Current through Register 1531, September 27, 2024
(1)
Purpose. The
purpose of
322
CMR 16.08 is to set forth definitions,
procedures, and requirements applicable to the harvest, relay and transplant of
contaminated shellfish by municipalities from shellfish growing areas
classified as Restricted, Conditionally Restricted, or Conditionally Approved
in the Closed Status to shellfish growing areas approved by the municipal
shellfish department and classified as Approved or Conditionally Approved in
the Open Status for natural purification and propagation of shellfish. The
provisions of
322
CMR 16.08 are intended to ensure that
contaminated shellfish relay and transplant activities conducted by
municipalities are in compliance with the NSSP thereby minimizing the risk of
food borne illness to consumers, preventing the diversion of contaminated
shellfish into commerce or for personal consumption, and avoiding the spread of
veterinary disease.
In addition, as required by St. 2017, c. 47, § 112, the
Division has established at
322
CMR 16.08(6) a fee per
bushel of contaminated shellfish to be paid by the municipality receiving the
relayed shellfish to the municipality from whose waters the shellfish were
harvested. The fee is to be used by the source municipality for its
administration and enforcement of local shellfish management activities.
(2)
Definitions. The following definitions apply for the
purpose of
322
CMR 16.08:
Municipal Transplant means the
transfer of contaminated shellfish by a municipality from a growing area
classified as Restricted, Conditionally Restricted or Conditionally Approved in
the closed status to transplant in a growing area classified as Approved or
Conditionally Approved in the open status for the purpose of purging the
contamination in such shellfish.
Municipal Transplant Site means a site
identified in a Division-issued Shellfish Relay and Transplant Special Project
Permit where contaminated shellfish may be transplanted for purging the
contamination in such shellfish.
Receiving Municipality means a
municipality issued a Division Shellfish Relay and Transplant Special Project
Permit authorizing the harvest, relay or transplant of contaminated shellfish
into that municipality's local waters.
Relay means the transfer of any sized
contaminated shellfish by a municipality from a growing area classified as
Restricted, Conditionally Restricted or Conditionally Approved in the closed
status to a growing area classified as Approved or Conditionally Approved for
the purpose of purging the contamination in such shellfish.
Source Municipality means a
municipality which is the source of contaminated shellfish harvested for relay
by the Division-permitted Receiving Municipality.
Supervising Authority means a
shellfish constable duly appointed under authority of M.G.L. c. 130, § 98,
or a Massachusetts Environmental Police Officer or other enforcement officer
authorized to enforce M.G.L. c. 130, identified by the Receiving Municipality
and in the Shellfish Relay and Transplant Special Project Permit to supervise
the compliance of the harvest, relay or transplant activities in accordance
with 322 CMR 16.08 and such
Permit.
(3)
Permit. No municipality or other person shall harvest,
relay or transplant contaminated shellfish for the purposes described in
322
CMR 16.08 without a Shellfish Relay and
Transplant Special Project Permit issued by the Division pursuant to
322
CMR 7.01(4)(c):
Special Project. A copy of this permit shall be kept on the
person of the Supervising Authority and other personnel during the course of
the harvest, relay and transplant activities authorized by the
permit.
(4)
General
Requirements.
(a) All
contaminated shellfish being transplanted shall be tested by a pathologist
approved by the Division, and the results of such testing must show that the
shellfish is free of known shellfish diseases or is being harvested from
shellfish areas currently approved by the Division.
(b) All contaminated shellfish harvested for
relay and transplanting shall be removed from the source shellfish growing
area, transported and replanted under the direct supervision of the Supervising
Authority.
(c) Prior to the
commencement of transplanting operations, signs shall be placed around the
perimeter of the transplant site that provide a buffer of a minimum of 50 feet
around the transplanted contaminated shellfish. Each sign shall include the
following statements in bold capitalized letters:
CLOSED TO SHELLFISHING.
