§ 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.