2007 Oregon Code - Chapter 622 :: Chapter 622 - Shellfish
Chapter 622 —
Shellfish
2007 EDITION
SHELLFISH
FOOD AND OTHER COMMODITIES
GENERAL PROVISIONS
622.010Â Â Â Â Definitions
622.020Â Â Â Â Certificate
of shellfish sanitation required to be dealer
622.030Â Â Â Â Exemptions
622.040Â Â Â Â Certificate
required for each area of operation
622.050Â Â Â Â Application
for certificate; inspections; expiration and renewal; rules
622.065Â Â Â Â Denial,
suspension and revocation of certificate; procedure
622.080Â Â Â Â Certificate
fees
622.090Â Â Â Â Disposition
of fees
622.100Â Â Â Â Certificate
not transferable
622.110Â Â Â Â Display
of certificates
622.160Â Â Â Â Signed
statement to be attached to shellfish consignment
622.170Â Â Â Â Records
of amount and source of shellfish
622.175Â Â Â Â Contract
with State Police for enforcement
622.180Â Â Â Â Powers
of department; rules; inspections; samples; condemnation
OYSTERS, CLAMS AND MUSSELS
622.210Â Â Â Â Department
defined
622.220Â Â Â Â Jurisdiction;
rules; violations
622.230Â Â Â Â Conversion
of plantations to plats; fees
622.240Â Â Â Â Classifying
lands for cultivation
622.250Â Â Â Â Application
for new plats; fee; notice
622.260Â Â Â Â Copies
of laws to be available
622.270Â Â Â Â Reports
of cultivators
622.280Â Â Â Â Withdrawal
of unproductive lands
622.290Â Â Â Â Annual
fees and taxes
622.300Â Â Â Â Use
of fees and taxes
622.310Â Â Â Â Effect
on prior-acquired rights
622.320Â Â Â Â Plats
as private property; restriction of public use of waters prohibited
622.330Â Â Â Â Private
oyster beds acquired under prior law not affected
622.340Â Â Â Â Transfer
by reference to filed plat; fee
622.350Â Â Â Â Prior
claims, plats, transfers or debts unaffected
622.360Â Â Â Â Cultivation
does not affect ocean shore activities
PENALTIES
622.992Â Â Â Â Penalties
GENERAL PROVISIONS
     622.010
Definitions. 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 personÂ’s own behalf or as the agent of another goes from place to place, or
house to house, carrying or offering shellfish for sale.
     (4) “Person” includes city, county and
state as well as those included within the definition 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 or frozen, whole or in part, except when the
final product is the shucked adductor muscle 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]
     622.020
Certificate of shellfish sanitation required to be dealer. No person shall act as a dealer without the
certificate or certificates of shellfish sanitation issued by the State Department
of Agriculture. [1955 c.331 §3; 1973 c.508 §2]
     622.030
Exemptions. 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 rules pursuant thereto.
     (3) Out-of-state dealers operating under a
state shellfish program indorsed by the United 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]
     622.040
Certificate required for each area of operation. A certificate of shellfish sanitation shall
specify the area of operation to which it applies. A separate certificate
validated for each area of operation as defined by ORS 622.080 and the State
Department of Agriculture rules made under this chapter is required. [1955
c.331 §7(3); 1973 c.508 §3]
     622.050
Application for certificate; inspections; expiration and renewal; rules. (1) A dealer shall make application to the
State Department of Agriculture for a certificate or certificates of shellfish
sanitation. The application shall be accompanied by the required fee or fees.
     (2) The department shall issue the initial
certificate or certificates of shellfish sanitation, if on inspection the
department finds that the dealer has complied with all the provisions of this
chapter and the rules of the department under this chapter.
     (3) Every certificate of shellfish
sanitation shall expire on December 31 following the date of issue or on such
date as may be specified by department rule. Any certificate of shellfish
sanitation may be renewed on payment of the required fee. Inspection is not a
condition precedent for renewal, but an inspection shall 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)]
     622.065
Denial, suspension and revocation of certificate; procedure. (1) The State Department of Agriculture may
suspend, deny or revoke any certificate of shellfish sanitation issued under
this section for violation of any applicable provisions 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 as provided in ORS chapter 183. [1973
c.508 §6 (enacted in lieu of 622.060 and 622.070)]
     622.070 [1955 c.331 §10; repealed by 1973 c.508 §5
(622.065 enacted in lieu of 622.070)]
     622.080
Certificate fees. (1)(a)
Persons engaged in the growing, production, harvesting or distribution of
shellfish who receive from such operations not more than $60,000 in annual
gross income shall pay the following annual fees to the State Department of Agriculture:
     (A) $150 for a certificate of shellfish
sanitation as a shucker-packer, for a person operating a shellfish shucking,
packing or repacking plant for the distribution of shellfish.
