Bill Text: NY S01133 | 2019-2020 | General Assembly | Introduced


Bill Title: Provides for aquaculture and shellfish regulation.

Spectrum: Partisan Bill (Republican 1-0)

Status: (Introduced - Dead) 2019-01-11 - REFERRED TO ENVIRONMENTAL CONSERVATION [S01133 Detail]

Download: New_York-2019-S01133-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          1133
                               2019-2020 Regular Sessions
                    IN SENATE
                                    January 11, 2019
                                       ___________
        Introduced  by  Sen.  YOUNG  -- read twice and ordered printed, and when
          printed to be committed to the Committee on Environmental Conservation
        AN ACT to amend the environmental conservation law and  the  agriculture
          and  markets  law,  in  relation  to the regulation of aquaculture; to
          amend the environmental conservation law and the state finance law, in
          relation to making technical changes thereto; and  to  repeal  certain
          provisions of the environmental conservation law relating to the regu-
          lation of aquaculture
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 11-1909 of the environmental  conservation  law  is
     2  REPEALED.
     3    §  2.  Sections  13-0301, 13-0305, 13-0309, 13-0311, 13-0313, 13-0315,
     4  13-0319, 13-0321, 13-0323, 13-0325  and  13-0327  of  the  environmental
     5  conservation law are REPEALED.
     6    §  3.  Paragraph a of subdivision 1 of section 11-1319 of the environ-
     7  mental conservation law, as amended by chapter 193 of the laws of  1992,
     8  is amended to read as follows:
     9    a.  This  section  governs  possession, transportation and sale of all
    10  fish taken in waters of the state,  including  the  marine  and  coastal
    11  district  except  (1)  trout and black bass raised under permit from the
    12  department and identified as provided in section  [11-1909]  96-z-41  of
    13  the  agriculture  and  markets law, (2) fish taken from a farm fish pond
    14  licensed as provided  in  section  11-1911,  and  (3)  fish  taken  from
    15  licensed fishing preserve waters as provided in section 11-1913.
    16    §  4.  Subdivision 1 of section 11-1501 of the environmental conserva-
    17  tion law, as amended by chapter 193 of the laws of 1992, is  amended  to
    18  read as follows:
    19    1.  This title 15 of the Fish and Wildlife Law and regulations adopted
    20  pursuant hereto do not apply to (a) the taking of  fish  by  angling  as
    21  permitted  in title 13; (b) the taking of fish or the use of nets in the
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD06724-01-9

        S. 1133                             2
     1  marine and coastal district as defined in section 13-0103, or in a trout
     2  or black bass hatchery operated under  permit  from  the  department  as
     3  provided  in  section  [11-1909]  96-z-41 of the agriculture and markets
     4  law,  or  in a farm fish pond licensed as provided in section 11-1911 or
     5  in a fishing preserve licensed as provided in section 11-1913;  (c)  the
     6  sale or taking for sale of bait fish named in section 11-1315.
     7    §  5. The agriculture and markets law is amended by adding a new arti-
     8  cle 5-E to read as follows:
     9                                 ARTICLE 5-E
    10                          REGULATION OF AQUACULTURE
    11  Section 96-z-40.   Legislative intent.
    12          96-z-41.   Private trout and black bass hatcheries.
    13          96-z-42.   Shellfish regulations.
    14          96-z-43.   Aquaculture task force.
    15          96-z-44.   Lease of state-owned underwater lands  for  shellfish
    16                       cultivation.
    17          96-z-45.   Marking lands prohibited; injury to monuments.
    18          96-z-46.   Taking, handling and importation of shellfish; gener-
    19                       al provisions.
    20          96-z-47.   Shellfish growers; definition; bed permit.
    21          96-z-47-a. Shellfish shipper's and processor's permit.
    22          96-z-48.   Digger's  permit  to  take  shellfish  for commercial
    23                       purposes; when not required.
    24          96-z-49.   Taking and importation of shellfish for transplanting
    25                       and other purposes.
    26          96-z-50.   Oysters; prohibited acts.
    27          96-z-51.   Clams; prohibited acts.
    28          96-z-52.   Scallops; prohibited acts.
    29          96-z-53.   Commercial licenses; limited entry.
    30    § 96-z-40. Legislative intent. The legislature finds and declares that
    31  aquaculture is among the fastest growing segments of the global agricul-
    32  ture markets, with New York's fish-farming industry supplying fish to  a
    33  variety  of  markets, and that this body should seek ways to develop the
    34  fish-farming business as an alternative cash crop for farms  across  the
    35  state.
    36    § 96-z-41. Private trout and black bass hatcheries. 1. The department,
    37  in  its  discretion,  may  issue  to any person a hatchery permit, valid
    38  during the calendar year of issue, to propagate, raise and  sell  trout.
    39  The  department shall establish by order regulations governing the iden-
    40  tification and transportation of trout raised under such a permit, other
    41  than by individual tagging, which are offered for sale, sold  or  trans-
    42  ported.
    43    2. The department, in its discretion, may issue to any person a hatch-
    44  ery permit, valid during the calendar year of issue, to propagate, raise
    45  and sell black bass. The department shall establish by order regulations
    46  governing  the  identification  and  transportation of black bass raised
    47  under such a permit, other than by individual tagging, which are offered
    48  for sale, sold or transported.
    49    § 96-z-42. Shellfish regulations.   The  department  may  adopt  regu-
    50  lations with respect to the harvesting, transplanting, relaying, receiv-
    51  ing, possessing, transporting, importing, exporting, processing, buying,
    52  selling  of  or  otherwise  trafficking  in  shellfish;  the labeling or
    53  tagging thereof; the keeping of records of  shellfish  received,  trans-
    54  ported  and distributed; and the construction, operation and maintenance
    55  of all shellfish handling, processing and  distributing  establishments,
    56  including facilities and equipment and the cleaning, cleansing and water

