\naway any buoy or marker placed by the department that is used to\ndesignate, mark or define the uncertified waters of the state.\n 10. The department may issue permits for the possession of a stick\ndredge for purposes it may deem necessary. No person without a permit\nfrom the department shall possess a stick dredge in Nassau county,\nSuffolk county, or in the marine and coastal district. For the purpose\nof this section, a stick dredge shall be any tooth-basket combination\ndredging device whose construction shall allow for the installation of a\nstick or sticks of any type material whose purpose is to permit the\ndirection of force upon such device and which is commonly used for the\ntaking of Mercenaria mercenaria by being towed either directly or\nindirectly by a motorboat which has its engine engaged.\n 11. No person without a permit from the department shall possess rakes\nor tongs, of the type and design normally used by shellfish harvesters\nfor harvesting shellfish from shellfish lands, in Nassau county, Suffolk\ncounty or the marine and coastal district except:\n a. hand operated tongs having teeth in the heads spaced not less than\none inch apart and the basket attached to such tongs having bars not\nless than fifteen-sixteenths of an inch apart, or\n b. hand operated rakes having teeth spaced not less than one inch\napart and the basket attached to such rake having bars not less than\nfifteen-sixteenths of an inch apart.\n Rakes or tongs having wire netting or other material between the teeth\nor bars shall not be used.\n 12. Notwithstanding any other provision of this chapter or rule or\nregulation, the department shall fix by regulations open seasons,\nharvest areas, size limits, catch limits, manner of taking and\npossession, transportation, identification, sale and permit requirements\nfor surf, sea, hen and skimmer clams (Spisula solidissima, Spisula\npolynyma) and ocean quahogs (Arctica islandica). Such regulation may\nprovide for, but not be limited to the following:\n a. a daily catch limit for surf clams not to exceed eight hundred\nninety-six bushels or twenty-eight cages per vessel and a daily catch\nlimit for ocean quahogs not to exceed eight hundred ninety-six bushels\nor twenty-eight cages per vessel, regardless of the number of permittees\naboard such vessel;\n b. requirements with respect to number of vessels which may\nparticipate in the surf clam and ocean quahog fishery;\n c. limitations on harvest within specified periods of time, such as\nweekly and daily harvest limits, designed to minimize the number of and\nthe duration of closures;\n d. qualification of applicants and vessels to participate in the surf\nclam and ocean quahog fishery;\n e. the regulations shall take into consideration and attempt to\nmaintain the economic viability of those portions of the surf clam\nharvesting and processing industry that have a longstanding investment\nin the domestic surf clam industry; and\n f. the regulations shall take into consideration and attempt to\nmaintain the economic viability of the traditional established New York\nbased commercial surf clam/ocean quahog harvesting industry, processors\nand packers that rely on this fishery.\n 13. Possession of shellfish on a vessel equipped with a dredge, scrape\nor other device operated by power and capable of being used for the\ntaking of shellfish, except a scallop dredge as defined in paragraph e\nof subdivision three of this section, is presumptive evidence that such\nshellfish were taken by the use of such dredge, scrape or other device.\n 14. The department, until April first, two thousand ten shall be\nentitled to collect fifteen cents per bushel of surf clams and ten cents\nper bushel of ocean quahogs taken from all certified waters to be\ndeposited in the surf clam/ocean quahog account as provided in section\neighty-three of the state finance law.\n 15. Unless and until regulations are adopted implementing a\ncomprehensive long-term management plan for the protection of surf clams\nand ocean quahogs in New York waters, the following restrictions shall\napply in addition to any consistent regulations adopted prior to the\ndate upon which such section shall take effect:\n a. a weekly catch limit not to exceed twenty-eight cages;\n b. an annual catch limit in certified waters of the Atlantic Ocean for\nsurf clams not to exceed five hundred thousand bushels in the aggregate;\n c. an annual catch limit in certified waters other than the Atlantic\nOcean for surf clams not to exceed fifty thousand bushels in the\naggregate; and\n d. requiring permittees to report on a weekly basis the number of\nbushels harvested in the previous seven day period, and provide that the\nfailure to file such weekly report may result in the revocation of such\nperson's permit by the department.\n