Notice of Proposed Rule

DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES
Division of Aquaculture
Rule No. : RULE TITLE :
5L-1.007: Container Identification, Terminal Sale Date; Prohibitions
5L-1.008: Shellfish Handling
PURPOSE AND EFFECT: The amendments propose to further protect the health of oyster consumers and are necessary to ensure that the State of Florida meets the requirements of the National Shellfish Sanitation Program (NSSP) as it relates to Vibrio vulnificus. The proposed rule amendments impact commercial harvesting and processing of oysters.
SUMMARY: The proposed amendments apply to commercial oyster harvesting and processing in Florida in order to protect the health of oyster consumers. Specifically, the proposed amendments remove multiple cooling options for oyster shellstock and implements one set of sequential time limits for the months from April through November by specifying shipping and receiving temperatures. Additionally, the text of Rule 5L-1.008, F.A.C., was reorganized. Seven workshops were held for interested parties across the state of Florida, in the principal areas of oyster industry activity.
SUMMARY OF STATEMENT OF ESTIMATED REGULATORY COSTS: The Agency has determined that this will have an impact on small business. An SERC has been prepared by the agency.
Any person who wishes to provide information regarding a statement of estimated regulatory costs, or provide a proposal for a lower cost regulatory alternative must do so in writing within 21 days of this notice.
RULEMAKING AUTHORITY: 597.020 FS.
LAW IMPLEMENTED: 597.020 FS.
A HEARING WILL BE HELD AT THE DATE, TIME AND PLACE SHOWN BELOW:
DATE AND TIME: April 29, 2011, 2:00 p.m. – 5:00 p.m. E.S.T.
PLACE: Apalachicola Community Center, 1 Battery Park, Apalachicola, FL 32320
Pursuant to the provisions of the Americans with Disabilities Act, any person requiring special accommodations to participate in this workshop/meeting is asked to advise the agency at least 7 days before the workshop/meeting by contacting: Chris Brooks, Division of Aquaculture, at (850)488-4033. If you are hearing or speech impaired, please contact the agency using the Florida Relay Service, 1(800)955-8771 (TDD) or 1(800)955-8770 (Voice).
THE PERSON TO BE CONTACTED REGARDING THE PROPOSED RULE IS: Chris Brooks, Division of Aquaculture, 1203 Governor’s Square Boulevard, Suite 501, Tallahassee, Florida 32301, Phone: (850)488-4033

THE FULL TEXT OF THE PROPOSED RULE IS:

5L-1.007 Container Identification, Terminal Sale Date; Prohibitions.

(1) Shucked shellfish container – The packer’s or repacker’s shellfish processing plant certification license number preceded by the state abbreviation must be embossed, imprinted, lithographed, or otherwise permanently and legibly recorded on the external body of containers or on the lid if the lid becomes an integral part of the container during the sealing process (Example: FL-872-SP). Containers shall permanently indicate type of product, quantity, and name and address of packer, repacker, or distributor. Containers of fresh shellfish, with a capacity of less than 64 ounces, shall further clearly and permanently bear the terminal sale date, by the numerical month, day, and last digit of the year. Containers of fresh shellfish with a capacity of 64 ounces or more, shall bear the actual shucking date by numerical month, day, and last digit of the year, in that order (Example: 01015). Reusable bulk storage containers shall be identified with state of origin, harvest date, and shuck date. Containers of frozen or previously frozen shellfish shall further clearly and permanently bear the date of shucking by numerical month, day, and last digit of the year, in that order (Example: 02097). Previously frozen shucked shellfish shall also have the freeze date and the thaw date following the same format. The terminal sale date for previously frozen shucked shellfish will be calculated by adding the day of shucking plus amount of time under refrigeration if not frozen, and adding the days that the product has been held thawed. Repacked shellfish containers shall also bear an appropriate code identifying the original packer. If oysters exceed the requirements found in subsection 5L-1.008(5), (6), (7), (8) or (9), F.A.C., the shucked shellfish container may be identified with the language “FOR POST HARVEST PROCESSING ONLY”.

(2) No change.

(3) The commercial harvester’s tags shall contain legible waterproof indelible information arranged in the specific order as follows:

(a) through (g) No change.

(h) The identification of the cooling option if used, including complete on-board cooling option (subsection 5L-1.008(7), F.A.C.), partial on-board cooling option (subsection 5L-1.008(8), F.A.C.), or rapid cooling option (subsection 5L-1.008(9), F.A.C.) for oysters harvested during the months of May through October.

(4) Bulk tagging is allowed for those aquaculturists operating with an aquaculture certificate. A bulk tag, containing the information required in paragraphs (3)(a)-(g) and (h), where applicable, along with the name of the certified shellfish dealer which the product is consigned to, shall be completed at each harvest location.