        S. 1133                             3
     1  storage of shellfish.  The provisions of this section relating to trans-
     2  planting  and relaying shall include, but not be limited to, the removal
     3  of shellfish from uncertified growing areas and transplanting to  certi-
     4  fied  areas for subsequent harvest for market purposes and transplanting
     5  of scallops pursuant to section 96-z-49 of this  article.    Such  regu-
     6  lations  may  provide for payment of the reasonable costs of the depart-
     7  ment of supervision of removal  of  shellfish  from  uncertified  areas,
     8  except where such removal is being undertaken by a municipality or poli-
     9  tical  subdivision.  Such regulations shall be drawn in such a manner as
    10  to provide adequate sanitary control over all shellfish offered for sale
    11  and distribution in the  state.  Such  regulations  shall  not  be  less
    12  restrictive than the minimum requirements of any federal agency regulat-
    13  ing the inter-state shipment of shellfish.
    14    §  96-z-43.  Aquaculture  task  force. 1. An aquaculture task force is
    15  hereby established to determine the viability of adopting  a  regulatory
    16  system  with promotion and protection of the aquaculture industry as its
    17  goal for the state.
    18    2. The task force shall consist of ten members, each to  serve  for  a
    19  term of two years, to be appointed as follows: two shall be appointed by
    20  the  temporary president of the senate and two by the minority leader of
    21  the senate; two shall be appointed by the speaker of  the  assembly  and
    22  two  by  the minority leader of the assembly; and two shall be appointed
    23  by the governor.  The members shall be  broadly  representative  of  the
    24  geographic  areas  of the state and include representatives of the aqua-
    25  culture industry, ethnic populations, local governments and  the  public
    26  at large.  No more than four appointees shall be members of the legisla-
    27  ture.   The commissioner and the commissioner of environmental conserva-
    28  tion shall serve as ex-officio members.  Vacancies in the membership  of
    29  the  commission  and  among  its  officers shall be filled in the manner
    30  provided for original appointments.
    31    3. The task force may employ and at pleasure remove such personnel  as
    32  it may deem necessary for the performance of its functions and fix their
    33  compensation within the amounts made available therefor.
    34    4.  The  members  of  the task force shall receive no compensation for
    35  their services, but shall be allowed their actual and necessary expenses
    36  incurred in the performance of their duties pursuant to this article.
    37    5. To the maximum extent feasible, the task force shall be entitled to
    38  request and receive and shall utilize and be provided with such  facili-
    39  ties,  resources,  and  data  of any court, department, division, board,
    40  bureau, commission, or agency of the state or any political  subdivision
    41  thereof  as  it  may reasonably request to carry out properly its powers
    42  and duties hereunder.
    43    6. The appointing authorities shall appoint the members  of  the  task
    44  force  within  ninety days of the effective date of this section and the
    45  task force shall convene its first meeting within sixty days thereafter.
    46    7. The task force shall make a preliminary report to the governor  and
    47  the  legislature  of its findings, conclusions and recommendations on or
    48  before April first, two thousand twenty and a final report of its  find-
    49  ings,  conclusions  and  recommendations not later than December thirty-
    50  first, two thousand twenty, and  shall  submit  with  its  reports  such
    51  legislative proposals as it deems necessary to implement its recommenda-
    52  tions.
    53    § 96-z-44. Lease  of state-owned underwater lands for shellfish culti-
    54  vation.  1. Leases. a. Except as provided in paragraph b of this  subdi-
    55  vision, the department may lease state-owned underwater lands within the
    56  marine  and coastal district for the cultivation of shellfish. The writ-

        S. 1133                             4
     1  ten approval of the office of general services shall be obtained for the
     2  lease of land within five hundred feet of the high water mark.
     3    b. The following lands underwater shall not be leased: (i) lands where
     4  there  is  an indicated presence of shellfish in sufficient quantity and
     5  quality and so located as to support significant hand raking or  tonging
     6  harvesting;  (ii)  lands  where the leasing will result in a significant
     7  reduction to established commercial  finfish  or  crustacean  fisheries;
     8  (iii)  lands  where  bay scallops are produced regularly on a commercial
     9  basis; and (iv) lands underwater of Gardiner's and Peconic bays and  the
    10  tributaries  thereof between the westerly shore of Great Peconic bay and
    11  an easterly line running from the most easterly point of Plum Island  to
    12  Goff point at the entrance of Napeaque harbor.
    13    2.  Regulations.  a.  Regulations  adopted  by  the department for the
    14  implementation and administration of this section  shall  include  regu-
    15  lations  with  respect to leasing forms and procedures; public notice of
    16  leasing; execution of leases; minimum rental fees;  bidding  procedures;
    17  posting  and forfeiture of financial security, renewals, termination and
    18  assignment of leases; marking and testing  of  grounds;  maintenance  of
    19  boundary  markers;  collection  of rental and recording fees; submission
    20  and approval of cultivation plans; harvesting gear; and acreage of lands
    21  to be let and term of leases and other matters pertinent  to  underwater
    22  land use and shellfish cultivation.
    23    b.  Regulations  adopted  by the department for the implementation and
    24  administration of this section shall include the following requirements:
    25  (i) leases shall be awarded after public auction following  due  notice;
    26  (ii)  leases  shall  be awarded to the highest responsible bidder; (iii)
    27  bidders shall provide a detailed cultivation plan; and (iv)  cultivation
    28  of shellfish shall commence within one year of the award of the lease.
    29    3. Summary proceedings. Upon failure to pay the rental on any date due
    30  under the terms of a lease or upon revocation, the department may, after
    31  written notice to the lessee, declare the lease cancelled as of the date
    32  set  forth  in  such  notice,  and  may immediately thereafter evict the
    33  lessee from such lands. The provisions of  article  seven  of  the  real
    34  property  actions  and proceedings law shall apply and govern the proce-
    35  dure in such cases.
    36    4. Limitations. The commissioner of general services shall  not  grant
    37  or  lease  lands  for  shellfish  cultivation.  The  public shall not be
    38  excluded from the taking of shellfish from underwater lands  granted  or
    39  leased  by such commissioner for other purposes; provided, however, that
    40  should any grant or lease made  by  such  commissioner  for  such  other
    41  purposes  include  lands  leased  by the department for shellfish culti-
    42  vation the lessee for shellfish cultivation  shall  have  the  exclusive
    43  right  to  use and take shellfish from such leased lands for a period of
    44  two years from the date of the grant or lease by  such  commissioner  or
    45  until  the  expiration  of the shellfish cultivation lease, whichever is
    46  the earliest, and may prior to the expiration of such period, remove and
    47  transplant the shellfish from such lands to other lands leased, owned or
    48  controlled by such lessee.
    49    § 96-z-45. Marking lands prohibited;  injury  to  monuments.    1.  No
    50  person other than the lessee or the department shall mark out or enclose
    51  in  any  manner,  any  state-owned  lands under water for the purpose of
    52  planting shellfish thereon or excluding the general public therefrom.
    53    2. No person shall wilfully injure or remove any  monument,  stake  or
    54  boundary  marker  of  any kind, placed for the purpose of delineating or
    55  locating state owned shellfish lands except by authority of the  depart-
    56  ment.

        S. 1133                             5
     1    § 96-z-46. Taking,  handling  and  importation  of  shellfish; general
     2  provisions.  1. a. Shellfish shall not be taken from uncertified  lands,
     3  except as provided in sections 96-z-42 and 96-z-49 of this article.
     4    b.  Shellfish  from  uncertified  lands  of  other states shall not be
     5  possessed, transported or trafficked in within this state, except pursu-
     6  ant to permit as provided in sections 96-z-42 and 96-z-49 of this  arti-
     7  cle.
     8    c.  Shellfish  shall  not  be  shipped or transported into this state,
     9  except as provided in sections 96-z-42  and  96-z-49  of  this  article,
    10  unless such shellfish are harvested from certified shellfish lands whose
    11  quality  is  equivalent  to or better than that described in regulations
    12  promulgated pursuant to section 96-z-42 of this article.
    13    2. a. Shellfish shall not be taken from sunset  to  sunrise  from  any
    14  shellfish lands of this state.
    15    b.  During  the  period  from  one hour after sunset until sunrise, no
    16  person, except pursuant to a permit  issued  by  the  department,  shall
    17  possess  on  board  a  vessel,  or off-load from a vessel, more than the
    18  quantities of shellfish allowed to be possessed pursuant to  subdivision
    19  five  of section 96-z-48 of this article. Possession of shellfish during
    20  the period from one  hour  after  sunset  until  sunrise  in  quantities
    21  exceeding those set forth in subdivision five of section 96-z-48 of this
    22  article  shall  be presumptive evidence of a violation of paragraph a of
    23  this subdivision.
    24    3. No dredge or scrape or other device operated by power or  by  boats
    25  propelled  by motor or other mechanical means may be used for the taking
    26  of shellfish from public or unleased lands under water, except that:
    27    a. Sea scallops (Pecten magellanicus) may be taken from the waters  of
    28  the Atlantic Ocean by any means.
    29    b. In the taking of soft clams (Mya arenaria) on lands below low tide,
    30  the practice of churning with a propeller may be employed.
    31    c. Surf, sea, hen or skimmer clams (Spisula solidissima; Spisula poly-
    32  nyma)  and  ocean quahogs (Arctica islandica) may be taken by mechanical
    33  means from the waters of the marine  and  coastal  district,  except  as
    34  limited by any regulations promulgated pursuant to subdivision twelve of
    35  this section.
    36    d.  The  department may permit the taking of shellfish for purposes of
    37  transplanting only pursuant to  section  96-z-49  of  this  article,  by
    38  mechanical  means,  except  that  in  the  waters of Richmond county the
    39  department may permit such taking in waters at a mean low water mark  of
    40  thirty feet or more.
    41    e.  Subject  to the provisions of section 96-z-52 of this article, bay
    42  scallops (Pecten irradians) may be taken with a dredge or scrape, having
    43  an opening at the mouth not to exceed thirty-six inches in  width,  when
    44  towed  by  a  boat operated by mechanical power, or other means provided
    45  that such dredge or scrape is brought aboard by hand power  without  the
    46  use of a mechanical device.
    47    f. The department may issue permits for the taking of mussels (Mytilus
    48  edulis)  from underwater lands as provided in this paragraph by means of
    49  dredges not to exceed thirty-six inches in width, which may be  equipped
    50  to  be  returned  to  boatside  by means of power or mechanical devices.
    51  Mussels (Mytilus edulis) may be taken by such  means  in  the  following
    52  areas:
    53    (i)  In  Long  Island Sound generally easterly of a line extending due
    54  north from Herod Point on Long Island including those waters surrounding
    55  Fishers Island.

