Virginia Marine Resources Commission

6. Pertaining to the Licensing of Fixed Fishing Devices (Title 4, Chapter 20) 4VAC20-20-70

7. Pertaining to the Licensing of Fixed Fishing Devices (Title 4, Chapter 20) 4VAC20-20-80

8. Pertaining to the Licensing of Fixed Fishing Devices (Title 4, Chapter 20) 4VAC20-20-90

9. Pertaining to Pound Net Siting Public Interest Review (Title 4, Chapter 25) 4VAC20-25-10

10. Pertaining to Pound Net Siting Public Interest Review (Title 4, Chapter 25) 4VAC20-25-20

11. Pertaining to Pound Net Siting Public Interest Review (Title 4, Chapter 25) 4VAC20-25-30

Provisions: 9 0 9 0 0 Req: 1

12. Pertaining to Pound Net Siting Public Interest Review (Title 4, Chapter 25) 4VAC20-25-40

13. Pertaining to the Display of Licenses to Catch Finfish or Crabs (Title 4, Chapter 60) 4VAC20-60-10

14. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-60-20

15. Pertaining to the Display of Licenses to Catch Finfish or Crabs (Title 4, Chapter 60) 4VAC20-60-30

16. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-10

Provisions: 1 0 0 1 0 Req: 0

17. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-20

Provisions: 4 0 3 1 0 Req: 3

18. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-30

19. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-40

20. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-50

Provisions: 3 0 3 0 0 Req: 4

21. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-60

22. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-70

Provisions: 4 0 3 1 0 Req: 3

23. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-80

Provisions: 2 0 2 0 0 Req: 3

24. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-90

25. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-100

26. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-110

27. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-120

Provisions: 6 0 5 1 0 Req: 5

28. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-130

Provisions: 2 0 1 1 0 Req: 2

29. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-135

Provisions: 4 0 3 1 0 Req: 6

30. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-140

31. Pertaining to the Harvesting of Clams (Title 4, Chapter 70) 4VAC20-70-150

32. Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots (Title 4, Chapter 140) 4VAC20-70-160

33. Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel (Title 4, Chapter 80) 4VAC20-80-10

34. Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel (Title 4, Chapter 80) 4VAC20-80-20

35. Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel (Title 4, Chapter 80) 4VAC20-80-30

36. Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel (Title 4, Chapter 80) 4VAC20-80-40

37. Pertaining to the Taking of Clams on Seaside of Eastern Shore (Title 4, Chapter 100) 4VAC20-100-10

38. Pertaining to the Taking of Clams on Seaside of Eastern Shore (Title 4, Chapter 100) 4VAC20-100-20

39. Pertaining to the Taking of Clams on Seaside of Eastern Shore (Title 4, Chapter 100) 4VAC20-100-30

40. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-10

41. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-15

Provisions: 9 0 3 0 6 Req: 0

42. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-20

Provisions: 1 0 0 0 1 Req: 1

43. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-30

Provisions: 6 0 6 0 0 Req: 3

44. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-40

45. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-55

Provisions: 6 0 5 1 0 Req: 5

46. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-65

47. Pertaining to Lobsters (Title 4, Chapter 110) 4VAC20-110-70

48. Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands (Title 4, Chapter 120) 4VAC20-120-10

49. Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands (Title 4, Chapter 120) 4VAC20-120-20

Provisions: 6 0 6 0 0 Req: 4

50. Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands (Title 4, Chapter 120) 4VAC20-120-30

Provisions: 4 0 4 0 0 Req: 1

51. Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands (Title 4, Chapter 120) 4VAC20-120-40

52. Pertaining to Prohibited Areas for Use of Patent Tongs (Title 4, Chapter 130) 4VAC20-130-40

53. Pertaining to Prohibited Areas for Use of Patent Tongs (Title 4, Chapter 130) 4VAC20-130-20

54. Pertaining to Prohibited Areas for Use of Patent Tongs (Title 4, Chapter 130) 4VAC20-130-30

55. Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots (Title 4, Chapter 140) 4VAC20-140-10

56. Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots (Title 4, Chapter 140) 4VAC20-140-15

57. Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots (Title 4, Chapter 140) 4VAC20-140-25

Provisions: 5 0 5 0 0 Req: 4

58. Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots (Title 4, Chapter 140) 4VAC20-140-30

59. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-10

60. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-20

61. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-30

Provisions: 5 0 4 0 1 Req: 1

62. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-40

63. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-50

Provisions: 2 0 1 1 0 Req: 3

64. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-60

65. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-70

Provisions: 3 0 2 0 1 Req: 3

66. Pertaining to the Dredging of Conchs (Also Known As Whelks) (Title 4, Chapter 150) 4VAC20-150-100

67. Pertaining to the Removal of Nets (Title 4, Chapter 170) 4VAC20-170-10

68. Pertaining to the Removal of Nets (Title 4, Chapter 170) 4VAC20-170-20

69. Pertaining to the Removal of Nets (Title 4, Chapter 170) 4VAC20-170-30

Provisions: 3 0 3 0 0 Req: 0

70. Pertaining to the Removal of Nets (Title 4, Chapter 170) 4VAC20-170-40

71. Pertaining to Measuring Mesh Size of Menhaden Nets (Title 4, Chapter 190) 4VAC20-190-10

72. Pertaining to Measuring Mesh Size of Menhaden Nets (Title 4, Chapter 190) 4VAC20-190-20

73. Pertaining to Measuring Mesh Size of Menhaden Nets (Title 4, Chapter 190) 4VAC20-190-30

Provisions: 5 0 4 1 0 Req: 3

74. Pertaining to Measuring Mesh Size of Menhaden Nets (Title 4, Chapter 190) 4VAC20-190-40

75. Pertaining to Measuring Mesh Size of Menhaden Nets (Title 4, Chapter 190) 4VAC20-190-50

76. Pertaining to the Taking of Finfish by Gill Nets (Title 4, Chapter 220) 4VAC20-220-10

77. Pertaining to the Taking of Finfish by Gill Nets (Title 4, Chapter 220) 4VAC20-220-20

Provisions: 4 0 4 0 0 Req: 6

78. Pertaining to the Taking of Finfish by Gill Nets (Title 4, Chapter 220) 4VAC20-220-30

79. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-10

80. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-20

Provisions: 2 1 1 0 0 Req: 0

81. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-30

82. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-40

Provisions: 4 0 3 1 0 Req: 3

83. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-50

84. Pertaining to the Harvesting of Surf Clams (Title 4, Chapter 230) 4VAC20-230-60

85. Pertaining to the Tangier Island Crab Scrape Sanctuary (Title 4, Chapter 240) 4VAC20-240-10

86. Pertaining to the Tangier Island Crab Scrape Sanctuary (Title 4, Chapter 240) 4VAC20-240-20

87. Pertaining to the Tangier Island Crab Scrape Sanctuary (Title 4, Chapter 240) 4VAC20-240-25

88. Pertaining to the Tangier Island Crab Scrape Sanctuary (Title 4, Chapter 240) 4VAC20-240-30

89. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-10

Provisions: 3 0 3 0 0 Req: 0

90. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-20

Provisions: 4 0 1 1 2 Req: 0

91. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-30

Provisions: 6 0 5 1 0 Req: 9

92. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-40

93. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-50

Provisions: 7 0 5 2 0 Req: 7

94. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-80

Provisions: 4 0 4 0 0 Req: 3

95. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-90

96. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-100

97. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-110

98. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-120

99. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-130

Provisions: 10 0 9 1 0 Req: 0

100. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-135

Provisions: 5 0 4 1 0 Req: 5

101. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-140

Provisions: 5 0 5 0 0 Req: 2

102. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-150

Provisions: 5 0 3 2 0 Req: 7

103. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-155

Provisions: 18 0 15 3 0 Req: 17

104. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-160

Provisions: 24 0 22 2 0 Req: 37

105. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-170

Provisions: 5 0 4 0 1 Req: 5

106. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-220

107. Pertaining to Atlantic Striped Bass (Title 4, Chapter 252) 4VAC20-252-230

Provisions: 4 0 4 0 0 Req: 5

108. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-10

109. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-15

Provisions: 6 0 3 1 2 Req: 0

110. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-20

Provisions: 3 0 1 1 1 Req: 1

111. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-30

Provisions: 10 0 4 4 2 Req: 12

112. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-40

Provisions: 7 0 4 2 1 Req: 7

113. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-50

Provisions: 11 0 7 2 2 Req: 12

114. Pertaining to Designation of Seed Areas and Clean Cull Areas (Title 4, Chapter 260) 4VAC20-260-60

115. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-10

116. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-15

117. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-20

118. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-25

119. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-30

120. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-40

Provisions: 7 0 6 1 0 Req: 12

121. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-50

Provisions: 7 0 7 0 0 Req: 2

122. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-51

Provisions: 15 0 11 3 1 Req: 8

123. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-52

124. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-55

125. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-56

126. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-57

127. Pertaining to Blue Crab Fishery (Title 4, Chapter 270) 4VAC20-270-60

128. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-10

129. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-20

130. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-30

131. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-50

Provisions: 2 0 1 1 0 Req: 3

132. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-55

133. Pertaining to Speckled Trout (Title 4, Chapter 280) 4VAC20-280-60

134. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-10

135. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-15

Provisions: 5 0 4 0 1 Req: 0

136. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-20

137. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-30

Provisions: 8 0 8 0 0 Req: 20

138. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-40

Provisions: 2 0 1 1 0 Req: 2

139. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-45

Provisions: 1 0 0 0 1 Req: 1

140. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-50

141. Marking of Leased Oyster Planting Ground (Title 4, Chapter 290) 4VAC20-290-60

142. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-10

143. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-15

144. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-20

Provisions: 7 0 6 1 0 Req: 9

145. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-35

Provisions: 7 0 6 1 0 Req: 6

146. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-40

Provisions: 7 0 7 0 0 Req: 9

147. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-50

Provisions: 7 0 7 0 0 Req: 13

148. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-55

149. Pertaining to the Relaying of Shellfish (Title 4, Chapter 310) 4VAC20-310-60

Provisions: 2 0 2 0 0 Req: 3

150. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-10

151. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-30

152. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-40

Provisions: 2 0 2 0 0 Req: 4

153. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-50

Provisions: 2 0 1 0 1 Req: 2

154. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-20

Provisions: 8 0 6 1 1 Req: 3

155. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-65

Provisions: 2 0 0 0 2 Req: 2

156. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-70

Provisions: 8 0 8 0 0 Req: 12

157. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-80

Provisions: 3 0 3 0 0 Req: 5

158. Pertaining to the Taking of Black Drum (Title 4, Chapter 320) 4VAC20-320-90

159. Pertaining to the Taking of Shellfish from Condemned Areas (Title 4, Chapter 330) 4VAC20-330-10

160. Pertaining to the Taking of Shellfish from Condemned Areas (Title 4, Chapter 330) 4VAC20-330-20

Provisions: 5 1 3 1 0 Req: 4

161. Pertaining to the Taking of Shellfish from Condemned Areas (Title 4, Chapter 330) 4VAC20-330-40

162. Virginia General Permit # (Title 4, Chapter 333) 4VAC20-333-10

163. Virginia General Permit # (Title 4, Chapter 333) 4VAC20-333-20

Provisions: 8 0 6 1 1 Req: 0

164. Virginia General Permit # (Title 4, Chapter 333) 4VAC20-333-30

Provisions: 21 0 20 1 0 Req: 5

165. Virginia General Permit # (Title 4, Chapter 333) 4VAC20-333-40

Provisions: 10 0 10 0 0 Req: 12

166. Pertaining to on-Bottom Shellfish Aquaculture Activities (Title 4, Chapter 335) 4VAC20-335-10

167. Pertaining to on-Bottom Shellfish Aquaculture Activities (Title 4, Chapter 335) 4VAC20-335-20

Provisions: 4 0 2 0 2 Req: 0

168. Pertaining to on-Bottom Shellfish Aquaculture Activities (Title 4, Chapter 335) 4VAC20-335-30

Provisions: 9 0 9 0 0 Req: 11

169. Pertaining to on-Bottom Shellfish Aquaculture Activities (Title 4, Chapter 335) 4VAC20-335-40

170. General Permit No (Title 4, Chapter 336) 4VAC20-336-10

171. General Permit No (Title 4, Chapter 336) 4VAC20-336-20

172. General Permit No (Title 4, Chapter 336) 4VAC20-336-30

Provisions: 4 0 3 1 0 Req: 4

173. General Permit No (Title 4, Chapter 336) 4VAC20-336-40

Provisions: 21 0 19 1 1 Req: 8

174. Submerged Aquatic Vegetation (Sav) Transplantation Guidelines (Title 4, Chapter 337) 4VAC20-337-10

Provisions: 9 0 9 0 0 Req: 0

175. Submerged Aquatic Vegetation (Sav) Transplantation Guidelines (Title 4, Chapter 337) 4VAC20-337-20

176. Submerged Aquatic Vegetation (Sav) Transplantation Guidelines (Title 4, Chapter 337) 4VAC20-337-30

Provisions: 5 0 5 0 0 Req: 22

177. Public Participation Guidelines (Title 4, Chapter 340) 4VAC20-340-10

178. Public Participation Guidelines (Title 4, Chapter 340) 4VAC20-340-20

Provisions: 9 0 9 0 0 Req: 0

179. Public Participation Guidelines (Title 4, Chapter 340) 4VAC20-340-30

Provisions: 23 0 23 0 0 Req: 16

180. Public Participation Guidelines (Title 4, Chapter 340) 4VAC20-340-40

181. General Wetlands Permit for Emergency Situations (Title 4, Chapter 345) 4VAC20-345-10

182. General Wetlands Permit for Emergency Situations (Title 4, Chapter 345) 4VAC20-345-20

183. General Wetlands Permit for Emergency Situations (Title 4, Chapter 345) 4VAC20-345-30

Provisions: 5 0 5 0 0 Req: 1

184. General Wetlands Permit for Emergency Situations (Title 4, Chapter 345) 4VAC20-345-40

Provisions: 16 0 16 0 0 Req: 8

185. Pertaining to Prohibiting the Sale of Billfish (Title 4, Chapter 350) 4VAC20-350-10

Provisions: 4 0 4 0 0 Req: 1

186. Pertaining to Prohibiting the Sale of Billfish (Title 4, Chapter 350) 4VAC20-350-20

187. Pertaining to Prohibiting the Sale of Billfish (Title 4, Chapter 350) 4VAC20-350-30

188. Pertaining to Prohibiting the Sale of Billfish (Title 4, Chapter 350) 4VAC20-350-40

189. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-10

190. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-30

Provisions: 11 0 8 2 1 Req: 1

191. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-40

Provisions: 5 0 3 2 0 Req: 2

192. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-50

Provisions: 4 1 3 0 0 Req: 1

193. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-60

Provisions: 8 0 5 2 1 Req: 3

194. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-70

Provisions: 12 0 7 4 1 Req: 10

195. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-80

Provisions: 4 1 3 0 0 Req: 2

196. Criteria for the Siting of Marinas or Community Facilities for Boat Mooring (Title 4, Chapter 360) 4VAC20-360-90

Provisions: 7 1 5 1 0 Req: 0

197. Pertaining to the Culling of Crabs (Title 4, Chapter 370) 4VAC20-370-10

198. Pertaining to the Culling of Crabs (Title 4, Chapter 370) 4VAC20-370-15

199. Pertaining to the Culling of Crabs (Title 4, Chapter 370) 4VAC20-370-20

Provisions: 9 0 8 1 0 Req: 13

200. Pertaining to the Culling of Crabs (Title 4, Chapter 370) 4VAC20-370-30

201. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-10

202. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-20

203. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-31

Provisions: 8 0 5 1 2 Req: 13

204. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-32

Provisions: 4 0 2 2 0 Req: 6

205. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-33

Provisions: 6 0 4 2 0 Req: 9

206. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-34

Provisions: 5 0 5 0 0 Req: 7

207. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-35

208. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-70

209. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-60

Provisions: 2 0 2 0 0 Req: 5

210. Pertaining to Grey Trout (Weakfish) (Title 4, Chapter 380) 4VAC20-380-70

211. Wetlands Mitigation -- Compensation Policy (Title 4, Chapter 390) 4VAC20-390-10

212. Wetlands Mitigation -- Compensation Policy (Title 4, Chapter 390) 4VAC20-390-20

Provisions: 7 0 7 0 0 Req: 0

213. Wetlands Mitigation -- Compensation Policy (Title 4, Chapter 390) 4VAC20-390-30

Provisions: 4 0 4 0 0 Req: 5

214. Wetlands Mitigation -- Compensation Policy (Title 4, Chapter 390) 4VAC20-390-50

Provisions: 13 0 13 0 0 Req: 14

215. Wetlands Mitigation -- Compensation Policy (Title 4, Chapter 390) 4VAC20-390-60

Provisions: 10 0 10 0 0 Req: 5

216. General Permit for Emergency Situations and Water Quality Improvement Projects (Title 4, Chapter 395) 4VAC20-395-10

Provisions: 3 1 2 0 0 Req: 0

217. General Permit for Emergency Situations and Water Quality Improvement Projects (Title 4, Chapter 395) 4VAC20-395-20

Provisions: 11 1 5 1 4 Req: 0

218. General Permit for Emergency Situations and Water Quality Improvement Projects (Title 4, Chapter 395) 4VAC20-395-30

219. General Permit for Emergency Situations and Water Quality Improvement Projects (Title 4, Chapter 395) 4VAC20-395-40

Provisions: 29 2 26 0 1 Req: 15

220. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-10

221. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-20

222. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-30

Provisions: 13 0 10 2 1 Req: 15

223. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-40

Provisions: 6 0 5 1 0 Req: 2

224. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-50

Provisions: 3 0 3 0 0 Req: 0

225. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-60

226. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-70

Provisions: 7 0 6 1 0 Req: 4

227. Ballast Water Discharge Reporting (Title 4, Chapter 398) 4VAC20-398-80

228. Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth (Title 4, Chapter 400) 4VAC20-400-10

Provisions: 4 0 4 0 0 Req: 1

229. Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth (Title 4, Chapter 400) 4VAC20-400-20

230. Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth (Title 4, Chapter 400) 4VAC20-400-30

231. Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth (Title 4, Chapter 400) 4VAC20-400-40

Provisions: 9 0 9 0 0 Req: 2

232. Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth (Title 4, Chapter 400) 4VAC20-400-50

Provisions: 5 0 4 1 0 Req: 4

233. Pertaining to the Use of Patent Tongs (Title 4, Chapter 410) 4VAC20-410-10

234. Pertaining to the Use of Patent Tongs (Title 4, Chapter 410) 4VAC20-410-20

235. Pertaining to the Use of Patent Tongs (Title 4, Chapter 410) 4VAC20-410-30

236. Pertaining to the Use of Patent Tongs (Title 4, Chapter 410) 4VAC20-410-50

237. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-10

Provisions: 1 0 0 0 1 Req: 2

238. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-15

239. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-20

Provisions: 5 0 4 1 0 Req: 6

240. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-30

Provisions: 6 0 6 0 0 Req: 5

241. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-40

Provisions: 7 0 5 1 1 Req: 0

242. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-45

Provisions: 3 0 2 1 0 Req: 0

243. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-50

Provisions: 7 0 4 2 1 Req: 0

244. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-55

245. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-60

246. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-65

Provisions: 7 0 6 1 0 Req: 6

247. Pertaining to the Marking and Minimum Mesh Size of Gill Nets (Title 4, Chapter 430) 4VAC20-430-80

248. Coastal Primary Sand Dune/Beaches Guidelines: Barrier Island Policy (Title 4, Chapter 440) 4VAC20-440-10

Provisions: 25 0 19 4 2 Req: 40

249. Pertaining to the Taking of Bluefish (Title 4, Chapter 450) 4VAC20-450-10

250. Pertaining to the Taking of Bluefish (Title 4, Chapter 450) 4VAC20-450-15

Provisions: 2 0 1 1 0 Req: 0

251. Pertaining to the Taking of Bluefish (Title 4, Chapter 450) 4VAC20-450-20

Provisions: 3 0 3 0 0 Req: 5

252. Pertaining to the Taking of Bluefish (Title 4, Chapter 450) 4VAC20-450-30

253. Pertaining to the Taking of Bluefish (Title 4, Chapter 450) 4VAC20-450-40

254. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-10

255. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-13

Provisions: 4 0 3 0 1 Req: 8

256. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-15

257. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-20

258. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-25

259. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-30

260. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-40

261. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-50

262. Pertaining to the Use of Crab Traps and Pounds (Title 4, Chapter 460) 4VAC20-460-60

263. Pertaining to Hampton Roads Management Area (Title 4, Chapter 470) 4VAC20-470-10

264. Pertaining to Hampton Roads Management Area (Title 4, Chapter 470) 4VAC20-470-20

265. Pertaining to Hampton Roads Management Area (Title 4, Chapter 470) 4VAC20-470-30

266. Pertaining to Hampton Roads Management Area (Title 4, Chapter 470) 4VAC20-470-40

267. Pertaining to Eastern Shore Bayside Management Areas (Title 4, Chapter 480) 4VAC20-480-10

268. Pertaining to Eastern Shore Bayside Management Areas (Title 4, Chapter 480) 4VAC20-480-20

Provisions: 5 0 4 1 0 Req: 1

269. Pertaining to Eastern Shore Bayside Management Areas (Title 4, Chapter 480) 4VAC20-480-30

270. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-10

271. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-20

Provisions: 32 0 16 3 13 Req: 2

272. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-30

Provisions: 5 0 5 0 0 Req: 6

273. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-40

Provisions: 9 0 8 1 0 Req: 12

274. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-41

Provisions: 10 0 9 1 0 Req: 0

275. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-42

Provisions: 8 0 8 0 0 Req: 8

276. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-43

Provisions: 2 0 1 1 0 Req: 1

277. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-44

Provisions: 8 0 5 3 0 Req: 9

278. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-46

279. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-47

Provisions: 3 0 2 0 1 Req: 1

280. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-48

Provisions: 6 0 4 2 0 Req: 6

281. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-50

282. Pertaining to Sharks (Title 4, Chapter 490) 4VAC20-490-70

283. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-10

284. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-20

285. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-30

286. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-35

Provisions: 1 0 0 1 0 Req: 0

287. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-40

288. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-45

Provisions: 5 0 4 0 1 Req: 8

289. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-50

290. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-55

Provisions: 3 0 2 1 0 Req: 10

291. Pertaining to the Catching of Eels (Title 4, Chapter 500) 4VAC20-500-60

292. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-10

293. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-12

294. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-20

Provisions: 4 0 1 2 1 Req: 9

295. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-25

Provisions: 5 0 5 0 0 Req: 11

296. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-30

Provisions: 3 0 3 0 0 Req: 1

297. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-35

Provisions: 5 0 4 1 0 Req: 5

298. Pertaining to Amberjack and Cobia (Title 4, Chapter 510) 4VAC20-510-40

299. Pertaining to the Use of Patent Tongs (Title 4, Chapter 520) 4VAC20-520-10

Provisions: 3 0 2 0 1 Req: 0

300. Pertaining to the Use of Patent Tongs (Title 4, Chapter 520) 4VAC20-520-20

301. Pertaining to the Use of Patent Tongs (Title 4, Chapter 520) 4VAC20-520-30

302. Pertaining to American Shad (Title 4, Chapter 530) 4VAC20-530-10

303. Pertaining to American Shad (Title 4, Chapter 530) 4VAC20-530-20

Provisions: 4 0 3 0 1 Req: 0

304. Pertaining to American Shad (Title 4, Chapter 530) 4VAC20-530-30

305. Pertaining to American Shad (Title 4, Chapter 530) 4VAC20-530-31

Provisions: 9 0 7 2 0 Req: 13

306. Pertaining to American Shad (Title 4, Chapter 530) 4VAC20-530-40

307. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-10

308. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-20

309. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-30

Provisions: 2 0 1 1 0 Req: 3

310. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-40

Provisions: 5 0 4 1 0 Req: 4

311. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-50

312. Pertaining to Spanish and King Mackerel (Title 4, Chapter 540) 4VAC20-540-60

313. Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear (Title 4, Chapter 550) 4VAC20-550-10

314. Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear (Title 4, Chapter 550) 4VAC20-550-20

Provisions: 3 0 3 0 0 Req: 4

315. Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear (Title 4, Chapter 550) 4VAC20-550-30

316. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-10

317. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-20

Provisions: 8 0 5 3 0 Req: 2

318. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-30

Provisions: 4 0 3 0 1 Req: 3

319. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-40

Provisions: 4 0 3 1 0 Req: 4

320. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-50

Provisions: 6 0 0 0 6 Req: 7

321. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-55

322. Pertaining to Shellfish Management Areas (Title 4, Chapter 560) 4VAC20-560-60

Provisions: 4 0 1 0 3 Req: 3

323. Pertaining to the Hampton Flats Hard Clam Harvest Area (Title 4, Chapter 561) 4VAC20-561-10

324. Pertaining to the Hampton Flats Hard Clam Harvest Area (Title 4, Chapter 561) 4VAC20-561-20

Provisions: 1 0 0 0 1 Req: 1

325. Pertaining to the Hampton Flats Hard Clam Harvest Area (Title 4, Chapter 561) 4VAC20-561-30

326. Pertaining to the Hampton Flats Hard Clam Harvest Area (Title 4, Chapter 561) 4VAC20-561-40

Provisions: 5 0 3 1 1 Req: 4

327. Pertaining to the Hampton Flats Hard Clam Harvest Area (Title 4, Chapter 561) 4VAC20-561-50

Provisions: 2 0 1 0 1 Req: 3

328. Pertaining to the Hampton Roads Shellfish Relay Area (Title 4, Chapter 566) 4VAC20-566-10

329. Pertaining to the Hampton Roads Shellfish Relay Area (Title 4, Chapter 566) 4VAC20-566-20

330. Pertaining to the Hampton Roads Shellfish Relay Area (Title 4, Chapter 566) 4VAC20-566-30

331. Pertaining to the Hampton Roads Shellfish Relay Area (Title 4, Chapter 566) 4VAC20-566-40

Provisions: 5 0 5 0 0 Req: 4

332. Pertaining to the Hampton Roads Shellfish Relay Area (Title 4, Chapter 566) 4VAC20-566-50

333. Pertaining to the Use of Firearms to Take Fish (Title 4, Chapter 570) 4VAC20-570-10

334. Pertaining to the Use of Firearms to Take Fish (Title 4, Chapter 570) 4VAC20-570-20

335. Pertaining to the Use of Firearms to Take Fish (Title 4, Chapter 570) 4VAC20-570-30

336. Pertaining to the Alteration of Finfish (Title 4, Chapter 580) 4VAC20-580-10

337. Pertaining to the Alteration of Finfish (Title 4, Chapter 580) 4VAC20-580-20

338. Pertaining to the Alteration of Finfish (Title 4, Chapter 580) 4VAC20-580-30

Provisions: 3 0 2 1 0 Req: 3

339. Pertaining to the Alteration of Finfish (Title 4, Chapter 580) 4VAC20-580-40

340. Pertaining to the Taking of Hard Clams (Title 4, Chapter 590) 4VAC20-590-10

Provisions: 3 1 2 0 0 Req: 1

341. Pertaining to the Taking of Hard Clams (Title 4, Chapter 590) 4VAC20-590-20

342. Pertaining to the Taking of Hard Clams (Title 4, Chapter 590) 4VAC20-590-30

Provisions: 3 1 2 0 0 Req: 3

343. Pertaining to the Taking of Hard Clams (Title 4, Chapter 590) 4VAC20-590-40

344. Pertaining to the Taking of Hard Clams (Title 4, Chapter 590) 4VAC20-590-50

345. Pertaining to Pound Net License Sales (Title 4, Chapter 600) 4VAC20-600-10

346. Pertaining to Pound Net License Sales (Title 4, Chapter 600) 4VAC20-600-20

347. Pertaining to Pound Net License Sales (Title 4, Chapter 600) 4VAC20-600-30

348. Pertaining to Pound Net License Sales (Title 4, Chapter 600) 4VAC20-600-40

349. Pertaining to Pound Net License Sales (Title 4, Chapter 600) 4VAC20-600-50

350. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-10

351. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-20

Provisions: 16 0 10 1 5 Req: 1

352. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-25

Provisions: 4 0 2 1 1 Req: 0

353. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-26

354. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-30

Provisions: 18 0 18 0 0 Req: 22

355. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-40

Provisions: 9 0 9 0 0 Req: 8

356. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-60

Provisions: 16 3 12 1 0 Req: 16

357. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-65

Provisions: 6 0 5 1 0 Req: 6

358. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (Title 4, Chapter 610) 4VAC20-610-70

359. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-10

Provisions: 1 0 0 1 0 Req: 0

360. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-20

Provisions: 8 0 7 1 0 Req: 0

361. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-30

Provisions: 4 0 3 1 0 Req: 5

362. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-40

Provisions: 15 0 12 3 0 Req: 20

363. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-41

Provisions: 10 0 7 3 0 Req: 13

364. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-42

365. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-50

Provisions: 4 0 4 0 0 Req: 3

366. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-60

Provisions: 3 0 3 0 0 Req: 8

367. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-70

368. Pertaining to Summer Flounder (Title 4, Chapter 620) 4VAC20-620-80

Provisions: 2 1 1 0 0 Req: 1

369. Establishment of Oyster Sanctuary Areas (Title 4, Chapter 650) 4VAC20-650-10

370. Establishment of Oyster Sanctuary Areas (Title 4, Chapter 650) 4VAC20-650-20

Provisions: 17 0 8 5 4 Req: 2

371. Establishment of Oyster Sanctuary Areas (Title 4, Chapter 650) 4VAC20-650-30

372. Establishment of Oyster Sanctuary Areas (Title 4, Chapter 650) 4VAC20-650-40

Provisions: 2 1 1 0 0 Req: 1

373. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-10

Provisions: 3 3 0 0 0 Req: 0

374. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-15

Provisions: 3 0 0 1 2 Req: 0

375. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-20

376. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-25

377. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-30

Provisions: 9 0 8 0 1 Req: 12

378. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-40

Provisions: 3 0 2 1 0 Req: 3

379. Pertaining to Recreational Gear Licenses (Title 4, Chapter 670) 4VAC20-670-50

Pertaining to the Licensing of Fixed Fishing Devices

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Bottlenose Dolphin Pound Net Regulated Area" means all Virginia marine waters of the Atlantic Ocean within three nautical miles (5.56 km) of shoreline and all adjacent tidal waters bounded on the north by the Maryland-Virginia state line from 38° 00.85' N. latitude, 75° 22.70' W. longitude seaward to 38° 02.03' N. latitude, 75° 09.80' W. longitude; on the south by the North Carolina-Virginia state line from 36° 33.03' N. latitude, 75° 48.27' W. longitude landward to 36° 33.02' N. latitude, 75° 52.05' W. longitude; and all waters of the mainstem of the Chesapeake Bay, James River (Hampton Roads), York River, and Mobjack Bay; seaward of the Hampton Roads Bridge-Tunnel (U.S. Route 60/I-64) on the James River; seaward of the George P. Coleman Memorial Bridge (U.S. Route 17) on the York River; and south of a line beginning at a point at 37° 19.0' N. latitude, 76° 26.75' W. longitude, a point on the Severn River fork, near Stump Point; thence easterly to a point at 37° 19.0' N. latitude, 76° 13.0' W. longitude; thence southerly to a point at 37° 13.0' N. latitude, 76° 13.0' W. longitude; thence easterly to a point at 37° 13.0' N. latitude, 76° 00.75' W. longitude near Elliotts Creek.² "Fixed fishing device" means any fishing device used for the purpose of catching fish and requiring the use of more than two poles or stakes that have been pushed or pumped into the bottom.³ "Fyke net" means a round stationary net distended by a series of hoops or frames, covered by web netting or wire mesh and having one or more internal funnel-shaped throats whose tapered ends are directed away from the mouth of the net. The net, leader, or runner is held in place by stakes or poles that have been pushed or pumped into the bottom and has one or two wings and a leader or runner to help guide the fish into the net. "Hard lay lines" mean lines that are at least as stiff as 5/16 inch (0.8 cm) diameter line composed of polyester wrapped around a blend of polypropylene and polyethylene and 42 visible twists of strands per foot of line.⁴ "Modified pound net leader" means a pound net leader that is affixed to or resting on the sea floor and made of a lower portion of mesh and an upper portion of only vertical lines such that (i) the mesh size is equal to or less than eight inches stretched mesh; (ii) at any particular point along the leader, the height of the mesh, from sea floor to the top of the mesh, is no more than one-third the depth of the water at mean low water directly above that particular point; (iii) the mesh is held in place by a bottom chain that forms the lowermost part of the pound net leader and the vertical lines extend from the top of the mesh up to a top line, which is a line that forms the uppermost part of the pound net leader; (iv) the vertical lines are equal to or greater than 5/16 inch in diameter and strung vertically at a minimum of every two feet; and (v) the vertical lines are hard lay lines.⁵ "Nearshore pound net leader or nearshore pound net" means a pound net that has every part of the leader, from the most offshore pole at the pound end of the leader to the most inshore pole of the leader, in less than 14 feet (4.3 m) of water at any tidal condition.⁶ "Officer" means the marine police officer in charge of the district within which the fixed fishing device is located.⁷ "Offshore pound net leader or offshore pound net" means a pound net with any part of the leader, from the most offshore pole at the pound end of the leader to the most inshore pole of the leader, in water greater than or equal to 14 feet (4.3 m) at any tidal condition.⁸ "Pound net" means a fixed entrapment gear attached to posts or stakes with three continuous sections from offshore to inshore consisting of (i) a pound made of mesh netting that entraps the fish; (ii) at least one heart made of a mesh netting that is generally in the shape of a heart and aids in funneling fish into the pound; and (iii) a leader, which is a long, straight element consisting of mesh or vertical lines that directs the fish offshore towards the pound.⁹ "Pound Net Regulated Area I" means all waters of the mainstem of the Chesapeake Bay, James River (Hampton Roads), York River, and Mobjack Bay west of the Chesapeake Bay Bridge-Tunnel (U.S. Route 17); seaward of the Hampton Roads Bridge-Tunnel (U.S. Route 60/I-64) on the James River; seaward of the George P. Coleman Memorial Bridge (U.S. Route 17) on the York River; and south of a line beginning at a point 37° 19.0' N. latitude, 76° 26.75' W. longitude, a point on the Severn River fork, near Stump Point; thence easterly to a point at 37° 19.0' N. latitude, 76° 13.0' W. longitude; thence southerly to a point at 37° 13.0' N. latitude, 76° 13.0' W. longitude; thence easterly to a point at 37° 13.0' N. latitude, 76° 00.75' W. longitude near Elliotts Creek.¹⁰ "Pound Net Regulated Area II" means all waters of the mainstem of the Chesapeake Bay, James River (Hampton Roads), York River, Mobjack Bay, Piankatank River, Rappahannock River, and the Great Wicomico River, outside of Pound Net Regulated Area I, south of 37° 07' N. latitude from Kiptopeake to Smith Island, Northampton County; west of the COLREGS Line at the mouth of the Chesapeake Bay; seaward of the Hampton Roads Bridge-Tunnel (U.S. Route 60/I-64); seaward of the George P. Coleman Memorial Bridge (U.S. Route 17); seaward of the John Andrew Twigg Bridge (VA Route 3) on the Piankatank River; seaward of the Robert Opie Norris Bridge (VA Route 3) on the Rappahannock River; seaward of the Jessie Dupont Memorial Bridge (VA Route 200) on the Great Wicomico River; and south of the Maryland-Virginia state line.¹¹ "Staked gill net" means a fixed fishing device consisting of an upright fence of netting fastened to poles or stakes that have been pushed or pumped into the bottom.¹²

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

The Commission may: ... adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth The Commission may establish new licenses and fees ... The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups The Commission shall prepare fishery management plans containing evaluations of regulatory management options The Commission may provide for enforcement of any regulation governing surf clams The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects The Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including defining terms relevant to these regulations. This results in GENERAL_DELEGATION because the regulation establishes definitions that are essential for the effective implementation and understanding of the Commission's regulatory framework, aligning with the statute's intent to facilitate management and conservation efforts. The legal significance of this authorization relationship is that it allows the Commission the flexibility to create foundational definitions that support its regulatory objectives without requiring further legislative approval for each specific term.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Bottlenose Dolphin Pound Net Regulated Area" means all Virginia marine waters o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

The Commission may: ... adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth. The Commission may establish new licenses and fees... The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups. Prepare fishery management plans containing evaluations of regulatory management options... Provide for enforcement of any regulation governing surf clams by any law-enforcement officer of any agency of the Commonwealth or its political subdivisions or by any law-enforcement officer of any agency of the federal government. The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects as defined by these federal statutes and the implementing regulations adopted thereunder. The Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management...

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of new licenses and fees and the enforcement of regulations. This broad grant of authority encompasses the regulation defining the "Bottlenose Dolphin Pound Net Regulated Area," as it falls within the Commission's mandate to manage marine resources and implement necessary regulations for conservation and resource management. The legal significance of this authorization relationship is that it allows the Commission to exercise its discretion in regulating marine areas to ensure the sustainability of both the seafood industry and the marine ecosystem, thereby fulfilling its statutory obligations.

Provision 3

""Fixed fishing device" means any fishing device used for the purpose of catching..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of licenses and fees, enforcement of regulations, and management of specific fish species. This broad grant of authority encompasses the regulation defining "fixed fishing device" as it relates to the Commission's responsibility to regulate fishing practices and ensure sustainable management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek additional, specific legislative approval for each regulatory detail.