(5) Bulk tagging, by a certified shellfish dealer, while washing, packing, during depuration, wet storing, staging and intrastate transport of shellfish is permissible up to final packaging only when the lot container (i.e., pallet), contains shellfish which are harvested on the same day, from the same harvest area, and have the same intended use (i.e., for halfshell consumption, for shucking, or for further processing), and is tagged as follows:

(a) through (e) No change.

(f) The identification of the cooling option if used, including complete on-board cooling option (subsection 5L-1.008(7), F.A.C.), partial on-board cooling option (subsection 5L-1.008(8), F.A.C.), or rapid cooling option (subsection 5L-1.008(9), F.A.C.) for oysters harvested during the months of May through October.

(6) The dealer’s tag shall contain legible, waterproof, indelible information arranged in the specific order as follows:

(a) through (g) No change.

(h) If shellstock exceeds the requirements in subsection 5L-1.008(5), (6), (7), (8) or (9), F.A.C. the shellstock dealer tag shall be identified with the language “FOR SHUCKING ONLY BY A CERTIFIED DEALER” or “FOR POST HARVEST PROCESSING ONLY”. If the oyster shellstock meat temperature fails to cool to 55° F or less within 5 hours of being placed in refrigerated storage, the oyster shellstock shall be labeled with the language “FOR SHUCKING ONLY BY A CERTIFIED DEALER” or “FOR POST HARVEST PROCESSING ONLY”. The certified shellfish dealer shall destroy product if shellstock meat temperature is greater than 60° F. Shellstock labeled as “FOR SHUCKING ONLY BY A CERTIFIED DEALER” or “FOR POST HARVEST PROCESSING ONLY” must be shucked, Post Harvest Processed or sold only to a certified shucker packer or PHP processor.

(i) through (j) No change.

(7) through (8) No change.

(9) In addition to the identification and labeling requirements of subsections (1) and (2), containers of fresh, frozen, previously frozen or repacked shellfish or containers of shellstock must indicate the state of origin of the shellfish, e.g., LA, MS, TX. For shellstock this requirement can be by paragraphs (6)(a) and (b) above. Shellstock oysters received from other states must be processed according to the labeling requirements and the certified dealer’s HACCP plan must document that they were processed in accordance with the labeling requirements.

(10) through (12) No change.

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 5-21-87, 8-10-88, 7-9-89, 8-30-89, 5-6-93, 9-14-93, 8-21-94, Formerly 16R-7.010, Amended 9-1-95, 5-8-96, 2-6-97, 10-12-97, 2-12-98, 2-25-98, 7-1-98, 11-13-98, 12-28-98, 3-18-99, 7-1-99, Formerly 62R-7.010, Amended 6-19-00, 8-9-00, 10-14-01, 5-29-02, 8-17-04, 9-28-04, 7-28-08, 7-29-08, 4-26-10,________.

 

5L-1.008 Shellfish Handling.

Subsections 5L-1.008(1)-(7) Applicable to all shellfish:

(1) No change.

(2) Boats and vehicles – Boats and vehicles used in harvesting or transporting shellfish shall be constructed, operated, and maintained, so as to protect the shellfish from contamination. The following conditions shall apply at all times:

(a) Fuel tanks or other sources of contamination shall not be permitted to come into contact with shellfish.

(b) All boats used for commercial harvesting and handling shellfish shall be designed in such a way to prevent shellfish from coming in contact with any bilge water.

(c) No dogs or other animals or pets shall be allowed at any time on vessels or vehicles used to harvest or transport shellfish.

(d) No bodily wastes shall be discharged overboard from a harvest vessel.

(e) Shellstock harvested with commercial intent shall be protected by effective shading on harvest boats and vehicles to protect shellstock from exposure to sun, birds, and other adverse conditions.

(f) Shellfish shall be held under conditions which allows air circulation and promotes evaporative cooling.

(3) through (4) No change.

