1. (1) The department shall periodically examine shellfish lands to determine the sanitary condition thereof. Such examinations, hereinafter referred to as sanitary surveys, shall include shoreline (pollution source) surveys and water quality evaluations conducted at a frequency determined by the commissioner to adequately protect public health. Following a sanitary survey, the department shall on the basis of shoreline surveys and criteria contained in paragraph (2) of this subdivision determine which of the examined shellfish lands are of such sanitary condition that shellfish may be taken therefrom for use as food. Lands that meet such criteria shall be designated, by commissioner's order, certified shellfish lands; except, no particular shellfish lands may be designated certified shellfish lands in the absence of a sanitary survey conducted within the previous 10 years. Lands that do not meet such criteria or have not been subject to a sanitary survey within the previous 10 years shall be designated, by commissioner's order, uncertified shellfish lands. At any time particular certified shellfish lands may be redesignated by commissioner's order as uncertified shellfish lands if such lands no longer meet the criteria contained in paragraph (2) of this subdivision. The department, annually, and as often as it deems necessary, shall cause a notice describing certified shellfish lands and uncertified shellfish lands to be published in a newspaper widely distributed in the county in which such lands are located.

2. (2) Waters overlying certified shellfish lands shall:

   1. (i) not have received hazardous amounts of contamination, which may have been occasioned by precipitation, storm water runoff, malfunctionings of waste water treatment facilities, spills of hazardous materials or other similar events;
   2. (ii) not be so contaminated with fecal material, radionuclides or industrial wastes that shellfish from such lands might be hazardous for use as food; and
   3. (iii) have, when samples are collected from those portions of the uncertified lands most probably exposed to fecal contamination during adverse hydrographic and pollution conditions: a median (or geometric mean) total coliform MPN per 100 milliliters of sample of 70 or less; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a total coliform MPN per 100 milliliters of sample in excess of 330 (or the MPN value at the estimated ninetieth percentile does not exceed 330) when a multiple dilution fermentation tube test is used which examines three 10-milliliter sample portions, three one-milliliter sample portions and three one-tenth (0.1) milliliter sample portions; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a total coliform MPN per 100 milliliters of sample in excess of 230 (or the MPN value at the estimated ninetieth percentile does not exceed 230) when a multiple dilution fermentation tube test is used which examines five 10-milliliter sample portions, five one-milliliter sample portions, five one-tenth (0.1) milliliter sample portions and five one-hundredth (0.01) milliliter sample portions; or
   4. (iv) have, when samples are collected from those portions of the uncertified lands most probably exposed to fecal contamination during adverse hydrographic and pollution conditions: a median (or geometric mean) fecal coliform MPN per 100 milliliters of sample of 14 or less; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a fecal coliform MPN per 100 milliliters of sample in excess of 49 (or the MPN value at the estimated ninetieth percentile does not exceed 49) when a multiple dilution fermentation tube test is used which examines three 10-milliliter sample portions, three one-milliliter sample portions and three one-tenth (0.1) milliliter sample portions; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a fecal coliform MPN per 100 milliliters of sample in excess of 43 (or the MPN value at the estimated ninetieth percentile does not exceed 43) when a multiple dilution fermentation tube test is used which examines five 10-milliliter sample portions, five one-milliliter sample portions and five one-tenth (0.1) milliliter sample portions.
3. (3) The commissioner, in his discretion, may designate by order particular shellfish lands as certified shellfish lands if detailed shoreline surveys or sanitary surveys of such lands indicate that the coliform bacteria are not of fecal origin; and the commissioner, in his discretion, may designate by order particular uncertified shellfish lands as certified shellfish lands during seasons when such lands meet the criteria contained in paragraph (2) of this subdivision. At any time particular certified shellfish lands may be redesignated by commissioner's order as uncertified shellfish lands, if such lands no longer meet the criteria contained in paragraph (2) of this subdivision.

4. (4) The commissioner may designate by order shellfish lands within and adjacent to marinas and mooring areas as uncertified shellfish lands when it is determined by sanitary survey that such lands may receive hazardous amounts of fresh fecal material that may not ordinarily be detected by routine water quality monitoring.

   (b) Conditionally certified shellfish lands.

