Title of Regulation: 4VAC20-1230. Pertaining to Restrictions on Shellfish (amending 4VAC20-1230-10, 4VAC20-1230-20, 4VAC20-1230-30).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: May 31, 2012.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

The amendments establish the times and number of hours for harvesting oysters during the months of May through September; establish a green "Restricted-Use Shellstock Tag" and a curfew time of 12 p.m. for use by the Virginia Department of Health, Division of Shellfish Sanitation certified shucker-packers when oysters are being harvested for shucking purposes only; and allow harvestors to use approved mechanical refrigeration or ice storage containers for oysters in order to work after the curfew times and harvest hour limits.

4VAC20-1230-10. Purpose.

The purpose of this chapter is to establish harvest times and handling procedures for shellfish, excluding seed oysters, harvested during the months of May through September, in order to protect the health of the public for commercial purposes or any other use. The time, from initial harvest to when temperature control of that harvest is required, begins once the first shellstock harvested is no longer submerged and extends to the time that any harvested oysters are placed in mechanical refrigeration or are continuously and completely covered by a layer of ice in a storage container that has been approved by the Virginia Department of Health, Division of Shellfish Sanitation.

4VAC20-1230-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Container" means any bag, box, sack, tote, or conveyance, such as a boat or truck, or other receptacle that contains shellfish to be held or transported, in any type of conveyance, for transport from the harvest area to the landing site and from the landing site to the point of sale or other use.

"Conveyance" means any form of transport, either mechanical, such as a boat or truck, or nonmechanical that is used to transport shellfish from the harvest area to the landing site or from the landing site to a certified dealer or other use.

"Direct marketing" means any shellfish or shellstock that is landed and sold without shucking or postharvest processing.

"Harvest" means the act of removing any shellfish or shellstock from a designated harvest area and placing that shellfish or shellstock in a container or on or in a man-made conveyance or other means of transport.

"Layer" means a single thickness or coating spread out and covering a an entire surface.

"Mechanical refrigeration" means storage in a container that is approved by the Virginia Department of Health, Division of Shellfish Sanitation and capable of cooling to and maintaining an ambient temperature of 45°F or less.

"Oysters" means those oysters 2-1/2 inches or greater in shell length.

"Restricted-use shellstock" means shellstock or shellfish harvested from approved shellfish growing areas that shall not be sold for raw consumption or directly marketed for raw consumption.

"Restricted-use shellstock tag" means a Virginia Marine Resources Commission-issued green tag that shall only be used by a certified dealer who has a current certificate of inspection as a shucker packer for shellstock or shellfish harvested from a single harvest area in any one day. Use of any such tag indicates that shellstock is intended for further processing prior to distribution to retail or food service.

"Seed clams" means those clams less than 30 mm in shell length and more than six months from harvest for human consumption.

"Seed oysters" mean those oysters less than 2-1/2 inches in shell length and more than six months from harvest for human consumption.

"Shading" means to shelter by intercepting the direct rays of the sun to protect the shellfish from heat using a tarp or cover.

"Shellfish" or "shellstock" means all species of bivalve molluscan shellfish.

"Shucker packer" means a person who shucks and packs shellfish under a certificate of inspection issued by the Virginia Department of Health, Division of Shellfish Sanitation.

"Temperature control" means management of the environmental temperature, by means the use of ice or mechanical refrigeration, which is capable of lowering the temperature of the shellstock and maintaining it at 50°F (10°C) or less, as approved by the Virginia Department of Health (VDH), Division of Shellfish Sanitation.

4VAC20-1230-30. Public health and warm water harvest restrictions.

A. No provisions in this chapter shall apply to seed clams or seed oysters.

B. It shall be unlawful for any person to have any cat, dog, or other animal on board a vessel during the harvest of shellfish.

C. From May 1 through September 30, any vessel used for the harvest of shellfish, from either public or private grounds, shall provide shading over the area that serves as storage for the shellfish when the shellfish are on board that vessel. All shellfish in the vessel shall be offloaded every day. Shading shall not be required for vessels transporting clam seed or seed oysters for replanting.

D. From May 1 through September 30, all shellfish shall be shaded during land-based deliveries.

E. From May 1 through September 30, all land-based deliveries of shellfish requiring more than 60 minutes after offloading is complete shall be made aboard trucks or conveyances equipped with mechanical refrigeration capable of maintaining 45°F or less, except that shellfish may be continuously and completely covered by a layer of ice, according to procedures approved by the VDH Virginia Department of Health, Division of Shellfish Sanitation. Mechanically refrigerated containers of shellfish shall be in operation during transport. Any operator of a truck that is delivering shellfish using a truck not owned by a certified shellfish dealer shall possess a truck refrigeration certificate issued by the VDH Virginia Department of Health, Division of Shellfish Sanitation. Upon receipt of any shellfish at the shore-based plant, certified shellfish dealers must shall immediately place any shellfish received from the harvester under temperature control.

F. From June 15 through August 31, it shall be unlawful for any person to leave the dock or shore, prior to one hour before sunrise, to harvest or attempt to harvest oysters from private grounds.