Provision 4

""Fyke net" means a round stationary net distended by a series of hoops or frames..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad language allows for GENERAL_DELEGATION because it encompasses the need to define and regulate specific fishing gear, such as fyke nets, which are essential for effective management of the seafood industry and resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without requiring further legislative action for each specific regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

""Modified pound net leader" means a pound net leader that is affixed to or resti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, as well as to establish licenses, fees, and enforcement measures. This broad grant of authority encompasses the regulation defining "modified pound net leader," as it relates to the management and conservation of seafood resources by specifying gear requirements that can impact fish populations and habitats. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective management and conservation of marine resources without requiring further specific legislative approval for each regulatory detail.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

""Nearshore pound net leader or nearshore pound net" means a pound net that has e..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

The Commission may: ... adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth The Commission may establish new licenses and fees ... The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups Prepare fishery management plans containing evaluations of regulatory management options Provide for enforcement of any regulation governing surf clams The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects The Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including establishing new licenses and fees and ensuring equitable distribution among resource user groups. This broad grant of authority encompasses the regulation defining "nearshore pound net leader or nearshore pound net," as it directly relates to the management and conservation of seafood resources by specifying the parameters for a fishing gear type that impacts resource use. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching mandate to manage and conserve marine resources effectively, thereby ensuring the sustainability of the seafood industry.

Provision 7

""Officer" means the marine police officer in charge of the district within which..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of enforcement mechanisms. This broad grant of authority encompasses the regulation defining "Officer," as it is essential for the enforcement of regulations related to the management of seafood resources and the oversight of fishing activities. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures through general delegation, ensuring effective management and conservation of marine resources in the Commonwealth.

Provision 8

""Offshore pound net leader or offshore pound net" means a pound net with any par..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

The Commission may: ... adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth. The Commission may establish new licenses and fees ... The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups. The Commission shall prepare fishery management plans containing evaluations of regulatory management options, ... and use them in the development of regulations. The Commission may provide for enforcement of any regulation governing surf clams ... The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects. The Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management.

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including establishing licenses and fees and ensuring equitable distribution among resource user groups. The regulation defining an "offshore pound net leader" based on a specific water depth may exceed the statute's intent, as it does not directly relate to the conservation or management of seafood resources but rather imposes a technical specification that could restrict fishing practices without clear justification tied to the statutory goals. The legal significance of this relationship is that if the regulation imposes requirements beyond what is necessary for conservation and management as outlined in the statute, it may be challenged as an overreach of the Commission's authority.

Provision 9

""Pound net" means a fixed entrapment gear attached to posts or stakes with three..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, allowing for the establishment of new licenses and fees, and the preparation of fishery management plans. This broad grant of authority encompasses the regulation defining "pound net" as it relates to the Commission's responsibility to regulate fishing practices and ensure sustainable management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching mandate to manage and conserve marine resources effectively, thereby ensuring the regulation operates under a framework of GENERAL_DELEGATION.

Provision 10

""Pound Net Regulated Area I" means all waters of the mainstem of the Chesapeake ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, as well as to establish new licenses and fees and to prepare fishery management plans. This broad grant of authority encompasses the regulation defining the "Pound Net Regulated Area I," as it directly relates to the management and conservation of seafood resources within specified waters, thereby promoting the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further specific legislative approval, thereby enabling timely and responsive regulatory actions.

Provision 11

""Pound Net Regulated Area II" means all waters of the mainstem of the Chesapeake..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, as well as to perform acts necessary for the establishment and implementation of fishery management plans. This broad grant of authority encompasses the regulation defining "Pound Net Regulated Area II," as it relates to the management and conservation of specific marine resources within designated waters, aligning with the Commission's responsibility to regulate seafood taking and promote sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective management of the Commonwealth's marine resources.

Provision 12

""Staked gill net" means a fixed fishing device consisting of an upright fence of..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

The Commission may: ... adopt regulations, including those for taking seafood, necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth The Commission may establish new licenses and fees ... The Commission shall ensure that increases in licenses and fees are equitably distributed among resource user groups Prepare fishery management plans containing evaluations of regulatory management options Use them in the development of regulations Provide for enforcement of any regulation governing surf clams The Commission is authorized to perform all such acts as may be necessary for the establishment and implementation of cooperative fish restoration and management projects The Commission shall have the exclusive authority to manage Atlantic menhaden and shall adopt regulations necessary for its management

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including establishing new licenses and fees and ensuring equitable distribution among resource user groups. This broad grant of authority encompasses the regulation defining "staked gill net" as it relates to the management and conservation of fishing practices, which is essential for the effective implementation of the Commission's regulatory framework. The legal significance of this authorization relationship is that it allows the Commission to exercise flexibility in regulating fishing methods, thereby supporting the overarching goals of resource conservation and industry welfare without needing specific legislative approval for each regulatory detail.

Pertaining to the Licensing of Fixed Fishing Devices

Express

General

Overreach

Unauthorized

Requirements

A. A fixed fishing device shall be perpendicular to the shoreline insofar as possible.¹ B. In determining compliance with the requirements prescribing minimum distances between fixed fishing devices, measurement shall be made from the center line of each device.² C. An applicant shall state the desired length of the fixed fishing device, which shall not exceed the maximum limit prescribed by law. Such length shall be stated on any license issued by the officer. A licensee may apply for a new license to include a greater length provided such additional length does not make the device exceed the maximum legal length or the legal requirement of a minimum distance between successive fishing structures in the same row. In the event a licensee fishes a length less than that stated on the license, the unfished length shall be subject to the provisions of 4VAC20-20-50 B.³ D. Any offshore pound net, licensed and fished in Virginia tidal waters located within the Bottlenose Dolphin Pound Net Regulated Area, shall be equipped with a modified pound net leader as defined in 4VAC20-20-20 year-round.⁴ E. It shall be unlawful to set, fish, or fail to remove a modified pound net leader, unless the pound net licensee has completed modified pound net leader compliance training and possesses onboard the vessel a valid modified pound net leader compliance training certificate issued by the National Marine Fisheries Service.⁵ F. It shall be unlawful to set, fish, or fail to remove pound net gear in the Bottlenose Pound Net Regulated Area or Pound Net Regulated Area II unless it has all three continuous sections, as defined in 4VAC20-20-20 , except that one or more sections may be missing for a maximum period of 10 days for purposes of setting, removing, or repairing pound nets.⁶

Provision-Level Authorization Analysis

Provision 1

"A. A fixed fishing device shall be perpendicular to the shoreline insofar as pos..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad grant of authority encompasses the regulation regarding fixed fishing devices, as it directly relates to the management of fishing practices that impact resource conservation and the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows for flexibility in regulatory implementation, enabling the Commission to address specific operational details that support the overarching goals of resource management and industry welfare without needing to seek additional legislative approval.

Provision 2

"B. In determining compliance with the requirements prescribing minimum distances..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of fishing devices. This broad grant of authority encompasses the regulation regarding compliance with minimum distances between fixed fishing devices, as it directly relates to the conservation and management of marine resources by ensuring appropriate spacing to prevent overfishing and resource depletion. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective management of the seafood industry.

Provision 3

"C. An applicant shall state the desired length of the fixed fishing device, whic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of fishing devices. This broad language encompasses the regulation regarding the length of fixed fishing devices, as it is necessary for the conservation and reasonable use of marine resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without needing further specific legislative approval for each regulation.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any offshore pound net, licensed and fished in Virginia tidal waters located..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the requirement for specific equipment modifications, such as a modified pound net leader. The regulation mandates that all offshore pound nets in a designated area be equipped with this specific modification year-round, which appears to exceed the statutory authority by imposing equipment standards that are not directly tied to the conservation or reasonable use of resources as outlined in the statute. The legal significance of this relationship is that the regulation may be considered invalid if it imposes requirements beyond what is expressly authorized by the statute, potentially infringing on the rights of fishers without clear statutory backing.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. It shall be unlawful to set, fish, or fail to remove a modified pound net lea..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. If the owner of a pound net intends that the prohibited fishing zone be enfor..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fisheries. This broad grant of authority allows the Commission to implement regulations that ensure compliance with conservation efforts, such as the requirement for marking pound nets to delineate prohibited fishing zones, thereby promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to enact necessary measures for resource management without requiring further legislative approval, thereby facilitating effective and timely regulation of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person to tamper with any flag marking the prohi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation that makes it unlawful to tamper with flags marking prohibited fishing zones, as it directly relates to the conservation and management of marine resources by ensuring compliance with designated fishing areas. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect marine ecosystems and enforce regulations that safeguard the interests of the seafood industry and resource users.

Provision 5

"E. It shall be unlawful for any person to tie, fasten or secure any boat or vess..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific fisheries. This broad grant of authority encompasses the regulation prohibiting the unlawful securing of vessels to fishing nets, as it directly relates to the conservation and reasonable use of marine resources by ensuring proper fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to maintain sustainable fishing practices and protect marine ecosystems under its general regulatory powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Licensing of Fixed Fishing Devices

Express

General

Overreach

Unauthorized

Requirements

A. Applications for renewal of license for existing fixed fishing devices may be accepted by the officer beginning at 9 a.m. on December 1 of the current license year through noon on January 10 of the next license year providing the applicant has met all requirements of law and this chapter. Any location not relicensed during the above period of time shall be considered vacant and available to any qualified applicant after noon on January 10.¹ B. Except as provided in subsections C and D of this section, a currently licensed fixed fishing device must have been fished during the current license year in order for the licensee to maintain his priority right to such location. It shall be mandatory for the licensee to notify the officer, on forms provided by the commission, when the fixed fishing device is ready to be fished in the location applied for, by a complete system of nets and poles, except as provided in subsection D of this section, for the purpose of visual inspection by the officer. Either the failure of the licensee to notify the officer when the fixed fishing device is ready to be fished or the failure by the licensee actually to fish the licensed device, by use of a complete system of nets and poles, except as provided in subsection D of this section, shall terminate his right or privilege to renew the license during the period set forth in subsection A of this section of this chapter, and he shall not become a qualified applicant for such location until 9 a.m. on February 1. Any application received from an unqualified applicant under this subsection shall be considered as received at 9 a.m. on February 1; however, in the event of the death of a current license holder, the priority right to renew the currently held locations of the deceased licensee shall not expire by reason of failure to fish said locations during the year for which they were licensed, but one additional year shall be and is hereby granted to the personal representative or lawful beneficiary of the deceased licensee to license the location in the name of the estate of the deceased licensee for purposes of fishing said location or making valid assignment thereof.² C. During the effective period of 4VAC20-530 , which establishes a moratorium on the taking and possession of American shad in the Chesapeake Bay and its tributaries, any person licensed during 1993 to set a staked gill net who chooses not to set that net during the period of the moratorium may maintain his priority right to the stake net's 1993 location by completing an application for a fixed fishing device and submitting it to the officer. No license fee shall be charged for the application.³ D. In order to maintain priority rights and renew a license to a specific pound net location, a pound net licensee shall be required to set and fish that pound net at least once during two consecutive calendar years starting with calendar year 2009.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Applications for renewal of license for existing fixed fishing devices may be..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood resources. This broad grant of authority encompasses the regulation regarding the renewal of licenses for fixed fishing devices, as it falls within the Commission's mandate to regulate activities that affect the seafood industry and ensure compliance with legal requirements. The legal significance of this authorization relationship is that it allows the Commission to implement necessary operational procedures, such as license renewals, under a GENERAL_DELEGATION framework, ensuring effective management of marine resources while adhering to statutory objectives.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Except as provided in subsections C and D of this section, a currently licens..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation's requirement for licensed fixed fishing devices to be actively fished to maintain priority rights, as it directly relates to the management and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations that ensure sustainable fishing practices while safeguarding the interests of the seafood industry and resource users.

Requirements Analysis

8 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. During the effective period of 4VAC20-530 , which establishes a moratorium on..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

Express

General

Overreach

Unauthorized

Requirements

Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"Code of Virginia."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including specific provisions for surf clams and Atlantic menhaden management. This broad grant of authority allows for GENERAL_DELEGATION because it encompasses a wide range of regulatory actions that the Commission may take to fulfill its mandate, thereby enabling the regulation to address various aspects of seafood management without needing to specify each action in detail. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible and adaptive regulatory measures that can respond to changing conditions in the seafood industry and marine resource conservation efforts.

Pertaining to the Licensing of Fixed Fishing Devices

Express

General

Overreach

Unauthorized

Requirements

A. A current fixed fishing device license, and the rights to renew same, may be transferred by the present licensee provided all parties comply with the existing statutes and regulations. Any transferee takes the license subject to all of the duties of the transferor.¹ B. Any rights a licensee may have, upon his death, shall be vested in his personal representative or lawful beneficiary.²

Provision-Level Authorization Analysis

Provision 1

"A. A current fixed fishing device license, and the rights to renew same, may be ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of seafood licenses. This broad grant of authority encompasses the regulation regarding the transfer of fishing device licenses, as it falls under the Commission's responsibility to manage licenses in a manner that supports the industry and ensures compliance with existing statutes and regulations. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that facilitate the transfer of licenses while ensuring that the management of marine resources remains effective and aligned with the overall goals of conservation and industry welfare.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any rights a licensee may have, upon his death, shall be vested in his person..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation regarding the rights of a licensee upon death, as it pertains to the management and transfer of licenses, which are integral to the functioning and sustainability of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure the continuity and stability of license ownership, thereby supporting the overall health of the seafood industry in the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Licensing of Fixed Fishing Devices

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person with 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary to enforce compliance and promote the general welfare of the seafood industry, thereby supporting the conservation efforts outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms through regulation, ensuring that the objectives of the statute are effectively achieved.

CROSS-REFERENCE § 28.2-903

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 9. Enforcement of Subtitle II; Jurisdiction › § 28.2-903. Violations constitute misdemeanor A violation of any provision of this subtitle or regulation promulgated thereunder, unless otherwise specifically...

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Pound Net Siting Public Interest Review

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to set forth the procedures for public notice and review of applications to establish a pound net at a new location.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to set forth the procedures for public notice and..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood resources. This broad grant of authority encompasses the regulation regarding the procedures for public notice and review of applications to establish a pound net at a new location, as it is necessary for the management and conservation of marine resources, which aligns with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that facilitate the sustainable use of marine resources while ensuring stakeholder engagement through public notice and review processes.

Pertaining to Pound Net Siting Public Interest Review

Express

General

Overreach

Unauthorized

Requirements

A. The owner of any pound net making application to the commission to license that pound net at a new location shall advertise in the form of a public notice the proposed new location of the pound net and the applicant's name and address. The proposed location of the pound net shall be described in terms of its latitude and longitude and its position relative to the shoreline and landward properties, with reference to the nearest onshore locality.¹ B. The public notice shall be approved by the commissioner or his designee and shall be advertised in a newspaper of general circulation in the area where the pound net is proposed. The applicant shall assume the cost of publication of the public notice.² C. It shall be the responsibility of the owner of any pound net making application to the commission to license that pound net at a new location to provide the commission with names and addresses of all land owners and residents within 500 feet of the most shoreward end of the proposed, new pound net location. Upon receipt of this information, the commission shall place a copy of the public notice on the agency's website and shall inform in writing all land owners and residents within 500 feet of the proposed, new pound net location of the public notice.³

Provision-Level Authorization Analysis

Provision 1

"A. The owner of any pound net making application to the commission to license th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources. This broad grant of authority encompasses the regulation requiring public notice for the licensing of pound nets, as it aligns with the Commission's responsibility to manage and regulate seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement detailed procedures, such as public notice requirements, to ensure transparency and stakeholder engagement in the management of marine resources.

Provision 2

"B. The public notice shall be approved by the commissioner or his designee and s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the establishment of regulations for the reasonable use of specific seafood resources. This broad grant of authority encompasses the regulation requiring public notice approval and advertisement, as it is necessary for the Commission to manage the licensing process and ensure transparency in the application for pound net permits. The legal significance of this authorization relationship is that it allows the Commission to delegate certain regulatory functions to ensure efficient management and oversight of seafood resources while remaining within the framework established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be the responsibility of the owner of any pound net making applicati..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fisheries and the promotion of the seafood industry. This broad grant of authority encompasses the regulation requiring pound net owners to provide information about nearby landowners and residents, as it is necessary for the Commission to ensure that the licensing process considers the impact on local communities and promotes responsible resource management. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address public concerns and environmental considerations, thereby fulfilling its mandate to manage marine resources effectively.

Pertaining to Pound Net Siting Public Interest Review

Express

General

Overreach

Unauthorized

Requirements

A. A public comment period shall extend for 30 days from the date of advertisement of the public notice. During the comment period any interested citizen may offer written comment to the commission.¹ B. The receipt by the commissioner of any protest during the public comment period shall cause the application for a new pound net location to be placed on the next available agenda of the commission for public hearing and review by the commission.² C. In considering the licensing of a pound net at a new location, the commission shall be guided in its deliberation by the provisions of Article XI, Section I of the Constitution of Virginia and the public trust doctrine as defined by the common law of the Commonwealth adopted pursuant to § 1-10 of the Code of Virginia. The commission shall also consider the effects of placement of the pound net at the new location on the following: 1. Other reasonable and permissible uses of the state waters;³ 2. Marine and fishery resources of the Commonwealth;⁴ 3. Tidal wetlands;⁵ 4. Adjacent or nearby properties;⁶ 5. Water quality; and⁷ 6. Submerged aquatic vegetation.⁸ D. Following the public hearing, the commission may issue the pound net license for the new location, deny the license, or issue a license for a modified location.⁹

Provision-Level Authorization Analysis

Provision 1

"A. A public comment period shall extend for 30 days from the date of advertiseme..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation requiring a public comment period, as it facilitates stakeholder engagement and transparency in the regulatory process, which is essential for the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary procedures that support its overarching mandate to manage and promote the seafood industry while ensuring public participation in decision-making.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The receipt by the commissioner of any protest during the public comment peri..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of procedures for public input on regulatory matters. This broad grant of authority encompasses the regulation requiring that any protest received during the public comment period leads to a review by the Commission, as it aligns with the Commission's responsibility to ensure stakeholder engagement and effective management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that facilitate public participation in the regulatory process, thereby promoting transparency and accountability in the management of marine resources.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 3

"C. In considering the licensing of a pound net at a new location, the commission..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the management of specific species and the establishment of licensing requirements. This broad grant of authority encompasses the regulation regarding the licensing of pound nets at new locations, as it aligns with the Commission's responsibility to ensure the reasonable use of marine resources while adhering to constitutional and common law principles. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in regulatory matters, ensuring that decisions made regarding licensing are consistent with both statutory mandates and broader legal doctrines, thereby supporting the overall management of the Commonwealth's marine resources.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Explicit Statutory Citations

AUTHORIZING CITATION § 1-10

Citation text: "§ 1-10"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 4

"2. Marine and fishery resources of the Commonwealth;"

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning marine and fishery resources, as it aligns with the Commission's mandate to manage and conserve these resources for the benefit of the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek further specific legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 5

"3. Tidal wetlands;"

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, as well as to promote the general welfare of the seafood industry. This broad language encompasses a wide range of regulatory actions, including those related to tidal wetlands, as they are integral to the health of marine ecosystems and the sustainability of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address various aspects of marine resource management without needing to seek further specific legislative approval, thereby facilitating timely and effective conservation efforts.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 6

"4. Adjacent or nearby properties;"

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the general welfare of the seafood industry and the conservation of marine resources. This broad grant of authority encompasses the regulation regarding adjacent or nearby properties, as it relates to the management and conservation of seafood resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring specific legislative approval for each regulation.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 7

"5. Water quality; and"

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation on water quality, as maintaining water quality is essential for the conservation and reasonable use of seafood resources, thereby aligning with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable management of marine resources without requiring specific legislative approval for each regulation.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 8

"6. Submerged aquatic vegetation."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation concerning submerged aquatic vegetation, as it relates to the conservation and management of essential habitats that support the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address various aspects of marine resource management without the need for specific legislative approval for each individual regulation.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Provision 9

"D. Following the public hearing, the commission may issue the pound net license ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the issuance of licenses for activities such as taking seafood. This broad language allows the Commission to exercise discretion in determining the appropriate licensing procedures, including the ability to issue, deny, or modify licenses for pound nets based on public hearings. The legal significance of this relationship is that it empowers the Commission to effectively manage and regulate the seafood industry while ensuring that decisions are made in the context of public input and resource conservation.

CROSS-REFERENCE § 1-10

Title 1. General Provisions › Chapter 2. Common Law, Statutes and Rules of Construction [Repealed] › § 1-10. Repealed Repealed by Acts 2005, c.839, cl. 10, effective October 1, 2005.

Pertaining to Pound Net Siting Public Interest Review

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provisions of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is guilty of a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation concerning violations, as it is necessary for enforcing the conservation and management objectives outlined in the statute, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement and enforce regulations that ensure compliance and promote the sustainability of the seafood resources within its jurisdiction.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Display of Licenses to Catch Finfish or Crabs

Express

General

Overreach

Unauthorized

Requirements

The purpose of this regulation is to provide for effective enforcement of the licensing requirements of the Code of Virginia and any regulations requiring licenses.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this regulation is to provide for effective enforcement of the li..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the establishment of regulations for the seafood industry and licensing requirements. This results in GENERAL_DELEGATION because the regulation aligns with the statutory mandate to promote the welfare of the seafood industry and enforce licensing requirements, which are essential for effective management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating timely and effective resource management.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, possess, or land lobster by lobster trap in Virginia unless that person possesses a Lobster Under 200 Permit or a Lobster Over 200 Permit.¹ B. It shall be unlawful for any person to take, catch, possess, or land lobster from gear other than lobster traps in Virginia unless that person possesses a Lobster Incidental Harvest Permit.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, possess, or land lobster..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various species. This broad grant of authority allows the Commission to implement regulations like the one requiring permits for lobster traps, as it falls within the scope of managing and conserving seafood resources in the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to regulate activities related to seafood harvesting, ensuring sustainable practices while providing flexibility to address specific resource management needs.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to take, catch, possess, or land lobster..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to regulate the taking of lobster, as the regulation addresses the method of capture, which is essential for the conservation and management of the lobster population in Virginia waters. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure sustainable practices within the seafood industry, thereby aligning with the overarching goals of resource conservation and management outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Display of Licenses to Catch Finfish or Crabs

Express

General

Overreach

Unauthorized

Requirements

A. Failure to exhibit the license upon demand of any marine patrol officer, or failure to display the license plate as required, shall be prima facie evidence that such person is fishing without a license.¹ B. As set forth in § 28.2-225 of the Code of Virginia, any person fishing without the required license shall be guilty of a Class 1 misdemeanor.²

Provision-Level Authorization Analysis

Provision 1

"A. Failure to exhibit the license upon demand of any marine patrol officer, or f..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of fisheries and the promotion of the seafood industry. This broad grant of authority encompasses the regulation regarding the requirement to exhibit a fishing license, as it is necessary for enforcing compliance and ensuring the sustainable management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the effective enforcement of licensing requirements, thereby supporting the overall objectives of resource conservation and industry welfare.

EXCEPTION § 28.2-225

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 2. General Provisions › Article 5. Licensing Generally › § 28.2-225. Fishing license required; penalty It shall be unlawful to fish in the tidal waters of the Commonwealth or those waters under the joint j...

Provision 2

"B. As set forth in § 28.2-225 of the Code of Virginia, any person fishing withou..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-225 specifically states that any person fishing without the required license shall be guilty of a Class 1 misdemeanor, which indicates a penalty for individuals who do not comply with licensing requirements but does not grant authority to create additional regulatory provisions. The regulation implies an enforcement mechanism or additional requirements beyond what is explicitly stated in the statute, leading to the conclusion that it is unauthorized since the statute does not empower the agency to impose further regulations or penalties. The legal significance of this relationship is that regulations must be grounded in statutory authority, and without such authority, the regulation lacks legal validity and enforceability.

EXCEPTION § 28.2-225

Explicit Statutory Citations

REFERENCE § 28.2-225

Citation text: "§ 28.2-225"

Total: 1 citation to 1 unique statute

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for the long-term conservation and use of the soft shell clam and hard shell clam resources, and to provide for appropriate stewardship over the public, leased, and unassigned subaqueous grounds of the Commonwealth.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for the long-term conservation and use..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams, and emphasizes the management of Atlantic menhaden while promoting the general welfare of the seafood industry. The regulation's broad purpose of providing for the long-term conservation and use of both soft shell and hard shell clam resources, along with stewardship over all subaqueous grounds, appears to exceed the specific authorization granted in the statute, which focuses primarily on surf clams and does not explicitly extend to all clam resources or the management of unassigned subaqueous grounds. The legal significance of this relationship indicates that the regulation may not align with the limited scope of authority outlined in the statute, potentially leading to overreach by the Commission in regulating resources beyond what is explicitly authorized.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Bull rake" means a device designed for use by hand for the purpose of harvesting clams, and which has the following characteristics: rake mouth width shall not exceed 30 inches, the teeth on the bar shall not be longer than 4-1/2 inches, the holding basket shall not hold greater than 3/4 of a bushel of clams and bottom material, and the handle shall not be longer than 30 feet.¹ A bull rake may be equipped with skids to adjust the teeth for depth of penetration into the bottom. "Commission" means the Marine Resources Commission. "Conventional dredge" means the type of dredge that has become customarily used in Virginia to dredge oysters and crabs.² It excludes any type of dredge where the dredging action functions or is aided by hydraulic action. "Conventional hard clam rake" means a device designed for use by hand for the purpose of harvesting clams, and which has the following characteristics: rake mouth width shall not exceed 16 inches, the teeth on the bar shall not be longer than seven inches, the attached holding basket shall not hold greater than 1/10 of a bushel of clams and bottom material, and the handle shall not be longer than 10 feet. "Cultured clams" means hard shell clams (Mercenaria mercenaria) that have been spawned in a hatchery, planted on leased ground, and covered with netting or other means protected from predators until harvest. "Public ground" means the grounds defined by §§ 28.2-551 and 28.2-639 through 28.2-649 of the Code of Virginia, and any areas set aside as public ground by court order. "Leased ground" means any grounds leased by the Marine Resources Commission pursuant to the provisions of Chapter 6 (§ 28.2-600 et seq.) of Title 28.2 of the Code of Virginia. "Officer" means a law-enforcement officer of the Marine Resources Commission. "Unassigned ground" means any ground outside the public ground as defined by this chapter and which has not been set aside, or assigned by lease, permit or easement by the Marine Resources Commission. "Water rake" means a device for use by hand for the harvesting of cultured clams on leased grounds.³ The mouth of the water rake shall not exceed 36 inches in width, and the water rake shall be attached by a hose to a single pump engine of no greater than 7.5 horsepower and shall only be pulled by a single person, with no mechanical assistance.⁴

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species and the promotion of the seafood industry. This broad language encompasses the regulation defining "bull rake" as it pertains to the harvesting of clams, which is a critical aspect of managing the seafood resources and ensuring sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring flexibility in managing and conserving marine resources effectively.

CROSS-REFERENCE § 28.2-600

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 6. Planting Grounds › Article 1. Riparian Oyster-Planting Grounds › § 28.2-600. Riparian planting ground assignments; eligibility; fee A. Any owner of land bordering on a body of water in the oyster-growin...

CROSS-REFERENCE § 28.2-649

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 6. Planting Grounds › Article 4. Restrictions › § 28.2-649. Acts which remain in force The following acts of the General Assembly are continued in force: Chapter 632 of the Acts of Assembly of 1901-1902, r...

ADDITIONAL AUTHORITY § 28.2-551

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 4. Surveys and Resurveys › § 28.2-551. Surveys and reports as conclusive evidence The surveys of the natural oyster beds, rocks, and shoals of the Commonwealth, made pursuant...

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"A bull rake may be equipped with skids to adjust the teeth for depth of penetrat..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation regarding the adjustment of bull rake skids for depth penetration, as it relates to the reasonable use and management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective resource management while maintaining flexibility in regulatory approaches.

CROSS-REFERENCE § 28.2-600

CROSS-REFERENCE § 28.2-649

ADDITIONAL AUTHORITY § 28.2-551

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"It excludes any type of dredge where the dredging action functions or is aided b..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for managing surf clams and other marine resources. This broad grant of authority encompasses the regulation's exclusion of hydraulic dredging methods and the definition of a conventional hard clam rake, as these measures directly relate to the conservation and management of clam harvesting practices. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively promote sustainable practices within the seafood industry, ensuring the long-term viability of marine resources under its jurisdiction.

CROSS-REFERENCE § 28.2-600

CROSS-REFERENCE § 28.2-649

ADDITIONAL AUTHORITY § 28.2-551

Explicit Statutory Citations

RANGE REFERENCE § 28.2-551

Citation text: "§§ 28.2-551"

RANGE REFERENCE § 28.2-551

Citation text: "§§ 28.2-551 and 28.2-639"

RANGE REFERENCE § 28.2-639

Citation text: "§§ 28.2-551 and 28.2-639"

AUTHORIZING CITATION § 28.2-600

Citation text: "§ 28.2-600"

✓ Suggests authorization

AUTHORIZING CITATION § 28.2-600

Citation text: "§ 28.2-600 et seq."

✓ Suggests authorization

Total: 5 citations to 3 unique statutes

Provision 4

"The mouth of the water rake shall not exceed 36 inches in width, and the water r..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly address the specific operational limitations on equipment, such as the width of a water rake or horsepower restrictions for pump engines. The regulation imposes detailed operational constraints that appear to exceed the broad authority granted by the statute, as it specifies equipment specifications and personal limitations that are not mentioned in the statutory text. The legal significance of this relationship is that the regulation may be invalidated if it is determined to exceed the scope of authority provided by the statute, as it imposes additional restrictions that are not necessary for the conservation or reasonable use of seafood resources as outlined in § 28.2-201.

CROSS-REFERENCE § 28.2-600

CROSS-REFERENCE § 28.2-649

ADDITIONAL AUTHORITY § 28.2-551

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful to take or catch soft shell clams from any leased grounds in any of the tidal waters of the Commonwealth by the use of a hydraulic dredge without first obtaining (i) a soft shell clam dredge license for each boat used for such a purpose and (ii) a permit for each boat and operator thereof.¹ B. Any lessee desiring to take or catch soft shell clams from leased ground by the use of a hydraulic dredge shall apply to the officer in charge of the district, in writing, specifying the location and identity of the specific lease or leases where he desires to dredge and request the privilege to dredge the specific lease or leases.² C. Each application will be reviewed by the commission. The commission may conduct a public hearing on such application if, in its discretion, it is deemed necessary. If the commission deems it wise to permit dredging of soft shell clams within the area of such a lease, the commission engineers shall first approve the existing boundaries, survey and plat of each lease. Any surveying or marking of the lease which may be necessary shall be at the expense of the lessee, unless such survey shows that the leased ground was properly marked.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful to take or catch soft shell clams from any leased ground..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams. This broad grant of authority encompasses the regulation that prohibits the taking of soft shell clams using hydraulic dredges without appropriate licensing and permitting, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures to manage and protect the seafood industry effectively, ensuring compliance with the overarching goals of conservation and resource management outlined in the statute.

Provision 2

"B. Any lessee desiring to take or catch soft shell clams from leased ground by t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and marine resources in the Commonwealth. This broad grant of authority allows the Commission to implement regulations like the one requiring lessees to apply for permission to use hydraulic dredges, as it directly relates to the management and conservation of soft shell clams within the framework established by the statute. The legal significance of this authorization relationship is that it empowers the Commission to regulate activities that impact marine resources, ensuring that such activities align with the overarching goals of conservation and responsible resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Each application will be reviewed by the commission. The commission may condu..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish regulations that include reviewing applications for dredging and conducting public hearings, which aligns with its mandate to promote the general welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in regulatory matters, ensuring that decisions are made in the context of resource conservation and industry welfare, thus justifying the GENERAL_DELEGATION level.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. After the license is issued by the officer in charge of the district and before the licensee may begin to operate the hydraulic dredge, the lessee shall obtain from the officer in charge of the district a separate and individual permit which combines the identification of each lease, boat, and the operator thereof. An additional permit shall be obtained from the officer in charge of the district each time there is any change in operations which does not comply with all provisions in the original permit.¹ B. The license and permit shall at all times be on board the boat available for inspection by any inspector of the commission.²

Provision-Level Authorization Analysis

Provision 1

"A. After the license is issued by the officer in charge of the district and befo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources. This broad grant of authority encompasses the regulation requiring a separate and individual permit for operating hydraulic dredges, as it is a necessary measure to ensure proper management and oversight of seafood harvesting activities. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory requirements under the umbrella of its general authority, ensuring effective management of marine resources while promoting industry welfare.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The license and permit shall at all times be on board the boat available for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad grant of authority encompasses the regulation requiring that licenses and permits be available for inspection, as it directly supports the Commission's responsibility to ensure compliance and effective management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary operational requirements, like inspection of licenses, under a GENERAL_DELEGATION framework, ensuring that regulatory measures align with the overarching goals of resource conservation and industry welfare.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful to operate a hydraulic dredge in the nighttime between the hours of sunset and sunrise or on Sunday for the catching of soft shell clams from leased ground.¹ B. It shall be unlawful to operate a hydraulic dredge on any lease for less than three acres unless adjoining other leases where the combined leases total more than three acres.² C. It shall be unlawful to operate a hydraulic dredge on any leased ground unless the boundaries of the lease are distinctly marked between corners to the satisfaction of the officer in charge of the district. All such marking shall be continually maintained during the dredging operations.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful to operate a hydraulic dredge in the nighttime between t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation prohibiting the operation of hydraulic dredges during specific times, as it directly relates to the conservation of soft shell clams and the management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices within the seafood industry, thereby fulfilling its mandate to manage and protect marine resources effectively.

Provision 2

"B. It shall be unlawful to operate a hydraulic dredge on any lease for less than..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of specific seafood resources. The regulation regarding the operation of hydraulic dredges aligns with this broad authority by addressing the management and conservation of marine resources, ensuring that dredging practices do not compromise the sustainability of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the effective management and conservation of marine resources, thereby supporting the overarching goals outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful to operate a hydraulic dredge on any leased ground unles..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation regarding the operation of hydraulic dredges on leased grounds directly supports the statutory purpose of conserving marine resources and ensuring responsible use by establishing clear operational boundaries that protect those resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for effective management and conservation efforts within the seafood industry, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to take or catch soft shell clams from any unassigned ground in the tidal waters of the Commonwealth by the use of a dredge.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to take or catch soft shell clams from any u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation prohibiting the taking of soft shell clams from unassigned grounds, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect and manage specific marine species, ensuring sustainable practices within the seafood industry.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person, other than an employee of the commission or the Virginia Institute of Marine Science while conducting tests or experiments, to take or catch soft shell clams from any public grounds in the tidal waters of the Commonwealth by the use of a dredge without first obtaining (i) a soft shell clam dredge license for each boat used for such purpose and (ii) a permit for each boat and operator thereof.¹ B. Any person desiring to take or catch soft shell clams from the public grounds by the use of a hydraulic dredge shall apply to the officer in charge of the district, in writing, describing the area and requesting the privilege to dredge the specific area.² C. Each application shall be reviewed by the commission. The commission shall conduct a public hearing to determine the suitability of the area for the production of oysters, and shall make such further investigations and studies as in its discretion it deems necessary. If the commission deems it wise to permit dredging of soft shell clams in such an area, the area must be surveyed and marked by the commission before a license and permit is issued.³ D. If the application is approved by the commission, no person shall have the exclusive use of the area for taking or catching soft shell clams by hydraulic dredge. The area shall be open to the general public for such a purpose provided each person obtains the necessary license and permit and complies with all other provisions of this chapter.⁴

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person, other than an employee of the commission..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams, and emphasizes the need for promoting the general welfare of the seafood industry. The regulation, which makes it unlawful for any person to take soft shell clams from public grounds using a dredge without prior authorization, appears to exceed the statute's authorization as it imposes a blanket prohibition on a specific method of harvesting that is not explicitly mentioned in the statute and does not align with the broader intent of reasonable use. The legal significance of this relationship is that the regulation may be seen as overstepping the bounds of the Commission's authority by restricting access to a resource without clear statutory support for such a prohibition, potentially undermining the balance between conservation and reasonable use outlined in the statute.