        S. 1133                             6
     1    (ii) In the Atlantic Ocean easterly of a line extending due south from
     2  the rock jetty on the east side of Shinnecock Inlet.
     3    (iii)  In  the bays with state-owned bottomland easterly from the Town
     4  of Riverhead to and including Block Island Sound.
     5    (iv) The limit on mussels (Mytilus edulis) taken in such a  manner  is
     6  fifteen  bushels  per person per day, not to exceed thirty bushels taken
     7  per boat per day. Possession of other shellfish or possession of mussels
     8  on a vessel possessing  a  dredge  is  presumptive  evidence  that  such
     9  shellfish or mussels were taken by such dredge.
    10    g.  In  the taking of hard clams (Mercenaria mercenaria), a pot hauler
    11  may be used onboard a vessel to assist in hauling or retrieving  a  clam
    12  rake  from the water, provided that the basket attached to the clam rake
    13  shall not exceed twenty-six inches in width. For the  purposes  of  this
    14  section, "pot hauler" shall mean a mechanically operated device, includ-
    15  ing but not limited to a winch, reel, windlass or capstan, which is used
    16  to  haul  or  retrieve  a  clam rake from the water and return it to the
    17  harvest vessel.
    18    4. No person shall take, carry away, interfere with or disturb shellf-
    19  ish of another, lawfully possessed, planted or  cultivated;  nor  remove
    20  any  stakes,  buoys  or boundary marks of lawfully possessed, planted or
    21  cultivated lands. The possession of dredges, rakes or tongs overboard on
    22  any such lands shall be deemed presumptive evidence of  a  violation  of
    23  this subdivision.
    24    5.  All  boats, houses and other places, containers and equipment used
    25  in the handling of shellfish shall be maintained in a sanitary condition
    26  as provided in section 96-z-42 of this article.
    27    6. Shellfish shall not be treated by the process  known  as  drinking,
    28  floating,  plumping  or  swelling, and shellfish so treated shall not be
    29  possessed, bought, sold or exposed for  sale;  provided,  however,  that
    30  shellfish  may be retained in water storage as provided in section 96-z-
    31  42 of this article and provided, further, that nothing in  this  section
    32  shall  be deemed to prohibit or render unlawful the practice of off-bot-
    33  tom culture of shellfish under permit issued pursuant to section 13-0316
    34  of the environmental conservation law.
    35    7. Shellfish in the shell, or shucked, shall not be washed preparatory
    36  to marketing except by the use of water from a water supply approved  by
    37  the department.
    38    8.  The  operation,  use or placing, for whatever purpose, of dredges,
    39  rakes, tongs or other devices for the taking of shellfish in uncertified
    40  shellfish lands, except as provided in sections 96-z-42 and  96-z-49  of
    41  this  article  is  prohibited.  The department may suspend or cancel the
    42  digger's permit of any person who is convicted of a  violation  of  this
    43  subdivision or who signs an acknowledgment of a violation of this subdi-
    44  vision  for the purpose of effecting a settlement by civil compromise or
    45  by stipulation.
    46    9. No person shall in any way alter, damage, mutilate, move  or  carry
    47  away  any buoy or marker placed by the department that is used to desig-
    48  nate, mark or define the uncertified waters of the state.
    49    10. The department may issue permits for the  possession  of  a  stick
    50  dredge  for  purposes  it may deem necessary. No person without a permit
    51  from the department shall possess  a  stick  dredge  in  Nassau  county,
    52  Suffolk county or in the marine and coastal district. For the purpose of
    53  this  section,  a  "stick  dredge" shall be any tooth-basket combination
    54  dredging device whose construction shall allow for the installation of a
    55  stick or sticks of any type material whose  purpose  is  to  permit  the
    56  direction  of  force upon such device and which is commonly used for the

        S. 1133                             7
     1  taking of Mercenaria mercenaria by being towed either directly or  indi-
     2  rectly by a motorboat which has its engine engaged.
     3    11. No person without a permit from the department shall possess rakes
     4  or  tongs,  of the type and design normally used by shellfish harvesters
     5  for harvesting shellfish from shellfish lands, in Nassau county, Suffolk
     6  county or the marine and coastal district except:
     7    a. hand operated tongs having teeth in the heads spaced not less  than
     8  one  inch  apart  and  the basket attached to such tongs having bars not
     9  less than fifteen-sixteenths of an inch apart, or
    10    b. hand operated rakes having teeth spaced  not  less  than  one  inch
    11  apart  and  the  basket  attached to such rake having bars not less than
    12  fifteen-sixteenths of an inch apart.
    13    Rakes or tongs having wire netting or other material between the teeth
    14  or bars shall not be used.
    15    12. Notwithstanding any other provision of this  chapter  or  rule  or
    16  regulation,  the  department  shall  fix  by  regulations  open seasons,
    17  harvest  areas,  size  limits,  catch  limits,  manner  of  taking   and
    18  possession, transportation, identification, sale and permit requirements
    19  for surf, sea, hen and skimmer clams (Spisula solidissima, Spisula poly-
    20  nyma) and ocean quahogs (Arctica islandica). Such regulation may provide
    21  for, but not be limited to the following:
    22    a.  a  daily  catch  limit  for surf clams not to exceed eight hundred
    23  ninety-six bushels or twenty-eight cages per vessel and  a  daily  catch
    24  limit  for  ocean quahogs not to exceed eight hundred ninety-six bushels
    25  or twenty-eight cages per vessel, regardless of the number of permittees
    26  aboard such vessel;
    27    b. requirements with respect to number of vessels  which  may  partic-
    28  ipate in the surf clam and ocean quahog fishery;
    29    c.  limitations  on  harvest within specified periods of time, such as
    30  weekly and daily harvest limits, designed to minimize the number of  and
    31  the duration of closures;
    32    d.  qualification of applicants and vessels to participate in the surf
    33  clam and ocean quahog fishery;
    34    e. the regulations shall take into consideration and attempt to  main-
    35  tain  the economic viability of those portions of the surf clam harvest-
    36  ing and processing industry that have a longstanding investment  in  the
    37  domestic surf clam industry; and
    38    f.  the regulations shall take into consideration and attempt to main-
    39  tain the economic viability of  the  traditional  established  New  York
    40  based  commercial surf clam/ocean quahog harvesting industry, processors
    41  and packers that rely on this fishery.
    42    13. Possession of shellfish on a vessel equipped with a dredge, scrape
    43  or other device operated by power and capable  of  being  used  for  the
    44  taking  of  shellfish, except a scallop dredge as defined in paragraph e
    45  of subdivision three of this section, is presumptive evidence that  such
    46  shellfish were taken by the use of such dredge, scrape or other device.
    47    14.  The department, until April first, two thousand twenty-one, shall
    48  be entitled to collect fifteen cents per bushel of surf  clams  and  ten
    49  cents  per bushel of ocean quahogs taken from all certified waters to be
    50  deposited in the surf clam/ocean quahog account as provided  in  section
    51  eighty-three of the state finance law.
    52    15. Unless and until regulations are adopted implementing a comprehen-
    53  sive  long-term  management  plan  for  the protection of surf clams and
    54  ocean quahogs in New York waters, the following restrictions shall apply
    55  in addition to any consistent regulations adopted prior to the date upon
    56  which such section shall take effect:

