322 CMR, § 16.07

Current through Register 1533, October 25, 2024

Section 16.07 - Vibrio Management Plan for Harvest and Handling of Oysters

(1)Purpose. The purpose of 322 CMR 16.07 is to set forth the protocols and performance standards of the Vibrio Management Plan for shellfish harvesters and dealers to minimize the risk to consumers of pathogens, including Vibrio parahaemolyticus (Vp) associated with consumption of raw oysters. 322 CMR 16.07 applies to commercial fishers and dealers possessing shellstock oysters.

(2)Definitions. For the purpose of 322 CMR 16.05, the following terms hold the following meanings:

Adequately Iced means the amount and methods of applying ice to completely surround all the oysters in a shellfish icing container to ensure their immediate and ongoing cooling, as further specified at 322 CMR 16.07(3).

Adequately Shaded means the measures required to be taken to protect oysters from direct exposures to sunlight.

Broadcast Re-submergence means the return of loose, market-sized oysters to the waters of the original licensed shellfish aquaculture grant site from which they were harvested following the off-site culling and/or oyster culture activities requiring re-submergence, specified in 322 CMR 16.07(4).

Market Bound Oysters means all oysters removed from a designated shellfish growing area by a commercial fisher intended for commercial purposes on that calendar day.

Market Sized Oysters means those oysters that measure at least three inches shell length or 21/2 inches shell length for those shellfish aquaculturists authorized by the Division pursuant 322 CMR 6.20(3): Restrictions on Oysters and Quahogs Raised by Aquaculturists and Sold to Dealer to possess and sell "petit" oysters.

Off-site Culling means an aquaculture practice of temporarily removing shellfish from the licensed shellfish aquaculture grant site to a shellfish aquaculturists' permitted off-site culling location for the purposes of sorting, grading and cleaning the individual shellfish.

Oyster Culture Activities means activities conducted by some shellfish aquaculturists that involve the removal of oysters from the waters of the licensed shellfish aquaculture grant site for the purposes of sorting, culling, grading, pitting, over-wintering and/or the removal of fouling organisms to enhance oyster marketability.

Re-submergence means the return of market size oysters back to the water of the licensed shellfish aquaculture grant site from which they were harvested after being previously removed for off-site culling and/or oyster culture activities, or after being returned by a primary buyer, as a result of recall specified at 322 CMR 16.07(4).

Shellfish Icing Container means a conveyance that is smooth, in good condition, is easily cleaned, impervious to water, insulated, self-draining, has a tight fitting lid, and a light-colored exterior.

Time of Icing means the time when the last oyster or bag of oysters in a harvester's lot is placed in a shellfish icing container and is adequately iced in accordance with the procedure at 322 CMR 16.07(3).

Vp Logbook means the Division issued logbook required to be used by all commercial fisher during the Vp season to record required icing and re-submergence information described at 322 CMR 16.07(3) and (4).

Vp Season means the time period from May 19^th through October 19^th when the Vibrio Management Plan is in effect.

(3)Commercial Harvester Restrictions. The following shall apply to all commercial fishers harvesting oysters during the Vp season.

(a)Icing Requirements.

1.General Time to Icing. All commercial fishers shall adequately ice oysters, as defined in 322 CMR 16.07(2), within two hours of time of harvest or exposure, or prior to leaving the point of landing, whichever occurs first. Oysters must remain adequately iced until received by a wholesale dealer. This requirement shall be waived if the responsibility for icing is taken on by the wholesale dealer at the landing site at primary purchase and the primary purchase occurs within two hours of time of harvest.

2.Seasonal Time to Icing Requirements for Certain Growing Areas. From July 1^st through September 15^th, all commercial fishers who are harvesting oysters in shellfish growing areas CCB-42, CCB-43, CCB-44, CCB-45, CCB-46, CCB-47 and V-20, shall adequately ice oysters, as defined in 322 CMR 16.07(2), within one hour of time of harvest or exposure, or prior to leaving the point of landing, whichever occurs first. Oysters must remain adequately iced until received by a wholesale dealer.

