.04 Shellfish Aquaculture Harvester Permit.
A. Except for a demonstration lease holder, a lease holder or a lease transfer applicant shall submit an application, provided by the Department, and obtain a shellfish aquaculture harvester permit prior to engaging in aquaculture activities.
B. A shellfish aquaculture harvester permit:
(1) Shall be valid for a 1-year term beginning on January 1 and expiring on December 31 each year;
(2) Shall be automatically renewed for a new term upon receipt of all reports required under Regulation .03D of this chapter;
(3) Is not transferable; and
(4) Is an operator card for the purposes of Natural Resources Article, §4-11A-16.1, Annotated Code of Maryland.
C. Reporting. A person who is permitted by the Department under this regulation shall submit a monthly aquaculture harvest activity report on forms provided by the Department by the 10th day following the end of each month.
D. Permit Registrants.
(1) Except for an individual under the supervision of a shellfish aquaculture harvester permittee who is present on the leased area, an individual engaged in aquaculture activities within the area described in the permit applicant's lease shall be:
(a) Named as a permittee or permit registrant under the shellfish aquaculture harvester permit; and
(b) In possession of a shellfish aquaculture harvester registration card issued to the individual by the Fisheries Service.
(2) A shellfish aquaculture harvester permittee shall immediately notify the Department of any changes of named permit registrants on a form provided by the Department.
(3) A shellfish aquaculture harvester registration card shall be issued to each shellfish aquaculture harvester permittee and permit registrant.
(4) A shellfish aquaculture harvester permittee shall be responsible for all work and acts performed on the leased area under the permittee’s supervision.
E. Any individual engaged in aquaculture activities on a leased area or transporting shellfish from a lease to a dealer:
(1) Shall harvest, transport, and store shellfish in accordance with the National Shellfish Sanitation Program Model Ordinance that is incorporated by reference in COMAR 10.15.07.01A;
(2) Except as provided in §E(3) of this regulation, may not harvest oysters from a:
(a) Water column lease that are less than 2 inches from hinge to bill; or
(b) Submerged land lease that are less than:
(i) 2 inches from hinge to bill from April 1 through September 30; or
(ii) 3 inches from hinge to bill from October 1 through the following March 31;
(3) Shall have written permission from the Department if in possession of undersized shellfish outside of the leased area;
(4) May possess seed oysters;
(5) May only sell oysters in accordance with COMAR 08.02.08.02;
(6) Shall implement vibrio parahaemolyticus control measures in accordance with COMAR 10.15.07.06;
(7) Shall store oysters in accordance with §G of this regulation; and
(8) Shall tag oysters in accordance with §H of this regulation.
F. Tolerance Limit.
(1) A shellfish aquaculture harvester permittee or permit registrant may not possess oysters harvested from a lease that include a combined total of more than 5 percent of shells and oysters which measure less than the minimum allowable size specified in §E(2) of this regulation.
(2) In ascertaining this percentage the Department shall select by random sample an amount of oysters from any pile, hold, bin, house, or place as deemed proper, cull the sample, and require any undersized oysters to be returned to the lease area.
(3) All small oysters and cultch that adhere to marketable oysters shall be separated, and the marketable oysters shall be excluded from any measurement of small oysters and cultch.
(4) A person may possess marketable oysters that have undersized oysters or spat less than 1 inch in length from hinge to bill attached to them that cannot be separated without destroying the small oyster.
G. Containers.
(1) Oysters harvested from a lease shall be placed in a container of any size prior to leaving the lease from which they were harvested.
(2) Oysters shall remain in the original container until a tag is no longer required on the container in accordance with §J(1)(d) of this regulation.
H. Tagging of Individual Containers.
(1) Except as provided in §H(2) and I of this regulation, an individual storing oysters in accordance with §H of this regulation shall complete and affix a Department-issued tag to each container of oysters prior to leaving the lease from which the oysters were harvested.
(2) An individual storing oysters in accordance with §G of this regulation may use a tag not supplied by the Department if:
(a) The individual:
(i) Is licensed and certified to sell shellfish by the Maryland Department of Health in accordance with COMAR 10.15.04 and 10.15.07; and
(ii) Follows the tagging requirements of the National Shellfish Sanitation Program Model Ordinance, incorporated by reference by the Maryland Department of Health in COMAR 10.15.07.01; and
(b) Each tag contains:
(i) The statement “Farm-Raised Shellfish”; and
(ii) The lease number.
(3) Department-issued tags shall only be used by the individual to whom the tags were originally issued.
I. Bulk Tagging.
(1) Definitions.
(a) In this regulation the following terms have the following meanings.
(b) “Bulk tag” means a tag that provides the necessary information as required by the National Shellfish Sanitation Program Model Ordinance for a single lot of oysters.
(c) “Single lot” means oysters coming from a single lease, harvested during a single trip on a single day.