        S. 1133                             8
     1    a. a weekly catch limit not to exceed twenty-eight cages;
     2    b. an annual catch limit in certified waters of the Atlantic Ocean for
     3  surf clams not to exceed five hundred thousand bushels in the aggregate;
     4    c.  an  annual catch limit in certified waters other than the Atlantic
     5  Ocean for surf clams not to exceed fifty thousand bushels in the  aggre-
     6  gate; and
     7    d.  requiring  permittees  to  report  on a weekly basis the number of
     8  bushels harvested in the previous seven day period, and provide that the
     9  failure to file such weekly report may result in the revocation of  such
    10  person's permit by the department.
    11    § 96-z-47. Shellfish  growers;  definition; bed permit.  1. Any person
    12  resident in this state one year or more may engage  in  the  cultivation
    13  and  marketing of shellfish subject to the provisions of section 13-0307
    14  of the environmental conservation law, and sections 96-z-42, 96-z-46 and
    15  96-z-48 of this article and shall be known as a grower.
    16    2. A grower shall not take shellfish, for shipping or  marketing  from
    17  lands  owned,  leased  or rented by him or her except upon permit of the
    18  department which shall certify that  such  lands  lie  within  certified
    19  areas.  The department shall prescribe and furnish forms for application
    20  for such permits.
    21    3. The fee for such permit shall be twenty-five cents  for  each  acre
    22  from  which shellfish are to be taken; provided, however, that the mini-
    23  mum fee shall be five dollars. Such certificates shall expire on  Decem-
    24  ber thirty-first of the year of issue.
    25    4. If it appears in the public interest, the department may suspend or
    26  cancel any such permit.
    27    5.  Where  lands for which such permit has been issued are found to be
    28  in part within an uncertified area, the department shall  issue  without
    29  fee, a new permit covering the remaining portion of such lands.
    30    6.  In  case  of  assignment or transfer of rights or ownership of any
    31  private or leased lands under water, or  parts  thereof,  a  new  permit
    32  shall be required.
    33    § 96-z-47-a. Shellfish  shipper's and processor's permit.  1. Prior to
    34  the processing, transportation  or  shipment  of  shellfish,  either  in
    35  intra-state  or  inter-state  commerce,  an  appropriate permit to do so
    36  shall be obtained from the department. Such permit shall be required  of
    37  all shippers and dealers in fresh and frozen shellfish within the state,
    38  except  retail  dealers,  and  shall certify that the holder thereof has
    39  complied with all the requirements of sections 96-z-42, 96-z-46, 96-z-47
    40  and 96-z-48 of  this  article,  section  13-0317  of  the  environmental
    41  conservation law, and rules and regulations adopted pursuant thereto.
    42    2.  A  shellfish  shipper's  and/or processor's permit shall be issued
    43  only to a person eighteen years or older. The department shall prescribe
    44  and furnish forms for application for such permit.
    45    3. Applicants shall pay, and  the  department  shall  be  entitled  to
    46  receive, fees according to the type of permit issued, as follows:
    47    a.  Class A permit. This permit shall allow the holder thereof and any
    48  person in the employ of the permit  holder,  in  accordance  with  regu-
    49  lations  adopted  pursuant  to  section 96-z-42 of this article, to: (i)
    50  reship shellfish previously shipped by the holder of a class A, B, C,  D
    51  or E permit issued pursuant to this section, or similar permit issued by
    52  the  shellfish  sanitation  control  agency  of another state or foreign
    53  country; (ii) pack or repack shellstock received from the  holder  of  a
    54  digger's  permit,  pursuant to section 96-z-48 of this article; or (iii)
    55  pack or repack shellstock from the holder of a class A, B,  C,  D  or  E
    56  permit  issued pursuant to this section, or similar permit issued by the

        S. 1133                             9
     1  shellfish sanitation control agency of another state or foreign country.
     2  The fee for a class A permit shall be three hundred dollars.
     3    b.  Class B permit. This permit shall allow the holder thereof and any
     4  person in the employ of the permit holder to engage  in  the  activities
     5  authorized  by  a  class  A  permit, as described in paragraph a of this
     6  subdivision, and to otherwise process shellfish as authorized  by  regu-
     7  lations adopted pursuant to section 96-z-42 of this article. The fee for
     8  a class B permit shall be six hundred dollars.
     9    c.  Class C permit. This permit shall allow the holder thereof and any
    10  person in the employ of the permit  holder,  in  accordance  with  regu-
    11  lations  adopted  pursuant to section 96-z-42 of this article, to reship
    12  shellfish previously shipped by the holder of a class A, B, C,  D  or  E
    13  permit  issued pursuant to this section, or similar permit issued by the
    14  shellfish sanitation control agency of another state or foreign country.
    15  The fee for a class C permit shall be two hundred dollars.
    16    d. Class D permit. This permit shall  allow  the  holder  thereof,  in
    17  accordance  with regulations adopted pursuant to section 96-z-42 of this
    18  article, to ship shellstock which the holder has legally harvested  from
    19  shellfish  lands  of  the  state.  The fee for a class D permit shall be
    20  seventy-five dollars.
    21    e. Class E permit. This permit shall allow the holder thereof, members
    22  of the permit holder's immediate family and not more than two  employees
    23  of the permit holder, in accordance with regulations adopted pursuant to
    24  section  96-z-42  of  this article, to shuck and pack bay scallops which
    25  have been received from the holder of a  digger's  permit,  pursuant  to
    26  section  96-z-48  of this article, and to ship such scallops in the form
    27  of fresh shucked stock only in intrastate commerce. The fee for a  class
    28  E permit shall be fifty dollars.
    29    f.  All  permits  issued  pursuant to this section shall expire on the
    30  thirty-first of December of  the  year  of  issue.  The  department  may
    31  suspend  or  revoke any such permit at any time on failure of the holder
    32  thereof to comply with the conditions thereof.
    33    § 96-z-48. Digger's permit to take shellfish for commercial  purposes;
    34  when  not  required.    1.  Subject to the provisions of this article, a
    35  person may take shellfish from  under  water  lands  in  the  state  for
    36  commercial  purposes,  including the culling, sorting or tagging of such
    37  shellfish, only upon first obtaining a digger's permit from the  depart-
    38  ment,  provided,  however,  that  the  application  for such permit by a
    39  person sixteen years of age or under shall be signed by  his  parent  or
    40  legal guardian, who shall thereby consent to the issuance of the permit.
    41    2.  The  department  shall prescribe and furnish forms for application
    42  for such permit.
    43    3. The fee for such permit shall be fifty dollars for a  person  domi-
    44  ciled  within  the  state.  The fee for persons not domiciled within the
    45  state shall be one hundred fifty dollars. Such permit  shall  expire  on
    46  December  thirty-first of the year of issue. If it appears in the public
    47  interest, the department may, after hearing held on  ten  days'  notice,
    48  suspend  or cancel such permits, except that in case of a taking from an
    49  uncertified area such suspension or cancellation may  be  without  prior
    50  notice.
    51    4.  The holder of such permit shall not ship or sell shellfish, except
    52  to a holder of a valid Class A, B, or E shipper's permit, issued  pursu-
    53  ant to section 96-z-47-a of this article, who has a place of business in
    54  the  county  of  Nassau  or Suffolk, without first obtaining a shipper's
    55  permit as provided in subdivision one of section 96-z-47-a of this arti-
    56  cle.

