subchapter 03k - OYSTERS, CLAMS, SCALLOPS AND MUSSELS

 

section .0100 – shellfish, general

 

15A NCAC 03K .0101       PROHIBITED SHELLFISH AREAS/ACTIVITIES

(a)  It is unlawful to possess, sell, or take oysters, clams or mussels from areas which have been designated as prohibited (polluted) by proclamation by the Fisheries Director except as provided in 15A NCAC 03K .0103, .0104, .0107, and .0401.  The Fisheries Director shall issue such proclamations upon notice by the Division of Environmental Health that duly adopted criteria for approved shellfish harvest areas have not been met.  The Fisheries Director may reopen any such closed area upon notification from the Division of Environmental Health that duly adopted criteria for approved shellfish harvest areas have been met.  Copies of these proclamations and maps of these areas are available upon request at the Division of Marine Fisheries, 3441 Arendell St., Morehead City, NC 28557; (252) 726‑7021.

(b)  The Fisheries Director may, by proclamation, close areas to the taking of oysters, clams, scallops and mussels in order to protect the shellfish populations for management purposes or for public health purposes not specified in Paragraph (a) of this Rule.

(c)  It is unlawful to possess or sell oysters, clams, or mussels taken from polluted waters outside North Carolina.

 

History Note:        Authority G.S. 113‑134; 113-168.5; 113-169.2; 113‑182; 113‑221; 113-221.1; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. July 1, 1993;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. August 1, 2000;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. October 1, 2008; April 1, 2003.

 

15A NCAC 03K .0102       PROHIBITED RAKES

It is unlawful to use a rake more than 12 inches wide or weighing more than six pounds to take:

(1)           oysters or scallops;

(2)           clams in any live oyster bed, in any established bed of submerged aquatic vegetation as described in  15A NCAC 03I .0101, or in any established bed of salt water cordgrass (Spartina alterniflora).

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. October 1, 2008; February 1, 2008.

 

15A NCAC 03K .0103       shellfish management areas

(a)  The Fisheries Director may, by proclamation, designate Shellfish Management Areas which meet either of the following criteria.  The area has:

(1)           conditions of bottom type, salinity, currents, cover or cultch necessary for shellfish growth;

(2)           shellfish populations or shellfish enhancement projects that may:

(A)          produce commercial quantities of shellfish at 10 bushels or more per acre;

(B)          produce shellfish suitable for transplanting as seed or for relaying from prohibited (polluted) areas; or

(C)          serve as sanctuaries to increase spawning and disease resistance or to prevent predation.

(b)  It is unlawful to use a trawl net, long haul seine, or swipe net in any designated Shellfish or Seed Management area.  These areas shall be marked with signs or buoys.  Unmarked and undesignated tributaries shall be the same designation as the designated waters to which they connect or into which they flow.  No unauthorized removal or relocation of any such marker shall have the effect of changing the designation of any such body of water or portion thereof, nor shall any such unauthorized removal or relocation or the absence of any marker affect the applicability of any rule pertaining to any such body of water or portion thereof.

(c)  It is unlawful to take shellfish from any Shellfish Management Area which has been closed and posted, except that the Fisheries Director may, by proclamation, open specific areas to allow the taking of shellfish and may designate time, place, character, or dimensions of any method or equipment that may be employed.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑221; 113.221.1; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. October 1, 2008; February 1, 2008; April 1, 2003.

 

15A NCAC 03K .0104       PERMITS FOR PLANTING SHELLFISH FROM PROHIBITED/POLLUTED AREAS

(a)  It is unlawful to take oysters or clams from prohibited (polluted) public waters for planting on leases and franchises except as authorized by G.S. 113-203.  Lease and franchise holders shall first obtain a permit from the Fisheries Director setting forth the time, area, and method by which such shellfish may be taken.  The procedures and requirements for obtaining permits are found in 15A NCAC 03O .0500.

(b)  The season for relaying clams shall be between April 1 and May 15 and the season for relaying oysters shall be for a specified six week period between the date of the statewide closure of oyster season and June 30, as determined by the Fisheries Director based on the status of oyster resources available for harvest from public bottom and market factors affecting sale of oysters from public bottom which will assist in determining the statewide closure date and manpower available to monitor the relaying activity.