Provision 2

"B. Any person desiring to take or catch soft shell clams from the public grounds..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding the application process for taking soft shell clams using a hydraulic dredge, as it directly relates to the management and conservation of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management while ensuring that the interests of the seafood industry are upheld.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Each application shall be reviewed by the commission. The commission shall co..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources. This broad language allows the Commission to conduct public hearings and investigations regarding the suitability of areas for oyster production, as outlined in the regulation, without needing to specify each regulatory action in the statute. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in managing resources effectively, ensuring that regulations can adapt to the needs of the industry and the conservation goals of the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. If the application is approved by the commission, no person shall have the ex..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including regulations for the reasonable use of specific seafood like surf clams. This broad grant of authority allows the regulation to establish that no individual can have exclusive rights to an area for taking soft shell clams, thereby promoting public access and conservation, which aligns with the Commission's mandate. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure equitable resource use and management, reflecting the statutory intent to balance industry welfare with conservation efforts.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. After the license is issued by the officer in charge of the district, and before the licensee may begin to operate the hydraulic dredge, the licensee shall obtain from the officer in charge of the district a separate and individual permit which combines the identification of the approved area, boat and the operator thereof. An additional permit shall be obtained from the officer in charge of the district each time there is any change in operations which does not comply with the provisions in the original permit.¹ B. The license and permit shall at all times be on board the boat available for inspection by any officer.²

Provision-Level Authorization Analysis

Provision 1

"A. After the license is issued by the officer in charge of the district, and bef..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood activities. This broad language allows for the establishment of detailed operational requirements, such as the need for a separate permit before operating a hydraulic dredge, as it falls within the Commission's mandate to regulate activities that impact the seafood industry and marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure sustainable practices while maintaining oversight over the seafood industry, thereby promoting the general welfare of the Commonwealth's marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The license and permit shall at all times be on board the boat available for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation requiring that licenses and permits be available for inspection, as it directly relates to the enforcement and oversight necessary for the conservation and reasonable use of seafood resources. The legal significance of this relationship is that it allows the Commission to implement regulations that ensure compliance and accountability among resource users, thereby supporting the overarching goals of resource management and conservation.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to operate a hydraulic dredge in the nighttime between the hours of sunset and sunrise, or on Saturday or Sunday, for the catching of soft shell clams from public ground.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to operate a hydraulic dredge in the nighttime between the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that address specific practices, such as the prohibition of hydraulic dredging during certain times, to ensure sustainable management of soft shell clams. The legal significance of this authorization relationship is that it empowers the Commission to implement measures that are essential for the conservation and reasonable use of marine resources, thereby supporting the overall regulatory framework for the seafood industry.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person in charge of any boat licensed to catch crabs with a dredge to have or allow on board any clams in excess of 250, except as provided in subsection B of this section.¹ B. Any person in charge of any boat licensed to catch crabs with a dredge shall be allowed to have or allow on board any hard clams in excess of 250 on the seaside of Accomack and Northampton counties provided he has the license and permit required to take hard clams.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person in charge of any boat licensed to catch c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation that prohibits excess clams on boats licensed for crabbing, as it aligns with the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices within the seafood industry, thereby supporting both resource conservation and industry welfare without needing a higher level of delegation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any person in charge of any boat licensed to catch crabs with a dredge shall ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like surf clams. This broad grant of authority allows the Commission to establish regulations that facilitate the management of seafood resources, such as permitting the possession of hard clams in excess of a specified amount under certain conditions, thereby aligning with the statute's intent to regulate the seafood industry effectively. The legal significance of this authorization relationship is that it empowers the Commission to create flexible regulations that address specific circumstances within the seafood industry while ensuring the conservation and sustainable use of marine resources.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-520 of the Code of Virginia, it shall be unlawful to take or catch hard shell clams from in any of the tidal waters of the Commonwealth by the use of a hydraulic dredge.¹ The Virginia Institute of Marine Science may use hydraulic dredges to take and catch hard shell clams on an experimental basis.²

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-520 of the Code of Virginia, it shall be unlawful to take..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of surf clams and other seafood. This broad grant of authority allows the Commission to regulate the methods of taking seafood, such as prohibiting the use of hydraulic dredges for hard shell clams, as it aligns with the goals of conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of the Commonwealth's seafood resources, ensuring both conservation and the welfare of the industry.

EXCEPTION § 28.2-520

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-520. Use of hydraulic dredges prohibited; exceptions; penalty A. It shall be unlawful for any person, unless he...

Explicit Statutory Citations

RANGE REFERENCE § 28.2-520

Citation text: "§ 28.2-520"

Total: 1 citation to 1 unique statute

Provision 2

"The Virginia Institute of Marine Science may use hydraulic dredges to take and c..."

General Delegation

AUTHORIZING STATUTE § 28.2-520

The Commission may issue a permit authorizing the possession and use of a (i) hydraulic dredge for the purpose of (a) transiting state waters or (b) conducting legitimate aquaculture research and (ii) handheld hydraulically operated device for harvesting cultured clams from leased grounds

ANALYSIS

§ 28.2-520 specifically grants the Commission the authority to issue permits for the possession and use of hydraulic dredges for specific purposes, including conducting legitimate aquaculture research. The regulation allows the Virginia Institute of Marine Science to use hydraulic dredges for experimental purposes, which aligns with the broad authority granted by the statute to conduct research related to aquaculture. This authorization relationship signifies that the regulation operates within the scope of the Commission's delegated powers, allowing for flexibility in research activities without requiring a specific permit for each instance.

EXCEPTION § 28.2-520

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful to take or catch hard shell clams from any public or unassigned grounds in the tidal waters of the Commonwealth by the use of a conventional dredge except as provided in subsection B of this section.¹ B. It shall be lawful only between December 1 and April 1, to take or catch hard shell clams by the use of a conventional dredge from unassigned ground on the seaside of Accomack and Northampton counties where the water is more than four feet in depth at mean low water, provided each person complies with all the provisions of this chapter.² C. It shall be unlawful to operate a conventional dredge as permitted in subsection B of this section between one hour before sunset and one hour after sunrise, or on Sunday.³ D. Any person who may desire to take or catch hard shell clams from leased ground by the use of a conventional dredge shall comply with all provisions of §§ 28.2-515 , 28.2-516 , and 28.2-517 of the Code of Virginia, except the provisions thereof relating to planting of seed oysters or shells and the use of said ground for cultivation of oysters.⁴ E. It shall be unlawful for any person to use or have overboard any dredge within the following defined areas: all public waters of Chincoteague Bay and Assateague Bay and Channel lying east of a line that begins at the Virginia/Maryland state line marker "D" at latitude 38°01'10.00" N and longitude 75°19'50.90" W, thence southerly to the boundary marker located at latitude 38°00'19.00" N and longitude 75°20'09.90" W, thence southwesterly to the next boundary marker located at latitude 37°59'52.76" N and longitude 75°20'42.52" W, thence southwesterly to the next boundary marker located at latitude 37°59'35.13" N and longitude 75°21'40.28" W, thence southwesterly to channel marker R "14"' thence southerly to channel marker R "12" located adjacent to corner 627 of the Public Clamming Ground, thence southeasterly to channel marker R "10," thence southeasterly to channel marker G "9," thence southerly to channel marker R "8," thence southerly to channel marker R "6," thence southerly to channel marker R "4," thence southerly to channel marker G "1," thence due east to the shoreline to a point located at latitude 37°56'19.95," and longitude 75°22'17.44". All public waters lying west of a line that begins at Cockle Point at latitude 37°59'09.54" N and longitude 75°24'25.82" W, thence northeasterly to the next boundary marker located at latitude 37°59'34.09" N and longitude 75°24'03.27" W, thence northeasterly to the next boundary marker located at latitude 38°00'02.69" N and longitude 75°23'36.38" W, thence northeasterly to channel marker Fl G "3."⁵ F. All leased ground within the defined boundaries of subsection E of this section and meeting the provisions of subsection D of this section shall be exempt from the prohibition on dredging.⁶

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful to take or catch hard shell clams from any public or una..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of surf clams and other seafood. This broad grant of authority allows the Commission to establish regulations, such as the prohibition on taking hard shell clams with a conventional dredge, to ensure the conservation and reasonable use of marine resources in the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to manage and protect the seafood industry effectively, reflecting the intent of the statute to promote sustainability and responsible resource use.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Provision 2

"B. It shall be lawful only between December 1 and April 1, to take or catch hard..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams, and to manage Atlantic menhaden, but it does not explicitly authorize restrictions on the timing or methods of taking hard shell clams. The regulation's limitation on the taking of hard shell clams to a specific timeframe and method may exceed the Commission's authority as it imposes conditions not clearly supported by the statutory language, which focuses on general conservation and management rather than specific operational restrictions. The legal significance of this relationship is that the regulation may be challenged for exceeding the scope of the authority granted by the statute, potentially undermining the regulatory framework intended by the legislature.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Provision 3

"C. It shall be unlawful to operate a conventional dredge as permitted in subsect..."

General Delegation

AUTHORIZING STATUTE § 28.2-515

The Commission may, after a hearing, refuse to grant or renew a permit to dredge or scrape any oyster-planting ground unless it is proved that the holder has planted seed oysters or shells and is using the planting ground for the cultivation of oysters The Commission may refuse to grant the permit if it appears at the hearing that the holder of the ground is a habitual violator of the seafood laws

ANALYSIS

§ 28.2-515 specifically grants the Commission the authority to refuse permits for dredging or scraping oyster-planting grounds based on the holder's compliance with cultivation requirements and their history of violating seafood laws. This broad grant of authority allows the Commission to establish regulations that promote sustainable practices and protect oyster populations, which includes setting operational restrictions such as prohibiting dredging during certain hours and on specific days. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to ensure the responsible management of marine resources, thereby supporting the overarching goals of the statute.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Provision 4

"D. Any person who may desire to take or catch hard shell clams from leased groun..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources, including surf clams. This broad language encompasses the regulation, as it establishes requirements for individuals taking hard shell clams, thereby supporting the conservation and management of marine resources as intended by the statute. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek further specific legislative approval, thus facilitating timely and responsive governance in the seafood industry.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-515

Citation text: "§§ 28.2-515"

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. It shall be unlawful for any person to use or have overboard any dredge withi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their conservation. This broad grant of authority encompasses the regulation prohibiting the use of dredges in designated areas, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect the ecosystem and ensure sustainable practices within the seafood industry without requiring specific legislative approval for each regulation.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Provision 6

"F. All leased ground within the defined boundaries of subsection E of this secti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad language allows for the regulation that exempts certain leased grounds from dredging prohibitions, as it aligns with the Commission's mandate to manage resources effectively and promote their sustainable use. The legal significance of this authorization relationship is that it enables the Commission to implement flexible regulations that respond to the needs of the seafood industry while ensuring resource conservation, reflecting the general delegation of authority to manage marine resources comprehensively.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

EXCEPTION § 28.2-515

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-515. Dredging or scraping on private ground; permit required Any resident of the Commonwealth holding under leg...

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to take hard shell clams from any public or unassigned grounds in the tidal waters of Virginia by means of a rake other than by a conventional clam rake provided, however, that a bull rake may be used to take hard shell clams from the public or unassigned grounds on the seaside of Accomack and Northampton Counties from October 1 through April 30 inclusive.¹ Further, a conventional clam rake or a bull rake may only be used by hand; any other means of use, including any method of attachment to a boat while the gear is harvesting, shall be unlawful.²

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to take hard shell clams from any public or unassigned grou..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and the exclusive management of Atlantic menhaden. The regulation's prohibition on the use of any rake other than a conventional clam rake, without clear justification related to conservation or reasonable use, appears to exceed the statutory authorization, as it imposes a restriction that may not be necessary for the stated goals of promoting the seafood industry or conserving marine resources. The legal significance of this relationship is that regulations must align closely with the authority granted by the statute, and any overreach could undermine the legitimacy of the regulation and its enforceability.

Provision 2

"Further, a conventional clam rake or a bull rake may only be used by hand; any o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of surf clams. This broad grant of authority allows the Commission to regulate the methods of harvesting seafood, such as the stipulation that a conventional clam rake or bull rake must be used by hand, thereby ensuring sustainable practices and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that directly support the conservation and reasonable use of marine resources, reflecting the intent of the statute to protect and manage the seafood industry effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to purchase a water rake permit, unless that person is a valid clam aquaculture product owner permittee.¹ B. It shall be unlawful for any person to harvest or attempt to harvest cultured clams by water rake from leased ground without a water rake permit.² C. It shall be unlawful for any person to pull a water rake by any means, other than by hand, and it shall be unlawful for that person to use any mechanical assistance while harvesting or attempting to harvest cultured clams.³ D. It shall be unlawful for any person to harvest or attempt to harvest cultured clams by water rake prior to sunrise or after sunset. It shall be unlawful for any person to leave the dock prior to one hour before sunrise, or return to the dock after sunset, on a boat with a water rake on that boat.⁴

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to purchase a water rake permit, unless t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of surf clams. This broad grant of authority encompasses the regulation regarding the purchase of a water rake permit, as it directly relates to the management and conservation of clam aquaculture, ensuring that only valid permit holders can engage in this activity. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage and protect marine resources while promoting the interests of the seafood industry, thereby justifying the use of GENERAL_DELEGATION.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to harvest or attempt to harvest cultured..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams. This broad grant of authority encompasses the regulation prohibiting the harvesting of cultured clams without a permit, as it directly relates to the conservation and reasonable use of marine resources, which the statute aims to promote. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to manage and protect seafood resources effectively, ensuring compliance and sustainable practices within the industry.

Provision 3

"C. It shall be unlawful for any person to pull a water rake by any means, other ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams, but does not explicitly mention restrictions on the means of harvesting cultured clams. The regulation's prohibition on using any mechanical assistance while harvesting cultured clams appears to exceed the statute's authorization, as it imposes a blanket restriction that may not align with the statute's intent to promote reasonable use and conservation. The legal significance of this relationship is that the regulation may be invalidated if it is determined to exceed the scope of the authority granted by the statute, potentially undermining the Commission's regulatory framework.

Provision 4

"D. It shall be unlawful for any person to harvest or attempt to harvest cultured..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the harvesting of cultured clams during certain hours, as it directly relates to the conservation and reasonable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that align with its overarching mandate to manage and protect marine resources effectively.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

The license shall at all times be on board the boat available for inspection by any officer.¹

Provision-Level Authorization Analysis

Provision 1

"The license shall at all times be on board the boat available for inspection by ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the management of specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation requiring that the license be on board the boat for inspection aligns with the Commission's responsibility to ensure proper management and compliance within the seafood industry, thereby promoting the general welfare and conservation goals outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to effectively oversee and manage the seafood resources, ensuring adherence to the established guidelines for sustainable use.

Pertaining to the Harvesting of Clams

Express

General

Overreach

Unauthorized

Requirements

A. Except as provided in subsections B and C of this section, as set forth below in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. As set forth in § 28.2-520 of the Code of Virginia, and reiterated in 4VAC20-70-110 , any person using a hydraulic dredge to take hard shell clams from any tidal waters of the Commonwealth shall be guilty of a Class 1 misdemeanor.² C. As set forth in § 28.2-531 of the Code of Virginia, and reiterated in part in 4VAC20-70-50 A, 4VAC20-70-90 , and 4VAC20-70-120 C, any person taking clams from public, unassigned, or leased ground during the hours from sunset to sunrise or on Sunday, and not otherwise excepted by § 28.2-531 of the Code of Virginia, shall be guilty of a Class 3 misdemeanor; provided, however, that any person violating the additional provisions of (i) no use of a hydraulic dredge on Saturday for the catching of soft shell clams from public or unassigned ground imposed by 4VAC20-70-90 and (ii) no use of a conventional dredge between the hours of one hour before sunset and one hour after sunrise for the catching of hard shell clams from unassigned grounds imposed by 4VAC20-70-120 shall be subject to the penalty set forth in § 28.2-903 of the Code of Virginia.³

Provision-Level Authorization Analysis

Provision 1

"A. Except as provided in subsections B and C of this section, as set forth below..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and management of marine resources, including the establishment of penalties for violations. This broad grant of authority allows the Commission to implement regulations that include enforcement mechanisms, such as classifying violations as misdemeanors, which aligns with the statute's intent to ensure compliance and protect resources. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that are essential for the effective management and conservation of the Commonwealth's seafood resources, thereby supporting the overall objectives outlined in the statute.

CROSS-REFERENCE § 28.2-903

EXCEPTION § 28.2-520

EXCEPTION § 28.2-531

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-531. Taking clams on Sunday or at night; exception; penalty It shall be unlawful for any person to take clams f...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. As set forth in § 28.2-520 of the Code of Virginia, and reiterated in 4VAC20-..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning the use of hydraulic dredges for taking hard shell clams, as it falls within the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect marine resources while ensuring compliance with established legal standards, thereby promoting sustainable practices within the seafood industry.

CROSS-REFERENCE § 28.2-903

EXCEPTION § 28.2-520

EXCEPTION § 28.2-531

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-531. Taking clams on Sunday or at night; exception; penalty It shall be unlawful for any person to take clams f...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-520

Citation text: "§ 28.2-520"

Total: 1 citation to 1 unique statute

Provision 3

"C. As set forth in § 28.2-531 of the Code of Virginia, and reiterated in part in..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams. This broad grant of authority encompasses the regulation regarding the taking of clams during specified hours, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices within the seafood industry, reflecting its mandate to manage resources responsibly.

CROSS-REFERENCE § 28.2-903

EXCEPTION § 28.2-520

EXCEPTION § 28.2-531

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-531. Taking clams on Sunday or at night; exception; penalty It shall be unlawful for any person to take clams f...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-531

Citation text: "§ 28.2-531"

EXCEPTION CITATION § 28.2-531

Citation text: "§ 28.2-531"

⚠ Contains limitations

RANGE REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

⚠ Contains limitations

Total: 3 citations to 2 unique statutes

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots

Express

General

Overreach

Unauthorized

Requirements

Any person owning or using a fish pot, for which a license is prescribed by law, shall display and maintain his current identification number, assigned by the Marine Resources Commission, preceded by the letter "F" on each floating buoy or stake attached to each such fish pot, in a legible and visible manner.¹

Provision-Level Authorization Analysis

Provision 1

"Any person owning or using a fish pot, for which a license is prescribed by law,..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of seafood resources. This broad grant of authority encompasses the regulation requiring identification numbers on fish pots, as it directly relates to the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that support the overarching goals of resource management and conservation without needing to seek further legislative approval for each individual regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to promote the general welfare of the seafood industry by avoiding gear conflicts proximate to the Chesapeake Bay Bridge-Tunnel.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to promote the general welfare of the seafood ind..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the regulation aimed at avoiding gear conflicts near the Chesapeake Bay Bridge-Tunnel, as it directly supports the general welfare of the seafood industry by ensuring effective resource management. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures without needing further specific legislative approval, thereby facilitating timely and effective regulation of the seafood industry.

Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to set, place, or fish a gill net of any type in an area extending 250 yards from either span of the Chesapeake Bay Bridge-Tunnel.¹ For purposes of this section, the distance shall be measured from the outer edges of each span and shall extend from the low water mark on Fishermans Island to the one-mile marker on the south end of the bridge-tunnel.²

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to set, place, or fish a gill net of any typ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting gill nets near the Chesapeake Bay Bridge-Tunnel, as it is a necessary measure to conserve marine resources and promote the welfare of the seafood industry in that area. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further specific legislative approval, thereby ensuring timely and responsive governance in marine resource conservation.

Provision 2

"For purposes of this section, the distance shall be measured from the outer edge..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation, as it pertains to the measurement of distance for regulatory purposes related to the management of marine resources, thereby supporting the overall objectives of conservation and reasonable use outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures under a general delegation of authority, ensuring flexibility in managing the state's marine resources effectively.

Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to set, place, or fish a fixed fishing device, fish pot or eel pot of any type in an area extending 250 yards from either span of Chesapeake Bay Bridge-Tunnel.¹ For purposes of this section, the distance shall be measured from the outer edges of each span and shall apply anywhere along the bridge-tunnel and its causeways.²

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to set, place, or fish a fixed fishing devic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various seafood species and their habitats. This broad grant of authority allows the Commission to implement regulations, such as prohibiting fixed fishing devices near the Chesapeake Bay Bridge-Tunnel, to ensure the conservation and reasonable use of marine resources in critical areas. The legal significance of this authorization relationship is that it empowers the Commission to enact necessary regulations for resource management without requiring further legislative approval, thereby facilitating timely and effective conservation measures.

Provision 2

"For purposes of this section, the distance shall be measured from the outer edge..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority encompasses the regulation regarding the measurement of distance from bridge-tunnel spans, as it relates to the conservation and reasonable use of marine resources by establishing clear guidelines for activities that may impact those resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective management and conservation efforts without needing to seek further specific legislative approval for each regulation.

Pertaining to the Setting of Fishing Devices Proximate to Chesapeake Bay Bridge-Tunnel

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of fisheries and enforcement of violations. This broad grant of authority allows the Commission to establish regulations that include penalties for violations, as outlined in the regulation, which serves to promote the general welfare of the seafood industry and ensure compliance with conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations effectively, thereby supporting the overarching goals of resource management and conservation as mandated by the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Taking of Clams on Seaside of Eastern Shore

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to promote the welfare of the seafood industry by conserving the hard clam resource and the habitat necessary for continued health and productivity of the hard clam and other marine resources.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to promote the welfare of the seafood industry by..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for surf clams and fishery management plans. This broad grant of authority encompasses the regulation's purpose of promoting the welfare of the seafood industry by conserving the hard clam resource, as it aligns with the Commission's mandate to manage and protect marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations under GENERAL_DELEGATION, ensuring flexibility in addressing the conservation and management of various seafood resources within the scope of its statutory authority.

Pertaining to the Taking of Clams on Seaside of Eastern Shore

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to dig, take, catch or harvest hard clams from the subaqueous soil owned by the Commonwealth of Virginia on the seaside of Accomack and Northampton Counties by hydraulic methods, or by the operation of a motor boat in such a manner that the hard clams are dug, or washed, from the bottom by the action of the propeller of such motor boat; but this chapter shall not apply to privately-owned oyster leases.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to dig, take, catch or harvest hard clams fr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to regulate the methods of harvesting hard clams to ensure conservation and reasonable use, which aligns with the statutory intent to manage and protect seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that directly support the overarching goals of resource conservation and industry welfare, thereby justifying the GENERAL_DELEGATION designation.

Pertaining to the Taking of Clams on Seaside of Eastern Shore

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and related activities. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is necessary to enforce the Commission's regulations and promote compliance within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms to uphold its regulatory framework, ensuring the sustainability and management of marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to conserve and protect lobster from overfishing and to provide consistency among federal and interstate laws and regulations.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to conserve and protect lobster from overfishing ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various species. This broad grant of authority encompasses the regulation aimed at conserving and protecting lobster, as it aligns with the Commission's responsibility to manage marine resources and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the conservation of lobster, thereby supporting the overall objectives of resource management and industry welfare as outlined in the statute.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context indicates otherwise:¹ "Berried female" means a female lobster bearing eggs attached to the abdominal appendages.² "Carapace" means the unsegmented body shell of the lobster.³ "Carapace length" means the straight line measurement from the rear of the eye socket parallel to the center line of the carapace to the posterior edge of the carapace.⁴ "Escape vent" means an opening in a lobster pot designed to allow for the escapement of undersized lobster.⁵ "Ghost panel" means a panel or other mechanism in a lobster trap designed to allow for the escapement of lobster after a period of time if the trap has been abandoned or lost.⁶ "Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans, or other marine seafood on board any boat or vessel; (ii) begin offloading finfish, shellfish, crustaceans, or other marine seafood; or (iii) offload finfish, shellfish, crustaceans, or other marine seafood.⁷ "Lobster" means any crustacean of the species Homarus americanus.⁸ "V-notched female lobster" means any female lobster bearing a V-shaped notch (i.e., a straight-sided triangular cut without setal hairs, at least 1/4 inch in depth and not greater than 1/2 inch in depth and tapering to a sharp point) in the flipper next to the right of the center flipper as viewed from the rear of the female lobster. V-notched female lobster also means any female that is mutilated in a manner that could hide, obscure, or obliterate such a mark.⁹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the establishment of definitions relevant to those regulations. This broad grant of authority allows the Commission to define terms essential for the implementation and understanding of its regulations, resulting in GENERAL_DELEGATION as it supports the overarching goals of conservation and management outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to create a foundational framework for regulatory clarity, ensuring effective governance of the seafood industry within the Commonwealth.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Berried female" means a female lobster bearing eggs attached to the abdominal a..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations for the seafood industry, focusing on conservation and management of specific resources such as surf clams and Atlantic menhaden. The regulation defining "berried female" lobster does not relate to the specified resources or management authority outlined in the statute, which does not mention lobsters or their conservation. The legal significance of this relationship is that the regulation exceeds the scope of the authority provided by the statute, rendering it unauthorized.

Provision 3

""Carapace" means the unsegmented body shell of the lobster."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, and to promote the general welfare of the seafood industry. The regulation defining "Carapace" as the unsegmented body shell of the lobster does not align with the specific authority granted by the statute, which focuses on the management of particular species and the conservation of marine resources rather than providing definitions for biological terms unrelated to the specified seafood resources. The legal significance of this authorization relationship is that regulations must be directly supported by the statutory authority provided; since the regulation does not pertain to the management or conservation of the species explicitly mentioned in the statute, it is deemed unauthorized.

Provision 4

""Carapace length" means the straight line measurement from the rear of the eye s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation defining "carapace length," as it is essential for the management and conservation of specific seafood species, thereby supporting the overall objectives of the Commission. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that facilitate effective resource management without requiring further specific legislative approval, reflecting a general delegation of authority.

Provision 5

""Escape vent" means an opening in a lobster pot designed to allow for the escape..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention lobsters or lobster pots. The regulation defining "escape vent" in a lobster pot does not align with the statutory language, as the statute does not provide the Commission with authority to regulate lobster fishing or the equipment used in lobster harvesting. The legal significance of this relationship is that without explicit statutory authority for the regulation concerning lobsters, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Provision 6

""Ghost panel" means a panel or other mechanism in a lobster trap designed to all..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention authority over lobster traps or their components. The regulation regarding a "ghost panel" in lobster traps does not align with the statute, as it addresses a mechanism for lobster escapement rather than the conservation or management of the specified seafood resources outlined in the statute. The legal significance of this relationship is that without explicit statutory authority for the regulation concerning lobster traps, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

""Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation defining "land" or "landing," as it relates directly to the management and conservation of seafood resources by establishing clear operational definitions for activities involving marine seafood. The legal significance of this relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, ensuring effective management and conservation practices within the seafood industry.

Provision 8

""Lobster" means any crustacean of the species Homarus americanus."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and management of certain seafood resources, including surf clams and Atlantic menhaden, but does not mention lobsters or provide authority for their regulation. The regulation defining "Lobster" as any crustacean of the species Homarus americanus exceeds the Commission's authority because the statute does not include lobsters among the species for which the Commission may establish regulations. The legal significance of this relationship is that the regulation lacks a statutory basis, rendering it unauthorized and potentially invalid under the law.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

""V-notched female lobster" means any female lobster bearing a V-shaped notch (i...."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention lobsters or provide authority for regulating their specific characteristics. The regulation defining "V-notched female lobster" does not align with the statute's focus on the management of designated species and resources, thus lacking the necessary statutory authorization. The legal significance of this relationship is that without explicit statutory authority, the regulation is invalid and cannot be enforced, as it exceeds the scope of the Commission's granted powers.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to possess any lobster less than 3-17/32 inches in carapace length or any lobster greater than 5-1/4 inches in carapace length, except for scientific purposes and with the express written consent of the Commissioner of Marine Resources.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to possess any lobster less than 3-17/32 in..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency the authority to regulate the possession of lobsters, but it does not explicitly authorize the establishment of size limits for lobsters. The regulation imposes specific size restrictions on lobsters that exceed the scope of the authority provided in the statute, which only allows for regulation concerning possession without specifying size limitations. The legal significance of this relationship is that regulations must be grounded in the authority granted by statutes, and since the statute does not provide for size restrictions, the regulation is deemed unauthorized.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to possess any berried female lobster, except for scientific purposes and with the express written consent of the Commissioner of Marine Resources.¹ B. It shall be unlawful for any person to possess a lobster that has had eggs removed unnaturally.² C. It shall be unlawful for any person, including fishermen, dealers, shippers, and restaurants, to possess a V-notched female lobster.³ D. It shall be unlawful to possess a lobster that has an outer shell that has been speared.⁴ E. It shall be unlawful to land lobster from February 1 through March 31.⁵ F. It shall be unlawful for any person to possess aboard any vessel or to land lobster meat, detached tails or claws, or any other part of a lobster that has been separated.⁶

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to possess any berried female lobster, e..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the regulation of specific species, such as the prohibition on possessing berried female lobsters, as it falls within the Commission's mandate to manage and conserve seafood resources effectively. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, ensuring timely and responsive management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to possess a lobster that has had eggs r..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the possession of lobsters with unnaturally removed eggs, as it directly relates to the conservation of marine species and the sustainable management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource protection without needing to seek further legislative approval, thereby facilitating timely and effective regulatory action.

Provision 3

"C. It shall be unlawful for any person, including fishermen, dealers, shippers, ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation prohibiting the possession of V-notched female lobsters, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource conservation without requiring specific legislative approval for each regulation, thereby facilitating timely and effective management of marine resources.

Provision 4

"D. It shall be unlawful to possess a lobster that has an outer shell that has be..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes the promotion of the general welfare of the seafood industry. This broad language encompasses the regulation prohibiting the possession of lobsters with speared outer shells, as it directly relates to the conservation of lobster populations and the sustainable management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating timely and effective resource management.

Provision 5

"E. It shall be unlawful to land lobster from February 1 through March 31."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the landing of lobster during a specific period, as it directly relates to the conservation efforts and management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect marine species and ensure sustainable practices within the seafood industry without requiring further legislative approval.

Provision 6

"F. It shall be unlawful for any person to possess aboard any vessel or to land l..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that address various aspects of seafood management, including the prohibition of possessing certain lobster parts, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations that ensure sustainable practices within the seafood industry, thereby fulfilling its mandate under the statute.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

All berried females from Virginia waters shall be V-notched before being returned to the water immediately.¹

Provision-Level Authorization Analysis

Provision 1

"All berried females from Virginia waters shall be V-notched before being return..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation requiring that all berried females from Virginia waters be V-notched before being returned to the water, as it directly relates to the conservation and management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific conservation measures without needing further legislative approval, thereby facilitating effective resource management.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

A. All lobster traps not constructed entirely of wood (excluding heading or parlor twine and the escape vent) shall contain a ghost panel that complies with subdivisions 1 through 4 of this subsection.¹ 1. The rectangular ghost panel shall not be less than 3-3/4 inches (9.53 cm) by 3-3/4 inches (9.53 cm).² 2. The ghost panel shall be constructed of or fastened to the trap with one of the following untreated materials: wood lath; cotton; hemp; sisal or jute twine not greater than 3/16 inch (0.48 cm) in diameter; or nonstainless, uncoated ferrous metal not greater than 3/32 inch (0.24 cm) in diameter.³ 3. The door of the trap may serve as the ghost panel if fastened with a material specified in subdivision 2 of this subsection.⁴ 4. The ghost panel shall be located in the outer parlor of the trap and not the bottom of the trap.⁵ B. All lobster traps shall have one rectangular escape vent with minimum measurements of two inches (5.08 cm) by 5-3/4 inches (14.61 cm) or two circular escape vents at 2-5/8 inches (7.20 cm).⁶

Provision-Level Authorization Analysis

Provision 1

"A. All lobster traps not constructed entirely of wood (excluding heading or parl..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation requiring lobster traps to contain a ghost panel aligns with the Commission's broad mandate to ensure the conservation and reasonable use of marine resources, thereby justifying a GENERAL_DELEGATION of authority. This authorization relationship signifies that the Commission has the discretion to implement regulations that support the overarching goals of resource conservation and industry welfare without needing to seek further legislative approval for each specific regulation.

Provision 2

"1. The rectangular ghost panel shall not be less than 3-3/4 inches (9.53 cm) by ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation regarding the dimensions of the rectangular ghost panel, as it is a specific measure aimed at ensuring effective management and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under the umbrella of its general authority, thereby facilitating the effective management of the seafood industry and its resources.

Provision 3

"2. The ghost panel shall be constructed of or fastened to the trap with one of t..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically states that the Commission may adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, but it does not explicitly authorize detailed specifications regarding the materials used in constructing fishing traps. The regulation's requirement for specific untreated materials for the ghost panel of traps appears to exceed the general authority granted by the statute, as it imposes precise technical standards that are not mentioned or implied in the statutory text. The legal significance of this relationship is that the regulation may be seen as overstepping the bounds of the Commission's authority, potentially infringing on the flexibility intended by the statute for managing seafood resources.

Provision 4

"3. The door of the trap may serve as the ghost panel if fastened with a material..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad grant of authority encompasses the regulation regarding the use of ghost panels in traps, as it relates to the conservation and reasonable use of seafood resources, aligning with the Commission's mandate to manage and regulate marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission flexibility in implementing specific regulations that support the overarching goals of resource conservation and industry welfare without needing further legislative approval.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"4. The ghost panel shall be located in the outer parlor of the trap and not the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of specific regulations, such as the requirement for the ghost panel's location in the trap, as it directly relates to the conservation and management of seafood resources. The legal significance of this relationship is that it empowers the Commission to implement detailed regulations under the umbrella of its general authority, ensuring effective management of marine resources while maintaining flexibility in regulatory approaches.

Provision 6

"B. All lobster traps shall have one rectangular escape vent with minimum measure..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of specific regulations, such as the requirement for lobster traps to include escape vents, as a means of ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed measures that directly support the overarching goals of resource conservation and industry welfare without needing further legislative approval.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

Landings by fishermen using gear or methods other than lobster traps shall be limited to no more than 100 lobsters per day (based on a 24-hour period), up to a maximum of 500 lobsters per trip, for trips five days or longer.¹

Provision-Level Authorization Analysis

Provision 1

"Landings by fishermen using gear or methods other than lobster traps shall be l..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the regulation of lobster landings by fishermen using gear other than lobster traps. The regulation limiting landings to 100 lobsters per day and 500 lobsters per trip appears to exceed the Commission's authority as it imposes restrictions on a specific method of fishing that is not addressed in the statute, which primarily focuses on conservation and management of specific species like surf clams and Atlantic menhaden. The legal significance of this relationship is that the regulation may lack a clear statutory basis, potentially undermining its enforceability and the Commission's legitimacy in imposing such restrictions.

Pertaining to Lobsters

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing regulations for the management of specific species. This broad grant of authority encompasses the regulation regarding penalties for violations, as it falls within the Commission's mandate to ensure compliance with its regulations to promote conservation and reasonable use of resources. The legal significance of this authorization relationship is that it allows the Commission to implement enforcement mechanisms, such as penalties for violations, under the general delegation of authority to manage and regulate the seafood industry effectively.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to establish the public notice requirements that are a part of a public interest review for projects and activities requiring permits from the Marine Resources Commission for uses of state-owned bottomlands pursuant to Chapter 12 (§ 28.2-1200 et seq.) of Title 28.2 of the Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to establish the public notice requirements that ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations, such as the public notice requirements for projects requiring permits, as it directly relates to the administration of state-owned bottomlands and aligns with the overarching goals of the statute. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and regulate activities affecting marine resources, ensuring compliance with public interest standards.

CROSS-REFERENCE § 28.2-1200

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 12. Submerged Lands › Article 1. Ownership and Uses of Submerged Lands › § 28.2-1200. Ungranted beds of bays, rivers, creeks and shores of the sea to remain in common All the beds of the bays, rivers, creeks and ...

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-1200

Citation text: "§ 28.2-1200"

✓ Suggests authorization

AUTHORIZING CITATION § 28.2-1200

Citation text: "§ 28.2-1200 et seq."

✓ Suggests authorization

Total: 2 citations to 1 unique statute

Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands

Express

General

Overreach

Unauthorized

Requirements

Construction projects, structures, and activities authorized by general permit or regulation promulgated by the commission, unless such general permit or regulation specifically requires such public notice; 2.¹ Replacement or reconstruction of structures previously authorized or permitted by the commission, provided such structures do not result in additional encroachment over state-owned bottomlands; 3.² Taking sediment samples for engineering or geotechnical analysis; 4.³ Recovering objects from state-owned bottomlands, unless those objects have been identified as underwater historic property pursuant to § 10.1-2214 of the Code of Virginia, or from areas excluded from recovery activity by the commission in consultation with the Department of Historic Resources; 5.⁴ Restoring sand to any publically owned beach damaged by sand erosion; or 6.⁵ Constructing private piers requiring a permit pursuant to § 28.2-1205 D of the Code of Virginia.⁶

Provision-Level Authorization Analysis

Provision 1

"Construction projects, structures, and activities authorized by general permit o..."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

the Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits to preserve, protect, or recover underwater historic property. This broad grant of authority allows the Department to implement regulations that facilitate construction projects and activities under general permits, as these activities can be related to the preservation and protection of such properties without requiring individual public notice. The legal significance of this relationship is that it enables the Department to efficiently manage and regulate activities impacting underwater historic properties while maintaining flexibility in the permitting process.

DEFINITION § 10.1-2214

Title 10.1. Conservation › Subtitle III. Activities Administered by the Department of Historic Resources › Chapter 22. Historic Resources › Article 1. Department of Historic Resources › § 10.1-2214. Underwater historic property; penalty A. For purposes of this section, "underwater historic property"...

DEFINITION § 28.2-1205

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 12. Submerged Lands › Article 1. Ownership and Uses of Submerged Lands › § 28.2-1205. Permits for the use of state-owned bottomlands A. When determining whether to grant or deny any permit for the use of state-ow...

CROSS-REFERENCE § 28.2-1200

Provision 2

"Replacement or reconstruction of structures previously authorized or permitted b..."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

The Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property.

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits for the preservation, protection, or recovery of underwater historic property. This broad grant of authority allows the Department to regulate activities related to structures that have previously been authorized, as long as they do not increase encroachment over state-owned bottomlands, thereby encompassing the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Department to manage and oversee actions that align with the preservation goals outlined in the statute, ensuring that regulatory decisions can be made without requiring further specific legislative approval.