     (B) $100 for a certificate of shellfish
sanitation as a grower, for a person engaged in the business of growing
shellfish.
     (C) $100 for a certificate of shellfish
sanitation as a distributor, for any jobber or wholesaler who furnishes or
sells shellfish to retail outlets.
     (D) $75 for a certificate of shellfish
sanitation as a commercial harvester, for any person harvesting clams or
mussels for commercial purposes.
     (b) Notwithstanding the fees established
in paragraph (a) of this subsection, no commercial facility operating in one
location shall pay more than $250 in total annual fees to the department for
any combination of certificates issued under paragraph (a) of this subsection.
     (2)(a) Persons engaged in the growing,
production, harvesting or distribution of shellfish who receive from such
operations more than $60,000 in annual gross income shall pay the following
annual fees to the department:
     (A) $300 for a certificate of shellfish
sanitation as a shucker-packer, for a person operating a shellfish shucking,
packing or repacking plant for the distribution of shellfish.
     (B) $200 for a certificate of shellfish
sanitation as a grower, for a person engaged in the business of growing
shellfish.
     (C) $225 for a certificate of shellfish
sanitation as a distributor, for any jobber or wholesaler who furnishes or
sells shellfish to retail outlets.
     (D) $75 for a certificate of shellfish
sanitation as a commercial harvester, for any person harvesting clams or
mussels for commercial purposes.
     (b) Notwithstanding the fees established
in paragraph (a) of this subsection, no commercial facility operating in one
location shall pay more than $500 in total annual fees to the department for
any combination of certificates issued under paragraph (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]
     622.090
Disposition of fees. The
moneys received under ORS 622.050 shall be paid into the State Treasury and
placed to the credit of the Department of Agriculture Service Fund. Such moneys
hereby are appropriated continuously and shall be used only for the
administration and enforcement of ORS 622.010 to 622.180. ORS 291.238 does not
apply to the expenditure of such moneys. [1955 c.331 §7(1); 1973 c.427 §12;
1993 c.720 §5]
     622.100
Certificate not transferable.
A certificate of shellfish sanitation issued under this chapter is not
transferable from one dealer to another or from one area of operation to
another. [1955 c.331 §7(6)]
     622.110
Display of certificates.
Every dealer shall display the certificate of the dealer or certificates of
shellfish sanitation in accordance with the rules made under this chapter. [1955
c.331 §7(5); 1973 c.508 §8]
     622.160
Signed statement to be attached to shellfish consignment. No dealer shall send 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 the point of origin and the date
of harvesting or packing, if the consignor is required by law to have a
certificate of shellfish sanitation.
     (4) The source of the shellfish and the
fact of certification of the source by the State Department of Agriculture or
certification by a state whose shellfish program is indorsed by the United
States Public Health Service, if such certification is required by law. [1955
c.331 §4; 1973 c.508 §9]
     622.170
Records of amount and source of shellfish. Any dealer who gathers or receives shellfish from any source other
than that designated in the certificate or certificates of shellfish sanitation
shall keep accurate records of the amount and source of such shellfish, which
records shall be retained for at least 90 days. The State Department of
Agriculture shall have access to these records for inspection. [1955 c.331 §5;
1973 c.508 §10]
     622.175
Contract with State Police for enforcement. The State Department of Agriculture may contract with the Department
of State Police, using such funds as may be available therefor from fees paid
to the Department of Agriculture Service Fund pursuant to ORS 622.080, for
enforcement of the provisions of ORS 622.010 to 622.180. [1993 c.720 §7b]
     622.180
Powers of department; rules; inspections; samples; condemnation. For the protection of the public health, the
State Department of Agriculture shall have the following powers and all powers
necessary and proper to insure sanitary conditions in the production and
distribution of shellfish:
     (1) The department shall have power to
make rules necessary to enforce the provisions of this chapter. These rules
shall at least include the water quality of growing areas, quality of market
shellfish, water supply, sewage and waste disposal, drainage, plumbing,
building construction, boat and barge sanitation, the handling, storage, construction
and maintenance of equipment, lighting and ventilation, insect and rodent
control, garbage and refuse disposal, shell disposal, cleanliness of premises,
handling, storage and refrigeration of shellfish and the marking of certificate
numbers and dating codes on all containers. The department also, by rule, may
add to the definition of shellfish, and subject to regulation under ORS 622.010
to 622.180, any aquatic animals regulated as shellfish under the federal
National Shellfish Sanitation Program.
