ORS Chapter 622
Chapter 622 — Shellfish
2009 EDITION
SHELLFISH
FOODAND OTHER COMMODITIES
GENERALPROVISIONS
622.010 Definitions
622.020 Certificateof shellfish sanitation required to be dealer
622.030 Exemptions
622.040 Certificaterequired for each area of operation
622.050 Applicationfor certificate; inspections; expiration and renewal; rules
622.065 Denial,suspension and revocation of certificate; procedure
622.080 Certificatefees
622.090 Dispositionof fees
622.100 Certificatenot transferable
622.110 Displayof certificates
622.160 Signedstatement to be attached to shellfish consignment
622.170 Recordsof amount and source of shellfish
622.175 Contractwith State Police for enforcement
622.180 Powersof department; rules; inspections; samples; condemnation
OYSTERS,CLAMS AND MUSSELS
622.210 Departmentdefined
622.220 Jurisdiction;rules; violations
622.230 Conversionof plantations to plats; fees
622.240 Classifyinglands for cultivation
622.250 Applicationfor new plats; fee; notice
622.260 Copiesof laws to be available
622.270 Reportsof cultivators
622.280 Withdrawalof unproductive lands
622.290 Annualfees and taxes
622.300 Useof fees and taxes
622.310 Effecton prior-acquired rights
622.320 Platsas private property; restriction of public use of waters prohibited
622.330 Privateoyster beds acquired under prior law not affected
622.340 Transferby reference to filed plat; fee
622.350 Priorclaims, plats, transfers or debts unaffected
622.360 Cultivationdoes not affect ocean shore activities
PENALTIES
622.992 Criminalpenalty
622.996 Civilpenalties; rules; hearing; disposition of moneys
GENERALPROVISIONS
622.010Definitions.As used in this chapter:
(1)“Dealer” means every person or peddler engaged in the business of growing,harvesting, processing or distributing shellfish for human consumption.
(2)“Department” means the State Department of Agriculture.
(3)“Peddler” means every person who on the person’s own behalf or as the agent ofanother goes from place to place, or house to house, carrying or offeringshellfish for sale.
(4)“Person” includes city, county and state as well as those included within thedefinition of person in ORS 174.100.
(5)“Shellfish” means:
(a)All edible species of oysters, either shucked or in the shell, fresh or frozen,whole or in part and intended for human consumption.
(b)All edible species of clams, either shucked or in the shell, fresh or frozen,whole or in part and intended for human consumption.
(c)All edible species of mussels, either shucked or in the shell, fresh or frozen,whole or in part and intended for human consumption.
(d)All edible species of scallops, either shucked or in the shell, fresh orfrozen, whole or in part, except when the final product is the shucked adductormuscle only, and intended for human consumption. [1955 c.331 §1; 1969 c.283 §1;1973 c.508 §1; 1993 c.720 §6; 1995 c.25 §1]
622.020Certificate of shellfish sanitation required to be dealer. No person shallact as a dealer without the certificate or certificates of shellfish sanitationissued by the State Department of Agriculture. [1955 c.331 §3; 1973 c.508 §2]
622.030Exemptions.This chapter shall not affect the following:
(1)Retail stores selling to the ultimate consumer.
(2)Operations subject to ORS chapters 616, 619, 621, 625, ORS 624.010 to 624.121,632.275 to 632.290, 632.450 to 632.490 and 632.900 to 632.985 and to the rulespursuant thereto.
(3)Out-of-state dealers operating under a state shellfish program indorsed by theUnited States Public Health Service. [1955 c.331 §6; 1957 c.66 §1; 1969 c.283 §2;1973 c.508 §1a; 1983 c.160 §5; 1995 c.206 §2]
622.040Certificate required for each area of operation. A certificateof shellfish sanitation shall specify the area of operation to which itapplies. A separate certificate validated for each area of operation as definedby ORS 622.080 and the State Department of Agriculture rules made under thischapter is required. [1955 c.331 §7(3); 1973 c.508 §3]
622.050Application for certificate; inspections; expiration and renewal; rules. (1) A dealershall make application to the State Department of Agriculture for a certificateor certificates of shellfish sanitation. The application shall be accompaniedby the required fee or fees.