(5) Except as provided in subsections 5L-1.008(8)-(10), F.A.C., Throughout the year, it is harvester’s responsibility that shellfish shall be harvested between sunrise and sunset as established by the U.S. Weather Service. During the months of November, December, January, February, and March, the harvester shall assure that shellfish shall be delivered to a certified shellfish dealer by 10:00 p.m. of the same day as harvest. During the months of April, May, and October, harvesters shall assure that clams shall be delivered to a certified shellfish dealer within twelve (12) hours of the time of harvest. During the month of April, the harvester shall assure that oysters shall be delivered to a certified shellfish dealer within twelve (12) hours of the time of harvest. During the months of May, June, and July, the harvesters shall assure that oysters shall be delivered to a certified shellfish dealer by 11:30 a.m. unless authorized in a certified dealer HACCP plan for the complete on-board cooling option detailed in subsection 5L-1.008(7), F.A.C., or authorized in a certified shellfish dealer HACCP plan for the partial on-board cooling option detailed in subsection 5L-1.008(8), F.A.C., or authorized in a certified shellfish dealer HACCP plan for the rapid cooling option detailed in subsection 5L-1.008(9), F.A.C. During the months of August, September, and October, the harvesters shall assure that oysters shall be delivered to a certified shellfish dealer by 12:00 p.m. unless authorized by the Department as detailed in subsection 5L-1.008(7), F.A.C., for complete on-board cooling or authorized in a certified shellfish dealer HACCP plan for the partial on-board cooling option detailed in subsection 5L-1.008(8), F.A.C., or authorized in a certified shellfish dealer HACCP plan for the rapid cooling option detailed in subsection 5L-1.008(9), F.A.C. During the months of June, July, August, and September, the harvester shall assure that clams shall be delivered to a certified shellfish dealer within ten (10) hours of the time of harvest, or within the same day as harvest, whichever is earlier. All shellfish shall be delivered directly to a certified shellfish dealer possessing a shellfish processing plant certification license.

(6) Once received by a certified shellfish dealer, the shellstock lot shall be immediately processed and placed under temperature control and until sale to final consumer, the shellstock shall be maintained at an environmental temperature of 45º F or less and not be permitted to remain outside of temperature control for more than 2 hours cumulative at points of transfer within the processing plant such as loading docks or in the plant during processing except for the process described in paragraph 5L-1.013(3)(b), F.A.C. All certified shellfish dealers handling oysters must have a cooling system capable of reducing the internal temperature of shellstock oysters to 55 degrees F or less within 8-hours.

(7) Shellstock leaving a certified shellfish dealer shall be pre-cooled to 50 degrees F or less and shall be transported in an enclosed refrigerated conveyance with doors closed securely. The refrigeration unit shall be capable of maintaining an ambient temperature of 45 degrees F or less at all times. Certified shellfish dealers shall not accept shellstock from other certified shellfish dealers unless the product temperature is 50 degrees F or less. Complete On-Board Cooling Option – On-board cooling equipment includes but is not limited to systems using ice, mechanical refrigeration or vacuum cooling. If a commercial oyster harvester is using on-board cooling, the maximum time oysters can remain outside the cooling system is 1 hour and the harvester must demonstrate to the department that the on-board cooling system is capable of reducing the internal temperature of oysters to 55 degrees F or less within 9 hours or less. Commercial harvesters using complete on-board cooling systems must deliver the oysters to a certified shellfish dealer no later than 4:00 p.m. Certified shellfish dealers electing to purchase oysters from harvesters using complete on-board cooling systems must develop and demonstrate in their HACCP plan that the cooling rates on-board a vessel and in the certified shellfish dealer cooling system provide a safety level equivalent to product meeting subsection 5L-1.008(5), F.A.C., in order to be labeled in compliance with subsection 5L-1.007(6), F.A.C. Certified shellfish dealers electing to purchase oysters from harvesters using such complete on-board cooling systems must list the harvester name, harvester license number, the maximum time oysters can be unrefrigerated on-board a vessel and the total number of hours required to reduce the internal temperature of oysters to 55degrees F or less in their HACCP plan. Written approval must be received from the department prior to using such an on-board cooling system.

Subsections 5L-1.008(8)-(9) Applicable to oysters only:

(8) All certified shellfish dealers handling oysters must have a cooling system capable of reducing the internal temperature of shellstock oysters to 55 degrees F or less within 5 hours. Certified dealers must develop and demonstrate in their HACCP plan that their cooling system is capable of reducing the internal temperature of oysters to 55 degrees F or less within 5 hours or less for all months of the year.

(9) Commercial oyster harvester times.

(a) During the months of December, January, February, and March, the commercial harvester shall deliver oysters to a certified shellfish dealer by 10:00 p.m. of the calendar day in which they were harvested.

(b) During the months of April, May, October and November, the commercial harvester shall deliver oysters to a certified shellfish dealer by 1:00 p.m. of the calendar day in which they were harvested. During the months of April, May, October and November, the certified shellfish dealer shall place the harvested oysters in refrigerated storage by 2:00 p.m. of the calendar day in which they were harvested.

(c) During the months of June and September, the commercial harvester shall deliver oysters to a certified shellfish dealer by 12:00 p.m. of the calendar day in which they were harvested. During the months of June and September, the certified shellfish dealer shall place the harvested oysters in refrigerated storage by 1:00 p.m. of the calendar day in which they were harvested.