     (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 for human consumption, or are from an
uncertified source, or are improperly certified.
     (d) To issue certificates of shellfish
sanitation in accordance with the provisions of this chapter. [1955 c.331 §2;
1973 c.508 §11; 1995 c.25 §2]
OYSTERS,
CLAMS AND MUSSELS
     622.210
Department defined. As used
in ORS 622.210 to 622.360, “department” means the State Department of
Agriculture. [1981 c.638 §2; 1997 c.375 §1]
     622.220
Jurisdiction; rules; violations. (1) The commercial cultivation of oysters, clams and mussels is
declared to be an agricultural activity subject to the regulatory authority of
the State Department of Agriculture. The State Fish and Wildlife Commission has
jurisdiction over all native oysters, clams and mussels in the waters of this
state, but not cultivated oysters, clams and mussels in plats. The commission
shall prescribe such rules for the protection of native oysters, clams and
mussels and for the taking of native oysters and oyster spat shells subject to
the commissionÂ’s jurisdiction as in the judgment of the commission is for the
best interests of the resource.
     (2) It is unlawful for any person to take
native oysters, clams and mussels in violation of the rules adopted by the
commission. [Formerly 509.425; 1997 c.375 §2; 2005 c.22 §436]
     622.230
Conversion of plantations to plats; fees. All plats, rights, claims and plantations, and leases lawfully held
for such plats, rights, claims and plantations that exist upon the passage of
this 1969 Act shall be converted to plats, 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 readily identified.
     (3) Be accompanied by an application fee
of $25 per plat. [Formerly 509.427; 2005 c.22 §437]
     Note: Legislative Counsel made no substitution in
622.230 for “the passage of this 1969 Act.”
     622.240
Classifying lands for cultivation. The State Department of Agriculture shall investigate and classify
those state lands that are suitable for oyster, clam or mussel cultivation. The
department shall consult with appropriate local, state and federal agencies to
determine whether lands proposed by an applicant for oyster, clam and mussel
cultivation are suitable for such shellfish cultivation. [Formerly 509.429;
1997 c.375 §3]
     622.250
Application for new plats; fee; notice. (1) Applicants for new oyster plats, in addition 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 the application to be published
once a week for two consecutive weeks in a newspaper of general circulation in
each county where any area applied for, or any part thereof, is located. The
notice must state the name of the applicant and the type of operation the
applicant proposes to conduct and must describe the area to be planted with
oysters.
     (2) Not later than the 90th day after
publication of the notice referred to in subsection (1) of this section, and
upon finding that the notice complied with the requirements of subsection (1)
of this section, the State Department of Agriculture may grant to the applicant
the area applied for if the area is known to be available and if the department
has classified the area as suitable for oyster cultivation.
     (3) If the application referred to in this
section is denied, the department shall provide the applicant with a written
statement explaining the reason for the denial.
     (4) Any person who holds an oyster
plantation claim or plat that was in effect on June 1, 1997, may submit to the
department an application to cultivate clams or mussels 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 ORS 622.230 (1) and (2) and be
accompanied by a fee of $250 for each such claim or plantation. [Formerly
509.431; 1997 c.249 §189; 1997 c.375 §4; 2005 c.22 §438]
     622.260
Copies of laws to be available.
The State Department of Agriculture shall cause copies of the provisions of ORS
622.230 and 622.250 to be made available at the courthouse of each county in
which an applicantÂ’s approved plat, or part thereof, is located. [Formerly
509.433]
     622.270
Reports of cultivators. Any
person cultivating oysters, clams or mussels shall file an annual report with
the State Department of Agriculture before March 1 of each year showing the
number of gallons, bushels or dozens of each species of oysters, or the number
of pounds of each species of clams or mussels harvested by the person during
the preceding calendar year. The report shall be made on forms provided by the
department. [Formerly 509.436; 1997 c.375 §5]
     622.280
Withdrawal of unproductive lands. (1) If, for a period of three years after the filing of a plat under
chapter 675, Oregon Laws 1969, more than one-half the lands claimed are
unproductive, the State Department of Agriculture may withdraw from a claimant
and consider abandoned any portion of the unproductive lands claimed by such
claimant. However, the reason for such unproductiveness shall not include
restrictions by governmental health authorities, 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 ORS 622.290, unless the department is
satisfied that there was reasonable cause for such 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 mussel cultivation. [Formerly 509.439; 1997 c.375 §6]
     622.290
Annual fees and taxes. (1)
Persons using state lands for cultivating oysters, clams or mussels shall pay
annual cultivation fees and use taxes quarterly to the State Department of
Agriculture. Fees and taxes become delinquent 30 days after the end of the
quarter.