(2)The department shall issue the initial certificate or certificates of shellfishsanitation, if on inspection the department finds that the dealer has compliedwith all the provisions of this chapter and the rules of the department underthis chapter.
(3)Every certificate of shellfish sanitation shall expire on December 31 followingthe date of issue or on such date as may be specified by department rule. Anycertificate of shellfish sanitation may be renewed on payment of the requiredfee. Inspection is not a condition precedent for renewal, but an inspectionshall be made at some time within the renewal year. [1955 c.331 §7(1),(2),(4);1973 c.508 §4; 2007 c.768 §31]
622.060 [1955 c.331 §9;repealed by 1973 c.508 §5; (622.065 enacted in lieu of 622.060)]
622.065Denial, suspension and revocation of certificate; procedure. (1) The StateDepartment of Agriculture may suspend, deny or revoke any certificate ofshellfish sanitation issued under this section for violation of any applicableprovisions of ORS 622.010 to 622.180 or any rule promulgated under ORS 622.180.
(2)Procedures for denial, revocation or suspension of a certificate shall be asprovided in ORS chapter 183. [1973 c.508 §6 (enacted in lieu of 622.060 and622.070)]
622.070 [1955 c.331 §10;repealed by 1973 c.508 §5 (622.065 enacted in lieu of 622.070)]
622.080Certificate fees.(1)(a) Persons engaged in the growing, production, harvesting or distributionof shellfish who receive from such operations not more than $60,000 in annualgross income shall pay the following annual fees to the State Department ofAgriculture:
(A)$150 for a certificate of shellfish sanitation as a shucker-packer, for aperson operating a shellfish shucking, packing or repacking plant for thedistribution of shellfish.
(B)$100 for a certificate of shellfish sanitation as a grower, for a personengaged in the business of growing shellfish.
(C)$100 for a certificate of shellfish sanitation as a distributor, for any jobberor wholesaler who furnishes or sells shellfish to retail outlets.
(D)$75 for a certificate of shellfish sanitation as a commercial harvester, forany person harvesting clams or mussels for commercial purposes.
(b)Notwithstanding the fees established in paragraph (a) of this subsection, no commercialfacility operating in one location shall pay more than $250 in total annualfees to the department for any combination of certificates issued underparagraph (a) of this subsection.
(2)(a)Persons engaged in the growing, production, harvesting or distribution ofshellfish who receive from such operations more than $60,000 in annual grossincome shall pay the following annual fees to the department:
(A)$300 for a certificate of shellfish sanitation as a shucker-packer, for aperson operating a shellfish shucking, packing or repacking plant for thedistribution of shellfish.
(B)$200 for a certificate of shellfish sanitation as a grower, for a personengaged in the business of growing shellfish.
(C)$225 for a certificate of shellfish sanitation as a distributor, for any jobberor wholesaler who furnishes or sells shellfish to retail outlets.
(D)$75 for a certificate of shellfish sanitation as a commercial harvester, forany person harvesting clams or mussels for commercial purposes.
(b)Notwithstanding the fees established in paragraph (a) of this subsection, nocommercial facility operating in one location shall pay more than $500 in totalannual fees to the department for any combination of certificates issued underparagraph (a) of this subsection. [1955 c.331 §8; 1969 c.283 §3; 1973 c.508 §7;1979 c.696 §10; 1993 c.720 §4; 2007 c.71 §188]
622.090Disposition of fees.The moneys received under ORS 622.050 shall be paid into the State Treasury andplaced to the credit of the Department of Agriculture Service Fund. Such moneyshereby are appropriated continuously and shall be used only for theadministration and enforcement of ORS 622.010 to 622.180. ORS 291.238 does notapply to the expenditure of such moneys. [1955 c.331 §7(1); 1973 c.427 §12;1993 c.720 §5]
622.100Certificate not transferable. A certificate of shellfish sanitationissued under this chapter is not transferable from one dealer to another orfrom one area of operation to another. [1955 c.331 §7(6)]
622.110Display of certificates. Every dealer shall display the certificate of thedealer or certificates of shellfish sanitation in accordance with the rulesmade under this chapter. [1955 c.331 §7(5); 1973 c.508 §8]
622.160Signed statement to be attached to shellfish consignment. No dealer shallsend or accept any shellfish without a signed statement attached showing:
(1)The name of the consignor.