(c)  For areas designated by the Fisheries Director as sites where shellfish would otherwise be destroyed in maintenance dredging operations, the season as set out in Paragraph (b) of this Rule shall not apply.

(d)  The Fisheries Director, acting upon recommendations of the Division of Environmental Health, shall close and reopen by proclamation any private shellfish beds for which the owner has obtained a permit to relay oysters and clams from prohibited (polluted) public waters.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑203; 113‑221; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1996; September 1, 1991;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. April 1, 2003.

 

15A NCAC 03K .0105       RECREATIONAL harvest of shellfish

(a)  It is unlawful to take oysters or clams from public bottoms on Sundays, and scallops from public bottoms on Saturdays and Sundays except:

(1)           during open seasons, and

(2)           for recreational purposes.

(b)  It is unlawful to possess, for recreational purposes, more than:

(1)           10 conchs or whelks per person per day, not to exceed 20 conchs or whelks per vessel per day, and

(2)           100 mussels per person per day, not to exceed 200 mussels per vessel per day, and

(3)           100 clams per person per day, not to exceed 200 clams per vessel per day.

 

History Note:        Authority G.S. 113‑134; 113-169.2; 113‑182; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994; February 1, 1992; September 1, 1991;

Temporary Amendment Eff. October 9, 1995 for a period of 180 days or until the permanent rule becomes effective, whichever is sooner;

Amended Eff. May 1, 1997; March 1, 1996;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. October 1, 2008; August 1, 2000.

 

15A NCAC 03K .0106       TAKING OR UNLOADING OYSTERS AND CLAMS ON SUNDAY OR AT nIGHT

(a)  It is unlawful to take oysters or clams between the hours of sunset and sunrise on any day.

(b)  It is unlawful to unload oysters or clams from any vessel or remove any vessel containing oysters or clams from the water on Sunday or between sunset and sunrise on any day except that in New Hanover, Pender and Brunswick Counties, oysters and clams may be unloaded until two hours after sunset.

(c)  Oysters and clams taken on Sunday from public bottom under the provisions of 15A NCAC 03K .0105 or from shellfish leases and franchises pursuant to G.S. 113-208 are exempt from Paragraph (b) of this Rule.

 

History Note:        Authority G.S. 113‑134; 113-182; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. October 1, 2008; August 1, 2000.

 

15A NCAC 03K .0107       DEPURATION OF SHELLFISH

(a)  It is unlawful to take clams or oysters from the public or private prohibited (polluted) waters of the state for the purpose of depuration except when the harvest will utilize shellfish that would otherwise be destroyed in maintenance dredging operations.  All harvest and transport activities within the State of North Carolina related to depuration shall be under the supervision of the Division of Marine Fisheries or the Division of Environmental Health.  For the purpose of this Rule, the term depuration does not include relaying of clams or oysters from shellfish leases or franchises as authorized by 15A NCAC 03K .0104.

(b)  The Fisheries Director, may, by proclamation, impose any or all of the following restrictions on the harvest of clams or oysters for depuration:

(1)           Specify species;

(2)           Specify areas except harvest will not be allowed from designated buffer zones adjacent to sewage outfall facilities;

(3)           Specify harvest days;

(4)           Specify time period;

(5)           Specify quantity or size;

(6)           Specify harvest methods;

(7)           Specify record keeping requirements.

(c)  Depuration permits:

(1)           It is unlawful for individuals to harvest clams or oysters from prohibited (polluted) waters for the purpose of depuration unless they have obtained a Depuration Permit or are listed as designees on a Depuration Permit from the Division of Marine Fisheries and Division of Environmental Health setting forth the method of harvest to be employed.  Permits shall be issued to licensed North Carolina Clam or Oyster Dealers only.  Permittees and designees harvesting under Depuration Permits must have a current Shellfish License or Shellfish Endorsement on a Standard or Retired Standard Commercial Fishing License.

(2)           In addition to information required in 15A NCAC 03O .0501, the permit application shall provide the name, address, location and telephone number of the depuration operation where the shellfish will be depurated.

(3)           Clam or Oyster Dealers desiring to obtain prohibited (polluted) clams or oysters for depuration shall apply for a depuration permit at least 15 days prior to initiation of operation.

(d)  Transport of clams or oysters for depuration:

(1)           Clams or oysters harvested from prohibited (polluted) waters for depuration in a depuration operation located within the State of North Carolina shall be transported under the supervision of the Division of Marine Fisheries or the Division of Environmental Health.

