Current through Register 1531, September 27, 2024
(1)
Definitions. For purposes of 322 CMR 7.02 only the
following words shall have the following meanings:
Director means the Director of the
Division of Marine Fisheries or his or her designee.
Division means the Massachusetts
Division of Marine Fisheries.
DPH means the Massachusetts Department
of Public Health.
Master Digger means any person
authorized by the Director pursuant to 322 CMR 7.02 to engage in the harvest,
possession and transportation of moderately contaminated shellfish.
Moderatelv Contaminated Shellfish
means any shellfish from an area classified as "restricted" and suitable for
the harvest of shellfish with purification.
Purification means the process of
purifying moderately contaminated shellfish at the purification plant operated
by the Division and located at Plum Island, Newburyport, Massachusetts.
Subordinate Digger means any person
authorized by the Director pursuant to 322 CMR 7.02 to harvest and possess
moderately contaminated shellfish for sale to a master digger only.
(2)
Master Digger
Eligibility. An applicant for a master digger permit shall:
(a) be 18 years of age or older, and, except
for renewals, shall present documented proof of birth date in person at the
Division office in Boston;
(b) be
bonded by a recognized insurance bonding company to assure full faith and
compliance with 322 CMR 7.02 and
10.00: Management of
Moderately Contaminated Shellfish,
105 CMR
500.020: General
Requirements, 500.021: Additional Requirements for Handlers of
Shellfish, and 515.000: Action Levels for Poisonous or
Deleterious Substances in Food, M.G.L. c. 130, §§ 74, 75 and
80 and any other conditions or restrictions applicable to the master digger
permit. Said bond shall be a surety bond in the sum of $1,000.00 fully executed
with an effective term coextensive with that of the master digger permit,
generally from January 1st to December
31st of each year. Master diggers with one prior
judicial or administrative conviction related to the above mentioned statutes
and regulations shall be required to obtain a bond in the amount of $2,500.00.
Master diggers with two or more prior judicial or administrative sanctions
shall be required to obtain a bond in the amount of $5,000.00;
(c) submit a satisfactory annual DPH
inspection certificate certifying that the transport vehicle used by the
applicant fully complies with appropriate sanitary standards and requirements
of the latest revision of part II of the National Shellfish Sanitation Program
manual of operations pertaining to the interstate shipment of shellfish;
and
(d) submit a signed statement
on forms supplied by the Director that the applicant has read, is familiar with
and agrees to fully comply with 322 CMR 7.02 and
10.00: Management of
Moderately Contaminated Shellfish,
105 CMR
500.020: General
Requirements, 500.021: Additional Requirements for Handlers of
Shellfish, and 515.000: Action Levels for Poisonous or
Deleterious Substances in Food, M.G.L. c. 130, §§ 74A, 75
and 80 and any other conditions or restrictions applicable to the master digger
permit.
(3)
Subordinate Digger Eligibility. An applicant for a
subordinate digger permit shall:
(a) be 18
years of age or older, and, except for renewals, shall present documented proof
of birth date in person at the Division;
(b) submit a signed statement on forms
supplied by the Director that the applicant has read, is familiar with and
agrees to fully comply with 322 CMR 7.02 and
10.00: Management of
Moderately Contaminated Shellfish,
105 CMR
515.000: Action Levels for Poisonous or
Deleterious Substances in Food, 520.000: Labeling,
525.000: Newburyport Shellfish Treatment Plant, and 533.000:
Fish and Fishery Products, M.G.L. c. 130, §§ 74,
74A, 75 and 80 and any other conditions or restrictions applicable to the
subordinate digger permit.
(4)
Restrictions. A
master or subordinate digger shall not harvest, possess, transport, or sell any
shellfish from:
(a) an approved area, unless
the master or subordinate digger permit is in the possession of a duly
appointed shellfish constable in a city or town with shellfish management plan
approval by the Director;
(b) an
area classified as prohibited and closed to shellfishing by the
Director;
(c) any other area which
is not opened by the Director for moderately contaminated shellfishing and
classified as restricted.
(5)
Conditions.