AREA PLANTED WITH CONTAMINATED SHELLFISH.
(d) During the course of the harvest, relay
or transplant activities, the Supervising Authority shall collect and hold any
commercial shellfish permits of all personnel and vessels involved in any
aspect of the harvest, relay or transplanting of contaminated shellfish
conducted under the authority of a Shellfish Relay and Transplant Special
Project Permit.
(5)
Requirements Specific to the Receiving Municipality
(a) The Receiving Municipality may hire a
contractor to act as its agent to conduct the harvest, relay, transport, and
reporting activities required by the Shellfish Relay and Transplant Special
Project Permit.
(b) The Receiving
Municipality, or its contractor, shall make arrangements with the Supervisory
Authority identified in the Shellfish Relay and Transplant Special Project
Permit to supervise, inspect and ensure compliance of the harvest, relay,
transport, and reporting activities required by 322 CMR 16.08 and
Permit.
(c) The commercial
shellfish permits associated with any person or vessel involved in the harvest,
relay or transplanting of contaminated shellfish shall be surrendered
temporarily to the Supervising Authority while the contaminated shellfish
harvest, relay and transplant activities are being conducted pursuant to the
Shellfish Relay and Transplant Special Project Permit.
(d) The contaminated shellfish harvest, relay
and transplant activities shall be conducted only:
1. During periods when the bottom water
temperature in the transplant site remains above 45 E F.
2. During periods of good
visibility.
3. During the hours of
sunrise and sunset.
4. In a manner
that ensures that all shellfish harvested for transplanting shall be
transported to and planted at the transplant site on the same day of
harvest.
5.
Exception. The Director may condition the Shellfish
Relay and Transplant Special Project Permit in accordance with
322 CMR
7.01(7):
Conditions, to allow exceptions to same day transplanting
requirement in the following circumstances as determined by the Director:
a. when the shellfish must be transported
long distances from the harvest site to transplant site, thereby making it
infeasible to transplant the shellfish on the same day; or
b. in the case of an emergency that
necessitates the holding of contaminated shellfish overnight for next day
transplanting.
(e) All shellfish harvested for transplanting
shall be placed in a container. The container shall bear a tag with the
following information legibility written on it in indelible ink:
1. Shellfish Relay and Transplant Special
Project Permit holder name;
2.
Shellfish Relay and Transplant Special Project Permit number assigned by the
Division;
3. The date of
harvest;
4. Shellfish growing area
where the contaminated shellfish were harvested from;
5. The municipality where the transplant site
is located; and
6. The following
statement in bold capitalized letters: CONTAMINATED SHELLFISH.
(f) A log shall be maintained that
documents for each separate harvest, relay and transplant conducted pursuant to
the Shellfish Relay and Transplant Special Project Permit the following
information:
1. The date of harvest;
2. The shellfish growing area of
harvest;
3. The number of bags or
containers of shellfish harvested;
4. The shellfish species harvested;
and
5. The conveyances used for
harvest, relay activities and at the transplant site.
(6)
Contaminated Shellfish Transplant Fee.
(a)
Receiving Municipality
Payment of Fees. At the conclusion of all of the annual harvest,
relay and transplant activities conducted pursuant to the Shellfish Relay and
Transplant Special Project Permit, the Receiving Municipality, or its
contractor on behalf of the Receiving Municipality, shall remit to the Division
a fee of $1.00 for each bushel of shellfish harvested from waters of the Source
Municipality during that year.
(b)
Division Disbursement of Fees. The Division shall hold
all contaminated shellfish transplant fees received from Receiving
Municipalities and annually distribute such monies to each Source municipality
based on proportional amounts of shellfish harvested in each Source
Municipality. Such monies shall be used by the Source Municipality for its
administration and enforcement of local shellfish management
activities.
(c)
Exemption. A municipality is not required to pay a
contaminated shellfish transplant fee when it transplants contaminated
shellfish from one growing area to another growing area located within the
municipality.