(2)           Clams or oysters harvested from prohibited (polluted) waters for depuration in a depuration operation outside the State of North Carolina shall not be transported within the State of North Carolina except under the supervision of the Division of Marine Fisheries or the Division of Environmental Health.

(e)  It is unlawful to ship clams or oysters harvested for depuration to depuration facilities located in a state other than North Carolina unless the facility is in compliance with the applicable rules and laws of the shellfish control agency of that state.

(f)  The procedures and requirements for obtaining permits are found in 15A NCAC 03O .0500.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 113-221.1; 143B‑289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. October 1, 2008; April 1, 2003.

 

15A NCAC 03K .0108       DREDGES/MECHANICAL METHODS PROHIBITED

(a) It unlawful to use mechanical methods, except mechanical methods for oystering and clamming defined in 15A NCAC 03I .0101, to take shellfish.

(b) It is unlawful to use mechanical methods for oystering or clamming to take shellfish not subject to the restrictions in 15A NCAC 03K .0201, .0204, .0302, 0304, .0404, .0501, and .0503:

(1)           within any established bed of submerged aquatic vegetation as defined in 15A NCAC 03I .0101 or salt water cordgrass (Spartina alterniflora);

(2)           in areas designated in 15A NCAC 03R .0108, except on shellfish leases and franchises with a Permit to Use Mechanical Methods for Oysters and Clams on Shellfish Leases and Franchises;

(3)           in areas designated in 15A NCAC 03K .0204 and 03R .0103; and

(4)           except following restrictions for the use of mechanical methods specified pursuant to 15A NCAC 03J .0303 and 03K .0201, .0302, .0404, .0501, and .0503.

 

History Note:        Authority G.S. 113-134; 113-201; 143B-289.52;

Eff. October 1, 2008.

 

15A NCAC 03K .0109       SHELLFISH HARVESTER AND DEALER TAGS

It is unlawful to possess or sell oysters, clams, or mussels in a commercial fishing operation without a harvest tag affixed to each container of oysters, clams or mussels. Tags shall be affixed by the harvester or dealer and shall meet the following criteria:

(1)           Tags shall be identified as harvest tags.  They shall be durable for at least 90 days, water resistant, and a minimum of two and five‑eighths inches by five and one‑fourth inches in size.

(2)           Tags shall be securely fastened to the outside of each container in which shellstock is transported. A harvester or dealer tag shall be securely fastened to the outside of each container at a dealer location except, bulk shipments of shellfish in one container and from the same source may have one tag with all required information attached. Harvesters who are also certified shellfish dealers may use only their dealer tag if it contains the required information.  The required information shall be included on all lots of shellfish subdivided or combined into market grades or market quantities by a harvester or a certified shellfish dealer.

(3)           Tags shall be attached to all shellfish stored at a dealer location.

(4)           Tags shall contain legible information arranged in the specific order as follows:

(a)           The harvester's name, address and shellfish license or standard or retired standard commercial fishing license with shellfish endorsement number.

(b)           The date of harvest.

(c)           The most precise description of the harvest location as is practicable (e.g., Long Bay, Rose Bay) that can be easily located by maps and charts.

(d)           Type and quantity of shellfish.

(e)           The following statement in bold, capitalized type:  "THIS TAG IS REQUIRED TO BE ATTACHED UNTIL CONTAINER IS EMPTY AND THEREAFTER KEPT ON FILE FOR 90 DAYS".

 

History Note:        Authority G.S. 113‑134; 113-168.5; 113-169.2; 113‑182; 113‑221; 143B‑289.52;

Eff. October 1, 2008.

 

15A NCAC 03K .0110       PUBLIC HEALTH AND Control of Oysters, clams, SCALLOPS, and mussels

(a)  The National Shellfish Sanitation Program Guide for Control of Molluscan Shellfish, Section II: Model Ordinance (Model Ordinance) includes requirements for the sale or distribution of shellfish from approved areas or shellstock dealers, as defined in 15A NCAC 18A .0301, and to ensure that shellfish have not been adulterated or mislabeled during cultivation, harvesting, processing, storage, or transport. To protect public health, the Fisheries Director may, by proclamation, impose requirements of the Model Ordinance as set forth in Paragraph (b) of this Rule on any of the following:

(1)           the cultivation, distribution, harvesting, processing, sale, storage, or transport of

(A)          oysters;

(B)          clams;

(C)          scallops; or

(D)          mussels;

(2)           areas used to store shellfish;

(3)           means and methods to take shellfish;

(4)           vessels used to take shellfish; or

(5)           shellstock conveyances as defined in 15A NCAC 18A .0301.