(2)The name of the consignee.
(3)The number of the consignor’s certificate of shellfish sanitation issued at thepoint of origin and the date of harvesting or packing, if the consignor isrequired by law to have a certificate of shellfish sanitation.
(4)The source of the shellfish and the fact of certification of the source by theState Department of Agriculture or certification by a state whose shellfishprogram is indorsed by the United States Public Health Service, if suchcertification is required by law. [1955 c.331 §4; 1973 c.508 §9]
622.170Records of amount and source of shellfish. Any dealer who gathers orreceives shellfish from any source other than that designated in thecertificate or certificates of shellfish sanitation shall keep accurate recordsof the amount and source of such shellfish, which records shall be retained forat least 90 days. The State Department of Agriculture shall have access tothese records for inspection. [1955 c.331 §5; 1973 c.508 §10]
622.175Contract with State Police for enforcement. The State Department ofAgriculture may contract with the Department of State Police, using such fundsas may be available therefor from fees paid to the Department of AgricultureService Fund pursuant to ORS 622.080, for enforcement of the provisions of ORS622.010 to 622.180. [1993 c.720 §7b]
622.180Powers of department; rules; inspections; samples; condemnation. For theprotection of the public health, the State Department of Agriculture shall havethe following powers and all powers necessary and proper to insure sanitaryconditions in the production and distribution of shellfish:
(1)The department shall have power to make rules necessary to enforce theprovisions of this chapter. These rules shall at least include the waterquality of growing areas, quality of market shellfish, water supply, sewage andwaste disposal, drainage, plumbing, building construction, boat and bargesanitation, the handling, storage, construction and maintenance of equipment,lighting and ventilation, insect and rodent control, garbage and refusedisposal, shell disposal, cleanliness of premises, handling, storage and refrigerationof shellfish and the marking of certificate numbers and dating codes on allcontainers. The department also, by rule, may add to the definition ofshellfish, and subject to regulation under ORS 622.010 to 622.180, any aquaticanimals regulated as shellfish under the federal National Shellfish SanitationProgram.
(2)The department shall have power:
(a)To inspect any dealer in every phase and locale of operation.
(b)To take samples of any shellfish for bacteriological and toxicity study.
(c)To condemn or remove from sale and destroy any shellfish which are unfit forhuman consumption, or are from an uncertified source, or are improperlycertified.
(d)To issue certificates of shellfish sanitation in accordance with the provisionsof this chapter. [1955 c.331 §2; 1973 c.508 §11; 1995 c.25 §2]
OYSTERS,CLAMS AND MUSSELS
622.210Department defined.As used in ORS 622.210 to 622.360, “department” means the State Department ofAgriculture. [1981 c.638 §2; 1997 c.375 §1]
622.220Jurisdiction; rules; violations. (1) The commercial cultivation ofoysters, clams and mussels is declared to be an agricultural activity subjectto the regulatory authority of the State Department of Agriculture. The StateFish and Wildlife Commission has jurisdiction over all native oysters, clamsand mussels in the waters of this state, but not cultivated oysters, clams andmussels in plats. The commission shall prescribe such rules for the protectionof native oysters, clams and mussels and for the taking of native oysters andoyster spat shells subject to the commission’s jurisdiction as in the judgmentof the commission is for the best interests of the resource.