3.Methods for Icing. To meet the time to icing requirements specified at 322 CMR 16.07(3)(a), commercial fisher shall place oysters and ice into a shellfish icing container using one of the following methods:

a. Mesh bags containing oysters shall be completely and continuously covered by ice, including at the bottom of the container and each level of bags, so that each bag is continuously and completely covered with ice.

b. Loose oysters placed into a shellfish icing container shall be completely and continuously covered by ice, including at the bottom and sides of the container so that each oyster is completely and continuously covered with ice.

c. Oysters held in an ice and water mixture (e.g., ice slurry or cold water dip) shall be fully submerged and the ice and water mixture must be at or below 45EF to inhibit growth and proliferation of bacteria; or

d. All ice and/or water used to cool oysters shall originate from a fresh potable water source or ocean water from an area classified as "Approved" or "Conditionally Approved" by the Division of Marine Fisheries and in the "open status".

(b)Shading Requirement. All commercial fishermen shall adequately shade oysters, as defined in 322 CMR 16.07(2) immediately following harvest and until oysters are adequately iced. Materials in direct contact with oysters or bags of oysters must be smooth, easily cleanable and impervious to water.

(c)Shellfish Icing Tag Requirement. In addition to the tagging requirements at 322 CMR 16.05, commercial fishermen shall record the time of icing on all harvester tags affixed to containers of oysters or record the time of icing on a single harvester tag attached to a shellfish icing container. The use of a single harvester tag for the purpose of meeting this shellfish icing tag requirements does not exempt commercial fishermen from attaching harvester tags, as specified at 322 CMR 16.05, to all individual containers of market bound shellfish. A single harvester tag for the purpose of meeting the shellfish icing tag requirements may be used in instances when:

1. All oysters in the shellfish icing container are from a single harvester lot;

2. The shellfish icing tag is attached to the shellfish icing container at the time of icing and remains attached to the shellfish icing container until received by the primary buyer; and

3. The shellfish icing tag also includes the time of harvest, harvest date, harvest area, harvester identification and quantity (in pieces) of oysters harvested.

(d)Logbook Requirement. When landing oysters, all commercial fishermen must have in their possession the Division issued Vp logbook. The harvester, or his or her licensed employee, shall record in indelible ink the date, shellfish growing area, time of harvest, time of icing, quantity harvested (in pieces), and the dealer who received the product. The Vp logbook shall be filled out by the permit holder, or his or her licensed employee, at the time of landing before the day's harvest is placed in transit or leaves the landing site except that the primary buyer information may be completed upon receipt of the market bound oysters by the primary buyer.

(e)Restrictions on Transport of Market Bound Oysters to the Primary Buyer. All market bound oysters shall be transported by the harvester, or his or her licensed employee, directly to the primary buyer's physical facility or received by the primary buyer at the landing site. Commercial fishermen are prohibited from handling and/or holding market bound oysters at any unlicensed facility prior to receipt by the primary buyer.

(4)Restrictions that Apply to Shellfish Aquaculturists Only.

(a)Re-submergence Requirements for Off-site Culling Practices. Market-sized oysters may be removed by a shellfish aquaculturist from licensed shellfish aquaculture grant site for the purpose of off-site culling, provided:

1. All removed oysters are returned to and segregated on the licensed shellfish aquaculture grant site of at least ten days prior to being harvested for commercial purposes;

2. Off-site culling activities are conducted in accordance with conditions to the Aquaculture Propagation Permit, issued to the shellfish aquaculturist by the Division pursuant to the authority at M.G.L. c. 130, § 80, and 322 CMR 7.01(7): Conditions; and

3. Shellfish aquaculturists shall notify the local municipal shellfish authority prior to the removal of any shellstock from a licensed shellfish aquaculture grant site.

(b)Re-submergence Requirements for Oyster Processing Activities Conducted on Barges, Boats and Other Floating Structures. Market-sized oysters may be brought onboard barges, boats and other floating structures for the purpose of oyster processing activities, provided:

1. All oyster processing activities that are not conducted on the licensed shellfish aquaculture grant site shall take place within same designated shellfish growing area as the licensed shellfish aquaculture grant site;

2. When oyster processing activities exceed two hours from the time of harvest or time of first exposure, all oysters subject to such activities must be returned to the licensed shellfish aquaculture, segregated and re-submerged for at least ten days prior to being harvested for commercial sale; and

3. When oyster processing activities do not exceed two hours from the time of harvest or first exposure, all oysters subject to such activities may either be properly tagged and harvested during that calendar day, in accordance with the procedures set forth at 322 CMR 16.00, or returned to the licensed shellfish aquaculture grant site, but shall not be harvested until at least the following calendar day.