(b)  Proclamations issued under this Rule may impose any of the following requirements:

(1)           specify time and temperature controls;

(2)           specify sanitation requirements to prevent a food safety hazard, as defined in 15A NCAC 18A .0301, or cross-contamination or adulteration of shellfish;

(3)           specify sanitation control procedures set forth in 21 Code of Federal Regulations (CFR) Part 123.11;

(4)           specify Hazard Analysis Critical Control Point (HACCP) requirements set forth in 21 CFR Part:

(A)          123.3 Definitions;

(B)          123.6 HACCP Plan;

(C)          123.7 Corrective Actions;

(D)          123.8 Verification;

(E)           123.9 Records; and

(F)           123.28 Source Controls;

(5)           specify tagging and labeling requirements;

(6)           implement the National Shellfish Sanitation Program's training requirements for shellfish harvesters and certified shellfish dealers;

(7)           require sales records and collection and submission of information to provide a mechanism for tracing shellfish product back to the water body of origin; and

(8)           require product recall and specify recall procedures.

21 CFR 123.3, 123.6-9, 123.11, and 123.28 are hereby incorporated by reference, including subsequent amendments and editions. A copy of the reference materials can be found at http://www.ecfr.gov/cgi-bin/text-idx?SID=f4cdd666e75f54ccda1d9938f4edd9ab&mc=true&tpl=/ecfrbrowse/Title21/21tab_02.tpl, free of charge.

(c)  Proclamations issued under this Rule shall suspend appropriate rules or portions of rules under the authority of the Marine Fisheries Commission as specified in the proclamation. The provisions of 15A NCAC 03I .0102 terminating suspension of a rule pending the next Marine Fisheries Commission meeting and requiring review by the Marine Fisheries Commission at the next meeting shall not apply to proclamations issued under this Rule.

 

History Note:        Authority G.S. 113-134; 113-182; 113-201; 113-221.1; 113-221.2; 143B-289.52;

Eff. April 1, 2014;

Amended Eff. May 1, 2017.

 

15A NCAC 03K .0111       PERMITS TO USE MECHANICAL METHODS FOR SHELLFISH ON SHELLFISH LEASES OR FRANCHISES

(a)  Permits to Use Mechanical Methods for Shellfish on Shellfish Leases or Franchises shall  be  issued  in compliance with the general rules governing all permits in 15A NCAC 03O .0500. The procedures and requirements for obtaining permits are found in 15A NCAC 03O .0501.

(b)  It is unlawful to harvest shellfish by the use of mechanical methods from shellfish leases or franchises without first obtaining a Permit to Use Mechanical Methods for Shellfish on Shellfish Leases or Franchises.

 

History Note:        Authority G.S. 113-134; 113-169.1; 113-182; 143B-289.52;

Eff. May 1, 2015.

 

SECTION .0200 – OYSTERS

 

15A NCAC 03K .0201       Oyster HARVEST MANAGEMENT

(a)  It is unlawful to take or possess oysters from public bottom except from October 15 through March 31.

(b)  The Fisheries Director may, by proclamation, impose any of the following restrictions on the taking of oysters:

(1)           specify time;

(2)           specify area;

(3)           specify means and methods;

(4)           specify season within the period set forth in Paragraph (a) of this Rule;

(5)           specify size, but the minimum size limit specified shall not be less than three inches, except the minimum size limit specified shall not be less than two and one-half inches to prevent loss of oysters due to predators, pests, or infectious oyster diseases; and

(6)           specify quantity, but the quantity shall not exceed possession of more than 20 standard U.S. bushels in a commercial fishing operation per day.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 113-221.1; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. May 1, 2017; October 1, 2008; March 1, 1996; September 1, 1991.

