NY Env Conserv L § 13-0309 (2021)
2021 New York Laws ENV - Environmental Conservation Article 13 - Marine and Coastal Resources Title 3 - Marine Fisheries 13-0309 - Taking, Handling and Importation of Shellfish; General Provisions.

§  13-0309.  Taking,  handling  and  importation  of  shellfish; general                provisions.   1. a. Shellfish shall not be taken from uncertified  lands  except  as provided in sections 13-0319 and 13-0321.   b.  Shellfish  from  uncertified  lands  of  other states shall not be possessed, transported  or  trafficked  in  within  this  state,  except pursuant to permit as provided in sections 13-0319 and 13-0321.   c.  Shellfish  shall  not  be  shipped  or transported into this state except as provided in sections 13-0319 and 13-0321 unless such shellfish are harvested from certified shellfish lands whose quality is equivalent to or better than that described in regulations promulgated pursuant  to section 13-0319.   2.  a.  Shellfish  shall  not be taken from sunset to sunrise from any shellfish lands of this state.   b. During the period from one hour  after  sunset  until  sunrise,  no person,  except  pursuant  to  a  permit issued by the department, shall possess on board a vessel, or off-load from  a  vessel,  more  than  the quantities  of shellfish allowed to be possessed pursuant to subdivision five of section 13-0311 of this title. Possession  of  shellfish  during the  period  from  one  hour  after  sunset  until sunrise in quantities exceeding those set forth in subdivision five of section 13-0311 of this title shall be presumptive evidence of a violation  of  paragraph  a  of this subdivision.   3.  No  dredge or scrape or other device operated by power or by boats propelled by motor or other mechanical means may be used for the  taking of shellfish from public or unleased lands under water except that   a.  Sea scallops (Pecten magellanicus) may be taken from the waters of the Atlantic Ocean by any means.   b. In the taking of soft clams (Mya arenaria) on lands below low tide, the practice of churning with a propeller may be employed.   c. Surf, sea, hen  or  skimmer  clams  (Spisula  solidissima;  Spisula polynyma)  and  ocean  quahogs  (Arctica  islandica)  may  be  taken  by mechanical means from the waters of the  marine  and  coastal  district, except as limited by any regulations promulgated pursuant to subdivision twelve of this section.   d.  The  department may permit the taking of shellfish for purposes of transplanting only pursuant to section  13-0321,  by  mechanical  means, except  that  in the waters of Richmond county the department may permit such taking in waters at a mean low water mark of thirty feet or more.   e. Subject to the provisions of section 13-0327, bay scallops  (Pecten irradians)  may  be  taken with a dredge or scrape, having an opening at the mouth not to exceed thirty-six inches in width, when towed by a boat operated by mechanical power, or other means provided that  such  dredge or  scrape  is  brought  aboard  by  hand  power  without  the  use of a mechanical device.   f. The department may issue permits for the taking of mussels (Mytilus edulis) from underwater lands  as  hereinafter  described  by  means  of dredges  not to exceed thirty-six inches in width, which may be equipped to be returned to boatside by means  of  power  or  mechanical  devices. Mussels  (Mytilus  edulis)  may  be taken by such means in the following areas:  (1) In Long Island Sound generally easterly of a  line  extending  due north from Herod Point on Long Island including those waters surrounding Fishers Island.  (2)  In the Atlantic Ocean easterly of a line extending due south from the rock jetty on the east side of Shinnecock Inlet.  (3) In the bays with state-owned bottomland easterly from the Town  of Riverhead to and including Block Island Sound.  (4)  The  limit  on mussels (Mytilus edulis) taken in such a manner is fifteen bushels per person per day, not to exceed thirty  bushels  taken per boat per day. Possession of other shellfish or possession of mussels on  a  vessel  possessing  a  dredge  is  presumptive evidence that such shellfish or mussels were taken by such dredge.   g.  In  the taking of hard clams (Mercenaria mercenaria), a pot hauler may be used onboard a vessel to assist in hauling or retrieving  a  clam rake  from the water, provided that the basket attached to the clam rake shall not exceed twenty-six inches in width. For the  purposes  of  this section,  "pot  hauler"  shall  mean  a  mechanically  operated  device, including but not limited to a winch, reel, windlass or  capstan,  which is  used to haul or retrieve a clam rake from the water and return it to the harvest vessel.   4. No person  shall  take,  carry  away,  interfere  with  or  disturb shellfish  of  another,  lawfully  possessed, planted or cultivated; nor remove any stakes,  buoys  or  boundary  marks  of  lawfully  possessed, planted  or  cultivated lands. The possession of dredges, rakes or tongs overboard on any such lands shall be deemed presumptive  evidence  of  a violation of this subdivision.   5.  All  boats, houses and other places, containers and equipment used in the handling of shellfish shall be maintained in a sanitary condition as provided in section 13-0319.   6. Shellfish shall not be treated by the process  known  as  drinking, floating,  plumping  or  swelling, and shellfish so treated shall not be possessed, bought, sold or exposed for  sale;  provided,  however,  that shellfish  may  be  retained  in  water  storage  as provided in section 13-0319 and provided, further, that nothing herein shall  be  deemed  to prohibit  or  render  unlawful  the  practice  of  off-bottom culture of shellfish under permit issued pursuant to section 13-0316 hereof.   