DEFINITION § 10.1-2214

DEFINITION § 28.2-1205

CROSS-REFERENCE § 28.2-1200

Provision 3

"Taking sediment samples for engineering or geotechnical analysis; 4."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

The Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property.

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits to preserve, protect, or recover underwater historic property. This broad language allows for a wide range of activities necessary to fulfill the objectives of preservation and recovery, including taking sediment samples for engineering or geotechnical analysis, which supports the overall mission of the Department. The legal significance of this authorization relationship is that it enables the Department to engage in various activities that are essential for the effective management and protection of underwater historic resources without needing further specific legislative approval.

DEFINITION § 10.1-2214

DEFINITION § 28.2-1205

CROSS-REFERENCE § 28.2-1200

Provision 4

"Recovering objects from state-owned bottomlands, unless those objects have been ..."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

The Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property.

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits for the preservation, protection, or recovery of underwater historic property. This broad grant of authority allows the regulation to encompass the recovery of objects from state-owned bottomlands, as it establishes a framework for identifying and managing underwater historic property while allowing for exceptions based on consultation with the Department of Historic Resources. The legal significance of this authorization relationship is that it enables the Department to implement necessary regulations for the management of underwater resources while ensuring compliance with the overarching statutory mandate.

DEFINITION § 10.1-2214

DEFINITION § 28.2-1205

CROSS-REFERENCE § 28.2-1200

Explicit Statutory Citations

AUTHORIZING CITATION § 10.1-2214

Citation text: "§ 10.1-2214"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"Restoring sand to any publically owned beach damaged by sand erosion; or 6."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

The Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property.

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits for the preservation, protection, or recovery of underwater historic property. This broad language allows the Department to engage in activities that support the overarching goal of environmental preservation, which includes restoring sand to public beaches affected by erosion, thereby falling under the same protective mandate. The legal significance of this authorization relationship is that it empowers the Department to act flexibly within the scope of its mission to safeguard natural resources, ensuring that regulatory actions align with the statutory intent of environmental stewardship.

DEFINITION § 10.1-2214

DEFINITION § 28.2-1205

CROSS-REFERENCE § 28.2-1200

Provision 6

"Constructing private piers requiring a permit pursuant to § 28.2-1205 D of the C..."

General Delegation

AUTHORIZING STATUTE § 10.1-2214

The Department may seek a permit pursuant to this section and § 28.2-1203 to preserve and protect or recover any underwater historic property.

ANALYSIS

§ 10.1-2214 specifically grants the Department the authority to seek permits for the preservation, protection, or recovery of underwater historic property. This broad language encompasses activities related to the management of underwater resources, which includes the construction of private piers that require a permit under § 28.2-1205 D, thereby justifying the regulation's alignment with the statute. The legal significance of this authorization relationship is that it allows the Department to exercise its discretion in regulating activities that may impact historic properties, ensuring comprehensive oversight without the need for specific legislative approval for each regulatory action.

DEFINITION § 10.1-2214

DEFINITION § 28.2-1205

CROSS-REFERENCE § 28.2-1200

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-1205

Citation text: "§ 28.2-1205"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands

Express

General

Overreach

Unauthorized

Requirements

A. The notice shall include the applicant's name and accurately describe the nature, extent, and location of the proposed project.¹ B. The public notice shall be placed in a newspaper having general circulation in the area where the project is proposed.² C. For a project or an activity that also requires a permit from the Norfolk District of the U.S. Army Corps of Engineers (Corps) and for which a Corps public notice is required, a joint state and federal public notice may be used without the placement of a notice in a newspaper by the commission.³ D. Copies of all comments received will be provided to the Corps and the Department of Environmental Quality.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The notice shall include the applicant's name and accurately describe the nat..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that detail procedural requirements, such as the need for an applicant's name and a description of the project, which are essential for fulfilling the statutory mandate. The legal significance of this authorization relationship is that it enables the Commission to effectively manage and oversee projects under its jurisdiction, ensuring compliance with the statutory framework while maintaining flexibility in regulatory implementation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The public notice shall be placed in a newspaper having general circulation ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements for public notice, as it is essential for ensuring transparency and public involvement in projects, thereby justifying the GENERAL_DELEGATION authorization level. The legal significance of this relationship is that it empowers the Commission to effectively manage and regulate projects within its jurisdiction, ensuring compliance with statutory mandates while allowing for flexibility in implementation.

Provision 3

"C. For a project or an activity that also requires a permit from the Norfolk Di..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to implement procedures, such as the use of a joint state and federal public notice for projects requiring both state and federal permits, thereby falling within the scope of necessary regulations to fulfill its statutory duties. The legal significance of this authorization relationship is that it empowers the Commission to streamline regulatory processes and enhance efficiency in permitting, reflecting the intent of the statute to provide comprehensive regulatory oversight.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Copies of all comments received will be provided to the Corps and the Depart..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that facilitate communication and collaboration with other agencies, such as providing comments to the Corps and the Department of Environmental Quality. The legal significance of this relationship is that it ensures the Commission can effectively fulfill its responsibilities by establishing necessary procedures, thereby supporting the overall regulatory framework.

Pertaining to Public Notice of Applications for Permits for Certain Uses of State-Owned Bottomlands

Express

General

Overreach

Unauthorized

Requirements

A. The Marine Resources Commissioner or his designee shall be responsible for ensuring that the newspaper notice is published, as described in 4VAC20-120-30 B and shall be the sole judge concerning the adequacy of content of the newspaper notice and selection of the newspaper.¹ B. The cost of publication of the notice required in 4VAC20-120-30 B shall be borne by the applicant.²

Provision-Level Authorization Analysis

Provision 1

"A. The Marine Resources Commissioner or his designee shall be responsible for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows for the delegation of responsibilities, such as ensuring the publication of newspaper notices and assessing their content, which falls within the Commission's mandate to implement regulatory measures. The legal significance of this authorization relationship is that it enables the Marine Resources Commissioner or their designee to make determinations essential for the effective execution of the Commission's duties, thereby facilitating compliance with statutory requirements.

Provision 2

"B. The cost of publication of the notice required in 4VAC20-120-30 B shall be bo..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements related to the costs associated with regulatory processes, such as the publication of notices, thereby justifying the regulation's GENERAL_DELEGATION status. The legal significance of this relationship is that it empowers the Commission to create necessary operational procedures without requiring further legislative approval, ensuring efficient implementation of its regulatory responsibilities.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Prohibited Areas for Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the establishment of penalties for violations. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is a necessary component of enforcing the Commission's regulatory framework and ensuring compliance with the conservation and management goals outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement and enforce regulations effectively, ensuring the sustainability of marine resources while providing a clear framework for accountability among resource users.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Prohibited Areas for Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. "Public ground" means all those grounds defined in § 28.2-551 of the Code of Virginia, all grounds set aside as public ground by court order, and all grounds set aside as public oyster ground or public clam ground by order of the Marine Resources Commission. "Unassigned ground" means all grounds other than public ground as defined by this chapter and which have not been set aside or assigned by lease, permit, or easement by the Marine Resources Commission.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to promote the general welfare of the seafood industry. This broad grant of authority allows the Commission to define terms such as "public ground," which is essential for the effective management and regulation of marine resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that facilitate the implementation of its overarching statutory responsibilities without requiring further specific legislative approval.

ADDITIONAL AUTHORITY § 28.2-551

Explicit Statutory Citations

REFERENCE § 28.2-551

Citation text: "§ 28.2-551"

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Prohibited Areas for Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

The use of patent tongs is prohibited on all public and unassigned ground in the Poquoson River and any of its tributaries, in Chisman Creek and any of its tributaries, and in Cabin Creek and any of its tributaries upstream of a line beginning at Hunts Point Survey Station Taylor and running northwesterly to Survey Station Spit, thence northeasterly to Survey Station Cabin North, thence easterly to Survey Station Cabin South; such line being the same as the western boundary of the Poquoson River Shellfish Management Area as set forth in VR 450-01-0073.¹

Provision-Level Authorization Analysis

Provision 1

"The use of patent tongs is prohibited on all public and unassigned ground in the..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation prohibiting the use of patent tongs in certain waterways may exceed this authority because it does not clearly align with the conservation and reasonable use objectives outlined in the statute, as it restricts a specific method of harvesting without demonstrating how this prohibition directly contributes to the conservation of the resources or the welfare of the seafood industry. The legal significance of this relationship is that if the regulation is found to exceed the statutory authority, it may be deemed invalid, undermining the Commission's ability to enforce such restrictions and potentially impacting resource management efforts.

Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to describe the lawful methods an individual shall use to identify his licensed crab pots, peeler pots, fish pots, or eel pots.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to describe the lawful methods an individual shal..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the general welfare of the seafood industry and conserving marine resources. This results in GENERAL_DELEGATION because the regulation on identifying licensed crab pots and other fishing gear falls within the Commission's mandate to establish rules that ensure proper management and conservation of seafood resources, thereby supporting the overall welfare of the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating effective resource management and compliance within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots

Express

General

Overreach

Unauthorized

Requirements

Any person owning or using an eel pot, for which a commercial license is prescribed by law, shall display that person's Marine Resources Commission identification number preceded by the letter "E" on each floating buoy or stake attached to each such eel pot in a legible and visible manner and in figures of not smaller than one inch in height.¹

Provision-Level Authorization Analysis

Provision 1

"Any person owning or using an eel pot, for which a commercial license is prescri..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries. This broad grant of authority encompasses the regulation requiring identification numbers on eel pot buoys, as it is a necessary measure to promote the general welfare of the seafood industry and ensure proper management and identification of commercial fishing activities. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek further legislative approval for each specific regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots

Express

General

Overreach

Unauthorized

Requirements

A. Any person placing, setting, or fishing crab pots in Virginia waters, for which a commercial license is prescribed by law, shall display that person's Marine Resources Commission identification number, preceded by the letter "C," on each floating buoy or stake attached to each such crab pot in a legible and visible manner and in figures of not smaller than one inch in height.¹ B. Any person placing, setting, or fishing peeler pots in Virginia waters, for which a commercial license is prescribed by law, shall display that person's Marine Resources Commission identification number, preceded by the letter "P," on each floating buoy or stake attached to each such peeler pot in a legible and visible manner and in figures of not smaller than one inch in height.² C. Except as provided in subsection D of this section, it shall be unlawful for any person to place numbers or letters on any crab pot or peeler pot buoy or stake that is in addition to the identification requirement described in subsection A or B of this section.³ D. Any person who is legally licensed to crab pot or peeler pot in North Carolina or Maryland waters may also display identification required by those jurisdictions on the buoys or stakes attached to those crab pots or peeler pots while that person is placing, setting, or fishing those crab pots or peeler pots in Virginia waters.⁴ E. Any identification shall be legally assigned or registered to that person as described in subsection D of this section.⁵

Provision-Level Authorization Analysis

Provision 1

"A. Any person placing, setting, or fishing crab pots in Virginia waters, for whi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation requiring commercial crab pot users to display their identification numbers, as it is essential for the management and identification of fishing activities, thereby supporting conservation efforts and resource management. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general delegation of authority, ensuring effective oversight and compliance within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any person placing, setting, or fishing peeler pots in Virginia waters, for w..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like surf clams. This broad grant of authority encompasses the regulation requiring identification numbers on peeler pots, as it directly relates to the management and regulation of commercial fishing practices, thereby promoting the conservation and orderly use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures, like the identification requirement, under the umbrella of its general authority to manage and conserve the Commonwealth's seafood resources effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Except as provided in subsection D of this section, it shall be unlawful for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and ensuring the welfare of the seafood industry. This broad grant of authority encompasses the regulation prohibiting additional markings on crab pot buoys, as it directly relates to the management and identification of fishing gear, which is essential for resource conservation and regulation enforcement. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to maintain order and sustainability within the seafood industry without requiring further legislative approval for each specific regulation.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any person who is legally licensed to crab pot or peeler pot in North Carolin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood resources. This broad grant of authority encompasses the regulation because it allows the Commission to implement measures that facilitate compliance with licensing requirements from other jurisdictions, thereby promoting the effective management and conservation of crab pot and peeler pot fisheries. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that enhance inter-jurisdictional cooperation and resource management without needing to seek further legislative approval.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Any identification shall be legally assigned or registered to that person as ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries. This broad grant of authority encompasses the regulation regarding identification assignment or registration, as it is essential for ensuring proper management and accountability within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to regulate resource use effectively, thereby promoting the welfare of the seafood industry and conserving marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Identification of Crab Pots, Peeler Pots, Eel Pots, and Fish Pots

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the establishment of regulations for the management of specific species. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is essential for enforcing compliance and ensuring the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement measures to uphold the regulatory framework established under its statutory authority.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for the conservation of conchs and to minimize gear conflicts.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for the conservation of conchs and to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood and specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation's purpose of conserving conchs aligns with the Commission's broad mandate to promote the welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific conservation needs while remaining within the broader framework established by the statute.

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to take conchs (also known as whelks) by dredge from any of the waters under the jurisdiction of the Commonwealth except during the seasons, from the areas, and in the manner described by this regulation.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to take conchs (also known as whelks) by dredge from any of..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority encompasses the regulation regarding the unlawful taking of conchs by dredge, as it relates to the conservation and reasonable use of marine resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that address specific practices in the seafood industry while remaining within the framework established by the statute.

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

A. Area Number 1 shall be that area where dredging for crabs is permitted by law and Marine Resources Commission, 4VAC20-90 , and the season for this area shall be the same as that season established by § 28.2-707 of the Code of Virginia, as may be adjusted by the Marine Resources Commission.¹ B. Area Number 2 shall be that area east of the Chesapeake Bay Bridge-Tunnel and will include that area known as the mouth or entrance to the Chesapeake Bay. It is more particularly described as follows: beginning at the one-mile marker on the Chesapeake Bay Bridge-Tunnel; thence northerly along the bridge tunnel to Fisherman's Island; thence along the southeast shoreline of Fisherman's Island to the lower portion of Smith Island at a point that is due east of Cape Charles Lighthouse; thence due east three nautical miles to the Three Nautical Mile Line; thence along said Three Nautical Mile Line; southerly to 36° 55' N Latitude; thence due west along said latitude to buoy C"1"; thence northerly to buoy R"2C"; thence southwesterly to buoy G"1TS", thence southwesterly to buoy G"1L", thence northwesterly thence to the point of beginning. This description shall specifically exclude all inlets of Fishermans and Smith Islands, and all waters west of said islands. The season for this area shall be from April 1 through September 30, inclusive, of each year.² C. Area Number 3 shall be that area bounded on the north by 36° 45' N Latitude, bounded on the west by mean low water, bounded on the south by the Virginia-North Carolina border, and bounded on the east by the Three Nautical Mile Line; and the season for this area shall be year round.³ D. Area Number 4 shall be that area bounded on the north by a line from buoy RN"36A" at the town of Cape Charles and running NNW to Wolf Trap Light, bounded on the west by a line drawn from Wolf Trap Light and running southerly through buoys RN"2", C"1NP", RN"2MB", C"1MB", R"8", at the York River Entrance Channel; thence southeasterly bounded by the northern side of said channel to buoy R"2"; thence southerly to buoy RW"HC"; thence southwesterly to buoy G"11" at Thimble Shoal Channel; thence bounded on the south by the south side of said channel until its intersection with the Chesapeake Bay Bridge-Tunnel; thence bounded on the east by the Chesapeake Bay Bridge-Tunnel and a line drawn from the terminus of the Chesapeake Bay Bridge-Tunnel on Fishermans Island back to buoy RN"36A" but remaining offshore of any and all fixed fishing devices. The season for this area shall be May 1 through September 30, inclusive, of each year.⁴ E. Area Number 5 shall consist of two parts: The south part shall be that area in Virginia's portion of the Territorial Sea between 36° 55' N Latitude and 36° 45' N Latitude excluding the inshore one mile. It is more particularly described as follows: beginning at buoy C"1" on the 36° 55' N Latitude; thence along said latitude east to the Three Nautical Mile Line; thence southerly along said Three Nautical Mile Line to 36° 45' N Latitude; thence along said latitude west to the one-mile limit; thence northerly along said one-mile limit to the 36° 55' N Latitude; thence east along said latitude to buoy C"1" and the point of beginning. The north part shall be that area between the Virginia-Maryland line and Cape Charles Lighthouse and comprising Virginia's portion of the Territorial Sea off of Accomack and Northampton Counties. It is more particularly described as follows: beginning at a point on the mean low water, which point is due east of the Cape Charles Lighthouse; thence northerly along the low water mark of the eastern side of the Eastern Shore Barrier Islands to the Virginia-Maryland border; thence along said border easterly three nautical miles to the Three Nautical Mile Line; thence southerly along said Three Nautical Mile Line to a line that runs due east from Cape Charles Lighthouse; thence along said line three nautical miles to the point of beginning. Said boundary to run from headland to headland across all inlets between said Barrier Islands. This description shall specifically exclude all inlets and all waters west of said islands. The season for Area Number 5 shall be from January 1 through August 31, inclusive, and from November 1 through December 31, inclusive, of each year.⁵

Provision-Level Authorization Analysis

Provision 1

"A. Area Number 1 shall be that area where dredging for crabs is permitted by law..."

General Delegation

AUTHORIZING STATUTE § 28.2-707

The Commission is authorized to promulgate regulations limiting the size of dredges.

ANALYSIS

§ 28.2-707 specifically grants the Commission the authority to promulgate regulations that limit the size of dredges, indicating a broad scope for regulatory action within the context of marine resource management. This results in GENERAL_DELEGATION because the regulation establishes specific operational parameters for dredging activities, which fall within the Commission's authority to regulate the use of marine resources as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that ensure sustainable management of marine resources while remaining within the framework established by the statute.

EXCEPTION § 28.2-707

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 7. Crabs › Article 3. Restrictions on Harvesting Crabs › § 28.2-707. Restrictions on crab dredging; penalty A. It is unlawful for any boat licensed to dredge crabs to use more than two dredges at any time ...

Explicit Statutory Citations

REFERENCE § 28.2-707

Citation text: "§ 28.2-707"

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Area Number 2 shall be that area east of the Chesapeake Bay Bridge-Tunnel and..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the establishment of specific management areas. This broad grant of authority allows the Commission to delineate geographic areas relevant to seafood management, such as Area Number 2, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for effective management and conservation efforts within the framework established by the statute.

EXCEPTION § 28.2-707

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Area Number 3 shall be that area bounded on the north by 36° 45' N Latitude, ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-707 specifically states that the Commission is authorized to promulgate regulations limiting the size of dredges. The regulation, however, establishes specific geographic boundaries and a year-round season for an area, which goes beyond the authority granted by the statute, as it does not pertain to the size of dredges. The legal significance of this relationship is that the regulation exceeds the scope of the statutory authorization, rendering it unauthorized and invalid.

EXCEPTION § 28.2-707

Provision 4

"D. Area Number 4 shall be that area bounded on the north by a line from buoy RN"..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish detailed regulations, such as defining specific areas for fishing, which falls under the general mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for resource management without requiring additional legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

EXCEPTION § 28.2-707

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Area Number 5 shall consist of two parts: The south part shall be that area i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of resources. This broad language allows the Commission to establish detailed regulations, such as defining specific areas for fishing, which directly supports the overarching goals of resource management and conservation outlined in the statute. The legal significance of this authorization relationship is that it enables the Commission to implement specific regulatory measures under a general framework, ensuring effective management of marine resources while adhering to the statutory mandate.

EXCEPTION § 28.2-707

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

A. Dredging on Sunday is prohibited.¹ B. For Area Number 1, dredges may be used only during the hours of one hour before sunrise to one hour after sunset, Monday through Saturday.² C. There shall be no hourly restriction for Area Number 2, Area Number 3, Area Number 4, and Area Number 5, except that if, in the judgment of the Marine Resources Commission the practice of dredging whelks at night in Area 2 and Area 4 is causing a hazard to the public safety or conflicting with other fishing or shell-fishing, then such hours may be limited by Marine Resources Commission.³

Provision-Level Authorization Analysis

Provision 1

"A. Dredging on Sunday is prohibited."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement regulations, such as prohibiting dredging on Sundays, as a means to manage and protect seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to make regulatory decisions that are essential for the sustainable management of marine resources, reflecting the intent of the statute to ensure the welfare of the seafood industry.

Provision 2

"B. For Area Number 1, dredges may be used only during the hours of one hour befo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful to dredge for conchs without first having obtained a license therefor, except that when dredging for conchs in Area Number 1, persons holding the regular crab dredging license prescribed by § 28.2-702 of the Code of Virginia, need not have the conch dredging license prescribed in this section. This license may be obtained from the marine police officer in charge of the district.¹ B. Any license shall at all times be on board the boat and available for inspection by any law-enforcement officer of the Marine Resources Commission.² C. There shall be no refund of any license fee or any part of one in the event a license is surrendered, suspended, or revoked.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful to dredge for conchs without first having obtained a lic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation regarding conch dredging, as it directly relates to the management and licensing of seafood activities, which falls under the Commission's mandate to ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective management of marine resources.

ADDITIONAL AUTHORITY § 28.2-702

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 7. Crabs › Article 2. Licenses › § 28.2-702. Licenses to take crabs; shedding operations; amount of fee Any person desiring to take or catch crabs for market or profit from the waters of this Commonwealth,...

Explicit Statutory Citations

REFERENCE § 28.2-702

Citation text: "§ 28.2-702"

Total: 1 citation to 1 unique statute

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any license shall at all times be on board the boat and available for inspect..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad grant of authority encompasses the regulation requiring that any license be on board the boat and available for inspection, as it directly supports the Commission's responsibility to ensure compliance and conservation within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to enforce management practices and protect marine resources, thereby fulfilling its statutory mandate.

ADDITIONAL AUTHORITY § 28.2-702

Provision 3

"C. There shall be no refund of any license fee or any part of one in the event a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad grant of authority allows the Commission to implement regulations, such as the one stating that there shall be no refund of any license fee if a license is surrendered, suspended, or revoked, as it relates to the management and regulation of licenses within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that support the sustainability and economic viability of the seafood industry while ensuring compliance with established management practices.

ADDITIONAL AUTHORITY § 28.2-702

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

In Area Number 2 and Area Number 4, only conchs and horseshoe crabs shall be taken, harvested or possessed.¹ All other shellfish, crustaceans, finfish, and other marine life caught during dredging shall be returned immediately to the water.² Possession of such for a time longer than is necessary to return to the water will be in violation of this chapter.³

Provision-Level Authorization Analysis

Provision 1

"In Area Number 2 and Area Number 4, only conchs and horseshoe crabs shall be tak..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations for taking seafood to promote the welfare of the seafood industry and manage specific species like surf clams and Atlantic menhaden. The regulation that restricts the taking, harvesting, or possession of seafood in Areas Number 2 and 4 to only conchs and horseshoe crabs exceeds this authority, as the statute does not mention these species or provide the Commission with the power to impose such restrictions in these areas. The legal significance of this relationship is that the regulation lacks a basis in the statutory text, rendering it unauthorized and unenforceable under the established authority of the Commission.

Provision 2

"All other shellfish, crustaceans, finfish, and other marine life caught during d..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language encompasses the regulation requiring the immediate return of non-target marine life caught during dredging, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission the flexibility to implement regulations that address the dynamic needs of resource management while ensuring the sustainability of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"Possession of such for a time longer than is necessary to return to the water wi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding possession duration, as it is necessary to ensure the conservation and reasonable use of seafood resources by preventing prolonged possession that could harm marine life. The legal significance of this relationship is that it allows the Commission to implement regulations that effectively manage and protect marine resources under its general authority, ensuring compliance with conservation goals.

Pertaining to the Dredging of Conchs (Also Known As Whelks)

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority allows the Commission to establish penalties for violations of its regulations, as outlined in the regulation, which serves to enforce the conservation and management goals set forth in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures, including enforcement provisions, to ensure compliance and protect the Commonwealth's seafood and marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Removal of Nets

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to prevent waste and provide for the conservation of fisheries resources by preventing ghost fishing by unattended nets.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to prevent waste and provide for the conservation..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of fisheries and the prevention of waste. This broad language encompasses the regulation aimed at preventing ghost fishing by unattended nets, as it directly relates to the conservation of fisheries resources and aligns with the Commission's mandate to promote the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect marine resources without requiring additional legislative approval, thereby facilitating effective management and conservation efforts.

Pertaining to the Removal of Nets

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to set nets on a fixed fishing device and let said device or nets remain unfished.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to set nets on a fixed fishing device and le..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species. This broad language allows the regulation prohibiting the setting of nets on fixed fishing devices to fall under the Commission's mandate to promote the general welfare of the seafood industry and conserve marine resources, thus justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, ensuring effective management of marine resources.

Pertaining to the Removal of Nets

Express

General

Overreach

Unauthorized

Requirements

A. If, upon visual observation, any marine police officer determines that a device or net, other than a staked gill net set west of the COLREGS Line and north of the North-Carolina-Virginia border and south of the Maryland-Virginia border, in Virginia waters, has not been fished for at least a five-day period, he shall notify the licensee, and if the licensee fails to fish said device or remove the net within seven days after notification the licensee shall be guilty of violation of this chapter.¹ B. If, upon visual observation, any marine police officer determines that any staked gill net has not been fished for at least a 24-hour period, he shall notify the licensee, and if the licensee fails to fish the staked gill net or remove the net within 24 hours after notification the licensee shall be guilty of a violation of this chapter.² C. If upon visual observation, any marine police officer determines that any gill net set in Virginia waters east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border, has not been fished for at least a 24-hour period, the officer shall notify the licensee, and if the licensee fails to fish the gill net or remove the net within 24 hours after notification, the licensee shall be guilty of a violation of this chapter.³

Provision-Level Authorization Analysis

Provision 1

"A. If, upon visual observation, any marine police officer determines that a devi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad language allows for the implementation of regulations that address various aspects of marine resource management, such as the regulation concerning the fishing of devices or nets, which falls under the general authority to promote the welfare of the seafood industry and conserve resources. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that are essential for effective resource management without needing to specify every detail in the statute, thereby allowing for flexibility in addressing emerging issues in the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. If, upon visual observation, any marine police officer determines that any st..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific fisheries. This broad grant of authority encompasses the regulation concerning the management of staked gill nets, as it relates to the conservation and reasonable use of marine resources by ensuring that unused nets are addressed to prevent potential negative impacts on the ecosystem. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for effective resource management without requiring further legislative approval, thereby facilitating timely and responsive regulatory actions.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. If upon visual observation, any marine police officer determines that any gil..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fisheries and the promotion of the seafood industry. This broad grant of authority allows the Commission to implement regulations that address specific enforcement actions, such as the monitoring of gill nets, to ensure compliance with conservation efforts and resource management. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to protect marine resources, thereby supporting the overall objectives of conservation and sustainable use outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Removal of Nets

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is essential for enforcing compliance and ensuring the effective management of seafood resources, thereby aligning with the Commission's mandate to promote conservation and reasonable use. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms, such as penalties for violations, under the umbrella of its general regulatory authority, thereby ensuring the sustainability and management of marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Measuring Mesh Size of Menhaden Nets

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to set forth the procedure that will be used for determining compliance with § 28.2-410 of the Code of Virginia.¹ This section sets forth in part: "It is also unlawful for any person to use any purse net or other net having a stretched mesh of less than 1-3 /4 inches." Since the law does not specify how the stretched mesh (mesh size) will be determined, this chapter shall serve to clarify the term stretched mesh and establish a technique for determining the size of the stretched mesh.²

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to set forth the procedure that will be used for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-410

it is unlawful for any person to take or catch with a purse net in the waters of the Commonwealth, or waters within its jurisdiction, menhaden between the Saturday following the third Friday in November and the Sunday preceding the first Monday in May it is also unlawful for any person to use any purse net or other net having a stretched mesh of less than one and three quarters inches

ANALYSIS

§ 28.2-410 specifically grants authority to regulate the taking of menhaden and the use of purse nets in the Commonwealth's waters, establishing clear prohibitions and standards. This broad grant of authority allows the agency to create a regulation that outlines the procedures for determining compliance with the statute, thereby facilitating enforcement and ensuring adherence to the established rules. The legal significance of this authorization relationship is that it empowers the agency to implement necessary measures for effective management and conservation of marine resources, while remaining within the scope of the authority provided by the statute.

EXCEPTION § 28.2-410

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 4. Use of Purse Nets for Taking Menhaden › Article 2. Area and Seasonal Restrictions › § 28.2-410. Closed season for menhaden fishing; forbidden nets; penalty Except as provided in § 28.2-409or as otherwis...

Explicit Statutory Citations

REFERENCE § 28.2-410

Citation text: "§ 28.2-410"

Total: 1 citation to 1 unique statute

Provision 2

"This section sets forth in part: "It is also unlawful for any person to use any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including provisions for taking seafood and managing specific species. This broad grant of authority allows the Commission to establish regulations, such as the specification of mesh size for nets, to promote the general welfare of the seafood industry and ensure effective resource management, resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulatory measures that are essential for the sustainable management of marine resources without requiring further legislative approval for each specific regulation.

EXCEPTION § 28.2-410

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Measuring Mesh Size of Menhaden Nets

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Bunt" means the section of the net where the fish are concentrated during pumping operations. "Cork line" means the line containing floats or corks attached to the top of the net as it hangs in the water. "Ring line" means the line passed through the rings attached to the bottom of the net as it hangs in the water. "Selvedge" means the reinforced edge of the net required for mounting of the net on the ring line and cork line. "Stretched mesh" or "mesh size" means the inside distance between two knots or joints on opposite sides of the mesh.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to promote the general welfare of the seafood industry. This broad language encompasses the regulation's definitions of terms related to fishing operations, as these definitions are essential for implementing effective management and conservation strategies within the industry. The legal significance of this authorization relationship is that it allows the Commission to exercise flexibility in regulating specific practices and terminology that support the overarching goals of resource management and industry welfare without requiring further legislative approval.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Measuring Mesh Size of Menhaden Nets

Express

General

Overreach

Unauthorized

Requirements

A. The nets shall be wet when measured.¹ B. A measurement shall consist of the inside stretched distance of one mesh.² C. Fifty individual measurements shall be taken from the net in a location other than the bunt, at least 10 meshes below the selvedge, and from meshes that are not part of a seam.³ D. The measuring device shall be inserted into the mesh in a vertical direction as the net is oriented between the ring line and cork line.⁴ E. A force of 8.8 pounds (4 kilograms) shall be applied in taking the measurements.⁵

Provision-Level Authorization Analysis

Provision 1

"A. The nets shall be wet when measured."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species. This broad grant of authority encompasses the regulation regarding the measurement of nets, as it is necessary to ensure compliance with conservation and management practices that promote the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective management of marine resources without requiring specific legislative approval for each regulation.

Provision 2

"B. A measurement shall consist of the inside stretched distance of one mesh."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation regarding the measurement of mesh size, as it is essential for ensuring effective management and conservation of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further legislative action.

Provision 3

"C. Fifty individual measurements shall be taken from the net in a location other..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the requirement for specific measurement protocols related to net construction or fishing gear specifications. The regulation requiring fifty individual measurements from a net at a specified location appears to exceed the statutory authorization because it imposes detailed technical requirements that are not directly tied to the conservation or management of seafood resources as outlined in the statute. The legal significance of this relationship is that the regulation may be challenged as exceeding the Commission's authority, as it introduces specific operational mandates that are not clearly supported by the statutory language.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. The measuring device shall be inserted into the mesh in a vertical direction ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including those related to the seafood industry. This broad grant of authority encompasses the regulation concerning the orientation of the measuring device in the net, as it directly relates to the management and conservation of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching mandate to promote the welfare of the seafood industry and ensure sustainable resource management.

Provision 5

"E. A force of 8.8 pounds (4 kilograms) shall be applied in taking the measuremen..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This results in GENERAL_DELEGATION because the regulation regarding the application of force in taking measurements directly relates to the Commission's mandate to manage and conserve marine resources, ensuring that the methods used align with the overall goals of resource management and sustainability. The legal significance of this authorization relationship is that it allows the Commission to implement detailed and specific regulations under the broad framework provided by the statute, facilitating effective management of marine resources while adhering to the legislative intent.

Pertaining to Measuring Mesh Size of Menhaden Nets

Express

General

Overreach

Unauthorized

Requirements

The stretched mesh will be determined by computing the average of the 50 measurements which will yield the average stretched mesh measurement and this average shall be equal to or greater than 1-3 /4 inches (44.45 millimeters).¹

Provision-Level Authorization Analysis

Provision 1

"The stretched mesh will be determined by computing the average of the 50 measure..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of specific species. This broad language allows for a regulation that specifies the method for determining stretched mesh measurements, as it directly relates to the conservation and management of seafood resources, thereby falling under the Commission's general authority to regulate the industry. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource conservation and management without needing to seek further specific legislative approval.

Pertaining to Measuring Mesh Size of Menhaden Nets

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-410 of the Code of Virginia, any person using any purse seine or other net having a stretched mesh of less than 1-3 /4 inches to catch menhaden shall be guilty of a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-410 of the Code of Virginia, any person using any purse s..."

Express Delegation

AUTHORIZING STATUTE § 28.2-410

ANALYSIS

§ 28.2-410 specifically grants authority by making it unlawful for any person to use a purse net or a net with a stretched mesh of less than one and three-quarters inches to catch menhaden. This results in EXPRESS_DELEGATION because the statute explicitly defines the unlawful acts and directly empowers the agency to enforce these provisions through regulation, thereby establishing clear legal parameters for compliance. The legal significance of this authorization relationship is that it allows the agency to impose penalties for violations, ensuring adherence to the statutory requirements and protecting the menhaden population within the Commonwealth's waters.

EXCEPTION § 28.2-410

Explicit Statutory Citations

REFERENCE § 28.2-410

Citation text: "§ 28.2-410"

Total: 1 citation to 1 unique statute

Pertaining to the Taking of Finfish by Gill Nets

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for the long-term conservation of stocks of food fish in Virginia's tidal waters, and to assure that there is an appropriate balance of harvests for all user groups.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for the long-term conservation of stoc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and fishery resources. This broad grant of authority encompasses the regulation's purpose of long-term conservation of food fish stocks and ensuring a balance of harvests for all user groups, aligning with the Commission's mandate to promote the general welfare of the seafood industry and manage resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable management practices without needing to seek further specific legislative approval, thereby facilitating timely and effective resource management.

Pertaining to the Taking of Finfish by Gill Nets

Express

General

Overreach

Unauthorized

Requirements

A. Any gill net, whether floating or submerged, that is not assigned a fixed location shall be set in a straight line. In enforcing this provision, Marine Patrol Officers shall take into consideration the effect of wind and tide on any net. Nothing in this subsection shall pertain to mullet nets when used in a directed fishery for mullet.¹ B. Any gill net, whether floating or submerged, that is not assigned a fixed location shall have no greater depth than 330 inches total stretched mesh measurement. Measurement shall be vertically from top to bottom. Possession of any gill net, rigged with floats and weights, and in excess of the aforementioned depth shall be deemed a violation of this subsection except that any person transitting Virginia's waters with any gill net not meeting the requirements of this chapter shall first notify and obtain permission from the Commissioner of Marine Resources.² C. Any gill net, whether floating or submerged, that is not assigned a fixed location shall be fished no closer than 200 feet to any other such gill net. No part of any such gill net shall be closer than 200 feet to any part of any other such gill net. In enforcing this provision, Marine Patrol Officers shall take into consideration the effect of wind and tide on the nets in question.³ D. The provisions of subsection C of this section shall not be applicable to those gill nets without an assigned fixed location which are set and fished in the tributaries of the Chesapeake Bay. However, no two or more such gill nets shall be fixed or tied end-to-end such that the maximum licensed length prescribed by law is exceeded.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Any gill net, whether floating or submerged, that is not assigned a fixed loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including regulations for the reasonable use of specific fishing methods. The regulation regarding the setting of gill nets aligns with the statutory mandate to manage and conserve marine resources, as it establishes guidelines that ensure the responsible use of fishing gear, thereby promoting the overall health of the fishery. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a broad statutory framework, ensuring effective management and conservation of marine resources while maintaining flexibility in enforcement and adaptation to environmental conditions.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any gill net, whether floating or submerged, that is not assigned a fixed loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and marine resources. This broad grant of authority encompasses the regulation regarding gill nets, as it directly relates to the conservation and management of fishing practices, thereby promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek further specific legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 3

"C. Any gill net, whether floating or submerged, that is not assigned a fixed loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation concerning gill nets, as it directly relates to the conservation and management of marine resources by establishing spatial restrictions that promote responsible fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby enabling timely and effective management of the seafood industry.

Provision 4

"D. The provisions of subsection C of this section shall not be applicable to tho..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority allows the regulation to establish specific provisions regarding the use of gill nets in the Chesapeake Bay tributaries, as it aligns with the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that address specific practices within the broader framework of resource management, ensuring compliance with the overarching goals of conservation and industry welfare.

Pertaining to the Taking of Finfish by Gill Nets

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing regulations for the management of specific species. This broad grant of authority allows the Commission to implement regulatory measures, such as those defining penalties for violations, which are essential for enforcing compliance and ensuring the effective management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that are crucial for the sustainable use and conservation of the Commonwealth's seafood resources, thereby supporting the overall objectives outlined in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. The licensee or the master of the vessel tending such gill net shall be respo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This results in GENERAL_DELEGATION because the regulation requiring the licensee or master of the vessel to ensure compliance aligns with the Commission's broad mandate to regulate activities that affect marine resources and ensure responsible use. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to fulfill its statutory responsibilities without requiring further specific legislative approval for each regulation.