 

15A NCAC 03K .0202       CULLING REQUIREMENTS FOR Oysters

(a)  It is unlawful to possess oysters which have accumulated dead shell, accumulated oyster cultch material, a shell length less than that specified by proclamation issued under the authority of Rule .0201 of this Section, or any combination thereof that exceeds a five-percent tolerance limit by volume. In determining whether the tolerance limit is exceeded, the Fisheries Director or his agents may grade all, any portion, or any combination of portions of the entire quantity being graded and, in cases of violations, may seize and return to public bottom or otherwise dispose of the oysters as authorized by law.

(b)  All oysters shall be culled where harvested and all oysters of less than legal size, accumulated dead shell, and cultch material shall be immediately returned to the bottom from which it was taken.

(c)  This Rule shall not apply to oysters imported from out‑of‑state solely for shucking by shucking and packing plants permitted by the Division of Marine Fisheries.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1996; September 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. May 1, 2017; August 1, 2000.

 

15A NCAC 03K .0203       TRAWLING ACROSS OYSTER MANAGEMENT AREAS PROHIBITED

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.4;

Eff. January 1, 1991;

Repealed Eff. March 1, 1994.

 

15A NCAC 03K .0204       DREDGES / MECHANICAL METHODS PROHIBITED

It is unlawful to use any dredge or other mechanical method to take oysters:

(1)           in the Mechanical Methods Prohibited areas designated in 15A NCAC 03R .0108, except on shellfish leases and franchises by permit; and

(2)           on any posted bottoms upon which oysters or shells have been planted by the state, unless such bottoms have been opened to the public and dredging permitted.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. August 1, 2004; May 1, 1997.

 

15a ncac 03k .0205       MARKETING OYSTERS TAKEN FROM PRIVATE SHELLFISH BOTTOMS

(a)  It is unlawful to take, possess, buy, or sell oysters from shellfish leases or franchises during the open season unless such oysters have been culled in accordance with Rule 15A NCAC 03K .0202.

(b)  It is unlawful to sell, purchase or possess oysters during the regular closed season without the lease or franchise holder delivering to the purchaser or other recipient a certification, on a form provided by the Division, that the oysters were taken from a valid shellfish lease or franchise.  Certification forms shall be furnished by the Division to lease and franchise holders upon request.

(c)  It is unlawful for lease or franchise holders or their designees to take or possess oysters from public bottom while possessing aboard a vessel oysters taken from shellfish leases or franchises.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑201; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 1991;

Temporary Amendment Eff October 1, 2001;

Amended Eff. April 1, 2003.

 

15A NCAC 03K .0206       PERMITS TO USE MECHANICAL METHODS FOR OYSTERS OR CLAMS ON SHELLFISH LEASES OR FRANCHISES

 

History Note:        Authority G.S. 113-134; 113-182; 143B-289.52;

Eff. October 1, 1992;

Temporary Amendment Eff. September 1, 2000;

Amended Eff. August 1, 2002;

Repealed Eff. May 1, 2015.

 

15a ncac 03k .0207       OYSTER SIZE AND HARVEST LIMIT EXEMPTION

Possession and sale of oysters by a hatchery or oyster aquaculture operation and purchase and possession of oysters from a hatchery or oyster aquaculture operation shall be exempt from bag and size limit restrictions set under authority of 15A NCAC 03K .0201 and 03K .0202. It is unlawful to possess, sell, purchase, or transport such oysters unless they are in compliance with all conditions of the Aquaculture Operations Permit.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Temporary Adoption Eff. October 1, 2001;

Eff. April 1, 2003.

 

15A NCAC 03K .0208       SEED OYSTER MANAGEMENT AREAS

(a) It is unlawful to take oysters from Seed Oyster Management Areas designated in 15A NCAC 03R .0116 for planting on shellfish leases or franchises without first obtaining a Permit to Transplant Oysters from Seed Oyster Management Areas from the Fisheries Director.  The procedures and requirements for obtaining permits are set forth in 15A NCAC 03O .0501.

(b) It is unlawful to use a trawl net, long haul seine, or swipe net in any designated Seed Oyster Management Area.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113-203; 113‑221; 143B‑289.52;

Eff. October 1, 2008.

