Or. Admin. Code § 603-025-0423 - Biotoxin Management Zone: Bandon to California Border

(1) Application. This rule applies to commercial fishing and commercial landings regulated by the Oregon Department of Fish and Wildlife pursuant to Oregon Revised Statutes (ORS) Chapter 509, to licensed food processors regulated by the Oregon Department of Agriculture pursuant to ORS Chapter 616, and to any person, wholesaler, or food processor that purchases or receives whole crab harvested in the area from Cape Blanco (42° 50' N. Lat.) to Gold Beach (42° 26' N. Lat.)between 12:01 am February 11, 2019 and 11:59 pm March 25, 2019 and from Bandon (43° 07' N. Lat.) to Cape Blanco (42° 50' N. Lat.) between 12:01 am February 14, 2019 and 11:59 pm March 25, 2019 and from Gold Beach (42° 26' N. Lat.) southward to the California border (42° 00.00' N. Lat.) between 12:01 am February 14, 2019 and 11:59 pm March 21, 2019.

(2) Definitions. For the purposes of this rule, unless the context requires otherwise:

(a) "Biotoxin management zone" means one or more harvest areas that, in order to protect public health from domoic acid concerns, has been either closed to crab harvest or where take of crab for commercial purposes has been prohibited unless it is processed in accordance with Section 3 of this rule. Biotoxin management zones may include areas with sample results above and below biotoxin thresholds in order to provide a buffer to protect public health.

(b) "Crab sample set" means all whole crab collected for pre-season testing, routine monitoring, or during a restriction or closure, during a specific sample gathering event from multiple depths within a harvest area.

(c) "Crab" means Dungeness crab (Cancer magister or Metacarcinus magister) harvested and sold for commercial purposes from waters of this state or the Pacific Ocean off Oregon.

(d) "Eviscerate" or "Evisceration" means the common processor's action of removing and discarding the entire intestinal tract, hepatopancreas, all associated abdominal organs.

(e) "HACCP Plan" means a hazard analysis critical control point plan as described in 21 CFR § 123.6 (2016).

(f) "Harvest area" means a section of waters of this state or the Pacific Ocean off Oregon delineated for crab traceability purposes. Harvest area boundaries will be delineated on a map available from ODFW.

(g) "Land", "Landed", or "Landing" means either of the following:

(A) For fisheries where food fish were taken by use of a vessel, "land, landed, or landing" means to begin transfer of food fish from a vessel. Once transfer begins, all food fish on board the vessel are counted as part of that landing.

(B) For fisheries where food fish were taken without use of any vessel, "land, landed, or landing" means to begin transfer of food fish from a harvester to a wholesale fish dealer, wholesale fish bait dealer, or food fish canner, under which the following provisions apply:

(i) When the harvester and the wholesale fish dealer, wholesale fish bait dealer, or food fish canner are the same person or entity, transfer occurs when the food fish arrive at the licensed premises of the wholesale fish dealer, wholesale fish bait dealer, or food fish canner; and

(ii) Once transfer begins, all food fish from the harvest area are counted as part of that landing.

(h) "Processor" means any person engaged in commercial, custom, or institutional processing of fish or fishery products, in Oregon, in another state, or in a foreign country. A processor includes any person engaged in the production of any foods that are to be used in market or consumer tests.

(i) "Processing" means handling, storing, preparing, heading, eviscerating, freezing, changing into different market forms, manufacturing, preserving, packing, labeling, dockside unloading,or holding.

(j) "Sell" includes to offer or possess for sale, barter, exchange, or trade.

(k) "Wholesaler" means any person who buys crab that is subject to these rules for resale to retailers, other merchants, or industrial, institution, and commercial users for resale or business use.

(3) Prohibitions.

(a) The area from Bandon (43° 07.00' N. Lat.) southward to the California border (42° 00.00' N. Lat.) is hereby designated a biotoxin management zone. It is prohibited to sell, offer for sale, donate, or hold whole crab harvested in the area from Cape Blanco (42° 50' N. Lat.) to Gold Beach (42° 26' N. Lat.) between 12:01 am February 11, 2019 and 11:59 pm March 25, 2019 and from Bandon (43° 07' N. Lat.) to Cape Blanco (42° 50' N. Lat.) between 12:01 am February 14, 2019 an 11:59 pm March 25, 2019 and from Gold Beach (42° 26' N. Lat.) southward to the California border (42° 00.00' N. Lat.) between 12:01 am February 14, 2019 and 11:59 pm March 21, 2019, unless:

(A) The crab is conveyed or sold to a food processing establishment licensed by ODA or to a licensed food processor that eviscerates and processes crab consistent with subsection (3)(d); or

(B) The crab is conveyed or sold to a wholesaler that in turn sells all crab subject to these rules to a food processor that is licensed by ODA or to a licensed processor.

(b) In no case may uneviscerated crab be conveyed, sold, or donated to retailers or directly to consumers unless it is processed as described in subsection (3)(c).

(c) Food processors or wholesalers are prohibited from selling or offering for sale to retailers or to consumers crab as described in this section unless:

(A) The licensed processor conducts its activities consistent with a seafood HACCP plan; and

(B) The crab is eviscerated.

(d) If any of the landed crab in a landing from a fishing vessel came from a biotoxin management zone, the entire landing shall be subject to the requirements of this section. Landings for which the harvest area is unspecified shall be subject to the requirements of this section. Failure of a producer or wholesaler to notify processors that crab originated from a biotoxin management zone and so must be processed consistent with this section before it is donated, held, offered for sale, or sold to consumers will be considered a violation of ORS 616.215(1).

(4) Penalties. Whenever it is found that any crab as described in subsection (3) is sold, offered for sale, or donated to any person in a manner that is inconsistent with these rules, the crab is considered adulterated food, and the holding, or offering for sale of crab is prohibited as provided in ORS 616.215(1). If any person violates these rules, ODA may proceed with any lawful remedy including:

(a) Seeking the district attorney to institute proceedings in the proper courts to be prosecuted in the manner required by law;

(b) Enjoining violations of law in a summary proceeding;

(c) Embargo, seizure, or detention consistent with the provisions of ORS 561.605 - 630;

(d) Civil penalties up to $10,000 for each violation as provided in ORS 616.997

Notes

Or. Admin. Code § 603-025-0423

DOA 6-2019, temporary adopt filed 02/14/2019, effective 2/14/2019 through 08/12/2019; DOA 9-2019, temporary adopt filed 03/28/2019, effective 3/28/2019 through 08/12/2019

Statutory/Other Authority: ORS 616.215, 616.225, 616.235 & 561.190

Statutes/Other Implemented: ORS 616.215 & 616.235