CROSS-REFERENCE § 28.2-903

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to conserve the surf clam resource in the waters of the Commonwealth and to ensure that the surf clam resource within the waters of the Commonwealth and within the jurisdiction of the federal government is managed as a unit stock under consistent management measures.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to conserve the surf clam resource in the waters ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, as well as to promote the general welfare of the seafood industry and manage marine resources. This broad grant of authority encompasses the regulation's purpose of conserving the surf clam resource and ensuring consistent management measures, aligning with the statute's intent to manage marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of surf clams, reflecting the statute's overarching goals without requiring specific legislative approval for each regulatory action.

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Surf clam" means the species Spisula solidissima. "Cage" means a standard unit of measure presumed to hold 32 bushels of surf clams or ocean quahogs in the shell.¹ The outside dimensions of a standard cage generally are three inches wide, four inches long, and five inches high.²

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

Express Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically states that the Commission may adopt regulations necessary for the conservation and reasonable use of surf clams, which includes defining terms related to the management of these resources. This results in EXPRESS DELEGATION because the statute explicitly grants the Commission the authority to establish regulations that are directly relevant to the management and definition of surf clams, such as the definition provided in the regulation. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulatory frameworks that are essential for effective resource management, ensuring clarity and compliance within the seafood industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"The outside dimensions of a standard cage generally are three inches wide, four ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad language allows for the establishment of regulations that address various aspects of seafood management, including specifications for equipment such as cages, which are essential for the effective and sustainable harvesting of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further specific legislative approval.

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

Any person, desiring to harvest surf clams from the waters under the jurisdiction of the Commonwealth shall first obtain a license from the Marine Resources Commission for each boat so engaged.¹ Such license shall be for one calendar year.²

Provision-Level Authorization Analysis

Provision 1

"Any person, desiring to harvest surf clams from the waters under the jurisdictio..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, as well as to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation requiring individuals to obtain a license to harvest surf clams, as it directly relates to managing and conserving marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to ensure sustainable practices and effective management of surf clam resources, thereby fulfilling its statutory mandate.

Provision 2

"Such license shall be for one calendar year."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including establishing regulations for licenses and fees. This broad grant of authority allows the Commission to implement regulations, such as those pertaining to licensing for a calendar year, as they fall within the scope of promoting resource management and ensuring the reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulatory frameworks that support the overarching goals of conservation and management of the seafood industry without requiring additional legislative approval for each regulation.

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

A. A minimum size limit for surf clams of 4¾ inches in length is imposed on all surf clams coming from the waters of the Commonwealth, and it shall be unlawful for any person to possess clams less than the minimum size provided, however, that: 1. Ten percent of all full cages in possession, to the nearest whole cage (or at least one cage), can be withheld by the operator from inspection by the authorized officer.¹ 2. As many as 240 surf clams in any full cage inspected by the authorized officer may be less than 4¾ inches in length. If any inspected cage is found to be in violation, all cages in possession and not withheld subject to subdivision A 1 of this section will be deemed in violation of the size limit.² 3. To maintain consistency of management measures between state and federal jurisdictions, and when it is deemed in the best interest of the surf clam industry to do so, the Marine Resources Commission may by notice suspend the provisions of this section. Such suspension shall be on an annual basis.³ B. Length is measured along the longest dimension of the surf clam.⁴

Provision-Level Authorization Analysis

Provision 1

"A. A minimum size limit for surf clams of 4¾ inches in length is imposed on all ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, as well as to promote the general welfare of the seafood industry and marine resources. This broad grant of authority encompasses the regulation imposing a minimum size limit for surf clams, as it directly relates to the conservation of the species and the management of the resource in a manner that supports the industry. The legal significance of this authorization relationship is that it allows the Commission to implement specific measures, like size limits, to effectively manage and protect surf clam populations under the overarching goals established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. As many as 240 surf clams in any full cage inspected by the authorized office..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, but it does not explicitly authorize the imposition of blanket size limit violations across all cages based on the inspection of a single cage. The regulation's provision that all cages in possession are deemed in violation if one cage is found to be in violation of the size limit appears to exceed the statute's intent, as it does not align with the statute's focus on conservation and reasonable use, but rather imposes a collective penalty that could be seen as overly punitive. The legal significance of this relationship is that the regulation may not be valid if it extends beyond the specific authority granted by the statute, potentially undermining the regulatory framework established for the management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. To maintain consistency of management measures between state and federal juri..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including surf clams, and to promote the welfare of the seafood industry. This broad grant of authority allows the regulation to establish management measures that can be suspended to maintain consistency between state and federal jurisdictions, as it directly relates to the Commission's responsibility to manage resources effectively and adaptively. The legal significance of this authorization relationship is that it empowers the Commission to make timely adjustments to regulations in response to changing circumstances, ensuring the sustainable management of marine resources while aligning with broader regulatory frameworks.

Provision 4

"B. Length is measured along the longest dimension of the surf clam."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams. This broad language allows the Commission to establish specific measurement standards, such as the length of surf clams, as part of its regulatory framework to promote the general welfare of the seafood industry and ensure effective management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support its overarching mandate to manage and conserve seafood resources effectively.

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

Any marine police officer of the Marine Resources Commission, and any U.S.¹ Department of Commerce, National Marine Fisheries Service law-enforcement officer, shall have and is hereby granted authority to enforce the provisions of this chapter.²

Provision-Level Authorization Analysis

Provision 1

"Any marine police officer of the Marine Resources Commission, and any U.S."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as Atlantic menhaden. This broad grant of authority encompasses the regulation by allowing marine police officers to enforce the regulations established by the Commission, thereby promoting the general welfare of the seafood industry and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it empowers designated officers to act under the Commission's regulatory framework, facilitating effective management and enforcement of marine resource regulations.

Provision 2

"Department of Commerce, National Marine Fisheries Service law-enforcement office..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad grant of authority allows for the delegation of enforcement powers to law enforcement officers, as it is essential for the effective implementation and compliance with the regulations established by the Commission. The legal significance of this authorization relationship is that it ensures the enforcement of regulations is aligned with the Commission's mandate to manage and conserve marine resources, thereby promoting the general welfare of the seafood industry.

Pertaining to the Harvesting of Surf Clams

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing regulations for the management of specific species. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary for enforcing compliance with the Commission's regulations and ensuring the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms, thereby supporting its overarching mandate to manage and protect the Commonwealth's seafood and marine resources effectively.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Tangier Island Crab Scrape Sanctuary

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to minimize gear conflicts existing between crab pot fishermen and crab scrape fishermen in an area of Chesapeake Bay north of Tangier Island.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to minimize gear conflicts existing between crab ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of fisheries and the reasonable use of resources. This broad grant of authority encompasses the regulation aimed at minimizing gear conflicts between crab pot and crab scrape fishermen, as it directly relates to the conservation and reasonable use of marine resources within the specified area of Chesapeake Bay. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific conflicts and promote sustainable practices within the seafood industry, reflecting the intent of the statute to manage resources effectively.

Pertaining to the Tangier Island Crab Scrape Sanctuary

Express

General

Overreach

Unauthorized

Requirements

Gear limitation; closed area.¹ It shall be unlawful for any person to place, set or fish a crab pot or to harvest hard crabs by any gear in the following area: (all latitudes and longitudes are based on North American Datum, 83 (1993)) beginning near the northernmost point of Fishbone Island, at 37° 53' 10.4510" north, 76° 00' 08.7703" west; thence in a northerly direction approximately 0.92 miles to a point near the eastern shore of Herring Island, at 37° 54' 03.4504" north, 76° 00' 27.7700" west; thence in a northerly direction approximately 1.67 miles to a point near Peach Orchard Point, at 37° 55' 41.4491" north, 76° 00' 53.7692" west; thence following the shoreline of South Point Marsh to a point on the marsh near South Point, at 37° 55' 19.4499" north, 76° 01' 30.7706" west; thence due west approximately 0.80 miles to the remains of the overhead power cable west of the westernmost point of Shanks Island at 37° 55' 20.7101" north, 76° 02' 31.6527" west, thence in a southeasterly direction, along the remains of the overhead power cable, approximately 2.86 miles to a point near Upper Tump, at 37° 52' 50.5065" north, 76° 00' 45.6702" west; thence in a northeasterly direction approximately 0.59 miles to a point near the northernmost point of Fishbone Island, the point of beginning.²

Provision-Level Authorization Analysis

Provision 1

"Gear limitation; closed area."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad authority encompasses the regulation on gear limitation and closed areas as it directly relates to the conservation and reasonable use of seafood resources, aligning with the Commission's mandate to manage these resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable practices within the seafood industry, thereby fulfilling its statutory obligations without needing further specific legislative approval.

Provision 2

"It shall be unlawful for any person to place, set or fish a crab pot or to harve..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation prohibiting the placement and harvesting of crab pots in designated areas, as it is necessary for the conservation and reasonable use of marine resources, aligning with the Commission's mandate to manage and protect these resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that address localized conservation needs while remaining within the broader framework established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Tangier Island Crab Scrape Sanctuary

Express

General

Overreach

Unauthorized

Requirements

From August 1 through October 31, there shall be a limited daily bycatch allowance of up to three bushels of female hard crabs for valid peeler scrape licensees.¹

Provision-Level Authorization Analysis

Provision 1

"From August 1 through October 31, there shall be a limited daily bycatch allowan..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species such as surf clams and Atlantic menhaden. The regulation allowing a limited daily bycatch of female hard crabs for valid peeler scrape licensees aligns with the Commission's broad mandate to manage and conserve seafood resources, as it establishes a controlled measure that supports both the industry and resource sustainability. This authorization relationship signifies that the regulation operates within the scope of the Commission's delegated powers, ensuring that the management of marine resources is effectively regulated while promoting the interests of the seafood industry.

Pertaining to the Tangier Island Crab Scrape Sanctuary

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and management of marine resources. This broad grant of authority encompasses the regulation concerning penalties for violations, as it aligns with the Commission's responsibility to enforce regulations that support the sustainable use and management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms, such as penalties for violations, to ensure compliance with its regulatory framework, thereby promoting the overall goals outlined in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for the continued sustained yield from the recovered striped bass stocks in Virginia and to limit the growth of the number of commercial participants in this fishery.¹ The provisions pertaining to aquaculture serve to prevent the escape of cultured hybrid striped bass into the natural environment and to minimize the impact of cultured fish in the market place on the enforcement of other provisions of this chapter.² This regulation is not intended to create any property right in anyone, and the commission reserves the right to change this regulation at any time it deems it necessary because of biological conditions and to change the regulation in all other respects at any time it deems it necessary to carry out its statutory mission.³

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for the continued sustained yield from..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission is authorized to promulgate regulations to carry out the provisions of this section.

ANALYSIS

§ 28.2-204.1 specifically states that the Commission is authorized to promulgate regulations to carry out the provisions of this section. This broad grant of authority allows the Commission to create regulations that address various aspects of managing striped bass stocks and commercial participation, which aligns with the regulation's purpose of ensuring sustainable yield and controlling commercial growth. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures for effective fishery management without needing further specific legislative approval, thereby facilitating responsive governance in resource management.

Provision 2

"The provisions pertaining to aquaculture serve to prevent the escape of cultured..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning aquaculture as it aligns with the Commission's responsibility to manage marine resources and ensure their sustainability, thus justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect the environment and market integrity without requiring further legislative approval, thereby facilitating effective resource management.

Provision 3

"This regulation is not intended to create any property right in anyone, and the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits and to promulgate regulations to implement the provisions of the section. This broad grant of authority allows the Commission to create regulations that can adapt to changing biological conditions and other necessary adjustments, which aligns with the concept of GENERAL_DELEGATION as it empowers the agency to exercise discretion in managing fishery resources. The legal significance of this authorization relationship is that it enables the Commission to respond flexibly to environmental and regulatory needs without being constrained by more specific legislative mandates.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

James River from a line connecting Dancing Point and New Sunken Meadow Creek upstream to a line connecting City Point and Packs Point. 2.¹ Pamunkey River from the Route 33 Bridge at West Point upstream to a line connecting Liberty Hall and the opposite shore. 3.² Mattaponi River from the Route 33 Bridge at West Point upstream to the Route 360 bridge at Aylett. 4.³ Rappahannock River from the Route 360 Bridge at Tappahannock upstream to the Route 1 Falmouth Bridge. "Spear" or "spearing" means to fish while the person is fully submerged under the water's surface with a mechanically aided device designed to accelerate a barbed spear. "Striped bass" means any fish or any hybrid of the species Morone saxatilis. "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.⁴

Provision-Level Authorization Analysis

Provision 1

"James River from a line connecting Dancing Point and New Sunken Meadow Creek ups..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing surf clams and Atlantic menhaden, while promoting the general welfare of the seafood industry. The regulation concerning the James River appears to exceed the statutory authority because it does not clearly align with the conservation and management of specific seafood resources mentioned in the statute, nor does it demonstrate a direct connection to promoting the general welfare of the seafood industry. The legal significance of this relationship is that regulations must remain within the boundaries set by the statute, and any overreach could undermine the legislative intent and authority granted to the Commission.

Provision 2

"Pamunkey River from the Route 33 Bridge at West Point upstream to a line connect..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not provide authority for regulating specific geographic areas like the Pamunkey River. The regulation concerning the Pamunkey River does not align with the statute's focus on species management and conservation, as it addresses a specific location rather than the conservation of marine resources or the seafood industry as a whole. The legal significance of this relationship is that without explicit statutory authority for the regulation's geographic focus, it is deemed unauthorized and outside the Commission's granted powers.

Provision 3

"Mattaponi River from the Route 33 Bridge at West Point upstream to the Route 360..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, as well as to promote the general welfare of the seafood industry. The regulation concerning the Mattaponi River does not relate to the conservation or management of the specified seafood resources mentioned in the statute, nor does it address the general welfare of the seafood industry as outlined. The legal significance of this relationship is that the regulation exceeds the scope of authority provided by the statute, rendering it unauthorized and not legally enforceable under the specified provisions.

Provision 4

"Rappahannock River from the Route 360 Bridge at Tappahannock upstream to the Rou..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation as it pertains to specific fishing practices and species management, allowing the Commission to establish detailed rules for activities such as spearing striped bass in designated areas. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that effectively manage and conserve marine resources while ensuring the sustainable use of those resources by the public.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person while aboard any boat or vessel or while fishing from shore or pier to alter any striped bass or to possess any altered striped bass such that its total length cannot be determined.¹ B. It shall be unlawful for any person to gaff or attempt to gaff any striped bass at any time.² C. It shall be unlawful to place, set, or fish any gill net within 300 feet of any bridge, bridge-tunnel, jetty, or pier during any open recreational striped bass season in the Chesapeake Bay and its tributaries, except during the period midnight Sunday through midnight Wednesday.³ D. During the period April 1 through May 31, inclusive, it shall be unlawful for any person to set or fish any anchored gill net or staked gill net, for any purpose, within the spawning reaches of the James, Pamunkey, Mattaponi, and Rappahannock Rivers. Drift or float gill nets may be set and fished within the spawning reaches of these rivers during this period, provided that the person setting and fishing the net remains with the net during the time it is fishing and all striped bass that are caught shall be returned to the water immediately.⁴ E. Any license or permit issued by the commission to fish for striped bass, recreationally or commercially, shall authorize any commission personnel or their designees to inspect, measure, weigh, or take biological samples from any striped bass in possession of the licensee or permittee.⁵ F. Nothing in this chapter shall preclude any person, who is legally eligible to fish, from possessing any striped bass tagged with a Virginia Institute of Marine Science (VIMS) tag. Possession of VIMS-tagged striped bass shall not count towards the personal recreational possession limit. Permitted commercial striped bass individual transferable quota (ITQ) holders shall not be required to apply a tamper evident, numbered tag provided by the commission, in order to possess any striped bass tagged with a VIMS-inscribed tag. It shall be unlawful for any person to retain any VIMS-tagged striped bass except to provide the VIMS-tagged striped bass to a VIMS representative. Under no circumstance shall any VIMS-tagged striped bass be stored for future use or sale or delivered to any person who is not a VIMS representative.⁶

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person while aboard any boat or vessel or while ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting the alteration of striped bass, as it directly relates to the conservation and management of marine resources, ensuring that accurate measurements can be taken for effective regulation. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating timely and effective management of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to gaff or attempt to gaff any striped ba..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the gaffing of striped bass, as it aligns with the Commission's responsibility to manage and conserve fish populations effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect marine resources without requiring specific legislative approval for each regulation, thus facilitating timely and effective resource management.

Provision 3

"C. It shall be unlawful to place, set, or fish any gill net within 300 feet of a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species such as striped bass. This broad grant of authority encompasses the regulation prohibiting gill nets near structures during the recreational striped bass season, as it directly relates to the conservation and reasonable use of marine resources in the Chesapeake Bay. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect fish populations and maintain sustainable fishing practices without requiring further legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. During the period April 1 through May 31, inclusive, it shall be unlawful for..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of certain species and habitats. This broad grant of authority encompasses the regulation prohibiting the use of anchored gill nets in specific spawning areas, as it directly relates to the conservation of marine resources and the management of fisheries within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the protection and sustainability of vital aquatic ecosystems, ensuring the effective management of fisheries resources.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Any license or permit issued by the commission to fish for striped bass, recr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and promotion of seafood and marine resources, as well as to manage specific species like Atlantic menhaden. This broad grant of authority encompasses the regulation, as it allows Commission personnel to inspect and collect biological data on striped bass, which is essential for effective management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary oversight measures to ensure sustainable fishing practices and resource conservation, aligning with its statutory mandate.

Provision 6

"F. Nothing in this chapter shall preclude any person, who is legally eligible to..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like Atlantic menhaden and surf clams. The regulation allowing possession of VIMS-tagged striped bass without counting towards the possession limit appears to exceed the statute's authorization because it introduces an exception that may not align with the conservation goals outlined in the statute, which emphasizes the need for reasonable use and management of resources. The legal significance of this relationship is that the regulation could undermine the Commission's responsibility to manage fishery resources effectively, potentially leading to overfishing or mismanagement contrary to the statutory intent.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

Any provision of this chapter that is held invalid by a court of competent jurisdiction shall not affect the validity of other provisions of this chapter which can be given effect without the invalid provision.¹

Provision-Level Authorization Analysis

Provision 1

"Any provision of this chapter that is held invalid by a court of competent juris..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including provisions for conservation and reasonable use. This results in GENERAL_DELEGATION because the regulation addresses the validity of provisions within the chapter, ensuring that the overall regulatory framework remains intact even if specific provisions are invalidated, which aligns with the Commission's authority to manage and conserve resources effectively. The legal significance of this authorization relationship is that it allows the Commission to maintain regulatory stability and continuity, ensuring that the overarching goals of resource management and industry welfare are upheld despite potential legal challenges to individual provisions.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing recreationally to take, catch, or attempt to take or catch any striped bass by any gear or method other than hook-and-line, rod and reel, hand line, or spearing.¹ B. Any person fishing recreationally shall use non-offset, corrodible, non-stainless steel circle hooks when fishing with bait.² C. When fishing from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by the applicable personal possession limit. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit.³ D. When fishing from a boat or vessel where the entire catch is held in a common hold or container, the captain or operator of the boat or vessel shall be responsible for any minimum or maximum size limits.⁴ E. It shall be unlawful to combine possession limits when there is more than one area or season open at the same time.⁵ F. It shall be unlawful for any person while actively fishing pursuant to a recreational fishery to possess any striped bass that are smaller than the minimum size limit or larger than the maximum size limit for the area and season then open and being fished.⁶ G. It shall be unlawful for any person fishing recreationally to transfer any striped bass to another person, while on the water or while fishing from a pier or shore.⁷

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing recreationally to take, catch, or..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, specifically mentioning the management of certain species like surf clams and Atlantic menhaden. The regulation restricting the methods for recreational fishing of striped bass to only hook-and-line, rod and reel, hand line, or spearing may exceed the Commission's authority as it does not directly relate to the conservation or reasonable use of striped bass as outlined in the statute, which does not specify methods of fishing. The legal significance of this relationship is that the regulation could be challenged for not aligning with the specific conservation goals and management authority granted by the statute, indicating a potential overreach of regulatory power.

Provision 2

"B. Any person fishing recreationally shall use non-offset, corrodible, non-stain..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation requiring the use of specific types of hooks for recreational fishing, as it directly relates to the conservation and responsible management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable fishing practices without needing further legislative approval, thereby facilitating effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. When fishing from a boat or vessel where the entire catch is held in a common..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the regulation concerning possession limits on boats or vessels to fall under GENERAL_DELEGATION, as it directly relates to the management and conservation of seafood resources by ensuring that catch limits are adhered to in a manner that reflects the number of legally eligible fishers on board. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that effectively manage fishery resources while promoting sustainable practices within the industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. When fishing from a boat or vessel where the entire catch is held in a common..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of regulations for taking seafood. This broad grant of authority encompasses the regulation requiring the captain or operator of a vessel to be responsible for size limits, as it directly relates to the conservation and management of seafood resources by ensuring compliance with size regulations. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to effectively manage and protect marine resources while promoting the welfare of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. It shall be unlawful to combine possession limits when there is more than one..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority allows the Commission to implement regulations like the prohibition on combining possession limits, as it directly relates to the conservation and management of seafood resources by ensuring sustainable practices during overlapping seasons. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations without requiring additional specific legislative approval, thereby facilitating effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"F. It shall be unlawful for any person while actively fishing pursuant to a recr..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, including surf clams and Atlantic menhaden, while promoting the general welfare of the seafood industry. The regulation regarding the possession of striped bass, which imposes size limits beyond what is explicitly mentioned in the statute, may exceed the Commission's authority as it does not directly relate to the conservation or management of the species specifically authorized by the statute. The legal significance of this relationship is that the regulation could be challenged for not aligning with the specific mandates of the statute, potentially undermining the legitimacy of the Commission's authority to regulate other species not explicitly mentioned.

Provision 7

"G. It shall be unlawful for any person fishing recreationally to transfer any st..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation prohibiting the transfer of striped bass by recreational fishers, as it directly relates to the conservation and management of fishery resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable fishing practices without requiring further legislative approval, thereby facilitating effective resource management.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. The open season for the Chesapeake Bay and its tributaries spring/summer striped bass recreational fishery shall be May 16 through June 15, inclusive.¹ B. The minimum size limit shall be 19 inches total length.² C. The maximum size limit shall be 24 inches total length.³ D. The daily possession limit shall be one fish per person.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The open season for the Chesapeake Bay and its tributaries spring/summer stri..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the open season for the striped bass recreational fishery, as it is a necessary measure to manage the fishery sustainably and ensure the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that align with its overarching mandate to conserve marine resources and promote the seafood industry without requiring further legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The minimum size limit shall be 19 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the establishment of regulations for taking seafood. This broad grant of authority encompasses the regulation setting a minimum size limit of 19 inches total length, as it directly relates to the conservation of fish populations and the sustainable management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific measures, like size limits, to effectively manage and protect marine resources under its jurisdiction without requiring further legislative approval.

Provision 3

"C. The maximum size limit shall be 24 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing size limits for various species. This broad grant of authority allows the Commission to implement regulations like the maximum size limit of 24 inches total length, as it directly relates to the conservation and management of the seafood resources within its jurisdiction. The legal significance of this authorization relationship is that it empowers the Commission to make regulatory decisions that are essential for the sustainable management of marine resources, ensuring the general welfare of the seafood industry and the conservation of these resources.

Provision 4

"D. The daily possession limit shall be one fish per person."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden. This broad grant of authority encompasses the regulation that establishes a daily possession limit, as it directly relates to the conservation and responsible management of fish populations, promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating effective resource management.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. The open season for the Chesapeake Bay and its tributaries fall striped bass recreational fishery shall be October 4 through December 31, inclusive.¹ B. The minimum size limit shall be 19 inches total length.² C. The maximum size limit shall be 24 inches total length.³ D. The daily possession limit shall be one fish per person.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The open season for the Chesapeake Bay and its tributaries fall striped bass ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including establishing regulations for the management of specific fish species. This broad grant of authority encompasses the regulation regarding the open season for striped bass, as it directly relates to the conservation and reasonable use of fishery resources within the Chesapeake Bay and its tributaries. The legal significance of this authorization relationship is that it allows the Commission to implement specific management measures, such as seasonal restrictions, to ensure sustainable fishing practices while fulfilling its mandate to promote the seafood industry and conserve marine resources.

Provision 2

"B. The minimum size limit shall be 19 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation of minimum size limits, as it directly relates to the conservation and management of seafood resources, ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures, like size limits, to effectively manage fish populations and support the overall health of the marine ecosystem without needing further legislative approval.

Provision 3

"C. The maximum size limit shall be 24 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation regarding the maximum size limit for surf clams, as it directly relates to the conservation and management of marine resources, which is a key aspect of the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring that management practices align with the overarching goals of resource conservation and industry welfare.

Provision 4

"D. The daily possession limit shall be one fish per person."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden. This broad grant of authority encompasses the regulation that establishes a daily possession limit, as it directly relates to the conservation and reasonable use of fish resources, thereby promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring effective management and sustainability of marine resources without requiring further legislative approval for each individual regulation.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. The open season for the Potomac River tributaries summer/fall striped bass recreational fishery shall correspond to the open summer/fall season as established by the Potomac River Fisheries Commission for the mainstem Potomac River and shall be May 16 through July 6 and August 21 through December 31.¹ B. The minimum size limit shall be 19 inches total length.² C. The maximum size limit shall be 24 inches total length.³ D. The daily possession limit shall be one fish per person.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The open season for the Potomac River tributaries summer/fall striped bass re..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for specific fisheries. The regulation concerning the open season for the striped bass recreational fishery aligns with the Commission's broad mandate to manage fishery resources effectively, as it ensures consistency with the established regulations of the Potomac River Fisheries Commission, thereby promoting the conservation and reasonable use of the species. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for the sustainable management of fisheries, reflecting a general delegation of authority to address specific resource management needs.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The minimum size limit shall be 19 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement a minimum size limit for surf clams, as it directly relates to the conservation and management of marine resources, thereby justifying the GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulatory measures that are essential for the effective management and sustainability of the seafood industry within the Commonwealth.

Provision 3

"C. The maximum size limit shall be 24 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding the maximum size limit, as it is a specific measure aimed at managing the conservation and reasonable use of seafood resources, aligning with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective management of marine resources while adhering to the overarching goals set forth in the statute.

Provision 4

"D. The daily possession limit shall be one fish per person."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation of daily possession limits, as it falls within the Commission's mandate to manage fishery resources effectively and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating timely and responsive management of marine resources.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. The open seasons for the coastal area striped bass recreational fishery shall be January 1 through March 31 and May 16 through December 31, inclusive.¹ B. The minimum size limit shall be 28 inches total length.² C. The maximum size limit shall be 31 inches total length.³ D. The daily possession limit shall be one fish per person.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The open seasons for the coastal area striped bass recreational fishery shall..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the open seasons for the coastal area striped bass recreational fishery, as it directly relates to the management and conservation of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby ensuring effective and timely management of the fishery resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The minimum size limit shall be 28 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. The regulation setting a minimum size limit of 28 inches total length directly aligns with the Commission's broad mandate to conserve seafood resources and manage fisheries effectively, thereby falling under the scope of GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for the sustainable management of marine resources, reflecting the legislative intent to empower the agency in its regulatory functions.

Provision 3

"C. The maximum size limit shall be 31 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the management of specific species. This broad language allows the Commission to implement regulations such as the maximum size limit for fish, as it directly relates to the conservation and reasonable use of marine resources, which is within the scope of the Commission's delegated powers. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that support overarching goals of resource management and industry welfare without requiring further legislative approval, thus facilitating effective and timely regulatory action.

Provision 4

"D. The daily possession limit shall be one fish per person."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing fish species. This broad grant of authority encompasses the regulation on daily possession limits, as it directly relates to the conservation and reasonable use of fish resources, aligning with the Commission's mandate to manage these resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable management practices, ensuring the long-term viability of the seafood industry and its resources.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to engage in the commercial fishery for striped bass without first having the necessary commercial fisherman's registration license and appropriate gear license as required by Title 28.2 of the Code of Virginia and the special permit to fish for striped bass established in 4VAC20-252-130 , except as provided in subsection G of 4VAC20-252-160 .¹ B. It shall be unlawful for any person fishing commercially to possess any striped bass taken outside any open commercial season or area or with gear inapplicable to the season and area as specified in 4VAC20-252-140 . Any striped bass caught contrary to this provision shall be returned to the water immediately.² C. It shall be unlawful for any person while actively fishing pursuant to a commercial fishery to possess any striped bass that is less than the minimum size limit applicable for the area and season then open and being fished. Any striped bass caught that does not meet the applicable minimum size limit shall be returned to the water immediately.³ D. All striped bass in the possession of any person for the purpose of sale must be identified with a tamper-evident sealed tag that has been approved and issued by the appropriate authority in the jurisdiction of capture. Whole striped bass shall have tags attached directly to the fish. Processed or filleted striped bass must be accompanied by the tags removed from the fish when processed. Any person who possesses any amount of striped bass in excess of the maximum number allowed for a licensed recreational fisherman as described in 4VAC20-252-60 through 4VAC20-252-110 shall be considered as possessing all striped bass for the purpose of sale. When any person possesses striped bass in excess of the maximum number allowed a licensed recreational fisherman, all striped bass of said person shall be tagged, and the possession of any untagged striped bass shall be prima facie evidence of a violation of this chapter and subject to the provisions of 4VAC20-252-160 H and I and 4VAC20-252-230 .⁴ E. When the striped bass are in the possession of any person other than the original harvester for the purpose of resale, the striped bass shall be accompanied by a bill of sale, which shall include the name of the seller, the permit or license number of the seller if such permit or license is required in the jurisdiction of harvest, the date of sale, the pounds of striped bass in possession, the location of catch, and the gear type used to harvest the striped bass. If the striped bass product for sale is fillets, the bill of sale shall also specify the number of fillets.⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to engage in the commercial fishery for s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring a commercial fisherman's registration license and appropriate gear license for striped bass, as it aligns with the Commission's responsibility to regulate fisheries and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to manage fishery resources effectively without needing further specific legislative approval, thereby facilitating timely and adaptive management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing commercially to possess any strip..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species such as striped bass. This results in GENERAL_DELEGATION because the regulation directly aligns with the Commission's broad mandate to regulate fishing practices, ensuring the sustainability of striped bass populations and the overall health of the marine ecosystem. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby enabling timely and effective management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person while actively fishing pursuant to a comm..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species such as striped bass. This broad grant of authority encompasses the regulation prohibiting the possession of striped bass below the minimum size limit, as it directly relates to the conservation efforts aimed at ensuring sustainable fishing practices within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Provision 4

"D. All striped bass in the possession of any person for the purpose of sale must..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as striped bass. This broad grant of authority encompasses the regulation requiring tamper-evident tags for striped bass, as it directly relates to promoting the welfare of the seafood industry and ensuring proper management and conservation of the species. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to regulate the sale and handling of striped bass, thereby supporting the overall management objectives outlined in the statute.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. When the striped bass are in the possession of any person other than the orig..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like striped bass. This broad grant of authority encompasses the regulation requiring a bill of sale for striped bass in possession of someone other than the original harvester, as it directly relates to the conservation and reasonable use of seafood resources and the management of the fishery. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure accountability and traceability in the seafood market, thereby supporting sustainable practices within the industry.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. There is established a special permit for engaging in either the Chesapeake Bay area commercial fishery for striped bass or the coastal area commercial fishery for striped bass. It shall be unlawful for any person to engage in either commercial fishery for striped bass without first having obtained the permit from the commission and meeting the following conditions: 1. The person shall be a licensed registered commercial fisherman.¹ 2. The person shall have reported all prior fishing activity in accordance with 4VAC20-610 and shall not be under any sanction by the Marine Resources Commission for noncompliance with the regulation.² B. Permits for the commercial harvest of striped bass in the Chesapeake Bay area or coastal area shall be issued to any registered commercial fishermen holding striped bass quota shares issued under the provisions of 4VAC20-252-150 and 4VAC20-252-160 .³ C. Permits shall be in the possession of the permittee while catching, harvesting, selling, or possessing striped bass. Failure to have the appropriate permit in possession shall be a violation of this chapter.⁴ D. It shall be unlawful for any person, business, or corporation, except for licensed restaurants, to purchase from the harvester any quantity of striped bass greater than 10 pounds in total weight taken from Virginia's tidal waters for the purpose of resale without first obtaining a striped bass buyer's permit from the commission, except as described in subsection E of this section. Such permit shall be completed in full by the permittee and kept in possession of the permittee while selling or possessing striped bass. Failure to have the appropriate permit in possession shall be a violation of this chapter.⁵ E. Restaurants shall not be required to obtain a striped bass buyer's permit from the commission but shall be required to certify and maintain a record of any striped bass purchased from any harvester for a period of not less than one year.⁶ F. All permitted commercial harvesters of striped bass shall report to the commission in accordance with 4VAC20-610 . In addition to the reporting requirements of 4VAC20-610 , all permitted commercial harvesters of striped bass shall record and report daily striped bass harvest by specifying the number of tags used on striped bass harvested for each day in either the Chesapeake Bay area or coastal area and reporting the daily total whole weight of striped bass harvested in either the Chesapeake Bay area or coastal area. Daily striped bass tag use on harvested striped bass and daily total whole weight of harvested striped bass from either the Chesapeake Bay area or coastal area, within any month, shall be recorded on forms provided by the commission and shall accompany the monthly catch report submitted no later than the fifth day of the following month.⁷ G. Any permitted commercial harvester of striped bass who self markets his striped bass to a restaurant, person, or out-of-state market shall be required to prepare a receipt describing each sale greater than 10 pounds in total weight. Each receipt shall be a record and report of the date of transaction, name and signature of buyer, address and phone number of buyer, number and total weight of striped bass sold, and name and signature of harvester. Copies of each receipt shall be submitted to the commission no later than the fifth day of the following month.⁸ H. Any buyer permitted to purchase striped bass harvested from Virginia tidal waters shall provide written reports to the commission of daily purchases and harvest information on forms provided by the Marine Resources Commission. Such information shall include the date of the purchase, buyer's name, and harvester's Commercial Fisherman Registration License number. In addition, for each different purchase of striped bass harvested from Virginia waters, the buyer shall record the weight of whole fish and number and type of tags (Chesapeake Bay area or coastal area) that applies to that harvest. These reports shall be completed in full and submitted monthly to the Marine Resources Commission no later than the fifth day of the following month.⁹ I. Failure of any person permitted to harvest, buy, or sell striped bass, to submit the required written report for any fishing day shall constitute a violation of this chapter.¹⁰

Provision-Level Authorization Analysis

Provision 1

"A. There is established a special permit for engaging in either the Chesapeake B..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific fish species. This broad grant of authority encompasses the regulation requiring a special permit for engaging in commercial fisheries for striped bass, as it aligns with the Commission's responsibility to manage and regulate fishing practices to ensure sustainability and compliance. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures without needing further specific legislative approval, thereby facilitating effective management of the state's seafood resources.

Provision 2

"2. The person shall have reported all prior fishing activity in accordance with ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring individuals to report prior fishing activity and comply with the Commission's regulations, as it aligns with the Commission's responsibility to manage fishing activities and ensure compliance for the conservation of resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION, ensuring effective management and oversight of fishing practices to uphold the statutory objectives.

Provision 3

"B. Permits for the commercial harvest of striped bass in the Chesapeake Bay area..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species such as striped bass. This results in GENERAL_DELEGATION because the regulation concerning permits for the commercial harvest of striped bass aligns with the Commission's broad mandate to regulate the seafood industry and manage specific fish populations, ensuring sustainable practices and resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations, like those for striped bass permits, under the overarching authority provided by the statute, facilitating effective management of marine resources.

Provision 4

"C. Permits shall be in the possession of the permittee while catching, harvestin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like striped bass. This results in GENERAL_DELEGATION because the regulation requiring permits for catching, harvesting, selling, or possessing striped bass aligns with the Commission's mandate to promote the general welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure sustainable practices and compliance within the seafood industry, thereby fulfilling its statutory responsibilities.

Provision 5

"D. It shall be unlawful for any person, business, or corporation, except for lic..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood, but does not explicitly authorize restrictions on the resale of striped bass by unlicensed entities. The regulation's requirement that any person, business, or corporation must obtain a license to purchase striped bass for resale appears to exceed the statute's intent, as it imposes a licensing requirement that is not directly linked to conservation or reasonable use as outlined in the statute. The legal significance of this relationship is that the regulation may infringe on the statutory limits of the Commission's authority, potentially undermining the balance between regulatory oversight and the rights of individuals and businesses within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"E. Restaurants shall not be required to obtain a striped bass buyer's permit fro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad authority allows the Commission to implement regulations that streamline processes for seafood transactions, such as the requirement for restaurants to certify and maintain records of striped bass purchases, without imposing additional burdens like obtaining a buyer's permit. The legal significance of this relationship is that it enables the Commission to effectively manage seafood resources while ensuring compliance and accountability within the industry, reflecting a general delegation of authority to regulate operational aspects of seafood handling.

