OAR 603-025-0410: Requirements for Dungeness Crab

Domoic acid is a natural toxin that can accumulate in certain shellfish and fish species and cause amnesic shellfish poisoning, a serious illness, in consumers. In Oregon, a monitoring and response system for recreationally and commercially harvested shellfish and Dungeness crab is in place to protect public health and manage the risk of domoic acid contamination. The Oregon Department of Agriculture (ODA) analyzes Dungeness crab and crab viscera samples gathered from the waters of this state and the Pacific Ocean off Oregon for domoic acid. The Oregon Department of Fish and Wildlife (ODFW) is responsible for opening and closing the crab fishery as well as requiring restrictions and reporting on crab harvest and landing. (1) Application. These rules apply to commercial fishing and commercial landings regulated by ODFW pursuant to Oregon Revised Statutes (ORS) Chapter 509, to licensed food processors regulated by ODA pursuant to ORS Chapter 616, and to any person, wholesaler or food processor that purchases or receives crab harvested from the waters of this state or the Pacific Ocean off Oregon. (2) Definitions . For the purposes of these rules, unless the context requires otherwise. (a) “Biotoxin management zone” consists of at least one violative zone and the adjacent buffer zones. A violative zone is a harvest area with domoic acid test results at or above 30 ppm in crab viscera, at or above 20 ppm in crab meat, or both, that has been either closed to crab harvest or where the harvest and landing of crab for commercial purposes has been prohibited unless it is in accordance with sections 5 and 6 of this rule. ‘Buffer zone” is defined below. (b) “Buffer zone” means one or more harvest areas adjacent to a violative zone in which, in order to protect public health from domoic acid concerns, the harvest of crab for commercial purposes has been prohibited unless it is in accordance with sections 5 and 6 of this rule. A buffer zone is a part of the biotoxin management zone. Buffer zones have domoic acid results below 30 ppm in the viscera. (c) “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. (d) “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 . (e) “Eviscerate” or “Evisceration” means the common processor’s action of removing and discarding the entire intestinal tract, hepatopancreas, all associated abdominal organs of a crab. (f) “HACCP Plan” means a hazard analysis critical control point plan as described in 21 CFR §123.6 (2016). (g) “Harvest” means to fish for, hunt, pursue, catch, capture or kill, or attempt to fish for, hunt, pursue, catch, capture or kill. (h) “Harvest area” means a section of waters of this state or the Pacific Ocean off Oregon delineated for crab traceability purposes. Harvest area are defined as the following geographic areas, including all coastal waters of this state, intertidal areas, rivers and ports between the following boundaries, over which the state of Oregon has jurisdiction, and the Pacific Ocean off Oregon: 50-A: OR/WA border to Cape Falcon (latitude 46° 15’ N to latitude 45° 46’ N) including the Oregon portions of the Columbia River 50-B: Cape Falcon to Cape Lookout (latitude 45° 46’ N to latitude 45° 20.3’ N) 50-C: Cape Lookout to Cascade Head (latitude 45° 20.3’ N to latitude 45° 04’ N) 50-D: Cascade Head to Cape Foulweather (latitude 45° 04’ N to latitude 44° 46.4’ N) 50-E: Cape Foulweather to Waldport (latitude 44° 46.4’ N to latitude 44 ° 26’ N) 50-F: Waldport to Heceta Head (latitude 44° 26’ N to latitude 44° 08.3’ N) including the entirety of the Alsea Bay estuary 50-G: Heceta Head to Tahkenitch Creek (latitude 44° 08.3’ N to latitude 43° 47’ N) 50-H: Tahkenitch Creek to North Bend (latitude 43° 47’ N to latitude 43° 25’ N) 50-I: North Bend to Bandon (latitude 43° 25’ N to latitude 43° 07’ N) including the entirety of the Coos Bay and South Slough estuaries 50-J: Bandon to Cape Blanco (latitude 43° 07’ N to latitude 42° 50’ N) 50-K: Cape Blanco to Gold Beach (latitude 42° 50’ N to latitude 42° 26’ N) 50-L: Gold Beach to OR/CA border (latitude 42° 26’ N to latitude 42° 00’ N) including the entirety of the Gold Beach estuary (i) “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. (j) “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. (k) “Processing” means handling, storing, preparing, heading, eviscerating, freezing, changing into different market forms, manufacturing, preserving, packing, labeling, dockside unloading or holding. (l) “Results” or “domoic acid test results” means the test results that Oregon Department of Agriculture obtains by testing crab sample set(s) for domoic acid. (m) “Sell” includes to offer or possess for sale, barter, exchange or trade. (n) “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) Procedures for pre-season domoic acid testing (a) Prior to the opening of the crab fishing season, ODA will oversee the collection of crab sample set(s) from each harvest area and will test for domoic acid. ODA will oversee the collection of viscera and meat samples from each crab in each crab sample set. (b) Crab viscera samples will be tested first; if the domoic acid level in any viscera sample is at or above 30 ppm, meat samples will also be tested. If the domoic acid level in any meat sample is at or above 20 ppm, ODA will designate the relevant harvest area(s) as biotoxin management zone(s), and will recommend to ODFW to not open the biotoxin management zone(s). (c) Unrestricted opening of a harvest area at the beginning of the crab season requires domoic acid test results below 30 ppm in the viscera for all crab in the crab sample set from that harvest area. (d) If razor clam test results obtained by ODA in a particular harvest area show domoic acid levels of 20 ppm or higher or other indicators show a potential biotoxin concern, ODA may recommend collection of 2 consecutive crab sample sets at least 7 days apart or another frequency at ODA’s discretion. ODA will recommend unrestricted opening of the crab fishery only after domoic acid