One out of every two oysters eaten in the United States is harvested in Louisiana waters. The state is the nation’s biggest producer. But now those in the oyster industry in Louisiana feel they're being squeezed out.

“It’s just another way to put us out of business basically. It’s hard, it’s hard to make a living,” Ray Vath, an oyster fisherman.

Vath is a fifth generation oysterman, working out of Empire with his son who represents the sixth generation. They are worried about a new guideline sent down by the federal government. The rule says that once water temperatures reach 81 degrees -- and that’s at least 4 or 5 months Louisiana -- every oyster harvested must be refrigerated in five hours, previously they had 10 hours to get their catch to refrigeration.

The new five-hour rule forced Vath back to the dock with just 52 sacks of oysters.

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LA. oysterman could be harmed by a federal rule.

“Oh, it would have been over 100, at least double, with the same amount of fuel, so it would have been a much better day,” Vath said.

The federal government says the reason for the new rule is in the water you can't see it. It’s something called vibrio parahemalyticus, or VP, a bacteria found in oysters, fish, crab, shrimp and crawfish that occurs naturally in water.

If someone eats seafood that has high levels of pathogenic vp -- the kind that can make you sick -- a person can experience stomach cramps, diarrhea or vomiting. And for people with underlying medical problems like liver disease, diabetes or aids, they can suffer more serious, even life threatening effects.

New rule based on bad science

The new rule stems from a Food and Drug Administration study of VP bacteria in raw oysters in 2005. The FDA's model predicts that more than 2000 people will get sick each year from VP in Louisiana. However, according to Louisiana's Office of Public Health that tracks the actual number of people reporting getting sick, the average is three per year, 31 people over the last 10 years.

The industry feels it’s being forced to swallow a new rule based on bad science.

"There were extrapolations that were made based on nothing. I don't even know where they got the numbers from,” said Al Sunseri, from P & J Oysters.

The FDA's says Louisiana's numbers are low because people get sick but don't report it.

Louisiana's Department of Health and Hospitals is implementing the new federal guidelines.  Eyewitness News asked David Guilbeau from La. Department of Health and Hospitals about the FDA's prediction that 2000 people will get sick each year.

“I guess you can make a model anything you want to make it by plugging in numbers. You know, is it real? I'm not to sure if it's real,” Guilbeau said. “It’s hard for me as a regulatory person to put up with numbers like this. I just don't see that.”

The oystermen feel they are being targeted unfairly.  

Again, 31 people reported getting sick from eating raw oysters. Over the same time period, 65 people twice as many got sick from eating crabs, shrimp and crawfish, yet there are no rules for them. And 22 people got sick from swimming with an open wound.

"If they truly believed this is all in the name of public health, they should do something about those as well,” Sunseri said.

When asked if there are any such restrictions coming for crustaceans who have twice as many as mollusks, Guilbreau, said, “Probably not,” adding he had no idea why.

An inferior oyster

The FDA’s answer to the problem are tags. Beginning this past June, every oyster heading for the raw half shell market that wasn't refrigerated within five hours had to have a "for cooking only" tag, but the oystermen say their nationwide dealers won't buy the oysters if they have that tag..

“It makes it seem like it’s an inferior oyster, like the refrigerated oyster is better. You’re creating two class of oysters right there, and we never had that before. They're creating it,” said Matt Lepetich, an oyster fisherman.

And now, two months into the new rule, the FDA agrees; it recently dropped its approval of using the “cooking only” tags.

“And this is something that we've let folks know we're very sorry for,” said Donald Kraemer from the FDA. “The confusion that we caused, we should have noticed earlier. That the use of this kind of labeling would create or could create problems in the marketplace.”

But despite the FDA’s decision, it is a rule the oystermen will have to live with until the next national meeting in the fall of 2009.

"You just can't rescind this, so "for cooking only" is going to stay right where it’s at,” Guilbeau said.

The industry wants the state to stand up and fight the new rule.

But Guilbeau says the federal government has threatened to blackball Louisiana oysters if it doesn't comply with the rules

"And from there you basically shut down the industry down. You can't eat 70 percent,” Guilbeau said. “It’s going to cripple a lot of people."

The hard choice

Oystermen say they have two choices: Come back within five hours or put $20,000 to 60,000 refrigeration boxes on their boat. And of the 800 licensed Louisiana oystermen, most have small boats like these that don't have the space to add refrigeration

"90 percent of the people don't have the ability to do it. Nobody can just wake up one day and put that kind of money in something that. We're not going to get anymore for the oysters, not going to get paid more cause we got refrigeration,” said Lepetich. 

It’s the same long run to their leases and the same money for fuel and deckhands, but for half the catch.

"I'm working at half, less than half of production right now.  I'm going to have a very off year because of this situation,” said Mitch Jurisich, an oysterman.

An industry used to fighting harsh conditions feels it's in a fight for survival. We've been in the fight of our life,” Sunseri said, “and it’s coming right down to crunch time now.”