(2)It is unlawful for any person to take native oysters, clams and mussels inviolation of the rules adopted by the commission. [Formerly 509.425; 1997 c.375§2; 2005 c.22 §436]
622.230Conversion of plantations to plats; fees. All plats, rights, claims andplantations, and leases lawfully held for such plats, rights, claims andplantations that exist upon the passage of this 1969 Act shall be converted toplats, shall be filed with the State Department of Agriculture by July 1, 1970,and shall:
(1)Include a legal description of the area applied for, specifying its acreage.
(2)Be accompanied by a map sufficient to permit the area applied for to be readilyidentified.
(3)Be accompanied by an application fee of $25 per plat. [Formerly 509.427; 2005c.22 §437]
Note: LegislativeCounsel made no substitution in 622.230 for “the passage of this 1969 Act.”
622.240Classifying lands for cultivation. The State Department of Agricultureshall investigate and classify those state lands that are suitable for oyster,clam or mussel cultivation. The department shall consult with appropriatelocal, state and federal agencies to determine whether lands proposed by anapplicant for oyster, clam and mussel cultivation are suitable for suchshellfish cultivation. [Formerly 509.429; 1997 c.375 §3]
622.250Application for new plats; fee; notice. (1) Applicants for new oyster plats, inaddition to submitting an application in compliance with ORS 622.230 (1) and(2) and the submission of a fee of $250 per plat, shall cause notice of theapplication to be published once a week for two consecutive weeks in anewspaper of general circulation in each county where any area applied for, orany part thereof, is located. The notice must state the name of the applicantand the type of operation the applicant proposes to conduct and must describethe area to be planted with oysters.
(2)Not later than the 90th day after publication of the notice referred to insubsection (1) of this section, and upon finding that the notice complied withthe requirements of subsection (1) of this section, the State Department ofAgriculture may grant to the applicant the area applied for if the area isknown to be available and if the department has classified the area as suitablefor oyster cultivation.
(3)If the application referred to in this section is denied, the department shallprovide the applicant with a written statement explaining the reason for thedenial.
(4)Any person who holds an oyster plantation claim or plat that was in effect onJune 1, 1997, may submit to the department an application to cultivate clams ormussels on not more than 20 percent of the lands subject to the claim or plat,but not less than one acre. Any such application must be in compliance with ORS622.230 (1) and (2) and be accompanied by a fee of $250 for each such claim orplantation. [Formerly 509.431; 1997 c.249 §189; 1997 c.375 §4; 2005 c.22 §438]
622.260Copies of laws to be available. The State Department of Agricultureshall cause copies of the provisions of ORS 622.230 and 622.250 to be madeavailable at the courthouse of each county in which an applicant’s approvedplat, or part thereof, is located. [Formerly 509.433]
622.270Reports of cultivators. Any person cultivating oysters, clams or musselsshall file an annual report with the State Department of Agriculture beforeMarch 1 of each year showing the number of gallons, bushels or dozens of eachspecies of oysters, or the number of pounds of each species of clams or musselsharvested by the person during the preceding calendar year. The report shall bemade on forms provided by the department. [Formerly 509.436; 1997 c.375 §5]
622.280Withdrawal of unproductive lands. (1) If, for a period of three yearsafter the filing of a plat under chapter 675, Oregon Laws 1969, more thanone-half the lands claimed are unproductive, the State Department of Agriculturemay withdraw from a claimant and consider abandoned any portion of theunproductive lands claimed by such claimant. However, the reason for suchunproductiveness shall not include restrictions by governmental healthauthorities, the unavailability of seed or infestation by pest or disease.
(2)The department may withdraw from a claimant and consider abandoned those lands:
(a)On which the claimant fails to pay the fees or use taxes referred to in ORS622.290, unless the department is satisfied that there was reasonable cause forsuch failure.
(b)That are not marked in the manner provided by ORS 622.320.
(c)That are used or held for purposes other than oyster, clam or musselcultivation. [Formerly 509.439; 1997 c.375 §6]