 

15A NCAC 03K .0209       OYSTER SANCTUARIES

(a)  It is unlawful to use a trawl net, long haul seine, or swipe net in Oyster Sanctuaries designated in 15A NCAC 03R .0117.  These areas shall be marked with signs or buoys.  Unmarked and undesignated tributaries shall be the same designation as the designated waters to which they connect or into which they flow.  No unauthorized removal or relocation of any such marker shall have the effect of changing the designation of any such body of water or portion thereof, nor shall any such unauthorized removal or relocation or the absence of any marker affect the applicability of any rule pertaining to any such body of water or portion thereof.

(b)  It is unlawful to use mechanical methods for oystering or clamming in, or to take oysters or clams from Oyster Sanctuaries designated in 15A NCAC 03R .0117.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113-201; 113-204; 143B‑289.52;

Eff. October 1, 2008.

 

SECTION .0300 ‑ HARD CLAMS (MERCENARIA)

 

15A NCAC 03K .0301       SIZE AND HARVEST LIMIT

(a)  It is unlawful to take, land, or possess aboard a vessel more than 6,250 hard clams per fishing operation from public bottom in internal waters.  It is unlawful to take, possess, sell, or purchase any clams (except Rangia or freshwater clams) less than one inch thick except in accordance with 15A NCAC 3K .0305(b).  Clams shall be culled where harvested and all clams of less than legal size with their shell, shall be immediately returned to the bottom from which taken.  Agents of the Fisheries Director are authorized and empowered to grade all, or any portion, or any combination of portions of the entire quantity of clams being graded and may seize and return to public bottom or other disposition as authorized by law of the entire quantity being graded or any portion thereof.

(b)  Size and harvest limits established in Paragraph (a) of this Rule and the season and area limitations established in 15A NCAC 3K .0302 may not apply:

(1)           For temporary openings made upon the recommendation of Division of Environmental Health,

(2)           For maintenance dredging operations, or

(3)           For relaying of polluted clams to private shellfish bottoms as permitted by 15A NCAC 3K .0104.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑221; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. March 1, 1994.

 

15A NCAC 03K .0302       MECHANICAL HARVEST OF CLAMS FROM PUBLIC BOTTOM

(a)  It is unlawful to take, buy, sell, or possess any clams taken by mechanical methods as defined in 15A NCAC 03I .0101, "mechanical methods for clamming," from public bottom unless the season is open.

(b)  The Fisheries Director may, by proclamation, open and close the season for the taking of clams by mechanical methods from public bottom at any time in the Atlantic Ocean and only from December 1 through March 31 in Internal Coastal Waters.

(c)  The Fisheries Director may, by proclamation, open to the taking of clams by mechanical methods from public bottom during open seasons only areas that were opened at any time from January 1979 through September 1988 in:

(1)           Newport, North, White Oak, and New rivers;

(2)           Core and Bogue sounds;

(3)           the Intracoastal Waterway north of "BC" Marker at Topsail Beach; and

(4)           the Atlantic Ocean.

Other areas opened for purposes as set out in 15A NCAC 03K .0301(b) shall open only for those purposes. A list of areas as described in this Paragraph is available upon request at the Division of Marine Fisheries, 3441 Arendell Street, P.O. Box 769, Morehead City, NC 28557.

(d)  The Fisheries Director may, by proclamation, impose any of the following additional restrictions for the taking of clams by mechanical methods from public bottom during open seasons:

(1)           specify time;

(2)           specify means and methods;

(3)           specify size; and

(4)           specify quantity.

 

History Note:        Authority G.S. 113-134; 113-182; 113-221.1; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. October 1, 2001;

Amended Eff. May 1, 2017; April 1, 2003.

 

15A NCAC 03K .0303       PERMITS TO USE MECHANICAL METHODS FOR OYSTERS OR CLAMS ON SHELLFISH LEASES OR FRANCHISES REQUIREMENT

 

History Note:        Authority G.S. 113-134; 113-182; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 1991;

Temporary Amendment Eff. September 1, 2000;

Amended Eff. August 1, 2002;

Repealed Eff. May 1, 2015.

 

15A NCAC 03K .0304       PROHIBITED TAKING

(a)  It is unlawful to take clams by any method, other than by hand tongs, hand rakes, or by hand, except as provided in 15A NCAC 03K .0302 and .0303.  Regardless of the areas which may be opened, it is unlawful to take clams by hand tongs in any established bed of submerged aquatic vegetation as described in  15A NCAC 03I .0101 or salt water cordgrass (Spartina alterniflora).

