Update Shellfish Farming Rules

Section 1. Section 11-1909 of the environmental conservation law is REPEALED.

§ 2. Sections 13-0301, 13-0305, 13-0309, 13-0311, 13-0313, 13-0315, 13-0319, 13-0321, 13-0323, 13-0325 and 13-0327 of the environmental conservation law are REPEALED.

§ 3. Paragraph a of subdivision 1 of section 11-1319 of the environmental conservation law, as amended by chapter 193 of the laws of 1992, is amended to read as follows:

a. This section governs possession, transportation and sale of all fish taken in waters of the state, including the marine and coastal district except (1) trout and black bass raised under permit from the department and identified as provided in section [11-1909] 96-z-41 of the agriculture and markets law, (2) fish taken from a farm fish pond licensed as provided in section 11-1911, and (3) fish taken from licensed fishing preserve waters as provided in section 11-1913.

§ 4. Subdivision 1 of section 11-1501 of the environmental conservation law, as amended by chapter 193 of the laws of 1992, is amended to read as follows:

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

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1. This title 15 of the Fish and Wildlife Law and regulations adopted pursuant hereto do not apply to (a) the taking of fish by angling as permitted in title 13; (b) the taking of fish or the use of nets in the marine and coastal district as defined in section 13-0103, or in a trout or black bass hatchery operated under permit from the department as provided in section [11-1909] 96-z-41 of the agriculture and markets law, or in a farm fish pond licensed as provided in section 11-1911 or in a fishing preserve licensed as provided in section 11-1913; (c) the sale or taking for sale of bait fish named in section 11-1315.

§ 5. The agriculture and markets law is amended by adding a new article 5-E to read as follows:

ARTICLE 5-E

REGULATION OF AQUACULTURE Section 96-z-40. Legislative intent.

96-z-41. Private trout and black bass hatcheries.

96-z-42. Shellfish regulations.

96-z-43. Aquaculture task force.

96-z-44. Lease of state-owned underwater lands for shellfish

cultivation.

96-z-45. Marking lands prohibited; injury to monuments.

96-z-46. Taking, handling and importation of shellfish; gener-

al provisions.

96-z-47. Shellfish growers; definition; bed permit.

96-z-47-a. Shellfish shipper's and processor's permit.

96-z-48. Digger's permit to take shellfish for commercial

purposes; when not required.

96-z-49. Taking and importation of shellfish for transplanting

and other purposes.

96-z-50. Oysters; prohibited acts.

96-z-51. Clams; prohibited acts.

96-z-52. Scallops; prohibited acts.

96-z-53. Commercial licenses; limited entry.

§ 96-z-40. Legislative intent. The legislature finds and declares that aquaculture is among the fastest growing segments of the global agriculture markets, with New York's fish-farming industry supplying fish to a variety of markets, and that this body should seek ways to develop the fish-farming business as an alternative cash crop for farms across the state.

§ 96-z-41. Private trout and black bass hatcheries. 1. The department, in its discretion, may issue to any person a hatchery permit, valid during the calendar year of issue, to propagate, raise and sell trout. The department shall establish by order regulations governing the identification and transportation of trout raised under such a permit, other than by individual tagging, which are offered for sale, sold or transported.

2. The department, in its discretion, may issue to any person a hatchery permit, valid during the calendar year of issue, to propagate, raise and sell black bass. The department shall establish by order regulations governing the identification and transportation of black bass raised under such a permit, other than by individual tagging, which are offered for sale, sold or transported.

§ 96-z-42. Shellfish regulations. The department may adopt regulations with respect to the harvesting, transplanting, relaying, receiving, possessing, transporting, importing, exporting, processing, buying, selling of or otherwise trafficking in shellfish; the labeling or tagging thereof; the keeping of records of shellfish received, trans-

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ported and distributed; and the construction, operation and maintenance of all shellfish handling, processing and distributing establishments, including facilities and equipment and the cleaning, cleansing and water storage of shellfish. The provisions of this section relating to transplanting and relaying shall include, but not be limited to, the removal of shellfish from uncertified growing areas and transplanting to certified areas for subsequent harvest for market purposes and transplanting of scallops pursuant to section 96-z-49 of this article. Such regulations may provide for payment of the reasonable costs of the department of supervision of removal of shellfish from uncertified areas, except where such removal is being undertaken by a municipality or political subdivision. Such regulations shall be drawn in such a manner as to provide adequate sanitary control over all shellfish offered for sale and distribution in the state. Such regulations shall not be less restrictive than the minimum requirements of any federal agency regulating the inter-state shipment of shellfish.

§ 96-z-43. Aquaculture task force. 1. An aquaculture task force is hereby established to determine the viability of adopting a regulatory system with promotion and protection of the aquaculture industry as its goal for the state.