     (2) Use taxes shall be in the amount of 10
cents per gallon of oysters if sold by the gallon, 10 cents per bushel of
oysters if sold in the shell by the bushel or one cent per dozen oysters if
sold by the dozen.
     (3) Use taxes shall be in the amount of
one-half cent per pound of clams or mussels sold.
     (4) The annual cultivation fee shall be in
the amount of $4 for each acre claimed pursuant to chapter 675, Oregon Laws
1969, or claimed pursuant to a plat made subsequent thereto.
     (5) Annual cultivation fees and use taxes
shall be assessed in lieu of property taxes, lease fees or rental charges for
the use of lands upon which oysters, clams or mussels are grown and harvested. [Formerly
509.441; 1997 c.375 §7; 2003 c.14 §374]
     622.300
Use of fees and taxes. All
moneys received by the State Department of Agriculture under ORS 622.290 shall
be paid over to the State Treasurer and deposited in the Department of
Agriculture Service Fund and be subject to ORS 561.144. All such moneys are
appropriated continuously to the department to carry out the provisions of ORS
622.220 and 622.320. [Formerly 509.451]
     622.310
Effect on prior-acquired rights. Nothing in ORS 506.036 and 622.210 to 622.310 affects any oyster
cultivation right acquired prior to January 1, 1982, pursuant to chapter 675,
Oregon Laws 1969. [1981 c.638 §12]
     622.320
Plats as private property; restriction of public use of waters prohibited. Any plats of lands for the cultivation of
oysters, clams or mussels held by citizens of this state, if distinctly marked
out by means which do not obstruct navigation, and not exceeding the extent
allowed by regulations, shall be deemed and protected as private property. Such
plats, however, shall not restrict the rights of the public to the use of the
waters of this state in a normal and customary manner. [Formerly 509.455; 1997
c.375 §8]
     622.330
Private oyster beds acquired under prior law not affected. Nothing in ORS 509.505, 511.625, 622.210 to
622.300 and 622.320 interferes with any rights in, or ownership of, any private
plantations of oysters or oyster beds acquired or held under law existing on
February 17, 1921. [Formerly 509.470]
     622.340
Transfer by reference to filed plat; fee. (1) Sales, leases, assignments, conveyances, relinquishments and other
transfers of oyster plantations and claims, or parts thereof, or of plats for
the cultivation of oysters, clams or mussels may be made by reference to the
plat filed as provided in ORS 622.210 to 622.300 and 622.320. The heirs,
successors, assignees and lessees of those plats are entitled to continued
possession of such plats by compliance with ORS 622.210 to 622.300 and 622.320.
     (2) A person proposing to sell, lease,
assign, convey, relinquish or otherwise transfer an oyster plantation claim or
a plat for the cultivation of oysters, clams or mussels shall provide the State
Department of Agriculture notice of such transaction within 30 days of the
effective date of the transaction.
     (3) The filing of such a notice, if other
than a relinquishment, shall be accompanied by a claim or plat certificate
reissuance fee of $100 for each affected claim or plat.
     (4) The failure to provide the notice
required by subsection (2) of this section shall result in the department
holding the lessor of record of the claim or plat responsible for compliance
with the provisions of ORS 622.210 to 622.360 and all provisions of the lease
grant certificate. [Formerly 509.495; 1997 c.375 §9]
     622.350
Prior claims, plats, transfers or debts unaffected. Nothing in ORS 622.340 invalidates any claim
or plat filed prior to June 14, 1939, or invalidates in any manner any
transfers, debts or conveyances made prior to June 14, 1939, of oyster claims
or lands made by reference to any filed claims or plats. [Formerly 509.500]
     622.360
Cultivation does not affect ocean shore activities. Nothing in ORS 622.210, 622.220, 622.240,
622.250, 622.270, 622.280, 622.290, 622.320 or 622.340 is intended to affect
activities on the ocean shore, as defined in ORS 390.605. [1997 c.375 §11]
PENALTIES
     622.990 [1955 c.331 §11; repealed by 1973 c.508 §12
(622.992 enacted in lieu of 622.990)]
     622.992
Penalties. Violation of any
provision of ORS 622.010 to 622.180 or the rules of the division promulgated
under ORS 622.180 is a Class C misdemeanor. [1973 c.508 §13 (enacted in lieu of
622.990)]
_______________
CHAPTER 623
[Reserved for expansion]
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