Provision 7

"F. All permitted commercial harvesters of striped bass shall report to the commi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species such as striped bass. This results in GENERAL_DELEGATION because the regulation requiring commercial harvesters to report daily striped bass harvest aligns with the Commission's broad mandate to ensure sustainable management and conservation of marine resources, as outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed reporting requirements that are essential for effective resource management and conservation efforts within the framework established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"G. Any permitted commercial harvester of striped bass who self markets his strip..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation requiring commercial harvesters of striped bass to prepare receipts for sales over 10 pounds, as it aligns with the Commission's responsibility to ensure proper management and documentation of seafood transactions to support industry welfare and resource conservation. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that facilitate effective oversight and management of seafood resources, ensuring compliance with broader statutory objectives.

Provision 9

"H. Any buyer permitted to purchase striped bass harvested from Virginia tidal wa..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. The regulation requiring buyers of striped bass to provide daily purchase and harvest information aligns with the Commission's broad mandate to manage seafood resources effectively and ensure sustainable practices within the industry. This authorization relationship signifies that the regulation falls within the general powers granted to the Commission, allowing for flexible implementation of measures that support the overarching goals of resource conservation and industry welfare.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"I. Failure of any person permitted to harvest, buy, or sell striped bass, to sub..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. The requirement for individuals permitted to harvest, buy, or sell striped bass to submit written reports aligns with the Commission's broad mandate to ensure sustainable management and oversight of marine resources, thereby justifying the GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for effective resource management without needing to seek further legislative approval for each specific regulation.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. Any registered commercial fisherman who is harvesting striped bass from the coastal area in accordance with 4VAC20-252-130 A and C and sets or fishes any gill net in the coastal area shall be prohibited from using a gill net mesh size greater than nine inches in stretched mesh.¹ B. Any registered commercial fisherman who is harvesting striped bass from the coastal area in accordance with 4VAC20-252-130 A and C and sets or fishes any gill net in the coastal area shall be exempt from the maximum gill net mesh size requirements during November and December as described in 4VAC20-430-65 A and B.² C. Any registered commercial fisherman who is harvesting striped bass from the coastal area in accordance with 4VAC20-252-130 A and C and sets or fishes any gill net seven inches or greater in stretched mesh in the coastal area shall be exempt from the tending requirements described in 4VAC20-430-65 E and F during the months of November and December.³ D. Any registered commercial fisherman who is harvesting striped bass from the coastal area in accordance with 4VAC20-252-130 A and C shall display an optic yellow flag issued by the commission while fishing for striped bass in the coastal area and while transiting the coastal area before and after a striped bass fishing trip. This flag shall be prominently displayed on the starboard side of the vessel.⁴ E. Any registered commercial fisherman who is harvesting striped bass from the Chesapeake Bay area in accordance with 4VAC20-252-130 A and C and sets or fishes any gill net in the Chesapeake Bay area shall be prohibited from using a gill net greater than seven inches in stretched mesh with the exception of restricted areas as defined in 4VAC20-751-20 .⁵

Provision-Level Authorization Analysis

Provision 1

"A. Any registered commercial fisherman who is harvesting striped bass from the c..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention striped bass or the specific limitations on gill net mesh size. The regulation imposes a restriction on gill net mesh size for commercial fishermen harvesting striped bass, which may exceed the authority provided by the statute since it does not directly relate to the conservation and management of the species explicitly mentioned in the statute, such as Atlantic menhaden or surf clams. The legal significance of this relationship is that the regulation could be challenged as exceeding the scope of the Commission's authority under the statute, potentially undermining the legitimacy of the regulation if it cannot be directly tied to the conservation goals outlined in § 28.2-201.

Provision 2

"B. Any registered commercial fisherman who is harvesting striped bass from the c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species like striped bass. This results in GENERAL_DELEGATION because the regulation provides an exemption from certain mesh size requirements for commercial fishermen harvesting striped bass, which aligns with the Commission's broad mandate to manage and conserve marine resources while allowing for reasonable use. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible regulatory measures that adapt to the needs of the industry while ensuring the sustainability of the resource.

Provision 3

"C. Any registered commercial fisherman who is harvesting striped bass from the c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority allows the Commission to create regulations that address specific practices, such as the exemption from tending requirements for commercial fishermen harvesting striped bass, which aligns with the statute's aim of promoting resource management and user group considerations. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that facilitate effective resource management while ensuring compliance with overarching conservation goals, thus falling under GENERAL_DELEGATION.

Provision 4

"D. Any registered commercial fisherman who is harvesting striped bass from the c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like striped bass. This broad grant of authority allows the Commission to implement regulations, such as the requirement for commercial fishermen to display an optic yellow flag, as a means of ensuring compliance and promoting the conservation of striped bass within the coastal area. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that are essential for the effective management and conservation of marine resources, thereby supporting the overall objectives outlined in the statute.

Provision 5

"E. Any registered commercial fisherman who is harvesting striped bass from the C..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species such as striped bass. This broad grant of authority encompasses the regulation concerning the use of gill nets by commercial fishermen, as it directly relates to the conservation and management of striped bass within the Chesapeake Bay area. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to ensure sustainable fishing practices, thereby promoting the overall health of the marine ecosystem and the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

In the Chesapeake Bay area, the open commercial season shall be from January 16 through December 31, inclusive.¹ The minimum size limit shall be 18 inches total length during the periods of January 16 through December 31.² The maximum size limit shall be 28 inches from March 15 through June 15. 2.³ In the coastal area, the open commercial season shall be January 16 through December 31, inclusive.⁴ The minimum size limit shall be 28 inches total length.⁵

Provision-Level Authorization Analysis

Provision 1

"In the Chesapeake Bay area, the open commercial season shall be from January 16 ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and authorizes it to promulgate regulations to implement these provisions. This broad grant of authority allows the Commission to establish specific operational details, such as the open commercial season in the Chesapeake Bay area, under the umbrella of managing fishing activities and resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are necessary for the execution of its statutory responsibilities without requiring further legislative approval for each specific regulation.

Provision 2

"The minimum size limit shall be 18 inches total length during the periods of Jan..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation setting a minimum size limit for seafood, as it directly relates to the conservation of marine resources and the management of fishery stocks. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable fishing practices, thereby supporting the overall health of the seafood industry and marine ecosystems.

Provision 3

"The maximum size limit shall be 28 inches from March 15 through June 15. 2."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of specific regulations, such as the maximum size limit for certain species, as it directly relates to the conservation and management of those resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations under a general framework, ensuring effective management of marine resources while adhering to the overarching goals set forth in the statute.

Provision 4

"In the coastal area, the open commercial season shall be January 16 through Dece..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations, such as the specified open commercial season, as it directly relates to managing and conserving seafood resources within the coastal area. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of marine resources, ensuring both conservation and the economic viability of the seafood industry.

Provision 5

"The minimum size limit shall be 28 inches total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including establishing regulations for taking seafood to promote the welfare of the seafood industry. This broad grant of authority encompasses the regulation of a minimum size limit for fish, as it directly relates to the conservation of the species and the sustainable management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations, like the size limit, under a general delegation of authority to manage and conserve marine resources effectively.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. The commercial harvest quota for the Chesapeake Bay area shall be determined annually by the Marine Resources Commission in compliance with the Atlantic States Marine Fisheries Commission. The total allowable level of all commercial harvest of striped bass from the Chesapeake Bay and its tributaries and the Potomac River tributaries of Virginia for all open seasons and for all legal gear shall be 914,555 pounds of whole fish. At such time as the total commercial harvest of striped bass from the Chesapeake Bay area is projected to reach 914,555 pounds and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the Chesapeake Bay area.¹ B. The commercial harvest quota for the coastal area of Virginia shall be determined annually by the Marine Resources Commission in compliance with the Atlantic States Marine Fisheries Commission. The total allowable level of all commercial harvest of striped bass from the coastal area for all open seasons and for all legal gear shall be 116,282 pounds of whole fish. At such time as the total commercial harvest of striped bass from the coastal area is projected to reach 116,282 pounds and announced as such, it shall be unlawful for any person to land or possess striped bass caught for commercial purposes from the coastal area.² C. For the purposes of assigning tags to a person for commercial harvests in the Chesapeake Bay area as described in 4VAC20-252-160 , the individual commercial harvest quota of striped bass in pounds shall be converted to an estimate in numbers of fish per individual harvest quota based on the average weight of striped bass harvested by the permitted person during the previous fishing year. The number of striped bass tags issued to each person will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each person.³ D. For the purposes of assigning tags to a person for commercial harvests in the coastal area of Virginia as described in 4VAC20-252-160 , the individual commercial harvest quota of striped bass in pounds shall be converted to a quota in numbers of fish per individual commercial harvest quota based on the reported average coastal area harvest weight of striped bass harvested by the permitted person during the previous fishing year, except as described in subsection E of this section. The number of striped bass tags issued to each person will equal the estimated number of fish to be landed by that individual harvest quota, plus a number of striped bass tags equal to 10% of the total allotment determined for each person.⁴ E. For any person whose reported average coastal area harvest weight of striped bass in the previous fishing year was less than 12 pounds, a 12-pound minimum weight shall be used to convert that person's harvest quota of striped bass, in pounds of fish, to harvest quota in number of fish.⁵

Provision-Level Authorization Analysis

Provision 1

"A. The commercial harvest quota for the Chesapeake Bay area shall be determined ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, including surf clams and Atlantic menhaden, while promoting the welfare of the seafood industry. The regulation concerning the commercial harvest quota for striped bass from the Chesapeake Bay area appears to exceed this authority because the statute does not explicitly mention striped bass or grant the Commission the power to regulate its harvest in the same manner as it does for surf clams and menhaden. The legal significance of this relationship is that the regulation may lack the necessary statutory foundation, potentially undermining its enforceability and leading to challenges regarding the Commission's jurisdiction over striped bass management.

Provision 2

"B. The commercial harvest quota for the coastal area of Virginia shall be determ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including establishing regulations for the management of specific species like striped bass. This broad grant of authority allows the regulation to fall under GENERAL_DELEGATION, as it aligns with the Commission's responsibility to manage fisheries and ensure sustainable practices in the coastal area of Virginia. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the effective management of marine resources, ensuring both conservation and the economic viability of the seafood industry.

Provision 3

"C. For the purposes of assigning tags to a person for commercial harvests in the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of species like striped bass. This broad grant of authority encompasses the regulation regarding the assignment of tags for commercial harvests, as it falls within the Commission's mandate to regulate the management of fishery resources and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures that support the overarching goals of conservation and resource management without needing further legislative approval, reflecting a trust in the agency's expertise and judgment.

Provision 4

"D. For the purposes of assigning tags to a person for commercial harvests in the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like striped bass. This broad grant of authority encompasses the regulation regarding the assignment of tags for commercial harvests, as it directly relates to the management and conservation of striped bass populations within the coastal area of Virginia. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures, such as individual commercial harvest quotas, under a GENERAL_DELEGATION framework, ensuring effective management of marine resources while adhering to the overarching goals of the statute.

Provision 5

"E. For any person whose reported average coastal area harvest weight of striped ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention striped bass or impose a minimum weight requirement for harvest quotas. The regulation's imposition of a 12-pound minimum weight for converting harvest quotas for striped bass appears to exceed the Commission's authority as outlined in the statute, which does not authorize such specific weight-based regulations for species not explicitly mentioned. The legal significance of this relationship indicates that the regulation may lack the necessary statutory backing to enforce such a requirement, potentially undermining the Commission's regulatory framework and leading to challenges regarding its validity.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. Any initial overage by any person of an individual commercial harvest quota during any calendar year shall be considered a first offense, with penalties prescribed according to the severity of the overage as described in subdivisions 1 through 5 of this subsection.¹ 1. Any overages that are less than 76 pounds shall result in a warning being issued.² 2. Any overages that range from 76 to 250 pounds shall result in a one-year deduction of that overage from that individual commercial harvest quota during the following calendar year.³ 3. Any overages that range from 251 to 475 pounds shall result in a one-year deduction of two times that overage from that individual commercial harvest quota during the following calendar year.⁴ 4. Any overages that range from 476 to 725 pounds shall result in that overage being permanently deducted from that individual commercial harvest quota and a one-year suspension of that person from the commercial fishery for striped bass.⁵ 5. Any overages that are greater than 725 pounds shall result in the revocation of that individual striped bass permit, and that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.⁶ B. Any second overage by any person of an individual commercial harvest quota within five years of a previous offense shall result in penalties prescribed according to the severity of the overage as described in subdivisions 1 through 4 of this subsection.⁷ 1. Any overages that are less than 76 pounds shall result in a one-year deduction of the overage from that individual commercial harvest quota during the following calendar year.⁸ 2. Any overages that range from 76 to 250 pounds shall result in a one-year deduction of two times the overage from that individual commercial harvest quota during the following calendar year.⁹ 3. Any overages that range from 251 to 475 pounds shall result in the overage being permanently deducted from the individual commercial harvest quota and a one-year suspension of that person from the commercial fishery for striped bass.¹⁰ 4. Any overages that are greater than 475 pounds shall result in the revocation of that individual striped bass permit, and that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.¹¹ C. Any third overage by any person of an individual commercial harvest quota within five years of two previous offenses shall result in penalties prescribed according to the severity of the overage as described in subdivisions 1 through 3 of this subsection.¹² 1. Any overages that are less than 76 pounds shall result in a one-year deduction of two times the overage from that individual commercial harvest quota during the following calendar year.¹³ 2. Any overages that range from 76 to 250 pounds shall result in the overage being permanently deducted from that individual commercial harvest quota and a one-year suspension of the person from the commercial fishery for striped bass.¹⁴ 3. Any overages that are greater than 250 pounds shall result in the revocation of that individual striped bass permit, and that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.¹⁵ D. Any fourth overage by any person of an individual commercial harvest quota within five years of three previous offenses shall result in penalties prescribed according to the severity of the overage as described in subdivisions 1 and 2 of this subsection.¹⁶ 1. Any overages that are less than 76 pounds shall result in the overage being permanently deducted from that individual commercial harvest quota and a one-year suspension of the person from the commercial fishery for striped bass.¹⁷ 2. Any overages that are greater than 75 pounds shall result in the revocation of that individual striped bass permit, and that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.¹⁸

Provision-Level Authorization Analysis

Provision 1

"A. Any initial overage by any person of an individual commercial harvest quota d..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation concerning penalties for overages of individual commercial harvest quotas directly aligns with the Commission's broad mandate to manage and conserve seafood resources, ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures that promote compliance and sustainability, thereby fulfilling its statutory responsibilities without needing further specific legislative approval.

Provision 2

"1. Any overages that are less than 76 pounds shall result in a warning being iss..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. The regulation regarding overages resulting in warnings falls within the broad scope of the Commission's authority to establish necessary regulations for the conservation and reasonable use of seafood resources, thereby justifying a GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that support its overarching goal of managing and conserving marine resources without needing specific legislative approval for each regulation.

Provision 3

"2. Any overages that range from 76 to 250 pounds shall result in a one-year ded..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation concerning overages directly aligns with the Commission's broad mandate to manage seafood resources effectively and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement specific management strategies, such as quota deductions, to uphold the overarching goals of conservation and resource promotion outlined in the statute.

Provision 4

"3. Any overages that range from 251 to 475 pounds shall result in a one-year de..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation regarding overages in commercial harvest quotas, as it directly relates to the conservation and management of seafood resources by imposing penalties for exceeding established limits. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures that support sustainable fishing practices and resource management without needing further legislative approval.

Provision 5

"4. Any overages that range from 476 to 725 pounds shall result in that overage b..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species such as striped bass. This broad grant of authority allows the Commission to implement regulations that address overages in commercial harvest quotas, as it directly relates to the conservation and management of the striped bass fishery. The legal significance of this authorization relationship is that it empowers the Commission to enforce measures that ensure sustainable fishing practices, thereby promoting the overall welfare of the seafood industry and protecting marine resources.

Provision 6

"5. Any overages that are greater than 725 pounds shall result in the revocation ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like striped bass. This broad grant of authority allows the Commission to implement regulations that address overages in catch limits, as it directly relates to the conservation and management of fish populations to promote the general welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations that ensure sustainable fishing practices, thereby protecting marine resources and supporting the industry’s viability.

Provision 7

"B. Any second overage by any person of an individual commercial harvest quota wi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation concerning penalties for overages of individual commercial harvest quotas, as it falls within the Commission's mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to ensure compliance and sustainability within the seafood industry, thereby promoting the overarching goals of conservation and responsible resource management.

Provision 8

"1. Any overages that are less than 76 pounds shall result in a one-year deducti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species and the promotion of the seafood industry. This broad grant of authority allows the Commission to implement regulations, such as the one regarding overages in commercial harvest quotas, as it directly relates to the conservation and management of seafood resources within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that ensure sustainable practices in the seafood industry, thereby fulfilling its statutory mandate.

Provision 9

"2. Any overages that range from 76 to 250 pounds shall result in a one-year ded..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including establishing regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation regarding overages in commercial harvest quotas, as it directly relates to the conservation and management of seafood resources by imposing penalties for overages to ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to achieve its statutory objectives without requiring further legislative approval, thereby facilitating effective resource management.

Provision 10

"3. Any overages that range from 251 to 475 pounds shall result in the overage be..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like Atlantic menhaden and surf clams, but does not explicitly mention striped bass or the imposition of penalties such as permanent deductions from quotas or suspensions from the fishery. The regulation's requirement for a permanent deduction from the individual commercial harvest quota and a one-year suspension for overages appears to exceed the statutory language, which focuses on promoting the general welfare of the seafood industry and does not authorize punitive measures that could undermine the reasonable use of resources. The legal significance of this relationship indicates that the regulation may not be aligned with the intended scope of the Commission's authority, potentially leading to challenges regarding its enforceability and legitimacy under the statute.

Provision 11

"4. Any overages that are greater than 475 pounds shall result in the revocation ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention striped bass or the imposition of permit revocations based on overages. The regulation's requirement that overages greater than 475 pounds lead to permit revocation appears to exceed the statute's authorization, as it imposes a punitive measure not directly supported by the statutory language regarding conservation and reasonable use. The legal significance of this relationship is that the regulation may lack the necessary statutory backing, potentially rendering it invalid or subject to challenge as exceeding the Commission's granted authority.

Provision 12

"C. Any third overage by any person of an individual commercial harvest quota wit..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding penalties for overages of individual commercial harvest quotas, as it directly relates to the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to ensure compliance and sustainability within the seafood industry, thereby fulfilling its statutory mandate.

Provision 13

"1. Any overages that are less than 76 pounds shall result in a one-year deducti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation regarding overages because it directly relates to the management of commercial harvest quotas, which is essential for the conservation and sustainable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures that support the overarching goals of resource conservation and industry welfare without requiring further legislative approval.

Provision 14

"2. Any overages that range from 76 to 250 pounds shall result in the overage bei..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like Atlantic menhaden, but does not explicitly mention penalties or suspensions related to overages in commercial harvest quotas. The regulation imposes a permanent deduction from an individual's commercial harvest quota and a one-year suspension for overages of striped bass, which goes beyond the statute's focus on conservation and reasonable use, as it introduces punitive measures not explicitly authorized by the statutory language. The legal significance of this relationship is that the regulation may exceed the Commission's authority, potentially undermining the statutory framework intended for the management of marine resources by imposing penalties that are not clearly supported by the statute.

Provision 15

"3. Any overages that are greater than 250 pounds shall result in the revocation ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like striped bass. The regulation regarding the revocation of permits for overages aligns with the Commission's broad mandate to promote the general welfare of the seafood industry and ensure sustainable practices, thereby falling within the scope of GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that directly support its statutory objectives of conservation and resource management without needing further legislative approval.

Provision 16

"D. Any fourth overage by any person of an individual commercial harvest quota wi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation addresses the enforcement of individual commercial harvest quotas, which directly relates to the Commission's broader mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures that support its overarching goals of resource conservation and industry welfare without needing further legislative approval for each regulation.

Provision 17

"1. Any overages that are less than 76 pounds shall result in the overage being p..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning overages for striped bass, as it directly relates to the management of commercial harvest quotas and the conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures that ensure sustainable fishing practices while maintaining the overall health of the seafood industry.

Provision 18

"2. Any overages that are greater than 75 pounds shall result in the revocation o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of specific species such as striped bass. This broad grant of authority allows the regulation to impose penalties for overages, as it aligns with the Commission's responsibility to manage and conserve fishery resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to ensure sustainable practices within the seafood industry, thereby protecting both the resource and the interests of the community involved in its use.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. For each person permitted under the provisions of 4VAC20-252-130 to harvest striped bass commercially, a weight quota shall be issued to permitted fishermen in amounts equal to the percentage share of the Chesapeake Bay area and coastal area striped bass harvest quota they hold. Tags issued for Chesapeake Bay area harvest quota shall only be used for striped bass harvests in the Chesapeake Bay area, and tags issued for the coastal area harvest quota shall only be used for striped bass harvests in the coastal area.¹ B. It shall be unlawful for any person on board any vessel to possess any striped bass tags in Virginia waters, according to the following provisions: 1. It shall be unlawful for any person on board any vessel to set, place, or fish any gear that can harvest striped bass in the Chesapeake Bay area when in possession of coastal area striped bass tags issued by the Virginia Marine Resources Commission or striped bass tagged with coastal area tags.² 2. It shall be unlawful for any person to possess Virginia coastal area striped bass tags in the Chesapeake Bay area or striped bass tagged with coastal area tags, except when transiting the Chesapeake Bay area.³ 3. It shall be unlawful for any person to possess striped bass tags issued for previous years for the Chesapeake Bay area, coastal area, or any other jurisdiction.⁴ 4. It shall be unlawful for any person to possess Potomac River Fisheries Commission striped bass tags in Virginia waters, except when transiting the Virginia tributaries of the Potomac River to land in Virginia and as provided by subsection C of this section.⁵ 5. It shall be unlawful for any person to possess any non-Virginia jurisdictional striped bass tags in Virginia waters or striped bass tagged with any non-Virginia jurisdictional striped bass tags, except as provided by subdivision 4 of this subsection and subsection C of this section.⁶ 6. Any violation of this subsection shall result in the confiscation and impoundment of all striped bass tags or striped bass on the vessel.⁷ C. It shall be unlawful for any person on board any vessel to possess any striped bass tags in the Great Wicomico-Tangier Striped Bass Management Area, except current year striped bass tags issued by the jurisdictions of the Virginia Marine Resources Commission, State of Maryland, or Potomac River Fisheries Commission and according to the following provisions: 1. It shall be unlawful for any person on board any vessel to possess more than one jurisdiction's tags or more than one jurisdiction's tagged striped bass in the Great Wicomico-Tangier Striped Bass Management Area.⁸ 2. It shall be unlawful for any person on board any vessel to place, set, or fish any gear that can harvest striped bass in the Great Wicomico-Tangier Striped Bass Management Area when in possession of any striped bass tags not issued by the Virginia Marine Resources Commission.⁹ 3. Any violation of this subsection shall result in the confiscation and impoundment of all striped bass tags or striped bass on the vessel.¹⁰ D. Shares of the commercial striped bass quota held by any permitted fisherman may be transferred to any other person who is a licensed registered commercial fisherman; such transfer shall allow the transferee to harvest striped bass in a quantity equal to the share transferred. Any transfer of striped bass commercial shares shall be limited by the following conditions: 1. Shares of commercial striped bass quota shall not be permanently transferred in any quantity less than 500 pounds, or 100% of unused permanent shares, in any year from February 1 through October 31. Permanent transfers of shares of commercial striped bass quota shall be prohibited from November 1 through January 31.¹¹ 2. Shares of commercial striped bass quota shall not be temporarily transferred in any quantity less than 500 pounds from February 1 through October 31 or less than 200 pounds from November 1 through December 15. Temporary transfers of shares of commercial striped bass quota shall be prohibited from December 16 through January 31.¹² 3. No licensed registered commercial fisherman shall hold more than 2.0% of the total annual Chesapeake Bay area commercial striped bass harvest quota or more than 11% of the total annual coastal area commercial striped bass harvest quota.¹³ 4. No transfer of striped bass commercial harvest quota shall be authorized by the Virginia Marine Resources Commission (commission) unless transferor and transferee provide up-to-date records of all commercial landings of striped bass and striped bass tag use to the commission prior to such transfer.¹⁴ 5. No transfer of striped bass commercial harvest quota shall be authorized unless such transfer is documented on a form provided by the Virginia Marine Resources Commission, notarized by a lawful notary public, and approved by the Commissioner of Marine Resources.¹⁵ E. Transfers of Chesapeake Bay area or coastal area striped bass commercial quota from one person to another may be permanent or temporary. Transferred quota from the Chesapeake Bay area striped bass commercial quota shall only be used by the transferee for striped bass harvested from the Chesapeake Bay area, and transferred quota from the coastal area striped bass commercial quota shall only be used by the transferee for striped bass harvested from the coastal area. Permanent transfers of commercial quota shall grant to the transferee that transferred percentage of the quota for future years, and the transferor loses that same transferred percentage of the quota in future years. Temporary transfers of individual striped bass commercial harvest quota shall allow the transferee to harvest only that transferred percentage of the quota during the year in which the transfer is approved. Transferors are solely responsible for any overage of the transferred percentage of the quota by the transferee. Thereafter, any percentage of the transferred striped bass commercial quota, less any overage incurred by the transferee, reverts back to the transferor.¹⁶ F. Striped bass tags are valid only for use by the permittee to whom the tags were allotted. The permittee shall be on board the boat or vessel when striped bass are harvested and tags are applied. Nothing in this subsection shall prevent a permitted commercial hook-and-line fisherman from using three crew members who are not registered commercial fishermen to assist in the harvest of his allotment of striped bass.¹⁷ G. At the place of capture, and before leaving that place of capture, tags shall be passed through the mouth of the fish and one gill opening, and interlocking ends of the tag shall then be connected such that the tag may only be removed by breaking. Failure to comply with these provisions shall be a violation of this chapter.¹⁸ H. It shall be unlawful to bring to shore any commercially caught striped bass that has not been tagged at the place of capture by the fisherman with a tamper-evident, numbered tag provided by the commission. It shall be unlawful to possess striped bass in a quantity greater than the number of tags in possession. If a permittee violates this section, the entire amount of untagged striped bass, as well as the number of tags equal to the amount of striped bass in his possession, shall be confiscated. Any confiscated striped bass shall be considered as a removal from that permittee's harvest quota. Any confiscated striped bass tags shall be impounded by the commission. Upon confiscation, the marine police officer shall inventory the confiscated striped bass and may redistribute the catch by one or a combination of the following methods: 1. The marine police officer shall secure a minimum of two bids for purchase of the confiscated striped bass from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder, and all funds derived from such sale shall be deposited to the Commonwealth pending court resolution of the charge of violating the possession limits established in this chapter. All of the collected funds and confiscated tags will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilt.¹⁹ 2. The marine police officer shall provide the confiscated striped bass to commission staff for biological sampling of the catch. Upon receipt of confiscated striped bass, commission staff will secure a minimum of two estimates of value per pound for striped bass from approved and licensed seafood buyers. The confiscated tags and the estimated value of confiscated striped bass provided for biological sampling will be reimbursed to the accused upon a finding of innocence or retained by the commission upon a finding of guilt.²⁰ I. Altering or attempting to alter any tag for the purpose of reuse shall constitute a violation of this chapter.²¹ J. Prior to receiving any commercial season's allotment of striped bass tags, a permitted commercial harvester shall be required to have returned all unused tags from the previous commercial season to the commission within 30 days of harvesting their individual harvest quota, or by the second Thursday in January, whichever comes first. Any unused tags that cannot be turned in to the commission shall be accounted for by the harvester submitting an affidavit to the commission that explains the disposition of the unused tags that are not able to be turned into the commission. Each person shall be required to pay a processing fee of $25, plus $0.13 per tag, for any unused tags that are not turned in to the commission.²² K. Any person with remaining unused striped bass commercial quota in the current year requesting additional commercial season striped bass tags shall provide up-to-date records of landings and account for all previously issued tags prior to receiving an additional allotment of tags. The harvester shall submit an affidavit to the commission that explains the disposition of the tags that are not accounted for and shall be required to pay a processing fee of $25, plus $0.13 per tag, for such tags to the commission.²³ L. For the commercial fishing season, one type of tag shall be distributed to Chesapeake Bay area permittees and one type of tag shall be distributed to coastal area permittees. For the Chesapeake Bay area, the tag shall only be used on striped bass 18 inches or greater in total length. For the coastal area, the tag shall only be used on striped bass 28 inches or greater in total length. The possession of any improperly tagged striped bass by any permitted striped bass fisherman shall be a violation of this chapter.²⁴

Provision-Level Authorization Analysis

Provision 1

"A. For each person permitted under the provisions of 4VAC20-252-130 to harvest s..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing Atlantic menhaden and establishing regulations for the seafood industry. The regulation requiring weight quotas for permitted fishermen harvesting striped bass may exceed the statutory authority because the statute does not explicitly mention the establishment of individual weight quotas or the allocation of harvest quotas based on percentage shares, which could imply a more restrictive management approach than what is authorized. The legal significance of this relationship is that the regulation may not align with the broader intent of the statute, which emphasizes conservation and reasonable use without imposing potentially burdensome quotas that could limit access to the resource.

Provision 2

"B. It shall be unlawful for any person on board any vessel to possess any stripe..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species like striped bass. This broad grant of authority encompasses the regulation prohibiting possession of striped bass tags and the use of gear that can harvest striped bass, as it directly relates to the Commission's responsibility to conserve marine resources and ensure sustainable fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating effective management of the fishery resources in Virginia waters.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. It shall be unlawful for any person to possess Virginia coastal area striped ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and conserving marine resources, including specific provisions for managing species like striped bass. This broad grant of authority allows the Commission to regulate the possession of striped bass tags in the Chesapeake Bay area, as it is essential for the conservation and reasonable use of marine resources, thereby resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to manage and protect marine resources effectively, ensuring compliance with broader conservation goals.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. It shall be unlawful for any person to possess striped bass tags issued for p..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority allows the Commission to implement regulations, such as prohibiting the possession of outdated striped bass tags, as a means of ensuring effective management and conservation of fishery resources. The legal significance of this relationship is that it empowers the Commission to create and enforce regulations that are essential for the sustainable use and protection of marine resources, thereby fulfilling its statutory mandate.

Provision 5

"4. It shall be unlawful for any person to possess Potomac River Fisheries Commis..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for the conservation and reasonable use of species like striped bass. This results in GENERAL_DELEGATION because the regulation concerning the possession of striped bass tags in Virginia waters falls within the Commission's broad mandate to regulate fisheries and manage resources effectively, ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect and manage fishery resources without requiring further specific legislative approval, thereby facilitating timely and effective resource management.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"5. It shall be unlawful for any person to possess any non-Virginia jurisdictiona..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like striped bass. This broad grant of authority allows the Commission to regulate the possession of non-Virginia jurisdictional striped bass tags in Virginia waters, as it directly relates to the conservation and management of striped bass, ensuring compliance with state regulations. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations for resource management without requiring further legislative approval, thereby facilitating effective oversight of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"6. Any violation of this subsection shall result in the confiscation and impound..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like striped bass. This broad grant of authority allows the Commission to implement regulations, such as the confiscation and impoundment of striped bass tags or striped bass on vessels, as a means to enforce conservation measures and promote the general welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to ensure compliance with conservation efforts, thereby safeguarding marine resources within its jurisdiction.

Provision 8

"C. It shall be unlawful for any person on board any vessel to possess any stripe..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like striped bass. This broad grant of authority allows the Commission to regulate possession and tagging of striped bass in designated areas, as it directly relates to the conservation and management of marine resources, thereby justifying the GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure sustainable practices within the seafood industry while maintaining oversight over resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"2. It shall be unlawful for any person on board any vessel to place, set, or fis..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including specific provisions for the conservation and reasonable use of certain species. This broad grant of authority encompasses the regulation prohibiting the use of certain gear for harvesting striped bass, as it aligns with the Commission's responsibility to manage fishery resources and ensure compliance with licensing requirements. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that directly support the conservation and management goals outlined in the statute, thereby ensuring effective oversight of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"3. Any violation of this subsection shall result in the confiscation and impound..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and marine resources. This broad language allows the Commission to implement regulations that ensure compliance and enforcement, such as the confiscation and impoundment of striped bass tags or fish, to promote the general welfare of the seafood industry and protect marine resources. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to enforce regulations, thereby supporting the overarching goals of conservation and resource management outlined in the statute.

Provision 11

"D. Shares of the commercial striped bass quota held by any permitted fisherman m..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the transfer of commercial striped bass quota, as it directly relates to the management and reasonable use of a marine resource, thereby promoting the overall welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement flexible regulatory measures that can adapt to the needs of the industry while ensuring sustainable management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 12

"2. Shares of commercial striped bass quota shall not be temporarily transferred ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fish species like striped bass. This broad grant of authority allows the Commission to establish regulations regarding the temporary transfer of commercial striped bass quota, as it directly relates to the conservation and management of the species and the overall welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulatory measures that support sustainable practices within the industry, reflecting the intent of the statute to promote conservation and reasonable use of marine resources.

Provision 13

"3. No licensed registered commercial fisherman shall hold more than 2.0% of the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations like the one limiting commercial fishermen's quotas for striped bass, as it directly relates to the conservation and management of marine resources in the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to regulate fishing practices to ensure sustainable use and conservation of fish populations, aligning with the statutory mandate to promote the welfare of the seafood industry.

Provision 14

"4. No transfer of striped bass commercial harvest quota shall be authorized by t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species like striped bass. This broad grant of authority encompasses the regulation requiring up-to-date records for the transfer of striped bass commercial harvest quota, as it directly relates to the management and conservation of the species within the Commission's purview. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable practices and effective oversight of the seafood industry without needing to seek further specific legislative approval for each regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 15

"5. No transfer of striped bass commercial harvest quota shall be authorized unle..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the transfer of striped bass commercial harvest quota, as it is necessary for the management and conservation of the species within the framework established by the statute. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures that are essential for effective resource management while ensuring compliance with the overarching goals of conservation and industry welfare set forth in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 16

"E. Transfers of Chesapeake Bay area or coastal area striped bass commercial quot..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like striped bass. This broad grant of authority allows for the regulation of commercial quotas, as it falls within the Commission's mandate to promote the general welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure sustainable practices within the seafood industry, thereby supporting both conservation efforts and the economic viability of resource users.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 17

"F. Striped bass tags are valid only for use by the permittee to whom the tags we..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as Atlantic menhaden. This broad grant of authority encompasses the regulation regarding striped bass tags, as it relates to the management and conservation of striped bass within the seafood industry, ensuring that the harvesting process is controlled and regulated. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to promote the sustainable use of marine resources while ensuring compliance among permit holders.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"G. At the place of capture, and before leaving that place of capture, tags shall..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding tagging fish at the place of capture, as it is a necessary measure to ensure proper management and conservation of fish stocks. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective resource management while maintaining flexibility to address specific conservation needs.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 19

"H. It shall be unlawful to bring to shore any commercially caught striped bass t..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention striped bass or the requirement for tagging. The regulation requiring tagging of commercially caught striped bass and limiting possession based on the number of tags appears to exceed the Commission's authority as it imposes specific tagging requirements that are not supported by the statutory language, which focuses on broader conservation and management strategies. The legal significance of this authorization relationship is that the regulation may be deemed invalid if it extends beyond the scope of the powers explicitly granted by the statute, potentially undermining the regulatory framework established by the legislature.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 20

"2. The marine police officer shall provide the confiscated striped bass to commi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like striped bass. This results in GENERAL_DELEGATION because the regulation aligns with the Commission's broad mandate to manage and conserve seafood resources, allowing for actions such as biological sampling and valuation of confiscated striped bass to support effective resource management. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary actions for the conservation and management of marine resources without requiring additional specific legislative approval for each regulatory action.

Provision 21

"I. Altering or attempting to alter any tag for the purpose of reuse shall consti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad grant of authority encompasses the regulation against altering tags, as it is necessary to ensure proper management and conservation of seafood resources, thereby promoting the welfare of the industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the enforcement of management practices, ensuring compliance and sustainability within the seafood sector.

Provision 22

"J. Prior to receiving any commercial season's allotment of striped bass tags, a ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation requiring commercial harvesters to return unused striped bass tags, as it directly relates to managing fishery resources and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to regulate the harvest and maintain sustainable practices within the seafood industry, thereby fulfilling its statutory mandate.

Provision 23

"K. Any person with remaining unused striped bass commercial quota in the current..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority allows the regulation regarding the management of striped bass commercial quota to fall under GENERAL_DELEGATION, as it aligns with the Commission's responsibility to ensure sustainable practices and proper management of fishery resources. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulatory measures that are essential for effective resource management while maintaining flexibility in addressing the needs of the seafood industry.

