(1)
Background and Purpose. The NSSP's Model Ordinance
requires that states regulate the waters under their jurisdiction that support
or could support shellfish and determine if these areas meet the sanitary
conditions necessary to allow the harvest of shellfish for human consumption.
The Division has met this requirement by its sanitary classification of the
approximately 1.7 million acres of the overlying waters under the jurisdiction
of the Commonwealth. The Division has further classified these waters into 303
designated shellfish growing areas based on hydrographical and geographic
features.
The Division's shellfish growing area classifications are based
on an extensive assessment of local environmental conditions and pollution
sources, including impacts to water quality in the area. The principal
components of these sanitary surveys, which are conducted by Division staff
trained by the U.S. Food and Drug Administration, include:
(a) an evaluation of pollution sources that
may affect an area;
(b) an
evaluation of the hydrographic and meteorological characterizes that may affect
the distribution of pollutants; and
(c) an assessment of water quality.
Additionally, shellfish are tested for various poisonous or
deleterious substances based on assessment of pollution sources identified by
the sanitary survey and as a result of oil and chemical spills. The results of
the sanitary survey is summarized in a written report by the Division.
In accordance with M.G.L. c. 130, §§ 74 and 74A, the
Division classifies a shellfish growing area based on the results of the
sanitary survey and as required by the Model Ordinance. Depending on the extent
to which an area is contaminated, the Division will make one of the following
classification determinations for the area: Approved; Conditionally Approved;
Restricted; Conditionally Restricted; and Prohibited. The Division's
classification of the shellfish growing area determines whether the harvest of
shellfish is approved with or without restriction or prohibited in all
circumstances.
The Division manages the statewide shellfish safety and
sanitation program to ensure shellfish are safe to harvest and protect public
health. The municipalities control the regulation and management of both
commercial and non-commercial shellfisheries in waters under municipal control,
provided such waters are classified by the Division as Approved or
Conditionally Approved while in an "Open Status". Certain Conditionally
Approved areas that are predictably impacted by rain events can be managed by
municipalities under an NSSP-required Conditional Area Management Plan.
Municipalities are then allowed to open and close these
Conditionally Approved areas based on performance standards and subject to
annual evaluation by the Division. Areas classified as Restricted or
Conditionally Restricted are subject to state control, unless the Division has
approved a local Shellfish Conservation and Management Plan
pursuant to M.G.L. c. 130, § 75. In such cases, municipalities are granted
limited shellfisheries management authority when these areas are in an Open
Status, but are not allowed to change the sanitary status of these areas from
open or closed on their own.
The scope of 322 CMR 16.03 includes a description of each of
the shellfish growing area classifications, and sets forth the requirements
applicable to each classification and the process for providing public
notification regarding the classification and status.
(2)
Shellfish Growing
Area Classifications and the Harvest of Shellfish under Certain
Certifications.
(a)
Approved. An Approved shellfish growing area has been
subject to a sanitary survey that demonstrates shellfish within the growing
area meet the sanitary conditions necessary for direct human consumption. An
Approved shellfish growing area may be open to the harvest of shellfish for
direct human consumption, subject to municipal shellfish management regulations
established in accordance with M.G.L. c. 130, § 52. The harvest of
shellfish from Approved shellfish growing areas may be prohibited by the
Division under an emergency designation of contamination made in accordance
with M.G.L. c. 130, § 74A.
(b)
Conditionally Approved. A Conditionally Approved
shellfish growing area has been subject to a sanitary survey that demonstrates
shellfish within the growing area meet the sanitary conditions necessary for
direct human consumption under certain conditions described in a Conditional
Area Management Plan. The status of a Conditionally Approved shellfish growing
area may change from Open to Closed in response to environmental conditions
such as impacts to water quality from pollution sources or other predictable
changes in water quality. The harvest of shellfish from a Conditionally
Approved shellfish growing area in the Open Status may be allowed for direct
human consumption, subject to municipal shellfish management regulation
established in accordance with M.G.L. c. 130, § 52. The harvest of
shellfish from a Conditionally Approved shellfish growing area may be
prohibited by the Division under an emergency designation of contamination made
in accordance with M.G.L. c. 130, § 74A or under the provisions of a
Division-approved Conditional Area Management Plan for that area.