        S. 1133                            10
     1    5. Subject to the provisions of this article, a  person  may,  without
     2  permit, take not more than a total of four pecks (one bushel) of shellf-
     3  ish other than bay scallops and not more than four pecks of bay scallops
     4  (Argopecten irradians) in any one day for the use of such person or such
     5  person's  family.  Within  the  one bushel total limit of species, other
     6  than bay scallops, which may be taken in one day the following  species-
     7  specific limits shall apply:
     8    a. Hard clams (Mercenaria mercenaria). Not more than one hundred indi-
     9  vidual organisms.
    10    b. Blue mussels (Mytilus edulis). Not more than two pecks.
    11    c. Oysters (Crassostrea virginica). Not more than two pecks.
    12    d. Soft clams (Mya arenaria). Not more than two pecks.
    13    6.  The holder of such digger's permit shall carry the permit assigned
    14  to such holder while engaged in the permitted activities, and the  fail-
    15  ure  by  such  holder  to exhibit the permit to any shellfish inspector,
    16  environmental conservation  officer,  health  official,  peace  officer,
    17  acting  pursuant  to  such  officers'  special duties, police officer or
    18  magistrate shall be presumptive evidence that no valid  digger's  permit
    19  has been issued to the person who fails to produce such permit.
    20    7.  No  person shall take shellfish or assist another in the taking of
    21  shellfish in any quantity, including the culling, sorting or tagging  of
    22  such shellfish, during the time that such person's digger's permit priv-
    23  ileges have been revoked or suspended.
    24    8.  Endorsed  vessels.  a. Upon application to the department on forms
    25  furnished by the department, a shellfish digger's permit may be endorsed
    26  for use on a vessel, in which  case  such  permit  shall  authorize  all
    27  persons  on  board  such  vessel  to  engage in the taking of hard clams
    28  (Mercenaria mercenaria) and oysters (Crassostrea  virginica),  including
    29  the  culling,  sorting,  and tagging of such shellfish. Each application
    30  shall include a copy of one of  the  following  documents  as  proof  of
    31  vessel length: the certificate of documentation for the vessel issued by
    32  the  United States government, or the registration for the vessel issued
    33  by any state government within the United States.
    34    b. The fee for endorsing a shellfish digger's permit to a vessel shall
    35  be fifty dollars for a vessel that is forty feet or less  in  registered
    36  length,  and one hundred dollars for a vessel that is greater than forty
    37  feet in registered length. Such fee shall be in addition to  the  permit
    38  fee provided for in subdivision three of this section.
    39    c.  Not  more than one rake, tong or other shellfish harvesting device
    40  shall be used for the taking of hard clams and oysters at any given time
    41  pursuant to a digger's permit which has been endorsed to a vessel.
    42    d. A shellfish digger's permit which has been  endorsed  to  a  vessel
    43  shall  not  cover  any person whose shellfish digger's permit privileges
    44  have been revoked or suspended.
    45    e. The holder of a shellfish digger's permit which has  been  endorsed
    46  to  a  vessel shall be on board such vessel at all times when the vessel
    47  is being used for the taking of hard clams and oysters.
    48    § 96-z-49. Taking and importation of shellfish for  transplanting  and
    49  other  purposes.    1. Shellfish may be taken from uncertified shellfish
    50  lands for transplanting or other purposes as  the  department  may  deem
    51  advisable  subject  to supervision and regulation as provided in section
    52  96-z-42 of this article.
    53    2. Prior to the taking from uncertified shellfish lands of this  state
    54  for transplanting or other purposes, a permit shall be obtained from the
    55  department  and  shall  be  issued  for  the  taking of shellfish from a
    56  specific area. Such permit shall be valid  only  during  the  period  of

        S. 1133                            11
     1  operations  in the uncertified land for which the permit was issued. The
     2  holder of such permit may not receive, sell, offer for sale,  transport,
     3  or  ship any shellfish taken pursuant to this permit, except as provided
     4  by regulations made pursuant to section 96-z-42 of this article.
     5    3.  Shellfish  from  certified  or uncertified lands without the state
     6  shall not be transplanted in this state or imported into this state  for
     7  such  purposes  unless  a  permit  therefor  has  been obtained from the
     8  department.
     9    § 96-z-50. Oysters; prohibited acts.  1. No person shall sell or offer
    10  for sale, any oysters, or label or brand any packages containing oysters
    11  for shipment or sale under the name of blue point  oysters,  other  than
    12  oysters  which have been planted and cultivated at least three months in
    13  the waters of Great South Bay.
    14    2. In no case shall oysters other than the species Crassostrea  virgi-
    15  nica  be  planted or transplanted in New York waters without procuring a
    16  permit from the department.
    17    3. The department may, until December thirty-first, two thousand twen-
    18  ty-one, fix by regulation measures for the management of oysters (Family
    19  Ostreidae) including size limits, catch and possession limits, open  and
    20  closed  seasons,  closed areas, restrictions on the manner of taking and
    21  landing, requirements for permits and eligibility therefor,  recordkeep-
    22  ing and identification requirements, requirements on the amount and type
    23  of fishing effort and gear, and requirements relating to transportation,
    24  possession and sale, provided that such regulations are no less restric-
    25  tive  than  requirements  set  forth in this article and in the environ-
    26  mental conservation law.
    27    § 96-z-51. Clams; prohibited acts.   1. Except  for  transplanting  as
    28  provided  in  section  96-z-49  of  this  article, no person shall take,
    29  harvest, possess, sell, offer for sale  or  otherwise  traffic  in  hard
    30  clams (Mercenaria mercenaria) measuring less than one inch in thickness.
    31    2.  Hard clams less than one inch in thickness may be taken by shellf-
    32  ish growers from leased or privately owned lands other than  town  lands
    33  currently  under  cultivation  by  the grower for transplanting to other
    34  such lands being cultivated by the same grower, and imported from anoth-
    35  er state by a shellfish grower for transplanting to public or private or
    36  leased lands under cultivation, provided  a  permit  for  each  separate
    37  transplanting   operation   is  issued  by  the  department  subject  to
    38  provisions of sections 96-z-42 and 96-z-49 of this article.  The permit,
    39  providing for transplanting hard clams less than one inch in  thickness,
    40  shall  be  issued  without fee. Such clams shall not be transported to a
    41  point without the state.
    42    3. Soft or steamer clams (Mya arenaria) less  than  one  and  one-half
    43  inches  in  the  longest diameter shall not be taken, possessed, bought,
    44  sold or otherwise trafficked in.
    45    4. a. Surf, sea, hen or skimmer clams  (Spisula  solidissima;  Spisula
    46  polynyma)  less  than  three inches in the longest diameter shall not be
    47  taken, possessed, bought, sold or otherwise trafficked  in  except  that
    48  such  clams  less  than four inches in the longest diameter shall not be
    49  taken from the waters of the Atlantic Ocean for use as food.
    50    b. All surf, sea, hen or skimmer clams and ocean  quahogs  taken  from
    51  the  waters  of  the  marine and coastal district shall be landed in the
    52  state of New York.
    53    c. Boats of nonresidents may be licensed to take  surf,  sea,  hen  or
    54  skimmer  clams  and  ocean quahogs from the waters of the Atlantic Ocean
    55  within the marine and coastal district in accordance with paragraph c of
    56  subdivision three of section 96-z-46 of this article, provided that  the

