House Bill 770

(As Sent to Governor)

AN ACT TO AMEND SECTIONS 49-15-36 AND 49-15-37, MISSISSIPPI CODE OF 1972, TO CONFORM STATE LAW TO FEDERAL REGULATORY TERMINOLOGY; TO FURTHER AMEND SECTION 49-15-37, MISSISSIPPI CODE OF 1972, TO GIVE THE DEPARTMENT OF MARINE RESOURCES FLEXIBILITY IN THE RELAYING OF OYSTERS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 49-15-36, Mississippi Code of 1972, is amended as follows:

49-15-36. (1) The commission shall have full jurisdiction and control of all public and natural oyster reefs and oyster bottoms of the State of Mississippi.

(2) Public reefs may be opened for harvest of oysters during the season on a rotating basis. If the commission determines that a particular reef has been over-harvested or that a high percentage of sublegal size oysters exist on a particular reef and that harvest could damage future oyster crops, the commission may close designated reef areas and keep them closed during the season. Reefs open for harvest during the season shall be open every Monday through Saturday, and subject to the availability of funds, the reefs shall be open on Sunday.

(3) The commission shall promulgate regulations regarding the closing of oyster reefs which are determined to be restricted. The waters of reefs closed under this chapter shall be tested between five (5) and ten (10) days after closure. When that testing indicates the oysters on the closed reef are suitable for consumption, the reef shall be opened for the taking of oysters as soon as notice of that opening may be made to interested parties. The authority to open or close oyster reefs under this chapter shall be solely within the discretion of the commission, acting through the department. The Gulf Coast Research Laboratory or other certified laboratory shall cooperate with the department and shall conduct necessary tests to determine the condition of oyster reefs at the request of the department. The department may limit the sale of oysters for human consumption, but all matters concerning the harvesting of oysters shall be within the jurisdiction of the commission.

(4) (a) The commission may issue special permits for the purpose of catching oysters outside the open season or in areas not normally open to harvest to those nonprofit organizations that are tax exempt under Section 501(c) of the United States Internal Revenue Code and which have on file with the State Tax Commission a tax exemption letter issued by the United States Internal Revenue Service.

(b) The commission shall promulgate rules and regulations governing the taking of oysters by the nonprofit organization and shall issue such regulations to all organizations upon request and at the issuance of the special permit.

(5) The commission shall establish a reasonable period of time for depuration of oysters replanted from restricted waters. That period of time shall be consistent with the maintenance of the public health and may vary from time to time and from one reef to another in accordance with environmental conditions.

SECTION 2. Section 49-15-37, Mississippi Code of 1972, is amended as follows:

49-15-37. By order of the commission, the director, under the direction and control of the commission, shall employ boats, crews and laborers and shall cultivate the public reefs of the state, and shall dredge the oysters in the Mississippi Sound from places where they are too thick, and shall spread them on reefs where they are too thin, and shall carry shells from the factories and spread them in places where the oyster beds can be improved and enlarged. The department may purchase other materials as may be equally suitable for the propagation of oysters. The department in cultivating the reefs, transplanting and spreading oysters and shells and other suitable materials, may expend any funds available for that purpose. In taking seed oysters, care shall be used to not injure or destroy the merchantable oysters on the reefs from which they are taken. The seed oysters shall be tonged from the "conner" or seed reefs, unless it is practicable and safe to dredge those oysters. The commission may, by orders spread on its minutes, establish new bedding grounds at those places within the boundaries of the state as it may determine, on advice of the director, or on advice of technical governmental experts, or competent aquatic biologists. On existing public reefs in which oysters exist and in waters not of a safe sanitary quality as determined by the department, the commission shall prohibit any person, firm or corporation from taking oysters from those areas. The commission shall from time to time remove the oysters from the areas and relay or replant them in an approved area for a period of time under Section 49-15-36 before they may be harvested. The commission may transport the oysters to an onshore, molluscan depuration facility for the purpose of proving depuration technology and for other experimental purposes. In connection with the testing of onshore, molluscan depuration technology, the commission may sell or dispose of the relaid oysters in a manner consistent with all applicable state and federal laws and regulations. Any funds received from the sale of the oysters shall be used in a like manner as those funds received under Section 49-15-38.