(c)
Restricted. A
Restricted shellfish growing area has been subject to a sanitary survey that
demonstrates shellfish within the growing area contain a limited degree of
contamination at all times. The harvest of shellfish from a Restricted
shellfish growing area for direct human consumption is prohibited, except as
provided at 322 CMR 16.03(2)(f).
(d)
Conditionally
Restricted. A Conditionally Restricted shellfish growing area has
been subject to a sanitary survey that demonstrates shellfish within the
growing area contain a limited degree of contamination at all times and is
subject to intermittent impacts to water quality from pollution sources. The
status of a Conditionally Restricted shellfish growing area may change from
Open to Closed in response to such intermittent water quality impacts or other
environmental conditions affecting water quality, including predictable changes
in water quality. The harvest of shellfish from a Conditionally Restricted
shellfish growing area is prohibited, except as provided at 322 CMR
16.03(2)(f).
(e)
Prohibited. A Prohibited shellfish growing area has
been subject to sanitary survey that demonstrates shellfish within the growing
area contain contamination and pollutants at all times and pose a public health
risk. The harvest of shellfish from a Prohibited shellfish growing area is
prohibited, except as provided at 322 CMR 16.03(2)(f).
(f)
Exceptions. The
following activities may be conducted within shellfish growing areas that have
been classified as contaminated and shellfish harvest is otherwise prohibited:
1.
Contaminated Bait
Fishery. A surf clam dredge contaminated bait fishery may be
conducted in shellfish growing areas classified as Prohibited in accordance
with
322 CMR
6.08(7).
2.
Contaminated Shellfish
Relay. Contaminated shellfish relays may be conducted in shellfish
growing areas classified as Restricted, Conditionally Restricted and Prohibited
and Conditionally Approved and in the Closed Status in accordance with
322 CMR
16.08.
3.
Depuration
Fishery. A depuration shellfish fishery may be conducted in
shellfish growing areas classified as Restricted or Conditionally Restricted in
the Open Status in accordance with
322 CMR 10.00:
Management of Moderately Contaminated Shellfish.
4.
Nursery Culture.
The culturing and grow-out of hatchery seed may occur in shellfish growing
areas classified as Restricted, Conditionally Restricted or Prohibited subject
to the conditions set forth in a special project transplant permit issued in
accordance with
322 CMR
7.01(4)(c): Special
Project.
(3)
Notification of Shellfish
Growing Area Classifications. To ensure that the public is aware
of the classification of all shellfish growing areas and to safeguard public
health by protecting against the consumption of contaminated shellfish, the
Division shall:
(a) Announce changes to
existing shellfish growing area classifications in accordance with the public
notification procedures set forth at M.G.L. c. 130, § 74A.
(b) Make available to the public a list of
all shellfish growing areas, their boundaries and their classification on the
Division's website at
www.mass.gov/marinefisheries.
(c) Make available to the public maps
depicting all shellfish growing areas and their classification on the
Division's website at
www.mass.gov/marinefisheries.
(4)
Changes to
Shellfish Growing Area Status. Changes to environmental conditions
affecting water quality, or the presence of pollutants or toxins in such waters
may render shellfish unfit for consumption and hazardous to public health.
(a)
Designation of Contamination
of Shellfish Growing Areas. In accordance with M.G.L. c. 130,
§ 74A, the Director may issue a designation of contamination (change of
status) to prohibit the harvest of all or certain species of shellfish from any
shellfish growing area.
(b)
Status Changes to Conditionally Approved Shellfish Growing Areas
Subject to a Local Conditional Area Management Plan. For those
shellfish growing areas classified as Conditionally Approved and subject to a
Conditional Area Management Plan, the applicable municipality shall be
responsible for providing public notification of any such status
changes.