        S. 1133                            12
     1  boat  is  registered in a state which accords reciprocal clamming privi-
     2  leges to residents of this state and provided that the owner is a  citi-
     3  zen  of the United States and a resident of a state according reciprocal
     4  privileges  to  residents  of this state. The license shall be issued in
     5  the name of the boat and shall be on board  during  all  licensed  oper-
     6  ations. The fee for said license shall be five hundred dollars per boat.
     7  Each  license  shall  expire  on  the  thirty-first day of December next
     8  succeeding its issue, and if it  appears  in  the  public  interest  the
     9  department  may  suspend  or  cancel such license on ten days' notice in
    10  writing to the holder thereof, except that in case of a taking  from  an
    11  uncertified  area,  such suspension or cancellation may be without prior
    12  notice.
    13    d. Any individual, while participating in the operation of a  licensed
    14  boat,  shall  be exempt from the requirements of section 96-z-48 of this
    15  article but shall not ship or sell shellfish taken by such boat  without
    16  first  obtaining a shellfish shipper's permit as provided for in section
    17  96-z-47-a of this article.
    18    5. Clams shall be culled when taken in accordance with rules and regu-
    19  lations promulgated by the commissioner. Clams which may not  be  taken,
    20  possessed, offered for sale, sold or otherwise trafficked in pursuant to
    21  the  provisions  of  subdivision  one, three or four of this section may
    22  compose not to exceed  three  per  centum  of  any  bushel,  package  or
    23  container, when unavoidably taken. Such three per centum shall be deter-
    24  mined by the measurement of any bushel, or other package or container of
    25  different measurement of clams taken from the catch or in the possession
    26  of the person offering the same for sale.
    27    6. Each bushel, or other package or container of different measurement
    28  containing  an  excess  of  three  per  centum of clams which may not be
    29  taken, possessed, offered for sale,  sold  or  otherwise  trafficked  in
    30  pursuant  to  the  provisions  of subdivision one, three or four of this
    31  section determined by count shall constitute a separate violation.
    32    7. It shall be unlawful to knowingly:
    33    a. Transport, conceal or convey hard shell clams obtained or possessed
    34  in contravention of the provisions of this article in, upon or by  means
    35  of any vehicle, vessel or aircraft; or
    36    b.  Conceal  or  possess  hard  shell  clams  obtained or possessed in
    37  contravention of the provisions of this article in or upon any  vehicle,
    38  vessel or aircraft.
    39    8. The department may, until December thirty-first, two thousand twen-
    40  ty-two,  adopt  by  regulation measures for the management of hard clams
    41  (Mercenaria mercenaria), soft or steamer clams (Mya arenaria), and razor
    42  clams (Ensis sp.), including size limits, catch and  possession  limits,
    43  open  and  closed  seasons,  closed areas, restrictions on the manner of
    44  taking and landing, requirements for permits and  eligibility  therefor,
    45  recordkeeping  and  identification  requirements,  requirements  on  the
    46  amount and type of fishing effort and gear, and requirements relating to
    47  transportation, possession and sale, provided that such regulations  are
    48  no  less  restrictive than requirements set forth in this article and in
    49  the environmental conservation law.
    50    § 96-z-52. Scallops; prohibited  acts.    The  department  may,  until
    51  December  thirty-first,  two  thousand  twenty-two,  adopt by regulation
    52  measures for the management of scallops  (Family  Pectinidae)  including
    53  size  limits,  catch  and  possession  limits,  open and closed seasons,
    54  closed areas, restrictions on the manner of taking and landing, require-
    55  ments for permits and eligibility therefor, recordkeeping and  identifi-
    56  cation  requirements,  requirements  on  the  amount and type of fishing

        S. 1133                            13
     1  effort and gear, and requirements relating to transportation, possession
     2  and sale, provided that such regulations are no  less  restrictive  than
     3  requirements  set forth in this article and in the environmental conser-
     4  vation law.
     5    §  96-z-53.  Commercial licenses; limited entry.  Commercial shellfish
     6  licenses. Commercial shellfish licenses shall be issued as follows:
     7    1. for the number of residential commercial shellfish licenses and the
     8  number of non-residential commercial shellfish licenses shall not exceed
     9  one thousand;
    10    2. licenses shall be issued in the order  in  which  the  applications
    11  were received;
    12    3. licenses may be issued to individuals only;
    13    4. licenses shall be issued to applicants who are sixteen years of age
    14  or older at the time of the application; and
    15    5.  licenses  shall  be  issued  only  to persons who demonstrate in a
    16  manner acceptable to the department that they received an average of  at
    17  least fifteen thousand dollars or more than fifty percent of their annu-
    18  al earned income over three consecutive years from commercial fishing or
    19  fishing, or who successfully complete a commercial shellfish apprentice-
    20  ship  pursuant  to  subdivision seven of section 13-0328 of the environ-
    21  mental conservation law. As used in this subdivision, "commercial  fish-
    22  ing"  means  the  taking  and  sale  of marine resources including fish,
    23  shellfish, crustacea or other marine biota and "fishing"  means  commer-
    24  cial  fishing  and carrying fishing passengers for hire. Individuals who
    25  wish to qualify based on income from "fishing" must hold a valid  marine
    26  and  coastal  district  party and charter boat license. No more than ten
    27  percent of the licenses issued each year  based  on  income  eligibility
    28  pursuant to this section shall be issued to applicants who qualify based
    29  solely upon income derived from operation of or employment by a party or
    30  charter boat.
    31    §  6.  Subdivision 5 of section 13-0303 of the environmental conserva-
    32  tion law is amended to read as follows:
    33    5. Franchises not transferable. Franchised lands under water held  for
    34  shellfish  cultivation  when returned to the state by default in payment
    35  of taxes may not be assigned, reassigned, or transferred to a new  owner
    36  or  owners.  Such  lands  may  be leased by the department for shellfish
    37  cultivation as provided in section [13-0301] 96-z-44 of the  agriculture
    38  and markets law.
    39    §  7.  Subdivision 9 of section 71-0921 of the environmental conserva-
    40  tion law, as added by chapter 640 of the laws of  1977,  is  amended  to
    41  read as follows:
    42    9.  Failure  to  give the department the prompt notification [required
    43  under subdivision 10 of section 13-0301 of  this  chapter],  when  [the]
    44  specified buoys or markers are destroyed. Each such misdemeanor shall be
    45  punishable  by  imprisonment  for not more than one year or by a fine of
    46  not more than one thousand dollars, or by  both  such  imprisonment  and
    47  fine.
    48    §  8.  Subparagraphs (i) and (ii) of paragraph 2 of subdivision (a) of
    49  section 83 of the state finance law,  subparagraph  (i)  as  amended  by
    50  chapter  512  of  the  laws  of 1994 and subparagraph (ii) as amended by
    51  section 2 of part A of chapter 82 of the laws of 2002,  are  amended  to
    52  read as follows:
    53    (i)  Moneys  collected  pursuant  to  sections  [13-0301,  13-0311 and
    54  13-0315 of the environmental conservation law]  96-z-44,  96-z-47-a  and
    55  96-z-48  of  the agriculture and markets law and all fines and penalties
    56  collected pursuant to article seventy-one of  [such]  the  environmental

