Title of Regulation: 4VAC20-1230. Pertaining to Restrictions on Shellfish (amending 4VAC20-1230-10 through 4VAC20-1230-40; adding 4VAC20-1230-35).

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

Effective Date: January 1, 2011.

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:

These amendments (i) establish the use and assorted requirements for identification tags for tracking shellfish from point of origin to the final destination, (ii) add a definition of "container" and delete the definition of "time to refrigeration," (iii) clarify that shading is not required for vessels transporting clam seed for replanting, and (iv) clarify the penalties for violations of the chapter.

4VAC20-1230-10. Purpose.

The purpose of this chapter is to establish a method of identifying the original harvest area of any shellfish, harvest times, and handling procedures, for shellfish harvested during the months of May through September in order to protect the health of the public.

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, sack, tote, or conveyance, such as a boat or truck, or other receptacle that contains shellfish to be held or transported.

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

"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" mean those oysters greater than 2-1/2 inches in shell length.

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

"Shellfish" means all species of bivalve molluscan shellfish.

"Time to refrigeration" means the amount of time from when the harvested shellstock is no longer within the water column to when it is refrigerated.

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

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

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

C. From May 1 through September 30, all land-based deliveries of shellfish requiring more than 30 minutes from landing that shellfish shall be made aboard trucks or conveyances equipped with mechanical refrigeration having an ambient temperature of 45°F or less before loading begins, except that shellfish may be thoroughly iced according to procedures approved by the Virginia Department of Health (VDH) Division of Shellfish Sanitation. Mechanically refrigerated containers shall be in operation from the time of loading to the time of offloading. 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 Division of Shellfish Sanitation. Upon receipt of any shellfish at the shore-based plant, certified shellfish dealers must immediately place any shellfish received from the harvester under mechanical refrigeration.

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

E. From May 1 through June 14, it shall be unlawful for any person or person aboard a vessel to harvest oysters from public or private grounds after 11 a.m., and oysters harvested before 11 a.m. shall be offloaded and placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers with ice by 11 a.m. that same day.

F. From June 15 through August 31, it shall be unlawful for any person or person aboard a vessel to harvest oysters from public or private grounds after 10 a.m., and oysters harvested before 10 a.m. shall be offloaded and placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers with ice by 10 a.m. that same day.

G. From September 1 through September 30, it shall be unlawful for any person or person aboard a vessel to harvest oysters from public or private grounds after noon, and oysters harvested before noon shall be offloaded and placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers with ice by noon that same day.

H. Except as described in subsections K and L of this section, oysters may be harvested after the designated harvesting time in subsections E, F, and G of this section, provided (i) the total time, from the time the vessel leaves the dock or shore until the oysters are offloaded from the vessel and placed in VDH Division of Shellfish Sanitation-approved mechanical refrigeration or storage containers with ice, shall not exceed five hours; (ii) there is a Virginia Marine Resources Commission-approved Global Positioning System tracking device on board the harvest vessel that is in continuous operation from the time that vessel leaves the dock or shore until the vessel returns to the dock and the oysters are offloaded from that vessel; 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 the harvester has designated a single landing site for that permit.

I. Any person who violates subsection H of this section shall be subject to immediate forfeiture of his Virginia Marine Resources Commission harvesting permit until such time that person appears before the commission.

J. I. From May 1 through September 30, a Bulk Seed Permit shall be obtained from the Virginia Marine Resources Commission for the harvest of any seed oysters that are greater than 2-1/2 inches. Any person who harvests any seed 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.

K. J. Any person may handle oysters as part of a cage aquaculture operation for husbandry purposes after the designated harvesting times described in subsections E, F, and G 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 E, F, and G 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.

L. K. 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 E, F, and G of this section, provided (i) there is a VDH Division of Shellfish Sanitation-approved refrigeration unit or ice storage area 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 single landing site for that permit; and (iii) the oysters are placed in an operating refrigeration unit or ice is applied to the oysters from the start of harvest and throughout the harvest period until the oysters are offloaded.

4VAC20-1230-35. Shellfish identification.

A. Any person harvesting shellfish for commercial purposes shall affix a tag to each container of shellfish before the shellfish are removed from that harvester's boat. The shellfish tag shall remain in place while the shellfish are transported to a certified dealer and shall remain affixed to each container of shellfish until the container is emptied or shipped and retagged by a dealer. For any quantities of harvested shellfish sold in bulk that are loose and not containerized aboard a boat, the harvester shall prepare a single tag for that quantity of shellfish that shall accompany that quantity of shellfish during transport, from the landing site to the dealer facilities.

B. The shellfish tag shall be durable, waterproof, and approved by the Marine Resources Commission, prior to use, and shall be at least 13.8 square inches in size.

C. The shellfish tag shall contain all of the following indelible and legible information, in the following order:

1. The harvester's VMRC identification number (last four digits) or VMRC oyster aquaculture harvester permit number or clam aquaculture harvester permit number;

2. The date of harvest;

3. The most accurate identification of the harvest location or aquaculture site, including the abbreviated name of the state of harvest and the commission's designation of the growing area by indexing, administrative, or geographic designation;

4. The type and quantity of harvested shellfish; and

5. The following statement, in bold capitalized letters: "THIS TAG IS REQUIRED TO BE ATTACHED UNTIL THE CONTAINER IS EMPTY OR IS RETAGGED AND THEREAFTER KEPT ON FILE FOR 90 DAYS."

D. When multiple containers of shellfish are harvested from a single harvest area in any one day and placed in a bulk container, the lot may be tagged with a single bulk tag that shall accompany the shellfish during transport from the landing site to the dealer facility. In addition to the information required in subsection C of this section, the bulk tag shall also include:

1. The following statement in bold capitalized letters: "ALL SHELLFISH CONTAINERS IN THIS LOT HAVE THE SAME HARVEST DATE AND AREA OF HARVEST" and

2. The number of individual containers in the lot.

4VAC20-1230-40. Penalty.

A. In addition to the penalty prescribed by law, any person violating any provision of this chapter shall destroy, in the presence of a marine police officer, all shellfish in his possession, or, at the direction of the marine police officer, shall place the shellfish overboard on the nearest oyster sanctuary or closed shellfish area and shall cease harvesting on that day. All harvesting apparatus shall be may be subject to seizure, and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits shall be may be subject to immediate forfeiture, until that person appears revocation following a hearing before the Marine Resources Commission.

B. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.