4. Between July 1^st and September 15^th, in shellfish growing areas CCB-42, CCB-43, CCB-44, CCB-45, CCB-46, CCB-47 and V-20, when oyster culture activities exceed the one hour time to icing requirement at 322 CMR 16.07(3)(a)(2), but do not exceed two hours from the time of harvest or first exposure, all oysters subject to such activities must be returned to the licensed shellfish aquaculture grant site and shall not be harvested until the following calendar day.

(c)Tagging and Logbook Requirements for Re-submerged Oysters.

1.Logbook Requirements. Shellfish aquaculturists shall maintain a record in their Vp logbook of all market-sized oysters returned to the licensed shellfish aquaculture grant site after off-site culling or oyster processing activities requiring re-submergence. The Vp logbook shall be filled out at the time of re-submergence when the last market-sized oyster is returned to the licensed shellfish aquaculture grant site, except that the date-out information shall not be completed prior to the end of the ten day re-submergence period.

2.Container Tagging Requirement. All containers of re-submerged oysters shall be marked with a waterproof green tag and legibly labeled in indelible ink with the statement "re-submerged" and with the date that the oysters were returned to the licensed shellfish aquaculture grant site for re-submergence. After such oysters have remained on the licensed shellfish aquaculture grant site for at least ten days, the green "re-submerged" tag may be removed from the containers and the oysters may then be harvested in accordance with those procedures set forth at 322 CMR 16.00.

3.Alternatives to Container Tagging Requirements. Shellfish aquaculturists who engage in broadcast re-submergence or want to mark multiple containers of re-submerged oysters using a single re-submergence tag shall submit a re-submergence plan for the Division's approval at least 30 days prior to the start of the proposed activities. The re-submergence plan shall include, at a minimum, the following information:

a. A description of the re-submergence method (e.g., broadcast, holding cars, cages, etc.);

b. A description of the segregation method to be utilized, including a site map marking the segregated re-submergence area; and

c. A description of the re-submergence tagging method to be utilized.

d. All such re-submergence activities shall be conducted in accordance with the resubmergence plan approved by the Division.

(d)Additional Re-submergence Restrictions.

1. Re-submergence of oysters may only be conducted by the permitted aquaculturists on the same licensed shellfish aquaculture grant site where the oysters originated, unless otherwise approved in advance in writing by the Division.

2. Except as provided for at 322 CMR 16.07(4)(b), market-sized oysters returned to a licensed shellfish aquaculture grant site will be considered off-site culled and subject to the tagging, Vp log book and re-submergence requirements set forth at 322 CMR 16.07(4).

(5)Disposition and Handling of Non-compliant Oysters and Recalled Oysters.

(a)Destruction of Non-complaint Oysters.

1. In the event that the Division, the local Shellfish Constable or the Massachusetts Environmental Police determines that a commercial fisher is in possession of oysters that are in violation of the tagging, icing or other requirements set forth at 322 CMR 16.00, such oysters shall be destroyed and properly disposed of by the commercial fisher at his or her own expense.

2. In the event that oysters distributed into commerce are recalled in the case of illness, such oysters shall be destroyed and properly disposed of by the commercial fisher at his or her own expense.

(b)Re-submergence of Non-compliant Oysters.

1. In the event of a recall resulting from the closure of a growing area due to illness, only those oysters received from harvesters and stored at a primary buyer's facility may be re-submerged.

2. In the event that the Division or the Department of Public Health determines that a primary buyer is in possession of oysters that violate the tagging, icing or other requirements set forth at 322 CMR 16.00, such oysters may be returned to the shellfish aquaculturists, and re-submerged and segregated on the licensed shellfish aquaculture grant site where they originated for ten days under the supervision of the local Shellfish Constable.

3. Shellfish aquaculturists may harvest oysters that have been re-submerged in accordance with 322 CMR 16.05(5)(b), provided the following actions are taken:

a. Recalled oysters have been segregated and re-submerged on the licensed shellfish aquaculture grant site for a minimum period of ten days;

b. Recalled oysters are tagged with a waterproof green tag labeled in indelible ink with the statement "non-compliant" or "recalled" and the date of re-submergence;

c. The return, segregation and re-submergence of oysters are documented in the Vp logbook, including recording the quantity of oysters, and date and purpose of the return and re-submergence, in accordance with 322 CMR 16.07(4); and

d. After such oysters remain on-site for at least ten days, the green "non-compliant" or "recalled" tag may be removed and the oysters may then be harvested, subject to being tagged as specified in 322 CMR 16.00.

322 CMR, § 16.07

Adopted by Mass Register Issue 1387, eff. 3/22/2019.

Amended by Mass Register Issue 1520, eff. 4/26/2024.