        S. 1133                            14
     1  conservation  law for illegal acts relating to shellfish shall be depos-
     2  ited in a special account within the conservation fund, to be  known  as
     3  the  marine  resources account, and shall be available to the department
     4  of  environmental  conservation,  after  appropriation,  for  the  care,
     5  management, protection and enlargement  of  marine  fish  and  shellfish
     6  resources.
     7    (ii)  Notwithstanding the provisions of subparagraph (i) of this para-
     8  graph, moneys arising out of the application of subdivision fourteen  of
     9  section [13-0309 of the environmental conservation] 96-z-46 of the agri-
    10  culture  and markets law, shall be deposited in a special account within
    11  the conservation fund,  to  be  known  as  the  surf  clam/ocean  quahog
    12  account,  and  shall  be  available  to  the department of environmental
    13  conservation, including contracts for such  purposes  with  a  New  York
    14  state institution of higher education currently involved in local marine
    15  research,  after appropriation, for the research and stock assessment of
    16  surf clams and ocean quahogs. The department shall, at a minimum, under-
    17  take two stock assessments and issue reports detailing the  findings  of
    18  such  assessments  to  the  governor  and  legislature.  The first stock
    19  assessment shall be due no later than December thirty-first,  two  thou-
    20  sand  two. The second stock assessment shall be due no later than Decem-
    21  ber thirty-first, two thousand four, and shall be conducted in  an  area
    22  to be determined in consultation with the surf clam/ocean quahog manage-
    23  ment advisory board.
    24    § 9. Subparagraph 4 of paragraph f of subdivision 4 of section 71-0907
    25  of the environmental conservation law is amended to read as follows:
    26    (4)  Any rakes, tongs, dredges, or device other than a boat or vehicle
    27  used, or in possession for purpose of use, for the taking  of  shellfish
    28  in  violation of [subdivisions 1 or 2] subdivision one or two of section
    29  [13-0309] 96-z-46 of the agriculture and markets law.  For the  purposes
    30  of this paragraph "device" includes a bird, dog, or other animal used in
    31  or  as  an aid in taking fish or wildlife, any jack light, spot light or
    32  other artificial light other than a headlight attached in  proper  posi-
    33  tion  to  a  motor  vehicle,  any hunting appliance or apparatus and any
    34  fishing or netting gear or tackle.  This paragraph does  not  limit  any
    35  power of seizure pursuant to warrant.
    36    §  10.  Subdivisions  4  and 5 of section 71-0921 of the environmental
    37  conservation law, as added by chapter 417 of the laws of 1996,  subpara-
    38  graph  9 of paragraph a of subdivision 4 and subparagraph 5 of paragraph
    39  a of subdivision 5 as amended by chapter 41 of the laws of 2013, subpar-
    40  agraphs 2 and 3 of paragraph b of subdivision 4 as  amended  by  chapter
    41  347 of the laws of 2007, are amended to read as follows:
    42    4. a. Violations of:
    43    (1)  subdivision  one  of section [13-0309 of this chapter] 96-z-46 of
    44  the agriculture and markets law involving the taking of  shellfish  from
    45  uncertified  shellfish lands, or the possession, transportation, sale or
    46  trafficking in shellfish so taken;
    47    (2) subdivision two of section [13-0309 of this  chapter]  96-z-46  of
    48  the  agriculture  and  markets  law  involving  the  taking of shellfish
    49  between sunset and sunrise;
    50    (3) subdivision ten of section [13-0309 of this  chapter]  96-z-46  of
    51  the  agriculture  and  markets  law  involving the possession of a stick
    52  dredge after one prior conviction under such subdivision for such activ-
    53  ity;
    54    (4) subdivision one of section [13-0311 of this  chapter]  96-z-48  of
    55  the  agriculture and markets law involving the taking of shellfish with-
    56  out the required digger's permit;

        S. 1133                            15
     1    (5) subdivision seven of section [13-0311 of this chapter] 96-z-48  of
     2  the  agriculture and markets law involving the taking of shellfish while
     3  one's digger's permit is suspended or revoked;
     4    (6)  subdivision one of section [13-0315 of this chapter] 96-z-47-a of
     5  the agriculture and markets law involving  the  processing,  transporta-
     6  tion,  shipment  or  sale of shellfish without the required shipper's or
     7  processor's permit;
     8    (7) regulations promulgated by  the  department  pursuant  to  section
     9  [13-0319  of  this  chapter]  96-z-42 of the agriculture and markets law
    10  involving the failure to tag or seal shellfish or the falsifying of  any
    11  information required on any tag or seal required by said regulations;
    12    (8)  subdivision  five of section [13-0325 of this chapter] 96-z-51 of
    13  the agriculture and markets law,  regarding  the  taking  of  undersized
    14  clams,  where  the  taking  involves  more than twenty-four percentum of
    15  clams of less than legal size;
    16    (9) [regulations promulgated by the department  pursuant  to]  section
    17  [13-0327  of  this  chapter] 96-z-52 of the agriculture and markets law,
    18  regarding the taking of undersized scallops, where the  taking  involves
    19  more than twenty-four percentum of scallops of less than legal size; and
    20    (10)  section 13-0344 of this chapter involving the dumping of objects
    21  into the water after being signaled by a police officer or peace officer
    22  to stop for inspection.
    23    b. Each such misdemeanor identified in paragraph a of this subdivision
    24  shall be punishable as follows:
    25    (1) For a first conviction for any of the violations listed  in  para-
    26  graph  a  of  this  subdivision, by imprisonment for not more than sixty
    27  days, a fine of not less than two hundred fifty dollars  nor  more  than
    28  one  thousand dollars plus, if applicable, an amount equal to the market
    29  value of the shellfish involved in the violation, or by both such impri-
    30  sonment and fine.
    31    (2) For a second conviction for any of the violations listed in  para-
    32  graph  a  of  this subdivision, by imprisonment for not more than ninety
    33  days, a fine of not less than five hundred dollars nor more  than  twen-
    34  ty-five  hundred  dollars  plus, if applicable, an amount equal to three
    35  times the market value of the shellfish involved in the violation, or by
    36  both such imprisonment and fine.
    37    (3) For a third or subsequent conviction for  any  of  the  violations
    38  listed  in paragraph a of this subdivision, by imprisonment for not more
    39  than one hundred eighty days, a fine  of  not  less  than  one  thousand
    40  dollars  nor  more  than  ten  thousand  dollars plus, if applicable, an
    41  amount equal to three times the market value of the  shellfish  involved
    42  in the violation, or by both such imprisonment and fine.
    43    (4)  Provided,  further,  that  all  equipment  or conveyances used to
    44  harvest, transport or traffic in such illegal shellfish may be forfeited
    45  for any third or subsequent conviction of the above violations, in addi-
    46  tion to such penalties or imprisonment.  Such  forfeiture  shall  be  in
    47  addition  to  any forfeiture authorized by section 71-0909 of this arti-
    48  cle.
    49    5. a. Violations of:
    50    (1) subdivision three of section [13-0309 of this chapter] 96-z-46  of
    51  the  agriculture  and  markets law involving the illegal use of dredges,
    52  scrapes or other devices operated by power  or  by  boats  propelled  by
    53  motor or other mechanical means for the purpose of taking shellfish;
    54    (2)  subdivision eight of section [13-0309 of this chapter] 96-z-46 of
    55  the agriculture and markets law involving the operation, use or placing,
    56  for whatever purpose, of dredges, rakes, tongs or other devices for  the