5. (1) The department will regularly conduct sanitary surveys of appropriate uncertified shellfish lands that it has determined are likely to be periodically nonhazardous for purposes of harvesting shellfish for use as food. Following a sanitary survey the department will, on the basis of criteria contained in paragraph (a)(2) of this section, determine which of such shellfish lands are in such nonhazardous condition that shellfish may be taken therefrom for use as food. Shellfish lands that meet such criteria may be designated by commissioner's order as “conditionally certified shellfish lands”. At any time, particular conditionally certified shellfish lands may be redesignated by commissioner's order as “uncertified shellfish lands” if such lands no longer meet the criteria contained in paragraph (a)(2) of this section. Such orders must state with specificity the boundaries of the lands so “conditionally certified” or “uncertified” by using reference points taken from appropriate United States National Oceanic and Atmospheric Administration nautical charts or using reference points such as local landmarks or local names or using reference points such as buoys or monuments when such buoys or monuments have been installed or maintained in a manner approved by the commissioner. Public notice of such orders will be given by posting in the State of New York Department of Environmental Conservation's Division of Marine Resources office; by announcements by radio stations, when deemed necessary by the commissioner; by a telephone system operated by the department or by a cooperating political subdivision of the State of New York or both; and by other means approved by the commissioner.

6. (2) Waters overlying conditionally certified shellfish lands must meet the criteria specified in paragraph (a)(2) of this section or such lands will not be designated as conditionally certified.

   (c) Sanitary condition of harvest areas for microbiological cleansing.

7. (1) The department may designate appropriate uncertified shellfish lands as suitable for the harvesting of shellfish for microbiological cleansing. Uncertified shellfish lands will not be designated as suitable for the harvest of shellfish for microbiological cleansing unless it has been determined that shellfish from such lands are not contaminated with fecal material, radionuclides or industrial wastes to such a degree that consumption of such shellfish might be hazardous. Following a sanitary survey the department may, on the basis of criteria contained in paragraph (2) of this subdivision, identify which of the examined uncertified shellfish lands are of such sanitary condition that shellfish may be taken therefrom for microbiological cleansing.

8. (2) Uncertified shellfish lands must not be designated as suitable for the harvesting of shellfish for microbiological cleansing unless it has been determined that waters overlying such lands:

   1. (i) are not contaminated with fecal material, radionuclides or industrial wastes to such a degree that consumption of shellfish from such lands might be hazardous; and
   2. (ii) have, when samples are collected from those portions of the uncertified lands most probably exposed to fecal contamination during adverse hydrographic and pollution conditions, median (or geometric mean) total coliform MPN per 100 milliliters of sample of 700 or less; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a total coliform MPN per 100 milliliters of sample in excess of 3,300 (or the MPN value at the estimated ninetieth percentile does not exceed 3,300) when a multiple dilution fermentation tube test is used which examines three 10-milliliter sample portions, three 1-milliliter sample portions, three one-tenth (0.1) milliliter sample portions and three one-hundredth (0.01) milliliter sample portions; when a multiple dilution fermentation tube test is used which examines five sample portions in each dilution, unless extenuating circumstances warrant otherwise, not more than 10 percent of the total coliform MPN values exceed 2,300 (or the MPN value at the estimated ninetieth percentile does not exceed 2,300); or
   3. (iii) have, when samples are collected from those portions of the uncertified lands most probably exposed to fecal contamination during adverse hydrographic and pollution conditions, median (or geometric mean) fecal coliform MPN per 100 milliliters of sample of 88 or less; and unless extenuating circumstances warrant otherwise, not more than 10 percent of the samples have a fecal coliform MPN per 100 milliliters of sample in excess of 300 (or the MPN value at the estimated ninetieth percentile does not exceed 300) when a multiple dilution fermentation tube test is used which examines three 10-milliliter sample portions, three 1-milliliter sample portions, three one-tenth (0.1) milliliter sample portions and three one-hundredth (0.01) milliliter sample portions; when a multiple dilution fermentation tube test is used which examines five sample portions in each dilution, unless extenuating circumstances warrant otherwise, not more than 10 percent of the fecal coliform MPN values will exceed 260 (or the MPN value at the estimated ninetieth percentile does not exceed 260).
9. (d) Samples of water, shellfish and other materials shall be collected and examined in a manner endorsed and/or approved by the United States Department of Health and Human Services, Public Health Service and Food and Drug Administration. Laboratories engaged in the bacteriological examination of water, shellfish and other materials shall have received and shall maintain a satisfactory evaluation by the United States Department of Health and Human Services, Public Health Service and Food and Drug Administration in order for results of such examinations to be acceptable to the department.

(a) Certified shellfish lands.