(b)  It is unlawful to possess clam trawls or cages aboard a vessel at any time, or have kick/deflector plates normally used in the mechanical harvest of clams affixed to a vessel at any time, except during the time period specified for a mechanical clam harvest season in internal waters in accordance with 15A NCAC 03K .0302(a).  A period of 14 days before and after the season as specified by proclamation will be allowed for the installation and removal of kick/deflector plates and clam trawls or cages.  Vessels with permits for activities provided for in 15A NCAC 03K .0104, .0107, .0303(a), and .0401 shall be exempt from this Rule during the times such activities are permitted.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑221; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. October 1, 2008; February 1, 2008; May 1, 1997; July 1, 1993.

 

15A NCAC 03K .0305       CLAM SIZE AND HARVEST LIMIT EXEMPTION

Possession and sale of clams by a hatchery or clam aquaculture operation and purchase and possession of clams from a hatchery or clam aquaculture operation shall be exempt from bag and size limit restrictions in 15A NCAC 3K .0301(a).  It is unlawful to possess, sell, purchase, or transport such clams unless they are in compliance with all conditions of the Aquaculture Operation Permit.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. September 1, 1991.

 

SECTION .0400 ‑ RANGIA CLAMS

 

15a ncac 03k .0401       PROHIBITED (POLLUTED) AREA PERMIT REQUIREMENT

It is unlawful to take Rangia clams or their shells by any method from prohibited (polluted) waters without first securing a Permit to Harvest Rangia Clams from Prohibited (Polluted) Areas from the Fisheries Director.  The permit application shall include a list of all designees operating under the permit.  Such permit shall designate the area, means and methods, and time(s) in which Rangia clams may be taken.  The permit applicant shall designate the licensed fish dealer where the Rangia clams are to be landed and the method for disposing of Rangia clam meats.  The procedures and requirements for obtaining permits are found in 15A NCAC 03O .0500.

 

History Note:        Authority G.S. 113-134; 113-201; 113-202; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. August 1, 2004.

 

15A NCAC 03K .0402       SEASON, SIZE AND HARVEST LIMITS

Size and harvest limits applicable to hard clams in 15A NCAC 03K .0301 do not apply to Rangia clams.

 

History Note:        Authority G.S. 113‑134; 113‑201; 113‑202; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. August 1, 2004.

 

15a ncac 03k .0403       DISPOSITION OF MEATS

It is unlawful to dispose of meats from Rangia clams taken in prohibited (polluted) waters for human consumption or by a method that will create risk of human consumption. 

 

History Note:        Authority G.S. 113-134; 113-201; 113-202; 143B-298.52;

Eff. January 1, 1991;

Amended Eff. August 1, 2004.

 

15a ncac 03k .0404       DREDGES/MECHANICAL METHODS PROHIBITED AND OPEN SEASON

It is unlawful to use mechanical methods for oystering or clamming to take Rangia clams or their shells:

(1)           within 100 feet of any pier;

(2)           within any established bed of submerged aquatic vegetation as defined in 15A NCAC 03I .0101 or salt water cordgrass (Spartina alterniflora) that may exist together or separately;

(3)           in areas designated in 15A NCAC 03R .0108, except on shellfish leases and franchises with a Permit to Use Mechanical Methods for Oysters and Clams on Shellfish Leases and Franchises.

(4)           in areas designated in 15A NCAC 03K .0204(3) and 03R .0103; and

(5)           except in areas and at times specified by proclamation as authorized by 15A NCAC 03K .0201 and 03K .0302.

 

History Note:        Authority G.S. 113-134; 113-201; 143B-289.52;

Eff. August 1, 2004.

 

15a ncac 03k .0405       OYSTERS, MUSSELS, HARD CLAMS PROHIBITED

While taking Rangia clams or their shells from a prohibited (polluted) area it is unlawful to possess any other shellfish.

 

History Note:        Authority G.S. 113-134; 113-201; 143B-289.52;

Eff. August 1, 2004.

 

section .0500 - scallops

 

15A NCAC 03K .0501       BAY SCALLOP HARVEST MANAGEMENT

The Fisheries Director may, by proclamation, impose any of the following restrictions for commercial or recreational bay scallop harvest from public bottom:

(1)           specify time;

(2)           specify area;

(3)           specify means and methods;

(4)           specify open seasons for the taking of bay scallops during the period beginning the last Monday in January and ending the last Friday in May;

(5)           specify size; and

(6)           specify quantity, but shall not exceed possession of more than 15 standard U.S. bushels per person per day or a total of 30 standard U.S. bushels in any combined commercial fishing operation per day.

