2006 New York Code - 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.
    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 prepared in  conjunction  with  the
  surf  clam/ocean  quahog  management  advisory board pursuant to section
  13-0308, of this  title,  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.