If the commission finds that onshore, molluscan depuration technology proves to be successful, the commission may issue permits to private enterprise which may locate depuration facilities in Hancock, Harrison and Jackson Counties. The commission shall promulgate rules and regulations for the taking of oysters from reefs for transport to an onshore, molluscan depuration facility and for the operation of the facilities. Each depuration facility operated by private enterprise shall return oyster shells to the oyster reefs for replanting under the proper supervision of the department and under Section 49-15-38.

The commission may issue permits to persons to remove oysters by dredging or otherwise from water bottoms which are not of a safe sanitary quality for oysters for human consumption even though those areas may have been reserved for tonging only in Section 49-15-39. These areas shall be designated as seed grounds, and permits to persons shall be issued only for the purpose of transplanting oysters to privately leased Mississippi territorial waters. The commission may permit the transplanting of these seed oysters by a duly authorized public agency.

The commission may, upon certification of the department that the water bottom from which oysters are to be removed is not of a safe, sanitary quality for oyster production for human consumption and has been unsafe for a period of at least one (1) year immediately preceding certification, and upon complying with the following requirements, permit the dredging of oysters from restricted public areas and relaying the oysters to private leased grounds in the State of Mississippi:

(a) Permittee must hold valid lease of oyster bedding grounds in the State of Mississippi;

(b) Permittee must be bonded in compliance with the permit system established by the commission;

(d) Permittee shall not move oysters from one restricted area to another restricted area;

(e) Permittee shall move oysters only to an area leased by the commission after April 13, 1977; and

(f) Permittee shall not move oysters from the restricted area without the presence of an employee of the department at all times, from the dredging of the oysters from the restricted areas to their deposit on private leased grounds or to an onshore, molluscan depuration facility.

Harvesting of oysters shall be permitted only during daylight hours and with the most efficient gear possible consistent with conservation requirements of not damaging the reefs. This shall include permission to use two (2) dredges per boat on restricted areas and on private leased grounds.

Any person obtaining a permit to remove oysters from seed grounds shall post a penal bond of One Hundred Dollars ($100.00) per leased acre with the commission to be forfeited upon any violation of this section. The bond may be approved by the director of the department if the director finds the bond to be secured by sufficient property or sureties.

The commission shall regulate the amount and time of taking of oysters from seed areas and shall supervise the removal, planting and harvesting of oysters from the areas. The time set for the taking of oysters from restricted seed areas for relaying or replanting and the time set for the taking of oysters from private leased grounds shall be separated by not less than a period of time determined under Section 49-15-36 during which neither activity may be allowed.

The commission shall regulate the taking of oysters from restricted seed areas and the subsequent depuration of the oysters to protect public health, while at the same time fostering the utilization of the state's oyster resources. The regulations shall include the setting of the period of depuration for the oysters by the use of appropriate techniques and provide for an employee of the department to be present when the oysters are taken from restricted seed areas, and transported, held and deposited on private lease grounds. Any person, firm, corporation or private lease holder engaged in the depuration of oysters shall pay to the department an amount equal to the regular compensation of the employee of the department for the time the employee actually spends performing the duties, not to exceed Two Hundred Dollars ($200.00) per twenty-four-hour period.

Only persons who have been residents of Mississippi for at least five (5) years shall be eligible to obtain permits for removal of oysters from seed grounds.

The commission shall designate certain * * * reefs in the state as public reefs and shall remove oysters from water bottoms which are not of a safe, sanitary quality for oyster production for human consumption and shall transport the oysters to the public reefs * * *.

SECTION 3. This act shall take effect and be in force from and after its passage.