 

History Note:        Authority G.S. 113-134; 113-182; 113-201; 113-221.1; 143B-289.52;

Eff. January 1, 1991;

Amended Eff. May 1, 2015; February 1, 2008.

 

15A NCAC 03K .0502       TAKING BAY SCALLOPS AT NIGHT AND ON WEEKENDS

(a)  It is unlawful to take bay scallops between sunset and sunrise, or on Saturdays or Sundays, except as provided in 15A NCAC 03K .0105.

(b)  Bay scallops taken on Saturdays or Sundays from shellfish leases or franchises in accordance with G.S. 113-208 are exempt from this Rule.

 

History Note:        Authority G.S. 113-134; 113-182; 143B-289.52;

Eff. January 1, 1991;

Temporary Amendment Eff. July 1, 1999;

Amended Eff. May 1, 2015; August 1, 2000.

 

15A NCAC 03K .0503       PROHIBITED BAY SCALLOP DREDGE

It is unlawful to take bay scallops with dredges weighing more than 50 pounds or equipped with teeth.  Any other instrument or device designed to drag the bottom to aid in the taking of bay scallops is also prohibited.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991.

 

15A NCAC 03K .0504       CALICO SCALLOP SEASON

It is unlawful to land or possess aboard a vessel calico scallops except at such times as designated by the Fisheries Director by proclamation.

 

History Note:        Authority G.S. 113‑134; 113‑182; 113‑221; 143B‑289.52;

Eff. January 1, 1991.

 

15A NCAC 03K .0505       SEA SCALLOPS SIZE LIMIT AND TOLERANCE

It is unlawful to land or possess sea scallops with a shell height (length) of less than three and one‑half inches.  A tolerance of not more than ten percent by number for undersized sea scallop shell height shall be allowed.  In determining whether the proportion of undersized sea scallops exceeds the ten percent tolerance limit, the Fisheries Director and his agents are authorized and empowered to grade all, or any portion, or any combination of portions of the entire quantity being graded, and in cases of violations, may require seizure or other disposition as authorized by law.

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991.

 

15A NCAC 03K .0506       SOAKED OR SWELLED BAY SCALLOPS PROHIBITED

 

History Note:        Authority G.S. 113‑134; 113‑182; 143B‑289.52;

Eff. January 1, 1991;

Amended Eff. July 1, 1993;

Repealed Eff. February 1, 2008.

 

15A NCAC 03K .0507       MARKETING SCALLOPS TAKEN FROM SHELLFISH LEASES OR FRANCHISES

(a)  It is unlawful to sell, purchase, or possess scallops during the closed season without the lease or franchise holder delivering to the purchaser or other recipient a certification, on a form provided by the Division, that the scallops were taken from a valid shellfish lease or franchise. Certification forms shall be furnished by the Division to lease and franchise holders upon request.

(b)  It is unlawful for lease or franchise holders or their designees to take or possess scallops from public bottom while possessing aboard a vessel scallops taken from shellfish leases or franchises.

 

History Note:        Authority G.S. 113-134; 113-182; 113-201; 143B-289.52;

Eff. May 1, 2015.

 

15A NCAC 03K .0508       SCALLOP SEASON AND HARVEST LIMIT EXEMPTIONS

The following exemptions and restrictions shall apply to the possession, sale, purchase, or transport of scallops produced in an aquaculture operation:

(1)           Possession and sale of scallops by a scallop aquaculture operation shall be exempt from restrictions set forth in 15A NCAC 03K .0501, .0504, and .0505.

(2)           Purchase and possession of scallops from a scallop aquaculture operation shall be exempt from restrictions set forth in 15A NCAC 03K .0501, .0504, and .0505.

(3)           It is unlawful for a person to possess, sell, purchase, or transport scallops described in Sub-Items (1) and (2) of this Rule unless in compliance with all conditions of the Aquaculture Operation Permit, as set forth in 15A NCAC 03O .0501 and .0503.

 

History Note:        Authority G.S. 113-134; 113-182; 143B-289.52;

Eff. May 1, 2015.