322 CMR, § 7.02

Current through Register 1536, December 6, 2024

Section 7.02 - Master and Subordinate Digger Permits

(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 1^st to December 31^st 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

(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.