G. From May 1 through June 14, it shall be unlawful for any person to harvest oysters from public or private grounds after 11 a.m., and oysters harvested before 11 a.m. shall be placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers and completely covered by a layer of ice by 11 a.m. that same day. From May 1 to September 30, except for those persons permitted in accordance with subsection H or I of this section, it shall be lawful for any person to harvest oysters from open areas of public or private ground, provided those oysters are fully offloaded and placed into Virginia Department of Health, Division of Shellfish Sanitation-approved mechanical refrigeration or continuously and completely covered by a layer of ice in a Virginia Department of Health, Division of Shellfish Sanitation-approved storage container, only under the following designated curfew schedule that specifies an end to harvest time, by month:

1. May 1 through May 31, by 11 a.m.;

2. June 1 through June 30, by 10 a.m.;

3 July 1 through July 31, by 10 a.m.;

4. August 1 through August 31, by 10 a.m.; and

5. September 1 through September 30, by 12 p.m.

H. From June 15 through August 31, it shall be unlawful for any person to harvest oysters from public or private grounds after 10 a.m., and oysters harvested before 10 a.m. shall be placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers and completely covered by a layer of ice by 10 a.m. that same day. It shall only be lawful to harvest oysters from open areas of public or private ground, as an exception to the provisions of subsections G and I of this section, provided:

1. The harvester has applied for and been granted a permit by the Virginia Marine Resources Commission to harvest oysters after the designated curfew harvesting times as provided in subsection G of this section.

2. A Virginia Marine Resources Commission-approved global positioning system tracking device shall be on board the harvest vessel or with the harvester and must be in continuous operation from the time that vessel or harvester leaves the dock or shore until the vessel or harvester returns to the dock or shore, and the oysters harvested are offloaded from that vessel or onto the dock or shore and placed into mechanical refrigeration or continuously and completely covered by a layer of ice in a storage container approved by the Virginia Department of Health, Division of Shellfish Sanitation.

3. The total time, from the time the vessel or harvester leaves the dock or shore until the oysters are placed in Virginia Department of Health, Division of Shellfish Sanitation-approved mechanical refrigeration or continuously and completely covered by a layer of ice in a Virginia Department of Health, Division of Shellfish Sanitation-approved storage container, shall not exceed the following:

a. Five hours during the months of May and September;

b. Three hours during the month of June; and

c. Two hours during the months of July and August.

I. From September 1 through September 30, it shall be unlawful for any person to harvest oysters from public or private grounds after noon, and oysters harvested before noon shall be placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers and completely covered by a layer of ice by noon that same day. It shall only be lawful to harvest oysters from open areas of public or private ground, as an exception to the provisions of subsections G and H of this section, provided:

1. The harvester has applied for and been issued a Virginia Department of Health, Division of Shellfish Sanitation vessel approval certificate for mechanical refrigeration or icing in a storage container that is on board the vessel at all times during the harvest of oysters.

2. Oysters are placed in mechanical refrigeration or continuously and completely covered by a layer of ice in a storage container on board the vessel from the start of harvest and throughout the harvest period until the oysters are offloaded.

J. Except as described in subsections L and M of this section, oysters may be harvested after the designated harvesting time described in subsections G, H, and I of this section, provided (i) the total time, from the time the vessel or harvester leaves the dock or shore until the oysters are placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or completely covered by a layer of ice in a storage container, shall not exceed five hours; (ii) there is a Virginia Marine Resources Commission-approved Global Positioning System tracking device on board the harvest vessel or with the harvester that is in continuous operation, from the time that vessel or harvester leaves the dock or shore until the vessel or harvester returns to the dock or shore and the oysters are offloaded from that vessel or onto the shore; and (iii) the harvester has applied for and been granted a permit by the Virginia Marine Resources Commission to harvest oysters after these designated harvesting times, and that harvester has designated a landing site for that permit. From May 1 through September 30, oysters may be harvested from open areas of private or public ground as restricted-use shellstock, provided:

1. The harvester has been issued green restricted-use shellstock tags by a Virginia Department of Health, Division of Shellfish Sanitation-certified shucker packer and has tagged all oysters with restricted-use shellstock tags;

2. The harvester does not possess on board the vessel any oysters designated for direct marketing or raw consumption; and

3. All oysters are harvested no later than 12 p.m. and placed in mechanical refrigeration or continuously and completely covered by a layer of ice in a storage container, both approved by the Virginia Department of Health Division of Shellfish Sanitation, by noon that same day.

K. From May 1 through September 30, a Bulk Seed Permit shall be obtained from the Virginia Marine Resources Commission for the harvest of any natural (wild) seed oysters that include oysters greater than 2-1/2 inches. Any person who harvests any natural (wild) seed oysters that include oysters greater than 2-1/2 inches and is not in possession of a Bulk Seed Permit issued by the Virginia Marine Resources Commission shall be in violation of this chapter.

L. Any person may handle oysters as part of a cage aquaculture operation for husbandry purposes after the designated harvesting times described in subsections subsection G, H, and I of this section, provided that person possesses a valid Cage Aquaculture Husbandry Permit from the Virginia Marine Resources Commission. Any person who handles oysters in cage oyster aquaculture operations after the designated harvesting times described in subsections subsection G, H, and I of this section and does not possess a Cage Oyster Aquaculture Husbandry Permit issued by the Virginia Marine Resources Commission shall be in violation of this chapter.

M. Oysters may be harvested in open areas of the James River and its adjacent tributaries, upstream from the Monitor Merrimac Memorial Bridge Tunnel, in addition to the designated harvesting times in subsections G, H, and I of this section, provided (i) there is a VDH Division of Shellfish Sanitation-approved mechanical refrigeration or ice storage container on board the harvesting vessel; (ii) the harvester has applied for and been issued a VDH Division of Shellfish Sanitation Vessel approval certificate that is required to be on board the vessel at all times during the harvest of oysters and has designated a landing site for that permit; and (iii) the oysters are placed in the VDH Division of Shellfish Sanitation-approved mechanical refrigeration in operation or an ice storage container with a layer of ice that completely covers the oysters from the start of harvest and throughout the harvest period until the oysters are offloaded.