test results indicate domoic acid levels below 30 ppm in the viscera, and below 20 ppm in the meat, if tested, for all crab in each sample set. (e) If one or more crab domoic acid test results show domoic acid levels at or above 30 ppm in the viscera and below 20 ppm in the meat, ODA will designate the relevant harvest area(s) as biotoxin management zone(s). ODA will recommend to ODFW to not open the biotoxin management zone(s), or to open the biotoxin management zone(s) only in accordance with sections 5 and 6 of this rule. (4) Procedures for in-season crab domoic acid testing . (a) If domoic acid levels at or above 20 ppm are detected in razor clams or another indicator raises concern during the crab fishing season, ODA will oversee the collection of crab sample set(s) every 2 to 4 weeks for domoic acid testing in a harvest area. If no samples are obtained from a harvest area for 4 weeks during the crab fishing season, ODA may place evisceration restrictions on crab caught from that area, or ODA may recommend to ODFW to close the crab fishery in that harvest area. (b) ODA will oversee the collection of viscera and meat samples from each crab in each sample set. Viscera samples will be tested first; if the domoic acid level in any viscera sample is at or above 30 ppm, meat samples will also be tested. (c) If the domoic acid level in any single crab meat sample is at or above 20 ppm: (A) ODA will designate a biotoxin management zone and recommend to ODFW that the harvesting and landing of crab from the violative zone be prohibited starting from 12:01 am on the date the affected crab sample was harvested. Any crab already harvested from the violative zone starting from 12:01 am on the harvest date of the affected crab sample will be considered adulterated and may not be sold or donated under any circumstance. (B) ODA will recommend to ODFW to prohibit the harvest and landing of crab for commercial purposes from buffer zones unless it is in accordance with sections 5 and 6 of this rule. Buffer zone restrictions take effect at 12:01 am on the day the test results are issued. (C) ODA will supervise collection of 2 additional crab sample sets from the violative zone and at least one crab sample set from each adjacent buffer zone. All sample sets must be gathered at least 7 days apart. A shorter time frame between sample sets may be allowed at the discretion of ODA. (D) ODA will only lift the biotoxin management zone designation and recommend that ODFW harvest restrictions be removed after the violative zone(s) have 2 crab sample sets with domoic acid test results from all meat below 20 ppm and at least one sample set from each buffer zone shows all viscera results below 30 ppm. If results from the crab sample sets show domoic acid levels below 20 ppm in all meat samples but at or above 30 ppm in any viscera sample, a biotoxin management zone designation will remain in place, consistent with subsection (4)(d) of this rule. (d) If domoic acid test results from a crab sample set show domoic acid levels at or above 30 ppm in any viscera sample and below 20 ppm in all meat samples: (A) ODA will designate a biotoxin management zone(s) and recommend to ODFW to either prohibit harvest and landing of crab for commercial purposes from the violative zone(s) or to prohibit harvest and landing of crab for commercial purposes from the violative zone(s) unless it is in accordance with sections 5 and 6 of this rule. ODA will recommend to ODFW to begin these prohibitions starting from 12:01 am on the date the affected crab sample was harvested. Any crab already harvested from the violative zone starting from 12:01 am on the harvest date of the affected crab sample will be considered adulterated and under no circumstance may be sold or donated unless it is sold in accordance with sections 5 and 6 of this rule. (B) ODA will recommend to ODFW to prohibit the harvest and landing of crab for commercial purposes from buffer zones unless it is in accordance with sections 5 and 6 of this rule. Buffer zone restrictions take effect at 12:01 am on the day the test results are issued. (C) ODA will supervise collection of 2 additional crab sample sets from the violative zone and at least one crab sample set from each adjacent buffer zone. All sample sets must be gathered at least 7 days apart. A shorter time frame between sample sets may be allowed at the discretion of ODA. (D) ODA will only lift the biotoxin management zone designation and recommend that ODFW harvest restrictions be removed after the violative zone(s) have 2 crab sample sets with domoic acid test results from all viscera below 30 ppm and at least one sample set from each buffer zone shows all viscera results below 30 ppm. (5) All crab harvested from waters of this state or the Pacific Ocean off Oregon must comply with ODFW’s rules OAR 635-005-0466 and 635-006-0201. (6) Prohibition on uneviscerated crab sales to consumers. If pre-season or in-season testing conducted as described in Sections 3 and 4 of these rules detects domoic acid at or above 30 ppm in crab viscera but below 20 ppm in the meat in 1 or more harvest areas, and the conditions in Section 5 are met and ODA recommends the biotoxin management zone(s) open or remain open with prohibitions on uneviscerated crab sales, no person, processor, or wholesaler shall donate, hold, offer for sale or sell Dungeness crab from the biotoxin management zone unless the following conditions are met. (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 (6)(e). (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. (c) 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 (6)(d). (d) 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. (e) 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). (7) Penalties. Whenever it is found that any crab as described in subsection (6) 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, but not limited to: (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; and (d) Imposing civil penalties up to $10,000 for each violation as provided in ORS 616.997.