(d) During the months of July and August, the commercial harvester shall deliver oysters to a certified shellfish dealer by 11:00 a.m. of the calendar day in which they were harvested. During the months of July and August, the certified shellfish dealer shall place the harvested oysters in refrigerated storage by 12:00 p.m. of the calendar day in which they were harvested.

(e) Any oysters not delivered to a certified dealer by the times specified in paragraphs (a)-(d) must be returned to the nearest Prohibited shellfish harvesting waters by the harvester on the same calendar day in which they were harvested.

(8) Partial On-Board Cooling Option – Partial on-board cooling equipment includes but is not limited to systems using ice, mechanical refrigeration or vacuum cooling. If a commercial oyster harvester is using partial on-board cooling, the maximum time oysters can remain outside the cooling system is 1 hour and the harvester must demonstrate to the department that the on-board cooling system is capable of reducing the internal temperature of oysters to 65 degrees F or less within 7 hours or less. Commercial harvesters using partial on-board cooling systems must deliver the oysters to a certified shellfish dealer no later than 3:00 p.m. Certified shellfish dealers electing to purchase oysters from harvesters using on-board cooling systems must develop and demonstrate in their HACCP plan that the cooling rates on-board a vessel and in the certified shellfish dealer cooling system provide a safety level equivalent to product meeting subsection 5L-1.008(5), F.A.C., in order to be labeled in compliance with subsection 5L-1.007(6), F.A.C. Certified shellfish dealers electing to purchase oysters from harvesters using such on-board cooling systems must list the harvester name, harvester license number, the maximum time oysters can be unrefrigerated on-board a vessel and the total number of hours required to reduce the internal temperature of oysters to 55 degrees F or less in their HACCP plan. Prior to implementing the HACCP plan the certified shellfish dealer must have written approval from the Department.

(9) Rapid Cooling Option – Rapid cooling equipment includes but is not limited to systems using ice, mechanical refrigeration or vacuum cooling. If a certified shellfish dealer elects to rapidly cool oysters, the maximum cool down time to 55 degrees F or less must not exceed 2 hours. Commercial oyster harvesters working with certified shellfish dealers using the rapid cooling option must deliver oysters to the certified shellfish dealer no later than 2:00 p.m. The certified shellfish dealers must develop and demonstrate in their HACCP plan that the cooling rates in combination with extended harvest times assure a safety level equivalent to product meeting subsection 5L-1.008(5), F.A.C., in order to be labeled in compliance with subsection 5L-1.007(6), F.A.C. Certified shellfish dealers electing this option, must list the harvester name, harvester license number, the maximum time oysters can be unrefrigerated on-board vessel and the total number of hours required to reduce the internal temperature of oysters to 55 degrees F or less in their HACCP plan. Prior to implementing the HACCP plan the certified shellfish dealer must have written approval from the Department.

(10) Shellfish leaving a certified shellfish dealer must be transported in an enclosed, refrigerated conveyance with doors closed securely. The refrigeration unit must be capable of maintaining an ambient temperature of 45 degrees F or less at all times.

Subsection 5L-1.008(10) Applicable to clams only:

(10) Commercial clam harvester times.

(a) During the months of November, December, January, February, and March, the commercial harvester shall deliver clams to a certified shellfish dealer by 10:00 p.m. of the same day as harvest.

(b) During the months of April, May, and October, commercial harvesters shall deliver clams to a certified shellfish dealer within twelve (12) hours of the time of harvest, or within the same day as harvest, whichever is earlier.

(c) During the months of June, July, August, and September, the commercial harvester shall deliver clams to a certified shellfish dealer within ten (10) hours of the time of harvest, or within the same day as harvest, whichever is earlier.

Rulemaking Authority 597.020 FS. Law Implemented 597.020 FS. History–New 1-4-87, Amended 5-21-87, 8-10-88, 7-9-89, Formerly 16R-7.011, Amended 7-3-95, 2-6-97, 3-18-99, 6-23-99, Formerly 62R-7.011, Amended 8-9-00, 5-29-02, 7-29-08, 4-26-10,________.


NAME OF PERSON ORIGINATING PROPOSED RULE: Leslie Palmer, Director, Division of Aquaculture
NAME OF AGENCY HEAD WHO APPROVED THE PROPOSED RULE: Adam Putnam, Commissioner, Department of Agriculture and Consumer Services
DATE PROPOSED RULE APPROVED BY AGENCY HEAD: April 13, 2011
DATE NOTICE OF PROPOSED RULE DEVELOPMENT PUBLISHED IN FAW: December 17, 2010