        S. 1133                            16
     1  taking  of  shellfish  in  uncertified  shellfish  lands  after  a prior
     2  conviction under such subdivision for such activity;
     3    (3)  subdivision  nine of section [13-0309 of this chapter] 96-z-46 of
     4  the agriculture and markets law involving the altering, damaging,  muti-
     5  lating,  moving  or  carrying away of buoys or markers used to designate
     6  the uncertified waters of the state;
     7    (4) subdivision five of section [13-0325 of this chapter]  96-z-51  of
     8  the  agriculture  and  markets  law  regarding  the taking of undersized
     9  clams, where the taking involves between ten and  twenty-four  percentum
    10  of clams of less than legal size; and
    11    (5)  [regulations  promulgated  by the department pursuant to] section
    12  [13-0327 of this chapter] 96-z-52 of the agriculture  and  markets  law,
    13  regarding  the  taking of undersized scallops, where the taking involves
    14  between ten and twenty-four percentum of scallops  of  less  than  legal
    15  size.
    16    b. Each such misdemeanor identified in paragraph a of this subdivision
    17  shall be punishable as follows:
    18    (1)  For  a  first conviction of any of the violations listed in para-
    19  graph a of this subdivision, by imprisonment for not  more  than  thirty
    20  days,  a  fine  of not less than two hundred fifty dollars nor more than
    21  five hundred dollars plus, if applicable, an amount equal to the  market
    22  value of the shellfish involved in the violation, or by both such impri-
    23  sonment and fine.
    24    (2)  For a second conviction for any of the violations listed in para-
    25  graph a of this subdivision, by imprisonment not to exceed sixty days, a
    26  fine of not less than five hundred dollars nor more  than  one  thousand
    27  dollars  plus, if applicable, an amount equal to the market value of the
    28  shellfish involved in the violation, or by both  such  imprisonment  and
    29  fine.
    30    (3)  For  a  third  or subsequent conviction for any of the violations
    31  listed in paragraph a of this subdivision, by imprisonment for not  more
    32  than  one  hundred  eighty  days,  a  fine of not less than one thousand
    33  dollars nor more than five thousand  dollars  plus,  if  applicable,  an
    34  amount  equal  to  the  market  value  of  the shellfish involved in the
    35  violation, or by both such imprisonment and fine.
    36    § 11. Subdivision 6 of section 71-0923 of the environmental  conserva-
    37  tion  law,  as  added  by chapter 417 of the laws of 1996, is amended to
    38  read as follows:
    39    6. A first conviction for a violation of subdivision eight of  section
    40  [13-0309  of  this  chapter] 96-z-46 of the agriculture and markets law,
    41  involving devices for  taking  shellfish  in  uncertified  lands,  or  a
    42  violation  of subdivision ten of section [13-0309 of this chapter] 96-z-
    43  46 of the agriculture and markets law, involving possession of  a  stick
    44  dredge, shall be punishable as a violation under this section.
    45    §  12.  Subdivisions 7-a, 7-b and 8 of section 71-0925 of the environ-
    46  mental conservation law, subdivision 7-a as amended by  chapter  284  of
    47  the laws of 2004 and subdivision 7-b as added by chapter 441 of the laws
    48  of  1977  and  as  renumbered  by  chapter  284 of the laws of 2004, are
    49  amended to read as follows:
    50    7-a. If the violation was a violation of subdivision [1 or 2]  one  or
    51  two  of  section  [13-0309,  or  section 13-0323 or 13-0327] 96-z-46, or
    52  section 96-z-50 or 96-z-52  of  the  agriculture  and  markets  law,  or
    53  section 13-0344 of this chapter, not less than two hundred fifty dollars
    54  nor more than one thousand dollars for each offense;
    55    7-b.  If  the  violation  was a violation of subdivision one or two of
    56  section [13-0325 of this chapter] 96-z-51 of the agriculture and markets

        S. 1133                            17
     1  law there shall be a minimum penalty of twenty-five dollars and a  maxi-
     2  mum of two hundred fifty dollars per container or bushel involved in the
     3  violation.
     4    8.  If  a violation of [subdivisions 1 or 2] subdivision one or two of
     5  section [13-0309] 96-z-46 of the  agriculture  and  markets  law  occurs
     6  during  the  time  when  a  permit or license to take shellfish has been
     7  suspended or revoked pursuant to the provisions of subdivision [3] three
     8  of section [13-0311] 96-z-48 of  the  agriculture  and  markets  law  or
     9  subparagraph  [(3)] 3 of paragraph b of subdivision 1 of section 11-0719
    10  of this chapter, not less  than  five  hundred  dollars  nor  more  than
    11  fifteen hundred dollars for each offense, and in addition the forfeiture
    12  to  the  state  of the tongs, rakes, dredges or devices other than boats
    13  used by or in connection with such illegal taking;
    14    § 13. Subdivisions 1 and 4 of section  71-0927  of  the  environmental
    15  conservation law, subdivision 1 as amended by chapter 284 of the laws of
    16  2004  and  subdivision 4 as added by chapter 315 of the laws of 1992 and
    17  as renumbered by chapter 284 of the laws of 2004, are amended to read as
    18  follows:
    19    1. Anyone convicted of violating the prohibition  against  harvesting,
    20  taking,  possessing  or  transporting  shellfish under facts and circum-
    21  stances meeting the criteria for imposition  of  sanctions  pursuant  to
    22  subdivision  3 of section 71-0924 of this title; or anyone convicted two
    23  or more times within five years of  violating  the  prohibition  against
    24  harvesting, taking, possessing or transporting shellfish under facts and
    25  circumstances  meeting the criteria for imposition of sanctions pursuant
    26  to subdivision 2 of section 71-0924 of  this  title,  [or  of  violating
    27  subdivision 1 or 2, paragraph e or f of subdivision 3, subdivision 6, 8,
    28  9, 10, 11, or 13 of section 13-0309,] section 13-0317, [subdivision 2 of
    29  section  13-0323,  section  13-0325,  subdivision  3  or  5  of  section
    30  13-0327,] or section 13-0344 of this chapter, or of  violating  subdivi-
    31  sion one or two, paragraph e or f of subdivision three, subdivision six,
    32  eight,  nine,  ten, eleven or thirteen of section 96-z-46 or subdivision
    33  two of section 96-z-50, section 96-z-51 or section 96-z-52 of the  agri-
    34  culture  and markets law shall have his license to take and land shellf-
    35  ish revoked and shall not be relicensed for  a  minimum  of  five  years
    36  thereafter,  in  addition to any other sanction imposed pursuant to this
    37  article.
    38    4. The provisions of this section shall be in addition to the  ability
    39  of  the  department  to  suspend  licenses pursuant to section [13-0309,
    40  13-0311 or] 13-0329 of this chapter, or 96-z-46 or 96-z-48 of the  agri-
    41  culture  and  markets  law  or  any  other provision of law. Revocations
    42  pursuant to this section shall be automatic upon the  second  conviction
    43  and shall not require any hearing for the revocation.
    44    § 14. Section 13-0317 of the environmental conservation law is amended
    45  to read as follows:
    46  § 13-0317. Shipping tags.
    47    All persons transporting, importing, exporting or otherwise distribut-
    48  ing  shellfish  shall  label  or  tag the same as provided under section
    49  [13-0319] 96-z-42 of the agriculture and markets law.
    50    § 15. This act shall take effect immediately.
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