322 CMR, § 16.03

Current through Register 1535, November 22, 2024

Section 16.03 - Shellfish Growing Area Classification

(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.