2. The task force shall consist of ten members, each to serve for a term of two years, to be appointed as follows: two shall be appointed by the temporary president of the senate and two by the minority leader of the senate; two shall be appointed by the speaker of the assembly and two by the minority leader of the assembly; and two shall be appointed by the governor. The members shall be broadly representative of the geographic areas of the state and include representatives of the aquaculture industry, ethnic populations, local governments and the public at large. No more than four appointees shall be members of the legislature. The commissioner and the commissioner of environmental conservation shall serve as ex-officio members. Vacancies in the membership of the commission and among its officers shall be filled in the manner provided for original appointments.

3. The task force may employ and at pleasure remove such personnel as it may deem necessary for the performance of its functions and fix their compensation within the amounts made available therefor.

4. The members of the task force shall receive no compensation for their services, but shall be allowed their actual and necessary expenses incurred in the performance of their duties pursuant to this article.

5. To the maximum extent feasible, the task force shall be entitled to request and receive and shall utilize and be provided with such facilities, resources, and data of any court, department, division, board, bureau, commission, or agency of the state or any political subdivision thereof as it may reasonably request to carry out properly its powers and duties hereunder.

6. The appointing authorities shall appoint the members of the task force within ninety days of the effective date of this section and the task force shall convene its first meeting within sixty days thereafter.

7. The task force shall make a preliminary report to the governor and the legislature of its findings, conclusions and recommendations on or before April first, two thousand nineteen and a final report of its findings, conclusions and recommendations not later than December thirty-first, two thousand nineteen, and shall submit with its reports such legislative proposals as it deems necessary to implement its recommendations.

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§ 96-z-44. Lease of state-owned underwater lands for shellfish cultivation. 1. Leases. a. Except as provided in paragraph b of this subdivision, the department may lease state-owned underwater lands within the marine and coastal district for the cultivation of shellfish. The written approval of the office of general services shall be obtained for the lease of land within five hundred feet of the high water mark.

b. The following lands underwater shall not be leased: (i) lands where there is an indicated presence of shellfish in sufficient quantity and quality and so located as to support significant hand raking or tonging harvesting; (ii) lands where the leasing will result in a significant reduction to established commercial finfish or crustacean fisheries; (iii) lands where bay scallops are produced regularly on a commercial basis; and (iv) lands underwater of Gardiner's and Peconic bays and the tributaries thereof between the westerly shore of Great Peconic bay and an easterly line running from the most easterly point of Plum Island to Goff point at the entrance of Napeaque harbor.

2. Regulations. a. Regulations adopted by the department for the implementation and administration of this section shall include regulations with respect to leasing forms and procedures; public notice of leasing; execution of leases; minimum rental fees; bidding procedures; posting and forfeiture of financial security, renewals, termination and assignment of leases; marking and testing of grounds; maintenance of boundary markers; collection of rental and recording fees; submission and approval of cultivation plans; harvesting gear; and acreage of lands to be let and term of leases and other matters pertinent to underwater land use and shellfish cultivation.

b. Regulations adopted by the department for the implementation and administration of this section shall include the following requirements: (i) leases shall be awarded after public auction following due notice; (ii) leases shall be awarded to the highest responsible bidder; (iii) bidders shall provide a detailed cultivation plan; and (iv) cultivation of shellfish shall commence within one year of the award of the lease.

3. Summary proceedings. Upon failure to pay the rental on any date due under the terms of a lease or upon revocation, the department may, after written notice to the lessee, declare the lease cancelled as of the date set forth in such notice, and may immediately thereafter evict the lessee from such lands. The provisions of article seven of the real property actions and proceedings law shall apply and govern the procedure in such cases.

4. Limitations. The commissioner of general services shall not grant or lease lands for shellfish cultivation. The public shall not be excluded from the taking of shellfish from underwater lands granted or leased by such commissioner for other purposes; provided, however, that should any grant or lease made by such commissioner for such other purposes include lands leased by the department for shellfish cultivation the lessee for shellfish cultivation shall have the exclusive right to use and take shellfish from such leased lands for a period of two years from the date of the grant or lease by such commissioner or until the expiration of the shellfish cultivation lease, whichever is the earliest, and may prior to the expiration of such period, remove and transplant the shellfish from such lands to other lands leased, owned or controlled by such lessee.

§ 96-z-45. Marking lands prohibited; injury to monuments. 1. No person other than the lessee or the department shall mark out or enclose in any manner, any state-owned lands under water for the purpose of planting shellfish thereon or excluding the general public therefrom.

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2. No person shall wilfully injure or remove any monument, stake or boundary marker of any kind, placed for the purpose of delineating or locating state owned shellfish lands except by authority of the department.

§ 96-z-46. Taking, handling and importation of shellfish; general provisions. 1. a. Shellfish shall not be taken from uncertified lands, except as provided in sections 96-z-42 and 96-z-49 of this article.

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 96-z-42 and 96-z-49 of this article.

c. Shellfish shall not be shipped or transported into this state, except as provided in sections 96-z-42 and 96-z-49 of this article, 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 96-z-42 of this article.

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 96-z-48 of this article. Possession of shellfish during the period from one hour after sunset until sunrise in quantities exceeding those set forth in subdivision five of section 96-z-48 of this article shall be presumptive evidence of a violation of paragraph a of this subdivision.