Provision 24

"L. For the commercial fishing season, one type of tag shall be distributed to Ch..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing regulations for taking seafood. This broad grant of authority encompasses the regulation regarding the distribution of tags for commercial fishing, as it directly relates to managing the use of striped bass and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures under the umbrella of its general authority to promote the welfare of the seafood industry and manage marine resources effectively.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

Aquaculture of striped bass; permit required.¹ It shall be unlawful for any person to operate a striped bass aquaculture facility without first obtaining a permit from the Marine Resources Commission (commission).² This permit shall authorize and define the limits of activities concerning the purchase, possession, sale, giving, receiving, and transportation of striped bass or hybrid striped bass.³ Any person in violation of any permit condition issued under this section may have the permit revoked at any time upon review by the commission.⁴ If the commission revokes any person's permit for an aquaculture facility, then that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.⁵

Provision-Level Authorization Analysis

Provision 1

"Aquaculture of striped bass; permit required."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations for taking seafood, manage Atlantic menhaden, and establish regulations for the conservation and reasonable use of surf clams, but does not mention striped bass or aquaculture. The regulation requiring a permit for aquaculture of striped bass is unauthorized because the statute does not provide the Commission with explicit authority to regulate aquaculture practices or impose permitting requirements for this species. The legal significance of this relationship is that without specific statutory authority, the regulation lacks a valid legal foundation and cannot be enforced.

Provision 2

"It shall be unlawful for any person to operate a striped bass aquaculture facili..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to regulate activities related to seafood, including the operation of aquaculture facilities, thereby establishing a connection between the statute and the regulation that falls under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations to manage and protect marine resources effectively, ensuring compliance and sustainability within the seafood industry.

Provision 3

"This permit shall authorize and define the limits of activities concerning the p..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of species like striped bass. This broad grant of authority allows the Commission to establish regulations that define the limits of activities related to the purchase, possession, sale, and transportation of striped bass, thereby justifying the GENERAL_DELEGATION classification. The legal significance of this relationship is that it empowers the Commission to implement regulations that are essential for effective management and conservation of marine resources without requiring further legislative approval for each specific regulation.

Provision 4

"Any person in violation of any permit condition issued under this section may ha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the ability to establish regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding permit revocation, as it is necessary for the Commission to enforce compliance with permit conditions to ensure the conservation and management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to effectively regulate activities related to seafood permits, ensuring adherence to established conditions that support the overall goals of resource management and conservation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"If the commission revokes any person's permit for an aquaculture facility, then ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of aquaculture facilities. This broad grant of authority allows the Commission to regulate the eligibility for permits in a manner that promotes the general welfare of the seafood industry and ensures sustainable practices, which aligns with the intent of the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations that support the effective management and conservation of marine resources, thereby reinforcing the overall regulatory framework established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority allows the Commission to implement enforcement measures, such as penalties for violations, as outlined in the regulation, which is essential for ensuring compliance and effective management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to create a regulatory framework that includes enforcement mechanisms, thereby facilitating the overall goals of conservation and resource management within the Commonwealth.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Atlantic Striped Bass

Express

General

Overreach

Unauthorized

Requirements

A. Any person failing to submit any report required by this chapter shall be denied any striped bass permit for the following year.¹ B. It shall be unlawful for any person with a pending violation of this chapter or found guilty of violating any provision of this chapter to receive or transfer striped bass commercial harvest quota as described in 4VAC20-252-160 .² C. It shall be unlawful for any person with a pending violation of this chapter or found guilty of violating any provision of this chapter to receive additional tag distributions as described in 4VAC20-252-160 .³ D. Any person found guilty of violating any provision of this chapter may have his permit or license revoked at any time upon review by the commission as provided for in § 28.2-232 of the Code of Virginia. If the commission revokes any person's permit for an aquaculture facility, then that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Any person failing to submit any report required by this chapter shall be den..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing ... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court ... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges and licenses, as well as to impose civil penalties for violations related to fishing activities. This broad authority allows the Commission to implement regulations that ensure compliance with reporting requirements, such as denying a striped bass permit to individuals who fail to submit necessary reports, thereby promoting responsible fishing practices. The legal significance of this authorization relationship is that it enables the Commission to enforce regulatory compliance effectively, ensuring that fishing activities are managed in accordance with the established laws and promoting sustainable fisheries within the Commonwealth's tidal waters.

DEFINITION § 28.2-232

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 2. General Provisions › Article 5. Licensing Generally › § 28.2-232. Revocation of licenses A. The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit...

Provision 2

"B. It shall be unlawful for any person with a pending violation of this chapter ..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges and licenses, as well as to assess civil penalties for violations of fishing regulations. This broad grant of authority allows the regulation to encompass prohibitions on receiving or transferring commercial harvest quotas for individuals with pending violations or those found guilty, as it directly relates to the enforcement of fishing privileges and maintaining compliance with the law. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to uphold the integrity of fishing practices within the Commonwealth's tidal waters, ensuring that violations are addressed effectively.

DEFINITION § 28.2-232

Provision 3

"C. It shall be unlawful for any person with a pending violation of this chapter ..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing, other than for recreational purposes as defined in § 28.2-226.1, while the person's applicable licenses or fishing privileges have been revoked pursuant to this section or § 28.2-528

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges and licenses, assess civil penalties, and enforce compliance with fishing regulations. This broad grant of authority allows the Commission to implement regulations that prevent individuals with pending violations or those found guilty of violations from receiving additional tag distributions, thereby ensuring compliance and enforcement of fishing laws. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to uphold the integrity of fishing regulations and maintain sustainable practices within the Commonwealth's tidal waters.

DEFINITION § 28.2-232

Provision 4

"D. Any person found guilty of violating any provision of this chapter may have h..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing, other than for recreational purposes as defined in § 28.2-226.1, while the person's applicable licenses or fishing privileges have been revoked pursuant to this section or § 28.2-528

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges and licenses, as well as to assess civil penalties for violations related to fishing activities. This broad grant of authority allows the Commission to implement regulations that provide for the revocation of permits or licenses based on violations, thus resulting in GENERAL_DELEGATION since the regulation aligns with the Commission's overarching powers to enforce compliance and manage fishing privileges. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to uphold the integrity of fishing regulations while ensuring that enforcement measures are consistent with the statutory framework.

DEFINITION § 28.2-232

Explicit Statutory Citations

REFERENCE § 28.2-232

Citation text: "§ 28.2-232"

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to establish clean cull and seed areas, culling requirements, minimum cull size, and inspection procedures that will provide protection for the public oyster beds, rocks, and shoals in Virginia's tidal waters.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to establish clean cull and seed areas, culling r..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation's focus on establishing clean cull and seed areas, culling requirements, and inspection procedures, as these measures directly contribute to the conservation and reasonable use of oyster beds and the overall health of Virginia's tidal waters. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that are essential for effective resource management without requiring further legislative approval, thereby ensuring the protection and sustainability of marine resources.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Basket" means a circular plastic mesh container of 2,566 cubic inches, with a top inside diameter of 17 inches, bottom inside diameter of 13.5 inches, and an inside height of 14 inches that may be used for the measurement of oysters to be sold or purchased.² "Clean culled oyster" means any oyster taken from natural public beds, rocks, or shoals that is three inches or greater in shell length.³ "Level full" means a basket or tub that is filled entirely to the upper rim, but not filled higher than the upper rim.⁴ "Oyster" means any shellfish of the species Crassostrea virginica.⁵ "Seed oyster" means any oyster taken by any person from natural beds, rocks, or shoals that is more than 30 days from harvest for human consumption.⁶

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including establishing definitions relevant to these regulations. This results in GENERAL_DELEGATION because the regulation's provision of definitions is essential for the effective implementation and understanding of the Commission's broader regulatory framework, which is explicitly authorized by the statute. The legal significance of this authorization relationship is that it allows the Commission to create foundational regulatory language that supports its comprehensive management and conservation efforts without needing further specific legislative approval.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Basket" means a circular plastic mesh container of 2,566 cubic inches, with a ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, but it does not explicitly mention the authority to define specific measurement standards for containers used in the sale or purchase of seafood. The regulation defining a "basket" for oysters appears to exceed the statutory authorization because it imposes a specific measurement requirement that is not directly tied to the conservation or management of marine resources as outlined in the statute. The legal significance of this relationship is that the regulation may be challenged as exceeding the scope of the Commission's authority, potentially undermining the regulatory framework established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

""Clean culled oyster" means any oyster taken from natural public beds, rocks, or..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention oysters or provide authority for regulations specifically related to oysters. The regulation defining "clean culled oyster" pertains to oysters, which falls outside the scope of the Commission's explicitly stated authority in the statute, resulting in it being unauthorized. The legal significance of this relationship is that regulations must be grounded in statutory authority, and without such authority, the regulation lacks legitimacy and enforceability.

Provision 4

""Level full" means a basket or tub that is filled entirely to the upper rim, but..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry, conserving marine resources, and managing specific species like surf clams and Atlantic menhaden. The regulation defining "Level full" as a basket or tub filled entirely to the upper rim does not relate to the conservation or management of seafood resources as outlined in the statute, which focuses on broader regulatory frameworks and fishery management plans rather than specific measurement definitions. The legal significance of this authorization relationship is that the regulation exceeds the scope of the authority provided by the statute, rendering it unauthorized, as it does not align with the Commission's mandate to manage and conserve marine resources effectively.

Provision 5

""Oyster" means any shellfish of the species Crassostrea virginica."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad language allows for the regulation of various seafood species, including oysters, under the umbrella of promoting the seafood industry's welfare and resource conservation, thus resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create regulations that address a wide range of seafood management issues without requiring further legislative approval, ensuring effective and timely governance of marine resources.

Provision 6

""Seed oyster" means any oyster taken by any person from natural beds, rocks, or ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth. This broad language encompasses the regulation defining "seed oyster," as it relates to the management and conservation of oyster resources, which is essential for the sustainability of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are necessary for effective resource management without requiring further specific legislative approval, thereby facilitating timely and responsive governance in the seafood sector.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

A. Seed areas. The following natural public oyster beds, rocks, or shoals are designated for the harvest of seed oysters: 1. "James River Seed Area" means all public grounds and unassigned grounds in that area of the James River and its tributaries with a southeastern boundary beginning at a point on the shore on the south side of the river at Rainbow Farm Point in Isle of Wight County located at Latitude 37° 00.1965862' N., Longitude 76° 34.0712010' W.; thence north-northeasterly to a VMRC Marker "STH", Latitude 37° 00.9815328 N., Longitude 76° 33.5955842' W.; thence to a VMRC Marker "SMT", at Latitude 37° 01.3228160' N., Longitude 76° 33.3887351' W.; thence to the Flashing Green Channel Light #5, at Latitude 37° 02.3449949' N., Longitude 76° 32.7689936' W.; thence northeasterly to a VMRC Marker "NMT", Latitude 37° 02.7740540' N., Longitude 76° 32.0960864' W.; thence to a VMRC Marker "NTH" located at Latitude 37° 03.2030055' N., Longitude 76° 31.4231211' W.; thence to a point on the north shore of the river at Blunt (Blount) Point, in the City of Newport News, located at Latitude 37° 03.3805862' N., Longitude 76° 31.1444562' W.; the northern boundary, being a straight line, beginning at a point on the shore on the east side of the river in the City of Newport News, at Latitude 37° 08.4458787' N., Longitude 76° 37.2855533' W.; thence westerly to the southeast corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4466039' N., Longitude 76° 37.4523346' W.; thence westerly to the southwest corner of the Deep Water Shoal State Replenishment Seed Area, Latitude 37° 08.4490472' N., Longitude 76° 38.0215554' W.; thence westerly to a point on the shore on the west side of the river at the mouth of Lawnes Creek in Isle of Wight County, Latitude 37° 08.4582990' N., Longitude 76° 40.2816023' W.¹ 2. Deep Water Shoal State Replenishment Seed Area (DWS). That area in the James River near Mulberry Island, beginning at a point approximately 530 feet west of Deep Water Shoal Light, said point being Corner 1, located at Latitude 37° 08.9433287' N., Longitude 76° 38.3213007' W.; thence southeasterly to Corner 2, Latitude 37° 09.5734380' N., Longitude 76° 37.8300582' W.; thence southwesterly to Corner 3, Latitude 37° 08.9265524' N., Longitude 76° 37.0574269' W.; thence westerly to Corner 4, Latitude 37° 08.4466039' N., Longitude 76° 37.4523346' W.; thence northwesterly to Corner 5, Latitude 37° 08.4491489' N., Longitude 76° 38.0215553' W.; thence northeasterly to Corner 1, said corner being the point of beginning.² B. Clean cull areas. All natural public oyster beds, rocks, or shoals in the tidal waters of Virginia, except those designated by the Marine Resources Commission as seed areas, shall be considered clean cull areas.³

Provision-Level Authorization Analysis

Provision 1

"A. Seed areas. The following natural public oyster beds, rocks, or shoals are de..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad language encompasses the regulation regarding designated seed areas for the harvest of seed oysters, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable resource management without requiring further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 2

"2. Deep Water Shoal State Replenishment Seed Area (DWS). That area in the James ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention authority over specific geographic areas like the Deep Water Shoal State Replenishment Seed Area. The regulation describes a specific location and its boundaries, which exceeds the scope of the Commission's authority as outlined in the statute, as it does not pertain to the conservation or management of the species explicitly mentioned. The legal significance of this relationship is that regulations must be grounded in the statutory authority provided, and without explicit authorization for the specific area mentioned in the regulation, it is deemed unauthorized.

Provision 3

"B. Clean cull areas. All natural public oyster beds, rocks, or shoals in the tid..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation designating all natural public oyster beds as clean cull areas may exceed the Commission's authority, as it does not directly relate to the conservation or reasonable use of the oyster resource, nor does it align with the specific management provisions outlined in the statute. The legal significance of this relationship is that the regulation could be challenged for overstepping the bounds of the Commission's statutory authority, potentially undermining the intended balance between resource conservation and user access established by the legislature.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

A. On-bottom container size shall not exceed four feet by four feet by one foot.¹ B. On-bottom containers shall not be solid walled, but shall be constructed of a mesh material of sufficient size not to restrict water flow.² 1. Mesh size shall not be less than one inch measured diagonally across the longest axis of square, rectangular, or diamond shaped mesh nor less than one-inch diameter for circular mesh.³ 2. Construction material shall be nontoxic and not retard shellfish pumping rates.⁴ 3. On-bottom containers shall be frequently cleaned and maintained in such a manner that fouling does not accumulate to the degree that water flow through the on-bottom container is impeded or fill line markers are obscured.⁵ C. On-bottom container height (excluding any legs or skids) shall be no greater than 12 inches. The on-bottom container shall be marked permanently on the inside surface supporting the shellfish at the six-inch level (measured from the bottom) around the entire circumference of the cage in such manner as to be clearly visible.⁶ D. Each container, as described in subsection A of this section, shall be fitted with skids or legs to hold the on-bottom container off the bottom and constructed in a manner that will not restrict water flow under the container.⁷ 1. Skids shall be no smaller than four inches by four inches; legs shall be no shorter than four inches.⁸ 2. Skids or legs may be larger to ensure that the container does not rest on the bottom, but cannot be so large as to place the container at a depth that could constitute a hazard to navigation.⁹ E. Access to each container shall be designed so that it can be secured with a standard Marine Resources Commission seal so that the container cannot be opened without breaking the seal.¹⁰

Provision-Level Authorization Analysis

Provision 1

"A. On-bottom container size shall not exceed four feet by four feet by one foot."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention authority over the size of on-bottom containers. The regulation specifying a maximum size for on-bottom containers does not align with the statutory language, as it addresses a specific operational detail rather than a broader conservation or management goal outlined in the statute. The legal significance of this relationship is that the regulation exceeds the scope of authority granted by the statute, rendering it unauthorized and potentially invalid.

Provision 2

"B. On-bottom containers shall not be solid walled, but shall be constructed of a..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, but it does not explicitly address the construction specifications of on-bottom containers. The regulation's requirement that on-bottom containers be made of mesh material to ensure water flow may exceed the Commission's authority as it imposes specific design criteria rather than focusing on the broader goals of conservation and reasonable use outlined in the statute. The legal significance of this relationship is that the regulation could be challenged as exceeding the scope of the authority granted by the statute, potentially undermining the Commission's regulatory framework.

Provision 3

"1. Mesh size shall not be less than one inch measured diagonally across the long..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to establish specific regulations, such as those governing mesh size, as a means to ensure sustainable fishing practices and resource conservation. The legal significance of this relationship is that it empowers the Commission to implement detailed regulations under a general framework, facilitating effective management of seafood resources without requiring additional legislative approval for each specific regulation.

Provision 4

"2. Construction material shall be nontoxic and not retard shellfish pumping rate..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams, and to promote the general welfare of the seafood industry. The regulation requiring that "construction material shall be nontoxic and not retard shellfish pumping rates" appears to exceed the statutory authority because it imposes specific material standards that are not explicitly mentioned in the statute, which focuses on broader management and conservation goals rather than detailed material specifications. The legal significance of this relationship is that the regulation may not align with the scope of authority granted by the statute, potentially leading to challenges regarding its enforceability and appropriateness within the regulatory framework established by the legislature.

Provision 5

"3. On-bottom containers shall be frequently cleaned and maintained in such a man..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their conservation and reasonable use. This broad grant of authority encompasses the regulation regarding the maintenance of on-bottom containers, as it directly relates to the conservation of marine resources by ensuring that these containers do not impede water flow, which is essential for the health of the ecosystem. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations that support the overall management and sustainability of the seafood industry, reflecting its mandate to promote both conservation and reasonable use of marine resources.

Provision 6

"C. On-bottom container height (excluding any legs or skids) shall be no greater ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows the Commission to implement specific regulations, such as those governing the dimensions and marking of on-bottom containers for shellfish, as these measures directly relate to the conservation and management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource conservation and industry welfare, thereby ensuring effective management of the seafood industry within the Commonwealth.

Provision 7

"D. Each container, as described in subsection A of this section, shall be fitted..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the general welfare of the seafood industry. The regulation requiring containers to be fitted with skids or legs and constructed to avoid restricting water flow appears to exceed the statute's authorization, as it imposes specific construction requirements that may not directly relate to the conservation or reasonable use of seafood resources as outlined in the statute. The legal significance of this relationship is that the regulation may be deemed invalid if it is found to impose requirements beyond the scope of the authority granted by the statute, potentially infringing on the rights of resource users without clear statutory backing.

Provision 8

"1. Skids shall be no smaller than four inches by four inches; legs shall be no s..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, but it does not explicitly mention specifications for equipment dimensions such as skids and legs. The regulation's requirement for specific measurements of skids and legs appears to exceed the statutory language, as it does not directly relate to the conservation or reasonable use of seafood but rather imposes arbitrary standards that may not be necessary for resource management. The legal significance of this relationship indicates that the regulation may lack the necessary foundation in the statute, potentially leading to challenges regarding its validity and enforceability.

Provision 9

"2. Skids or legs may be larger to ensure that the container does not rest on the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes the promotion of the general welfare of the seafood industry. The regulation regarding the size of skids or legs for containers directly relates to ensuring that containers do not pose a hazard to navigation, which aligns with the Commission's broad mandate to manage and conserve marine resources effectively. This authorization relationship signifies that the regulation falls within the general delegation of authority, allowing the Commission to implement necessary measures for the safe and responsible use of marine resources without requiring a more specific directive.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"E. Access to each container shall be designed so that it can be secured with a s..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate the management and conservation of marine resources, but it does not explicitly mention the requirement for containers to be secured with a seal. The regulation's requirement for each container to be designed for sealing goes beyond the scope of the statutory language, which does not authorize the agency to impose such specific security measures. The legal significance of this relationship is that without explicit statutory authority, the regulation lacks legitimacy and cannot be enforced, as it exceeds the powers granted by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

A. In the clean cull areas, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found in any basket inspected by any police officer, it shall constitute a violation of this chapter, except as described in 4VAC20-260-30 E.¹ B. In the James River seed areas, if more than a six-quart measure of shells is found in any basket of seed oysters inspected by any police officer, it shall constitute a violation of this chapter.² C. In the James River seed areas, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found in any basket of clean cull oysters inspected by any police officer, it shall constitute a violation of this chapter.³ D. From the seaside of the Eastern Shore, if more than a four-quart measure of any combined quantity of oysters less than three inches and shells of any size are found per basket of clean cull oysters inspected by any police officer, it shall constitute a violation of this chapter.⁴ E. Any oysters less than the minimum cull size or any amount of shell that exceeds the culling standard shall be returned immediately to the natural beds, rocks, or shoals from where they were taken.⁵ F. Oysters less than the minimum cull size that are adhering so closely to the shell of any marketable oyster as to render removal impossible without destroying the oysters less than the minimum cull size need not be removed, and those oysters shall be considered lawful and shall not be included in the culling tolerances or standards as described in subsections A through D of this section.⁶ G. It shall be unlawful for any person to sell any oysters less than the minimum cull size as described in this section.⁷

Provision-Level Authorization Analysis

Provision 1

"A. In the clean cull areas, if more than a four-quart measure of any combined qu..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not explicitly mention oysters or the regulation of their size limits. The regulation imposes a specific size restriction on oysters and establishes a violation based on the quantity found, which goes beyond the scope of the authority provided in the statute, as it does not relate to the conservation or management of the species explicitly mentioned. The legal significance of this authorization relationship is that without explicit statutory authority for regulating oysters in this manner, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. In the James River seed areas, if more than a six-quart measure of shells is ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, but it does not explicitly mention the regulation of shell quantities in seed oysters. The regulation's stipulation that a violation occurs if more than a six-quart measure of shells is found in any basket of seed oysters appears to exceed the statute's authorization, as it imposes a specific quantitative limit that is not addressed in the statute. The legal significance of this relationship is that the regulation may be deemed invalid if it is found to extend beyond the scope of the authority granted by the statute, potentially undermining the regulatory framework intended to manage seafood resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. In the James River seed areas, if more than a four-quart measure of any combi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources, including specific provisions for the conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation concerning the inspection of oysters in the James River seed areas, as it directly relates to the conservation and management of seafood resources, ensuring compliance with established standards. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, thereby enabling effective oversight and management of marine resources while ensuring adherence to conservation goals.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. From the seaside of the Eastern Shore, if more than a four-quart measure of a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes the promotion of the general welfare of the seafood industry. The regulation addresses the management of oysters, aligning with the statute's broad mandate to establish rules that ensure the sustainable use and conservation of marine resources, thus justifying a GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for effective resource management without needing further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Any oysters less than the minimum cull size or any amount of shell that excee..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation requiring the immediate return of oysters less than the minimum cull size or excess shell to their natural beds may exceed the statute's authorization because it imposes a specific operational requirement that goes beyond the general conservation and management framework outlined in the statute. The legal significance of this relationship is that while the Commission has broad authority to regulate for conservation, the specific regulatory requirement may not align with the statutory intent, potentially infringing on the limits of the Commission's powers as defined by the statute.

Provision 6

"F. Oysters less than the minimum cull size that are adhering so closely to the s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding oysters less than the minimum cull size, as it addresses the need for practical management of seafood resources while ensuring that the conservation goals are met without unnecessary harm to the ecosystem. The legal significance of this authorization relationship is that it allows the Commission to implement flexible and adaptive management strategies that align with the overarching goals of resource conservation and industry welfare, thereby supporting effective regulatory oversight.

Provision 7

"G. It shall be unlawful for any person to sell any oysters less than the minimum..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation prohibiting the sale of oysters below the minimum cull size, as it directly relates to the conservation and reasonable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect the seafood industry and ensure sustainable practices without requiring further legislative approval for such regulations.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

A. All oysters taken from natural public beds, rocks, or shoals shall be placed on the culling board or in only one basket upon the culling board and culled by hand at the location of harvest.¹ 1. Culled oysters shall be transferred immediately from the culling board to the inside open part of the boat and stored in either a loose pile or baskets. a. Oysters shall not be stored in both a loose pile and in baskets. b. A single basket may be on board any boat during transfer of culled oysters from the culling board to the inside open part of the boat in a loose pile.² 2. The entire harvest shall be subject to inspection, as provided in subsection F of this section.³ B. Any oysters taken lawfully by hand from natural public beds, rocks, or shoals from the seaside of the Eastern Shore, and held in sacks, bags, or containers, shall be culled when taken and placed in those sacks, bags, or containers for inspection by any police officer as described in subsection G of this section.⁴ C. If oysters from leased grounds and oysters from public grounds are mixed in the same cargo on a boat or motor vehicle, the entire cargo shall be subject to inspection under this chapter.⁵ D. It shall be unlawful for any person to buy, sell, or report clean cull oysters by any measure other than those described in § 28.2-526 A of the Code of Virginia filled to level full. The container described in § 28.2-526 A 2 is a basket. It shall be unlawful for any person to sell, purchase, or report the sale or purchase of any clean cull oysters harvested from public grounds, as described in 4VAC20-720-40 , in excess of the harvest limits described in 4VAC20-720-80 .⁶ E. It shall be unlawful for any person to buy, sell, or report seed oysters by any measure other than as described in § 28.2-526 of the Code of Virginia.⁷ F. Oysters may be inspected by any police officer according to any one of the following provisions: 1. For any oysters stored in a loose pile in a vehicle, a trailer, or the inside open part of a boat, the police officer shall use a shovel to take one basket of oysters to inspect, at random, provided that the entire basket shall be taken from one place in the open pile of oysters. The officer may inspect multiple baskets by repeating this procedure for each basket of oysters shoveled from the loose pile.⁸ 2. For any oysters stored in baskets in a vehicle, a trailer, or the inside open part of a boat, the police officer shall select one basket for inspection. The officer may inspect multiple baskets by repeating this procedure for each basket.⁹ G. In the inspection of oysters harvested by hand from waters of the seaside of the Eastern Shore, the police officer may select any sacks, bags, or containers at random to establish a full basket for purposes of inspection.¹⁰ H. On the seaside of the Eastern Shore oysters may be sold without being measured if both the buyer and the seller agree to the number of bushels of oysters in the transaction.¹¹

Provision-Level Authorization Analysis

Provision 1

"A. All oysters taken from natural public beds, rocks, or shoals shall be placed ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation requiring all oysters to be culled by hand at the location of harvest may exceed this authority because it imposes a specific method of handling oysters that is not explicitly mentioned in the statute, which focuses on general conservation and management rather than detailed operational procedures. The legal significance of this relationship is that the regulation could be challenged for not aligning with the broader regulatory framework established by the statute, potentially undermining the Commission's authority and leading to questions about the validity of such specific operational mandates.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Provision 2

"1. Culled oysters shall be transferred immediately from the culling board to the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. The regulation regarding the handling and storage of culled oysters falls within this broad authority as it addresses the practical aspects of seafood management, ensuring proper handling practices that support conservation and industry welfare. The legal significance of this authorization relationship is that it allows the Commission to implement detailed operational regulations under the umbrella of its general mandate, thus facilitating effective management of marine resources without requiring further legislative approval for each specific regulation.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. The entire harvest shall be subject to inspection, as provided in subsection ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that ensure proper management and oversight of seafood harvesting, including the requirement for inspection of the entire harvest to maintain resource sustainability and compliance. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures, like harvest inspections, under a GENERAL_DELEGATION, ensuring that regulatory actions align with the overarching goals of conservation and industry welfare.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Provision 4

"B. Any oysters taken lawfully by hand from natural public beds, rocks, or shoals..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-526 specifically grants authority related to the management and conservation of marine resources, but it does not explicitly authorize the regulation of the culling process for oysters taken from public beds. The regulation requires that oysters be culled and placed in specific containers for inspection, which imposes additional requirements not mentioned in the statute, thus exceeding the authority granted. The legal significance of this relationship is that regulations must be grounded in statutory authority, and without explicit authorization for the culling process, the regulation is deemed unauthorized.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"C. If oysters from leased grounds and oysters from public grounds are mixed in t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding the inspection of mixed oysters, as it is necessary for ensuring the conservation and reasonable use of seafood resources, thereby promoting the overall welfare of the industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further specific legislative approval, thereby facilitating timely and responsive regulatory actions.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"D. It shall be unlawful for any person to buy, sell, or report clean cull oyster..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing specific resources, such as surf clams and Atlantic menhaden, but does not explicitly mention oysters or the specific measurement standards for their sale. The regulation's requirement that oysters must be reported and sold only in a specific manner, as outlined in § 28.2-526 A, appears to exceed the Commission's authority since the statute does not provide a clear mandate for regulating the sale of oysters in such a detailed manner. This relationship indicates that the regulation may impose restrictions beyond what the statute authorizes, potentially infringing on the broader discretion intended by the legislature.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Explicit Statutory Citations

RANGE REFERENCE § 28.2-526

Citation text: "§ 28.2-526"

RANGE REFERENCE § 28.2-526

Citation text: "§ 28.2-526"

Total: 2 citations to 1 unique statute

Provision 7

"E. It shall be unlawful for any person to buy, sell, or report seed oysters by a..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-526 specifically grants authority related to the management and regulation of seed oysters, but it does not explicitly empower the agency to prohibit the buying, selling, or reporting of seed oysters by any measure other than what is described in the statute. The regulation imposes a broader restriction than what is outlined in the statute, which only addresses the methods of measuring seed oysters without extending to prohibitions on transactions themselves. This lack of explicit statutory authority for such prohibitions renders the regulation unauthorized, as it exceeds the scope of the agency's powers as defined by the statute.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Explicit Statutory Citations

REFERENCE § 28.2-526

Citation text: "§ 28.2-526"

Total: 1 citation to 1 unique statute

Provision 8

"F. Oysters may be inspected by any police officer according to any one of the fo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations that facilitate the inspection of oysters, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this relationship is that it empowers the Commission to implement necessary measures, such as inspections, to ensure compliance and sustainability within the seafood industry, thereby justifying the GENERAL_DELEGATION authorization level.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"2. For any oysters stored in baskets in a vehicle, a trailer, or the inside open..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific seafood species. This broad language allows for the regulation concerning the inspection of oysters in baskets, as it falls under the Commission's responsibility to ensure the conservation and reasonable use of seafood resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement detailed regulations that facilitate effective management and enforcement of seafood conservation efforts without requiring further legislative approval for each specific regulation.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"G. In the inspection of oysters harvested by hand from waters of the seaside of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of regulations for taking seafood. This broad grant of authority encompasses the regulation concerning the inspection of oysters, as it is necessary for ensuring compliance with conservation efforts and the reasonable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures, like the random selection of containers for inspection, to effectively manage and protect the seafood industry within the framework established by the statute.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"H. On the seaside of the Eastern Shore oysters may be sold without being measure..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including provisions for the conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation allowing the sale of oysters without measurement, as it facilitates the efficient transaction of seafood while promoting the welfare of the industry by accommodating buyer-seller agreements. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible regulations that respond to the practical needs of the seafood market, thereby supporting both conservation efforts and economic activity within the industry.

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Designation of Seed Areas and Clean Cull Areas

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in §§ 28.2-510 and 28.2-511 of the Code of Virginia, any person, firm, or corporation violating any provision of this chapter except 4VAC20-260-50 D shall be guilty of a Class 3 misdemeanor.¹ B. As set forth in § 28.2-526 of the Code of Virginia, any person violating any provision of 4VAC20-260-50 D of the chapter shall be guilty of a Class 1 misdemeanor.² C. In addition to the penalty prescribed by law, any person violating any provision of this chapter shall place the entire load of shellfish overboard on the nearest oyster sanctuary or closed shellfish area, at the direction of the police officer, and shall cease harvesting on that day. In cases where shellfish associated with a violation, by any person, cannot be returned overboard, that person shall destroy, in the presence of a police officer, all shellfish in his possession. All harvesting apparatus may be subject to seizure and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits may be subject to revocation following a hearing before the Marine Resources Commission.³

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in §§ 28.2-510 and 28.2-511 of the Code of Virginia, any person,..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of penalties for violations. This broad grant of authority allows the Commission to implement regulations that enforce compliance with its directives, such as the regulation that classifies violations as a Class 3 misdemeanor, thereby promoting the general welfare of the seafood industry and ensuring resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and regulate marine resources while holding violators accountable, thereby supporting the overarching goals outlined in the statute.

DEFINITION § 28.2-232

CROSS-REFERENCE § 28.2-511

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-511. Culling oysters; penalty A. 1. In addition to any other penalty prescribed by law, any person charged with...

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

CROSS-REFERENCE § 28.2-510

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-510. Buying, selling, or possessing unculled oysters; penalty It is unlawful for any person to buy, sell, or po...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-510

Citation text: "§§ 28.2-510"

MULTIPLE CITATIONS § 28.2-510

Citation text: "§§ 28.2-510 and 28.2-511"

MULTIPLE CITATIONS § 28.2-511

Citation text: "§§ 28.2-510 and 28.2-511"

Total: 3 citations to 2 unique statutes

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. As set forth in § 28.2-526 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges, revoke or prohibit the issuance of licenses, and assess civil penalties for violations related to fishing activities. This broad grant of authority allows the Commission to establish regulations that enforce compliance with fishing laws, including designating violations as misdemeanors, which results in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that ensure the sustainable management of fishing resources within the Commonwealth's tidal waters.

DEFINITION § 28.2-232

CROSS-REFERENCE § 28.2-511

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-511. Culling oysters; penalty A. 1. In addition to any other penalty prescribed by law, any person charged with...

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

CROSS-REFERENCE § 28.2-510

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-510. Buying, selling, or possessing unculled oysters; penalty It is unlawful for any person to buy, sell, or po...

Explicit Statutory Citations

REFERENCE § 28.2-526

Citation text: "§ 28.2-526"

Total: 1 citation to 1 unique statute

Provision 3

"C. In addition to the penalty prescribed by law, any person violating any provis..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges, revoke or prohibit licenses, and assess civil penalties for violations related to fishing activities. This broad grant of authority allows the Commission to implement regulations that ensure compliance with fishing laws, including the requirement for violators to dispose of shellfish in a manner that protects the environment, which aligns with the Commission's responsibility to manage and conserve marine resources. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations that promote sustainable fishing practices and uphold the integrity of the tidal waters within the Commonwealth.

DEFINITION § 28.2-232

CROSS-REFERENCE § 28.2-511

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-511. Culling oysters; penalty A. 1. In addition to any other penalty prescribed by law, any person charged with...

DEFINITION § 28.2-526

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-526. Oyster measures; standards; penalty A. Except as provided in subsection B, C, or D, it is unlawful for any...

CROSS-REFERENCE § 28.2-510

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-510. Buying, selling, or possessing unculled oysters; penalty It is unlawful for any person to buy, sell, or po...

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-232

Citation text: "§ 28.2-232"

✓ Suggests authorization

⚠ Contains limitations

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to allow for the conservation and rebuilding of the crab resource and to improve the enforceability of other laws pertaining to crabbing.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to allow for the conservation and rebuilding of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including provisions for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation aimed at conserving and rebuilding the crab resource, as it aligns with the Commission's mandate to manage seafood resources effectively and ensure their sustainability. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, providing flexibility to address conservation needs and enforceability within the seafood industry.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

The following word or term when used in this chapter shall have the following meaning unless the context indicates otherwise: "Crab" as described in this chapter refers solely to the crustacean Callinectes sapidus.¹

Provision-Level Authorization Analysis

Provision 1

"The following word or term when used in this chapter shall have the following me..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 does not explicitly grant the agency the authority to define terms related to specific species, such as "crab," beyond what is necessary for the context of the statute. The regulation attempts to define "Crab" specifically as the crustacean Callinectes sapidus, which goes beyond the scope of the statutory language that does not provide such a specific definition. The legal significance of this relationship is that regulations must be grounded in statutory authority, and without explicit authorization, this regulation is deemed unauthorized.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to take or harvest crabs for commercial purposes on Sunday.¹ This section shall not apply to the baiting and setting of any hard crab pot or peeler pot, the harvest of peeler crabs by crab traps or peeler pots, or to the working of floats, pens, or onshore facilities for soft crab shedding operations.² Any person licensed to harvest peeler crabs by peeler pot may harvest one bushel of male crabs from his peeler pots on Sunday strictly for the purpose of baiting that person's peeler pots, and such crabs may not be sold.³

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to take or harvest crabs for commercial purposes on Sunday."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species. This broad grant of authority allows the Commission to implement regulations such as prohibiting the commercial harvesting of crabs on Sundays, as it aligns with the goals of resource conservation and sustainable management of seafood. The legal significance of this authorization relationship is that it empowers the Commission to regulate fishing practices in a manner that supports the long-term viability of marine resources, ensuring that regulations can be established without needing further legislative approval.

Provision 2

"This section shall not apply to the baiting and setting of any hard crab pot or ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the conservation and reasonable use of specific species like surf clams and Atlantic menhaden. This broad language allows the Commission to create regulations that address various aspects of seafood management, including exemptions for certain practices related to crab harvesting, which aligns with the overarching goal of resource conservation and industry welfare. The legal significance of this relationship is that it empowers the Commission to implement flexible regulatory measures that can adapt to the needs of the industry while ensuring sustainable practices, thereby reinforcing its general delegation of authority.