7. Shellfish in the shell, or shucked, shall not be washed preparatory to marketing except by the use of water from a water supply approved  by the department.   8.  The  operation,  use or placing, for whatever purpose, of dredges, rakes, tongs or other devices for the taking of shellfish in uncertified shellfish lands, except as provided in sections 13-0319 and 13-0321,  is prohibited.  The department may suspend or cancel the digger's permit of any person who is convicted of a violation of this  subdivision  or  who signs  an  acknowledgment  of  a  violation  of this subdivision for the purpose of effecting a settlement by civil compromise or by stipulation.   9. No person shall in any way alter, damage, mutilate, move  or  carry away  any  buoy  or  marker  placed  by  the  department that is used to designate, mark or define the uncertified waters of the state.   10. The department may issue permits for the  possession  of  a  stick dredge  for  purposes  it may deem necessary. No person without a permit from the department shall possess  a  stick  dredge  in  Nassau  county, Suffolk  county,  or in the marine and coastal district. For the purpose of this section, a stick dredge shall be  any  tooth-basket  combination dredging device whose construction shall allow for the installation of a stick  or  sticks  of  any  type material whose purpose is to permit the direction of force upon such device and which is commonly used  for  the taking  of  Mercenaria  mercenaria  by  being  towed  either directly or indirectly by a motorboat which has its engine engaged.   11. No person without a permit from the department shall possess rakes or tongs, of the type and design normally used by  shellfish  harvesters for harvesting shellfish from shellfish lands, in Nassau county, Suffolk county or the marine and coastal district except:    a.  hand operated tongs having teeth in the heads spaced not less than one inch apart and the basket attached to such  tongs  having  bars  not less than fifteen-sixteenths of an inch apart, or   b.  hand  operated  rakes  having  teeth spaced not less than one inch apart and the basket attached to such rake having  bars  not  less  than fifteen-sixteenths of an inch apart.   Rakes or tongs having wire netting or other material between the teeth or bars shall not be used.   12.  Notwithstanding  any  other  provision of this chapter or rule or regulation, the  department  shall  fix  by  regulations  open  seasons, harvest   areas,  size  limits,  catch  limits,  manner  of  taking  and possession, transportation, identification, sale and permit requirements for surf, sea, hen  and  skimmer  clams  (Spisula  solidissima,  Spisula polynyma)  and  ocean  quahogs  (Arctica islandica). Such regulation may provide for, but not be limited to the following:   a. a daily catch limit for surf clams  not  to  exceed  eight  hundred ninety-six  bushels  or  twenty-eight cages per vessel and a daily catch limit for ocean quahogs not to exceed eight hundred  ninety-six  bushels or twenty-eight cages per vessel, regardless of the number of permittees aboard such vessel;   b.   requirements   with  respect  to  number  of  vessels  which  may participate in the surf clam and ocean quahog fishery;   c. limitations on harvest within specified periods of  time,  such  as weekly  and daily harvest limits, designed to minimize the number of and the duration of closures;   d. qualification of applicants and vessels to participate in the  surf clam and ocean quahog fishery;   e.  the  regulations  shall  take  into  consideration  and attempt to maintain the economic viability of  those  portions  of  the  surf  clam harvesting  and  processing industry that have a longstanding investment in the domestic surf clam industry; and   f. the regulations  shall  take  into  consideration  and  attempt  to maintain  the economic viability of the traditional established New York based commercial surf clam/ocean quahog harvesting industry,  processors and packers that rely on this fishery.   13. Possession of shellfish on a vessel equipped with a dredge, scrape or  other  device  operated  by  power and capable of being used for the taking of shellfish, except a scallop dredge as defined in  paragraph  e of  subdivision three of this section, is presumptive evidence that such shellfish were taken by the use of such dredge, scrape or other device.   14. The department, until April  first,  two  thousand  ten  shall  be entitled to collect fifteen cents per bushel of surf clams and ten cents per  bushel  of  ocean  quahogs  taken  from  all certified waters to be deposited in the surf clam/ocean quahog account as provided  in  section eighty-three of the state finance law.   15.   Unless   and   until  regulations  are  adopted  implementing  a comprehensive long-term management plan for the protection of surf clams and ocean quahogs in New York waters, the following  restrictions  shall apply  in  addition  to  any consistent regulations adopted prior to the date upon which such section shall take effect:   a. a weekly catch limit not to exceed twenty-eight cages;   b. an annual catch limit in certified waters of the Atlantic Ocean for surf clams not to exceed five hundred thousand bushels in the aggregate;   c. an annual catch limit in certified waters other than  the  Atlantic Ocean  for  surf  clams  not  to  exceed  fifty  thousand bushels in the aggregate; and   d. requiring permittees to report on a  weekly  basis  the  number  of bushels harvested in the previous seven day period, and provide that the  failure  to file such weekly report may result in the revocation of such person's permit by the department.