Master and subordinate digger permits may be conditioned by the Director, at
any time, to limit the days on which moderately contaminated shellfish may be
harvested, the number of racks to be harvested by each digger, or any other
condition necessary to limit the harvest of moderately contaminated shellfish
to the capacity of the purification plant, or to insure proper maintenance of
shellfish growing areas. Permit conditions shall be effective upon posting and
five days after mailing to the master digger permit holders; except that permit
conditions shall be effective upon verbal notification from any Division
employee, environmental police officer, or shellfish constable when the
Director determines that immediate action is necessary for the public health,
welfare and safety.
(6)
Enforcement Report. Alleged violations by a master
digger or subordinate digger of
322
CMR 7.02 and 10.00: Management of
Moderately Contaminated Shellfish,
105
CMR 500.020: General
Requirements, 500.021: Additional Requirements for Handlers of
Shellfish, and 515.000: Action Levels for Poisonous or
Deleterious Substances in Food, M.G.L. c. 130, §§ 74, 74A,
75 and 80, or any other condition or restriction applicable to the permit shall
be submitted to the Director in writing by any officer authorized to enforce
the marine fishery laws of the Commonwealth, or charged to investigate alleged
violations thereof.
(7)
Permit Suspension. Upon receipt of a written
enforcement report alleging violations by a master or subordinate digger, the
master digger permit or subordinate digger permit shall be suspended. Such
suspension shall not be effective until the master or subordinate digger is in
receipt of:
(a) the written enforcement
report;
(b) a notice of statutory
permit suspension setting forth the grounds and authority for the suspension;
and
(c) an order to show cause
establishing a date, time and location for an adjudicatory proceeding and
informing the respondent of his or her right to request an expedited proceeding
at an earlier date.
(8)
Adjudicatory Proceeding. The Director, or his
authorized designee, shall as expeditiously as possible conduct an adjudicatory
proceeding to adjudicate the alleged violations contained in the enforcement
report under authority of M.G.L. c. 130, § 80, and pursuant to M.G.L. c.
30A and the formal rules of adjudicatory practice and procedure appearing at
801
CMR 1.01: Formal
Rules.
(9)
Sanctions. Based on the record of the adjudicatory
proceeding including the findings of fact, conclusions of law and the
recommendation of the presiding officer as contained in the memorandum of final
decision, the Director, if a violation of violations are found of
322
CMR 7.02 and 10.00: Management of
Moderately Contaminated Shellfish,
105
CMR 500.020: General
Requirements, 500.021: Additional Requirements for Handlers of
Shellfish, and 515.000: Action Levels for Poisonous or
Deleterious Substances in Food, M.G.L. c. 130, §§ 74, 74A,
75 and 80, or any other condition or restriction applicable to the master
digger permit, may take the following administrative action:
(a) For the first offense - a 30 day
suspension of the master digger or subordinate digger permit.
(b) For a second offense:
1. a 60 day suspension of the master digger
or subordinate digger permit; and
2. in the case of a master digger, enforcing
the terms and conditions of the bond through payment of the bond value or
portion thereof by the master digger and, in the event of his or her default,
by the insurance company as surety.
(c) For a third offense:
1. not less than a 90 day nor more than one
year suspension of the master or subordinate digger permit; and
2. in the case of a master digger, enforcing
the terms and conditions of the bond through payment of the bond value or
portion thereof by the master digger and, in the event of his or her default,
by the insurance company as surety.
(d) For a fourth offense:
1. revocation of the master or subordinate
digger permit;
2. prohibiting for a
period of time to be determined by the Director the issuance of a new mater
digger or subordinate digger permit; and
3. in the case of a master digger, enforcing
the terms and conditions of the bond through payment of the bond value or
portion thereof by the master digger and, in the event of his or her default,
by the insurance company as surety.
(10)
Administrative
Action. The Director may take additional administrative action
necessary for the public health, welfare and safety whenever an enforcement
report is submitted to him an an order to show cause is issued by him
including, but not limited to:
(a)
establishing a temporary moratorium on the approval and issuance of any new
master digger or subordinate digger permits to any applicant pending the
outcome of the scheduled adjudicatory proceeding;
(b) disapproval of the nomination by any
master digger or a new supervisor or transportation agent pending the outcome
of the adjudicatory proceeding; and
(c) disapproval of the use by any master
digger of the shellfish transportation vehicle used by the master digger who is
the subject of the adjudicatory proceeding pending the outcome of said
proceeding.