(2) Except as provided in §I(3) of this regulation, an individual storing oysters in accordance with §G of this regulation may complete and affix a Department-issued bulk tag to a single container of oysters prior to leaving the lease from which the oysters were harvested.
(3) An individual storing oysters in accordance with §G of this regulation may use a bulk tag not supplied by the Department if:
(a) The individual:
(i) Is licensed and certified to sell shellfish by the Maryland Department of Health in accordance with COMAR 10.15.04 and 10.15.07; and
(ii) Follows the tagging requirements of the National Shellfish Sanitation Program Model Ordinance, incorporated by reference by the Maryland Department of Health in COMAR 10.15.07.01; and
(b) Each tag contains:
(i) The statement “Farm-Raised Shellfish”;
(ii) The lease number; and
(iii) The following statement in bold capitalized letters: “ALL SHELLFISH CONTAINERS IN THIS LOT HAVE THE SAME HARVEST DATE AND ARE FROM THE SAME LEASE”; and
(iv) The number of individual containers in the lot.
(4) If a bulk tag is used, the vessel may only harvest from one lease on that trip.
J. Tagging Provisions for Both Tagging of Individual Containers and Bulk Tags.
(1) Tags:
(a) Shall be durable and waterproof;
(b) Shall be at least 5-1/2 x 2-3/4 inches in size;
(c) Shall be completed legibly in indelible ink;
(d) Shall stay affixed to the container until the container is in the possession of a person who is licensed and certified to sell shellfish by the Maryland Department of Health in accordance with COMAR 10.15.04 and 10.15.07; and
(e) May not be reused.
(2) In addition to the tagging requirements of this regulation, a person who is licensed and certified to sell shellfish by the Maryland Department of Health in accordance with COMAR 10.15.04 and 10.15.07 shall follow the tagging requirements of the National Shellfish Sanitation Program Model Ordinance, incorporated by reference by the Maryland Department of Health in COMAR 10.15.07.01.
(3) An individual shall only possess one type of tag, wild shellfish or farm-raised shellfish, while harvesting oysters.
(4) An individual shall possess only one type of tag, individual or bulk, while harvesting oysters.
(5) An individual may not use a farm-raised shellfish tag to tag wild shellfish.
(6) An individual may not use a wild shellfish tag to tag farm-raised shellfish.
K. Denial, Suspension, and Revocation.
(1) Denial. The Department may deny issuance of a shellfish aquaculture harvester permit or registration card if the applicant or listed registrant:
(a) Submits an incomplete or untruthful application;
(b) Has commercial fishing privileges that are currently suspended or revoked for shellfish violations;
(c) Had all commercial fishing privileges revoked; or
(d) Held a shellfish aquaculture harvester permit or registration card that was revoked in accordance with §I(2) of this regulation within 3 years of the date of the application.
(2) Suspension or Revocation. A shellfish aquaculture harvester permit or a shellfish aquaculture harvester registration card may be suspended or revoked by the Department if the individual:
(a) Violates:
(i) A provision of this chapter;
(ii) A provision of Natural Resources Article, Title 4, Subtitle 11A, Annotated Code of Maryland;
(iii) COMAR 08.02.04.15C(3);
(iv) A term or condition of the permit or registration card; or
(v) A term or condition of a Shellfish Lease Agreement;
(b) Receives a conviction for taking shellfish:
(i) From a closed or prohibited area;
(ii) With illegal gear;
(iii) More than 2 hours after sunset or any time before sunrise;
(iv) During the closed season; or
(v) That are under the minimum size limit;
(c) Receives more than one conviction related to the illegal harvest of shellfish within a two year period;
(d) Has commercial fishing privileges that are currently suspended or revoked for shellfish violations; or
(e) Had all commercial fishing privileges revoked.
(3) Appeal.
(a) Except as provided in §I(3)(c) of this regulation, prior to denying issuance of, suspending or revoking a shellfish aquaculture harvester permit or a shellfish aquaculture harvester registration card, the Department shall give the individual notice of its intended action and an opportunity to appear at a hearing conducted in accordance with the contested case procedures set forth in State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland, and COMAR 08.01.04.
(b) If an individual submits a written request for a hearing to the Department within 30 days after the date that the notice required under this paragraph is mailed, the Department shall:
(i) Hold a hearing after providing at least 10 days’ notice to the individual; and
(ii) Conduct the hearing in accordance with State Government Article, Title 10, Subtitle 2, Annotated Code of Maryland.
(c) The Department may deny an application for, or suspend or revoke a shellfish aquaculture harvester permit or a shellfish aquaculture harvester registration card issued under this chapter without a hearing if the individual:
(i) Does not submit a written request for a hearing to the Department within 30 days after the date that the notice required under this paragraph is mailed;
(ii) Fails to appear for a scheduled hearing for which the Department provided notice; or
(iii) Is prohibited from holding a permit or registration card as the result of a prior adjudication, settlement agreement, or consent order.