Provision 3

"Any person licensed to harvest peeler crabs by peeler pot may harvest one bushel..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that address practical aspects of seafood harvesting, such as the regulation permitting licensed individuals to harvest male crabs for bait, which directly supports the sustainable use of resources. The legal significance of this authorization relationship is that it empowers the Commission to create specific rules that align with its overarching mandate to manage and conserve marine resources while promoting the interests of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to possess or sell crabs harvested for commercial purposes by any means other than by hard crab pot, peeler pot, dip net, ordinary or patent trotline, crab dredge, crab scrape, or crab trap or pound.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to possess or sell crabs harvested for commercial purposes ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for the conservation and reasonable use of various seafood species. This broad grant of authority allows the Commission to establish regulations that govern the methods of harvesting seafood, such as the regulation prohibiting the possession or sale of crabs harvested by means other than specified methods, thereby aligning with the statute's intent to conserve and promote marine resources. The legal significance of this authorization relationship is that it enables the Commission to implement regulations that are essential for effective resource management while ensuring compliance with the overarching goals of conservation and sustainable use outlined in the statute.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person licensed to catch and sell crabs taken by hard crab pot or peeler pot to take and harvest crabs from any hard crab pot or peeler pot, or to retrieve, bait, or set any hard crab pot or peeler pot, except between 3 a.m. to 5 p.m. during the lawful season as described in 4VAC20-270-40 A.¹ B. The lawful daily time periods for the commercial harvest of crabs by hard crab pot or peeler pot may be rescinded by the Commissioner of Marine Resources when the commissioner determines that a pending weather event is sufficient cause for the removal of hard crab pots from the tidal waters of the Commonwealth.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person licensed to catch and sell crabs taken by..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to knowingly place, set, fish, or leave a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation prohibiting the use of hard crab pots during a specified period aligns with the Commission's broad mandate to conserve seafood resources and manage fisheries effectively, thereby falling under the umbrella of GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect marine resources, ensuring sustainable practices within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person to place, set, or fish any number of fish..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including provisions for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation, as it addresses the management of fishing gear limits to ensure sustainable practices within the seafood industry, aligning with the statute's intent to conserve resources and promote their reasonable use. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that support the overarching goals of resource conservation and industry welfare without needing further legislative approval, thereby facilitating effective management of marine resources.

Provision 5

"1. This subsection shall not apply to fish pots set in those Virginia waters loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation concerning the specific boundaries for fish pots in Virginia waters, as it is necessary for the conservation and reasonable use of marine resources, aligning with the Commission's mandate to manage these resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general delegation of authority, ensuring effective resource management without needing explicit legislative approval for each specific regulation.

Provision 6

"2. This subsection shall not apply to legally licensed eel pots as described in ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning legally licensed eel pots, as it aligns with the Commission's responsibility to manage and regulate the use of marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that address specific practices within the seafood industry while ensuring the sustainable management of resources.

Provision 7

"3. This subsection shall not apply to fish pots constructed of a mesh less than ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing surf clams and Atlantic menhaden. The regulation's restriction on fish pots constructed of mesh less than one-inch square or hexagonal mesh may exceed the statutory authority because it imposes a specific technical requirement that is not explicitly mentioned in the statute, which focuses on broader management and conservation goals rather than detailed construction specifications. The legal significance of this relationship is that while the Commission has the authority to regulate for conservation, the regulation must align with the statutory language and intent, and overly specific requirements could undermine the statutory framework by introducing potential limitations not authorized by the statute.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to place, set or fish or attempt to place, set or fish more than 210 peeler crab pots in Virginia tidal waters.¹ B. The lawful hard crab pot license categories and hard crab pot limits are as follows: 1. Up to 85 crab pots.² 2. Up to 127 crab pots.³ 3. Up to 170 crab pots.⁴ 4. Up to 255 crab pots.⁵ 5. Up to 425 crab pots.⁶ C. It shall be unlawful for any person to knowingly place, set or fish any amount of crab pots that exceeds that person's crab pot limit, as described in subsection B of this section.⁷

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to place, set or fish or attempt to place..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation concerning the limitation on the number of peeler crab pots, as it directly relates to the conservation and reasonable use of marine resources, thereby supporting the overall management of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to regulate fishing practices, ensuring sustainable use and conservation of marine resources without the need for more specific legislative direction.

Provision 2

"B. The lawful hard crab pot license categories and hard crab pot limits are as f..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation regarding hard crab pot license categories and limits, as it directly relates to the management and conservation of crab resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures that align with its overarching mandate to manage and promote the sustainable use of marine resources.

Provision 3

"2. Up to 127 crab pots."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of resources. This broad grant of authority encompasses the regulation concerning the use of crab pots, as it falls within the Commission's mandate to regulate the taking of seafood in a manner that supports resource conservation and industry welfare. The legal significance of this authorization relationship is that it allows the Commission to implement regulations like the one on crab pots without needing further specific legislative approval, thereby facilitating effective management of marine resources.

Provision 4

"3. Up to 170 crab pots."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various seafood species. This broad language encompasses the regulation regarding the number of crab pots, as it falls under the Commission's responsibility to regulate the reasonable use of marine resources and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further legislative approval, thereby facilitating timely and adaptive governance of marine resources.

Provision 5

"4. Up to 255 crab pots."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species such as surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations like the one concerning the number of crab pots, as it directly relates to the management and conservation of crab populations within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to establish regulations that are essential for sustainable resource management, ensuring the long-term viability of the seafood industry and its resources.

Provision 6

"5. Up to 425 crab pots."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the welfare of the seafood industry. This broad grant of authority allows the Commission to implement regulations, such as the limitation on the number of crab pots, as a means to manage and conserve crab populations while ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it empowers the Commission to make regulatory decisions that directly support the overarching goals of resource conservation and industry welfare without requiring further legislative approval for specific regulatory actions.

Provision 7

"C. It shall be unlawful for any person to knowingly place, set or fish any amoun..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their reasonable use. This broad grant of authority encompasses the regulation prohibiting the excessive use of crab pots, as it directly relates to the conservation and management of seafood resources, ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective resource management.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

A. Any barrel used by a harvester to contain or possess any amount of crabs will be equivalent in volume to no more than three bushels of crabs.¹ B. From July 5, 2024, through October 31, 2024, and May 16, 2025, through July 4, 2025, any commercial fisherman registration licensee legally licensed for any hard crab pot license, as described in 4VAC20-270-50 B, shall be limited to the following maximum daily harvest and possession limits for any of the following hard crab pot license categories: 1. 10 bushels, or three barrels and one bushel, of crabs if licensed for up to 85 crab pots.² 2. 14 bushels, or four barrels and two bushels, of crabs if licensed for up to 127 crab pots.³ 3. 18 bushels, or six barrels, of crabs if licensed for up to 170 crab pots.⁴ 4. 29 bushels, or nine barrels and two bushels, of crabs if licensed for up to 255 crab pots.⁵ 5. 47 bushels, or 15 barrels and two bushels, of crabs if licensed for up to 425 crab pots.⁶ C. From November 1, 2024, through December 16, 2024, and March 17, 2025, through May 15, 2025, any commercial fisherman registration licensee legally licensed for any hard crab pot license, as described in 4VAC20-270-50 B, shall be limited to the following maximum daily harvest and possession limits for any of the following crab pot license categories: 1. Eight bushels, or two barrels and two bushels, of crabs if licensed for up to 85 crab pots.⁷ 2. 11 bushels, or three barrels and two bushels, of crabs if licensed for up to 127 crab pots.⁸ 3. 14 bushels, or four barrels and two bushels, of crabs if licensed for up to 170 crab pots.⁹ 4. 22 bushels, or seven barrels and one bushel, of crabs if licensed for up to 255 crab pots.¹⁰ 5. 36 bushels, or 12 barrels, of crabs if licensed for up to 425 crab pots.¹¹ D. When a single harvester or multiple harvesters are on board any vessel, that vessel's daily harvest and possession limit shall be equal to only one daily harvest and possession limit, as described in subsections B and C of this section, and that daily limit shall correspond to the highest harvest and possession limit of only one licensee on board that vessel.¹² E. When transporting or selling one or more legal crab pot licensee's crab harvest in bushels or barrels, any agent shall possess either the crab pot license of that one or more crab pot licensee or a bill of lading indicating each crab pot licensee's name, address, commercial fisherman registration license number, date, and amount of bushels or barrels of crabs to be sold.¹³ F. If any police officer finds crabs in excess of any lawful daily bushel, barrel, or vessel limit, as described in this section, that excess quantity of crabs shall be returned immediately to the water by the licensee who possesses that excess over lawful daily harvest or possession limit. The refusal to return crabs, in excess of any lawful daily harvest or possession limit, to the water shall constitute a separate violation of this chapter.¹⁴ G. When any person on board any boat or vessel possesses a crab pot license, it shall be unlawful for that person or any other person aboard that boat or vessel to possess a seafood buyer's boat license and buy any crabs on any day.¹⁵

Provision-Level Authorization Analysis

Provision 1

"A. Any barrel used by a harvester to contain or possess any amount of crabs will..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding the volume of barrels used by harvesters for crabs, as it is necessary for the conservation and reasonable use of seafood resources, ensuring that harvesting practices align with the overall management goals of the Commission. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that support its overarching mandate to manage and conserve marine resources effectively.

Provision 2

"B. From July 5, 2024, through October 31, 2024, and May 16, 2025, through July 4..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood industries. This broad grant of authority encompasses the regulation by allowing the Commission to set limits on the harvest and possession of hard crabs, which is essential for promoting the general welfare of the seafood industry and ensuring sustainable practices. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. 14 bushels, or four barrels and two bushels, of crabs if licensed for up to 1..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for managing various species. This broad grant of authority encompasses the regulation regarding the allowable catch of crabs, as it aligns with the Commission's responsibility to promote the welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations, like the specified limit on crab catch, under the general framework established by the statute, ensuring that resource management is both flexible and responsive to industry needs.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. 18 bushels, or six barrels, of crabs if licensed for up to 170 crab pots."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, but it does not explicitly mention specific limits on the quantity of crabs that can be taken. The regulation imposing a limit of 18 bushels or six barrels of crabs for those licensed with up to 170 crab pots may exceed the Commission's authority because it establishes a specific quota that is not directly supported by the statutory language, which focuses on general conservation and management without detailing such restrictions. The legal significance of this relationship indicates that while the Commission has broad regulatory powers, the specific limitations imposed by the regulation could be challenged as exceeding the scope of authority granted by the statute, potentially undermining the regulatory framework's legitimacy.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"4. 29 bushels, or nine barrels and two bushels, of crabs if licensed for up to 2..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention crabs or the specific limits on their harvest. The regulation imposing a limit of "29 bushels, or nine barrels and two bushels, of crabs if licensed for up to 255 crab pots" appears to exceed the statutory authority because it introduces a specific quota for crabs that is not directly supported by the statutory language regarding the Commission's powers. The legal significance of this relationship is that regulations must align with the explicit authority granted by the statute, and any regulation that imposes restrictions beyond what is authorized can be challenged as exceeding the Commission's legal mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"5. 47 bushels, or 15 barrels and two bushels, of crabs if licensed for up to 425..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning the specific limits on the taking of crabs, as it directly relates to the conservation and management of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations, such as those governing crab pot limits, under the general framework established by the statute, ensuring effective resource management while promoting industry welfare.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"C. From November 1, 2024, through December 16, 2024, and March 17, 2025, through..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation by allowing the Commission to set maximum daily harvest and possession limits for commercial fishermen, which is a necessary measure to ensure the sustainable use of hard crabs within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed management strategies that align with its overarching mandate to conserve marine resources while promoting the industry’s welfare.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"2. 11 bushels, or three barrels and two bushels, of crabs if licensed for up to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood and specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish specific limits, such as the regulation on the number of crabs that can be taken with a certain number of crab pots, as it directly relates to the management and conservation of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"3. 14 bushels, or four barrels and two bushels, of crabs if licensed for up to 1..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding the allowable catch of crabs, as it directly relates to the management and conservation of crab resources within the framework established by the statute. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that support the overall objectives of resource management and industry welfare without requiring further legislative approval for each individual regulation.

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to use any gear, except hard crab pots or peeler pots, to harvest crabs from the waters of Back Bay and North Landing River or within the jurisdiction of the Albemarle and Currituck watersheds as described in § 28.2-101 of the Code of Virginia.¹ B. It shall be unlawful to possess, sell, or offer for sale crabs taken by any means other than hard crab pot or peeler pot from the waters described in this section.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to use any gear, except hard crab pots or..."

General Delegation

AUTHORIZING STATUTE § 28.2-101

The Commission shall have jurisdiction over all commercial fishing and all marine fish, marine shellfish, marine organisms, and habitat in such areas. The Commission shall exercise such regulatory authority over all structures and improvements built or proposed by riparian property owners in the Potomac River.

ANALYSIS

§ 28.2-101 specifically grants the Commission jurisdiction over all commercial fishing, marine fish, marine shellfish, marine organisms, and habitat in designated areas, as well as regulatory authority over structures and improvements by riparian property owners. This broad grant of authority allows the Commission to regulate the methods and gear used for harvesting marine life, which is directly reflected in the regulation that prohibits the use of certain gear for crab harvesting in specified waters. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulations necessary for the conservation and management of marine resources within its jurisdiction, ensuring compliance with the overarching statutory framework.

EXCEPTION § 28.2-101

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle I. General Provisions Relating to Marine Resources Commission › Chapter 1. Administration › Article 1. Commission; Commissioner › § 28.2-101. Jurisdiction of Commission The jurisdiction of the Commission shall include the Commonwealth'...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-101

Citation text: "§ 28.2-101"

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful to possess, sell, or offer for sale crabs taken by any m..."

General Delegation

AUTHORIZING STATUTE § 28.2-101

ANALYSIS

§ 28.2-101 specifically grants the Commission jurisdiction over all commercial fishing and marine organisms, as well as the authority to regulate activities related to these resources. This broad grant of authority allows the Commission to establish regulations, such as prohibiting the possession and sale of crabs taken by unauthorized means, to ensure sustainable management of marine resources. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations to protect marine life and habitats, reflecting the intent of the statute to manage and conserve these resources effectively.

EXCEPTION § 28.2-101

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

A. From the beginning of the season as described in 4VAC20-270-40 through July 15, it shall be unlawful for any person to harvest, possess, sell, or offer for sale more than 10 peeler crabs, per United States standard bushel, or 5.0% of peeler crabs in any other container, that measure less than 3-1/4 inches across the shell from tip to tip of the longest spikes. From July 16 through the end of the season as described in 4VAC20-270-40 , it shall be unlawful for any person to harvest, possess, sell, or offer for sale more than 10 peeler crabs, per United States standard bushel, or 5.0% of peeler crabs in any other container, that measure less than 3-1/2 inches across the shell from tip to tip of the longest spikes, except as described in subsections B and C of this section.¹ B. From July 16 through the end of the season as described in 4VAC20-270-40 , it shall be unlawful for any person to harvest, possess, sell, or offer for sale more than 10 peeler crabs, per United States standard bushel, or 5.0% of peeler crabs in any other container, that are harvested from waters on the ocean side of Accomack and Northampton Counties and measure less than 3-1/4 inches across the shell from tip to tip of the longest spikes, except as described in subsection C of this section.² C. In the enforcement of these peeler crab minimum size limits aboard a vessel, the marine police officer shall select a single container of peeler crabs of the officer's choosing to determine if the contents of that container violate the minimum size and tolerance described in this section. If the officer determines the contents of the container are in violation, then the officer shall return all peeler crabs on board the vessel to the water alive.³ D. It shall be unlawful for any person to take, catch, harvest, possess, sell or offer for sale, or to destroy in any manner any soft crab that measures less than 3-1/2 inches across the shell from tip to tip of the longest spikes.⁴

Provision-Level Authorization Analysis

Provision 1

"A. From the beginning of the season as described in 4VAC20-270-40 through July 1..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish regulations, such as the one limiting the harvest of peeler crabs, to ensure sustainable practices and conservation efforts within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures that align with its mandate to manage and protect marine resources effectively, thus falling under GENERAL_DELEGATION.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. From July 16 through the end of the season as described in 4VAC20-270-40 , it..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation limiting the harvest of peeler crabs, as it directly relates to the conservation and management of marine resources, ensuring sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that address resource management while maintaining flexibility to adapt to changing conditions in the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. In the enforcement of these peeler crab minimum size limits aboard a vessel, ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows the regulation concerning the enforcement of peeler crab minimum size limits to fall under GENERAL_DELEGATION, as it directly relates to the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement specific enforcement measures that align with its overarching mandate to ensure sustainable practices within the seafood industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person to take, catch, harvest, possess, sell or..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing species such as surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation regarding the unlawful taking of undersized soft crabs, as it directly relates to the conservation and reasonable use of marine resources, ensuring sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect marine resources, thereby fulfilling its mandate to promote the welfare of the seafood industry while ensuring conservation efforts are upheld.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to take by using an unlicensed dip net or hand line, or two crab pots, or to harvest or possess for personal use aboard any vessel, more than one bushel of hard crabs or two dozen peeler crabs per day.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to take by using an unlicensed dip net or hand line, or two..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing seafood harvesting practices. This broad grant of authority allows the regulation to establish specific limitations on the methods and quantities of crabs that can be harvested, aligning with the statute's intent to ensure sustainable use and conservation of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for effective resource management while remaining within the scope of the general authority provided by the statute.

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

In accordance with the provisions of § 28.2-707 of the Code of Virginia, the crab dredging season of December 1, 2024, through March 31, 2025, is closed, and it shall be unlawful to use a dredge for catching crabs from the waters of the Commonwealth during that season.¹

Provision-Level Authorization Analysis

Provision 1

"In accordance with the provisions of § 28.2-707 of the Code of Virginia, the cra..."

Express Delegation

AUTHORIZING STATUTE § 28.2-707

The Commission is authorized to promulgate regulations limiting the size of dredges.

ANALYSIS

§ 28.2-707 specifically states that "The Commission is authorized to promulgate regulations limiting the size of dredges," which grants the agency the authority to create rules regarding dredging activities. This results in EXPRESS_DELEGATION because the regulation directly implements the Commission's authority to limit dredging by closing the crab dredging season, thereby controlling the use of dredges in a specific timeframe. The legal significance of this authorization relationship is that it allows the Commission to effectively manage and protect crab populations by regulating dredging practices, as explicitly permitted by the statute.

EXCEPTION § 28.2-707

CROSS-REFERENCE § 28.1-201

Explicit Statutory Citations

REFERENCE § 28.2-707

Citation text: "§ 28.2-707"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Pertaining to Blue Crab Fishery

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is essential for enforcing the conservation and management objectives outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms to uphold the regulatory framework, thereby promoting the general welfare of the seafood industry and ensuring compliance with conservation efforts.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to protect and rebuild the spawning stocks of speckled trout , minimizing the possibility of recruitment failure, and to increase yield in their fisheries.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to protect and rebuild the spawning stocks of spe..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation aimed at protecting and rebuilding the spawning stocks of speckled trout, as it aligns with the Commission's responsibility to manage and conserve fishery resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for the sustainability of fish populations, thereby fulfilling its mandate to promote the welfare of the seafood industry and ensure the conservation of marine resources.

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. "Fishing year" means the time period from September 1 of the current calendar year through August 31 of the following calendar year. "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw. "Speckled trout" means any fish of the species Cynoscion nebulosus. "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including defining terms relevant to the regulation of those resources. This broad grant of authority allows for GENERAL_DELEGATION because it encompasses the need for clear definitions, such as "fishing year" and "snout," which are essential for effective regulatory implementation and compliance within the seafood management framework. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that facilitate the management and conservation of marine resources, ensuring clarity and consistency in the application of those regulations.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, or possess any speckled trout less than 14 inches in total length, except that the catch of speckled trout by pound net or haul seine may consist of up to 5.0%, by weight, of speckled trout less than 14 inches in total length.¹ B. It shall be unlawful for any person fishing commercially with commercial hook-and-line gear or fishing recreationally with any gear type to possess more than one speckled trout 24 inches or greater in any one day .² C. It shall be unlawful for any person fishing commercially with commercial hook-and-line gear or recreationally with any gear type to possess more than five speckled trout in any one day.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, or possess any speckled t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing species like surf clams and Atlantic menhaden. The regulation concerning the minimum size limit for speckled trout aligns with the Commission's broad mandate to manage and conserve seafood resources, as it directly addresses conservation efforts and the sustainable use of a specific fish species. This authorization relationship signifies that the regulation is a necessary tool for the Commission to fulfill its statutory responsibilities, thereby justifying the GENERAL_DELEGATION level.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing commercially with commercial hook..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing limits on the taking of specific species. This broad grant of authority encompasses the regulation limiting the possession of speckled trout, as it directly relates to the conservation and reasonable use of marine resources, aligning with the Commission's mandate to manage fisheries effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that address conservation needs without requiring further legislative approval, thereby ensuring responsive management of the seafood resources.

Provision 3

"C. It shall be unlawful for any person fishing commercially with commercial hook..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation limiting the possession of speckled trout, as it directly relates to the conservation and reasonable use of marine resources, aligning with the Commission's responsibility to manage fisheries effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring the sustainable management of fish populations while promoting the interests of the seafood industry.

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

A. For each fishing year the directed commercial landings quota of speckled trout shall be limited to 51,104 pounds.¹ B. When the commission announces that the directed commercial landings quota has been reached, it shall be unlawful for any commercial fisherman registration licensee to take, harvest, land, or possess more than the daily incidental catch limit for the remainder of the fishing year. The daily incidental catch limit shall be 50 pounds of speckled trout per licensee aboard the vessel, not to exceed 100 pounds per vessel.²

Provision-Level Authorization Analysis

Provision 1

"A. For each fishing year the directed commercial landings quota of speckled trou..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing quotas for specific species. This broad grant of authority encompasses the regulation limiting the directed commercial landings quota of speckled trout, as it falls within the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures, such as quotas, under the general framework established by the statute, ensuring that resource management aligns with the overarching goals of conservation and industry welfare.

Provision 2

"B. When the commission announces that the directed commercial landings quota has..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage specific species like Atlantic menhaden, and prepare fishery management plans, but does not explicitly mention authority to impose restrictions on incidental catch limits once a directed commercial landings quota is reached. The regulation's requirement that it shall be unlawful for commercial fishermen to exceed the daily incidental catch limit may exceed the Commission's authority as it imposes a blanket prohibition without clear statutory backing for such specific enforcement measures related to incidental catches. The legal significance of this relationship is that the regulation could be deemed invalid if it is determined that the Commission has overstepped its statutory authority, potentially undermining the regulatory framework intended to promote the welfare of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

Any licensed seafood buyer who purchases speckled trout shall report daily purchases in pounds using the commission's interactive voice recording system on the day of purchase from August 1 to November 30, except when the commission announces that the directed commercial landings quota has been reached for the current fishing year.¹

Provision-Level Authorization Analysis

Provision 1

"Any licensed seafood buyer who purchases speckled trout shall report daily purch..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve seafood and marine resources, including the establishment of regulations for the reasonable use of specific species. This broad grant of authority encompasses the regulation requiring licensed seafood buyers to report daily purchases of speckled trout, as it directly relates to the management and conservation of marine resources and ensures compliance with established quotas. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for effective resource management without needing further legislative approval, thereby facilitating timely and responsive regulation in the seafood industry.

Pertaining to Speckled Trout

Express

General

Overreach

Unauthorized

Requirements

Pursuant to § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"Pursuant to § 28.2-903 of the Code of Virginia, any person violating any provisi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary for enforcing compliance and ensuring the effective management of the seafood resources under the Commission's jurisdiction. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms through regulations, thereby supporting its overarching mandate to manage and conserve marine resources effectively.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-903

Citation text: "§ 28.2-903"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to describe the proper manner and method of marking leased oyster planting ground during such times when the ground is required to be marked or for such other instances when a lessee may desire to mark the ground.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to describe the proper manner and method of marki..."

General Delegation

AUTHORIZING STATUTE § 28.2-607

the Commissioner shall select a surveyor to survey the grounds and make a plat in duplicate the ground applied for shall be assigned provided that: ... the assignment is in the public interest the grounds shall be marked in accordance with Commission regulations for marking oyster grounds

ANALYSIS

§ 28.2-607 specifically grants the Commissioner the authority to select a surveyor and establish regulations for marking oyster grounds in the public interest. This broad grant of authority allows the regulation to encompass detailed procedures for marking leased oyster planting ground, as it falls within the scope of ensuring compliance with the Commission's regulations. The legal significance of this authorization relationship is that it enables the agency to implement necessary operational guidelines while maintaining flexibility in managing public resources effectively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Active work areas" means those areas inside a lease where active planting or active harvesting is being conducted, or in areas where aquaculture structures are placed within a lease.² "Aquaculture structures" means devices, such as cages, trays, and nets, used to contain or protect shellfish.³ "Lease boundary lines" means the projected lines between lease corners.⁴ "Lease corners" means boundary lease corners as depicted on the plat of record for the lease.⁵

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including defining terms relevant to its regulatory framework. This results in GENERAL_DELEGATION because the regulation's definition of terms is essential for the effective implementation of the Commission's responsibilities and aligns with the statute's intent to provide clarity and guidance in the management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to exercise flexibility in establishing foundational elements of its regulatory scheme, ensuring that all stakeholders have a clear understanding of the terminology used in the regulations.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Active work areas" means those areas inside a lease where active planting or ac..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the conservation and reasonable use of specific species like surf clams. This broad grant of authority encompasses the regulation defining "active work areas," as it relates directly to the management and operational aspects of aquaculture, which are essential for the effective use and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are flexible and responsive to the needs of the seafood industry while ensuring sustainable practices within the Commonwealth's marine environment.

Provision 3

""Aquaculture structures" means devices, such as cages, trays, and nets, used to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation regarding aquaculture structures, as it relates to the conservation and reasonable use of shellfish, which is integral to the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support sustainable practices within the industry without requiring a more specific legislative directive.

Provision 4

""Lease boundary lines" means the projected lines between lease corners."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority related to the management and regulation of certain activities but does not explicitly mention the establishment or definition of "lease boundary lines." The regulation's definition of "lease boundary lines" introduces a concept that is not addressed or authorized by the statute, resulting in a lack of statutory support for this regulation. The legal significance of this relationship is that without explicit statutory authority, the regulation cannot be enforced, as it exceeds the scope of the powers granted by the statute.

Provision 5

""Lease corners" means boundary lease corners as depicted on the plat of record f..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as Atlantic menhaden. This broad grant of authority encompasses the regulation regarding "lease corners," as it is necessary for the effective management and delineation of leased areas, which directly relates to the conservation and use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure the sustainable management of marine resources while promoting the welfare of the seafood industry, thereby justifying the GENERAL_DELEGATION level.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

Leased oyster planting ground can be marked at any time and shall be marked if the oyster planting ground is being actively planted or harvested or when aquaculture structures are present on the lease.¹ No active planting upon or harvesting from the lease shall be authorized unless the lease has first been properly marked and the lease corners identified in accordance with the marking provisions of this chapter.² If aquaculture structures are deployed on leased oyster planting ground, the lessee must properly mark and identify the lease boundary or the active work areas where aquaculture structures are placed in accordance with the marking provisions of this chapter.³

Provision-Level Authorization Analysis

Provision 1

"Leased oyster planting ground can be marked at any time and shall be marked if..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language encompasses the regulation regarding the marking of leased oyster planting grounds, as it is essential for ensuring the effective management and conservation of oyster resources, thereby supporting the overall welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource management without requiring additional specific legislative approval, thereby facilitating timely and effective regulatory action.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"No active planting upon or harvesting from the lease shall be authorized unless ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and managing marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring proper marking and identification of lease corners, as it directly relates to the management and conservation of seafood resources by ensuring that activities such as planting and harvesting are conducted in an orderly and regulated manner. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to effectively manage and conserve marine resources, thereby supporting the overall objectives of the statute.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"If aquaculture structures are deployed on leased oyster planting ground, the les..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for the reasonable use of resources. This broad grant of authority encompasses the regulation requiring proper marking and identification of lease boundaries for aquaculture structures, as it directly relates to the management and conservation of the oyster resource and ensures the orderly use of leased grounds. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that facilitate effective resource management and promote the sustainable use of marine resources within its jurisdiction.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

A. Marking requirements. When leased oyster planting ground is marked, the corners and boundary lines or the active works areas within the lease shall be marked with markers or buoys and shall be marked in a manner that does not create any unnecessary restriction to navigation.¹ 1. Corner markers. Corners that are marked shall have a maximum of three markers per corner.² 2. Boundary line markers. Individual line markers shall be set at intervals no more than 600 feet apart and may be placed at intervals no less than 150 feet apart.³ 3. Active work area markers. Areas where aquaculture structures are being used shall be marked in conformance with subsection B of this section and as required in 4VAC20-335 .⁴ 4. Marking of the corners, boundary lines, or active work areas within the lease shall constitute valid marking for enforcement purposes.⁵ B. Description of markers. 1. When stakes are used for lease corner markers, lease boundary line markers, or active work area markers within a lease they shall have a diameter of no greater than two inches if solid and an inside diameter no greater than two inches if hollow, at and above the mean low water line, and shall extend at least four feet above the mean high water line, but no more than six feet above mean high water. The marker shall be made of such materials not so rigid as to harm a boat if accidently struck, such as PVC pipe, bamboo, white oak, cedar, or gum saplings. Metal pipe markers are prohibited.⁶ 2. When can buoys are used they shall be constructed of suitable material, shall be no larger than six inches in diameter, and shall be anchored to the bottom with sufficient weight to prevent their moving during adverse weather conditions. Can buoys shall be constructed and anchored so as to extend at least four feet above, but not more than six feet above the water line at all times. When ball buoys are used they shall be constructed of suitable material, shall be no smaller than 45 inches in circumference, and shall be anchored to the bottom with sufficient weight to prevent their moving in adverse weather conditions.⁷ 3. Leased oyster grounds on which active shellfish propagation is occurring shall have a minimum of two placards constructed of durable material along at least two sides of the lease or active work area, and each placard shall be at least four feet above the mean high water line, depicting the initials of the leaseholder and shall conform to the dimensions established by the commissioner. No person shall dredge or scrape his oyster planting ground unless he is in conformance with § 28.2-517 of the Code of Virginia to include the marking requirements contained in that section. Oyster ground lease corner markers, boundary line markers, and active work area markers may be marked with two-inch white reflective tape, white reflective paint, or white fluorescent paint. If the lease is bisected or borders along a Virginia Department of Health, Division of Shellfish Sanitation shellfish area condemnation line, such line markers shall be marked with two-inch yellow reflective tape, yellow reflective paint, or yellow fluorescent paint.⁸

Provision-Level Authorization Analysis

Provision 1

"A. Marking requirements. When leased oyster planting ground is marked, the corn..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of resources. The regulation regarding marking requirements for leased oyster planting grounds directly aligns with the Commission's mandate to manage and conserve marine resources, ensuring that such activities do not hinder navigation while promoting responsible use of the resource. This authorization relationship signifies that the Commission has the flexibility to implement regulations that support both the conservation goals and the operational needs of the seafood industry, thus justifying the GENERAL_DELEGATION level.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"1. Corner markers. Corners that are marked shall have a maximum of three marker..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations that support the management and reasonable use of resources, which encompasses the need for clear marking of corners to ensure proper navigation and resource management. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the effective management and conservation of marine resources, thereby ensuring compliance and sustainability within the seafood industry.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Provision 3

"2. Boundary line markers. Individual line markers shall be set at intervals no ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the reasonable use of specific seafood resources. The regulation concerning boundary line markers falls within this broad authority as it pertains to the management and conservation of marine resources by ensuring proper delineation of areas for seafood activities, thereby supporting the overall regulatory framework established by the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for effective resource management, reflecting the intent of the statute to promote sustainable practices within the seafood industry.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. Active work area markers. Areas where aquaculture structures are being used s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their use. This broad grant of authority allows the Commission to implement regulations such as the requirement for marking aquaculture structures, as it directly relates to the conservation and reasonable use of marine resources, ensuring safety and compliance within the industry. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource management and industry welfare without needing further specific legislative approval.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Provision 5

"4. Marking of the corners, boundary lines, or active work areas within the lease..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood industries. The regulation regarding the marking of corners and boundary lines within lease areas is necessary to promote the general welfare of the seafood industry and ensure effective enforcement, aligning with the broad authority provided in the statute. This authorization relationship signifies that the Commission has the discretion to implement regulations that facilitate the management and conservation of marine resources, thereby supporting the overall objectives outlined in the statute.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Provision 6

"B. Description of markers. 1. When stakes are used for lease corner markers, le..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning the specifications for lease markers, as it falls within the Commission's responsibility to ensure proper management and use of marine resources, thereby promoting the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission the flexibility to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without needing further legislative approval for each specific regulation.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"2. When can buoys are used they shall be constructed of suitable material, shal..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding the construction and anchoring of can buoys, as it directly relates to ensuring the effective management and conservation of seafood resources by establishing standards for equipment used in the industry. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further specific legislative approval for each regulatory detail.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"3. Leased oyster grounds on which active shellfish propagation is occurring shal..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species and the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation regarding leased oyster grounds, as it aligns with the Commission's responsibility to ensure the proper management and conservation of shellfish resources, which is essential for the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing to seek further specific legislative approval, thereby enabling effective and timely management of marine resources.

CROSS-REFERENCE § 28.2-517

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 5. Oysters and Clams › Article 2. Fishing for Oysters and Clams; Device Restrictions › § 28.2-517. Marking ground A person shall not dredge or scrape his oyster-planting ground unless he has first properly...

Explicit Statutory Citations

RANGE REFERENCE § 28.2-517

Citation text: "§ 28.2-517"

⚠ Contains limitations

Total: 1 citation to 1 unique statute

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

When oyster planting ground is marked, suitable stakes or markers shall be kept by the lessee in their proper places at all times so as to conform accurately to the original boundary survey any condemnation line within the lease, or to accurately mark the active work areas within the lease.¹ Should such stakes or makers be removed, knocked down, or be carried away, the lessee shall promptly have them replaced in their proper location and in conformance with the method and manner of marking contained within this chapter.²

Provision-Level Authorization Analysis

Provision 1

"When oyster planting ground is marked, suitable stakes or markers shall be kept ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, specifically mentioning the management of certain species and the promotion of the seafood industry. The regulation requiring lessees to maintain markers for oyster planting grounds may exceed the Commission's authority as it imposes specific operational requirements on lessees that are not explicitly mentioned in the statute, which focuses on broader regulatory frameworks rather than detailed management practices. The legal significance of this relationship is that the regulation could be challenged as overstepping the statutory limits set by the legislature, potentially undermining the intended scope of the Commission's authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"Should such stakes or makers be removed, knocked down, or be carried away, the l..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources. This broad language encompasses the regulation's requirement for lessees to promptly replace stakes or markers, as it is necessary for maintaining order and compliance within the seafood industry and ensuring proper management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of conservation and resource management without needing further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to intentionally or knowingly injure, remove, or displace any boundary oyster stake, range monument, signal beacon, post, or buoy, or any part thereof, erected to designate, locate, survey, or map shellfish grounds other than the leaseholder, his agent, his employee, or commission staff.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to intentionally or knowingly injure, remove..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of surf clams, manage Atlantic menhaden, and promote the general welfare of the seafood industry, but it does not mention authority over boundary markers or the protection of shellfish grounds. The regulation, which makes it unlawful to intentionally or knowingly injure or remove boundary oyster stakes and similar markers, exceeds the scope of the Commission's authority as outlined in the statute, which does not address such actions or provide for the protection of these specific items. The legal significance of this relationship is that the regulation lacks a statutory basis, rendering it unauthorized and potentially unenforceable, as it does not align with the powers explicitly granted to the Commission by the legislature.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

The chief engineer may approve an alternative plan for the proper marking of any oyster planting ground boundary or active work area upon request by the lessee when he finds exceptional circumstances exist.¹ In such a case the chief engineer shall direct the leaseholder where to place the appropriate markers.²

Provision-Level Authorization Analysis

Provision 1

"The chief engineer may approve an alternative plan for the proper marking of any..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific resources like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation allowing the chief engineer to approve alternative plans for marking oyster planting boundaries, as it aligns with the Commission's responsibility to manage and conserve marine resources while providing flexibility in exceptional circumstances. The legal significance of this authorization relationship is that it empowers the Commission to delegate regulatory decisions to the chief engineer, ensuring that management practices can adapt to specific situations while remaining within the framework established by the statute.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"In such a case the chief engineer shall direct the leaseholder where to place th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and managing marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the placement of markers by allowing the chief engineer to direct leaseholders, as it falls within the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary operational directives that support the overarching goals of resource management and conservation without requiring further legislative approval.

Marking of Leased Oyster Planting Ground

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is necessary for the enforcement of the Commission's regulations and supports the overall management and conservation goals outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms to ensure compliance with its regulations, thereby promoting the effective management of seafood resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to protect the public health and to ensure that Virginia complies with the National Shellfish Sanitation Program.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to protect the public health and to ensure that V..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad grant of authority allows the agencies to create regulations that protect public health and ensure compliance with national standards, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agencies to implement necessary measures for public health protection without needing further specific legislative approval.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

The following term when used in this chapter shall have the following meaning unless the context clearly indicates otherwise: "Seed-stock shellfish" means those wild and cultured shellfish that are at least six months from marketing for human consumption.¹

Provision-Level Authorization Analysis

Provision 1

"The following term when used in this chapter shall have the following meaning un..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to define terms such as "seed-stock shellfish," which is essential for regulating the management and conservation of shellfish resources, thus falling under the umbrella of general regulatory authority. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary definitions and regulations that support the overarching goals of resource conservation and industry welfare without requiring further specific legislative approval.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

A. Nothing in this chapter shall prohibit the harvesting, transporting, or handling of wild and cultured seed-stock shellfish from condemned areas.¹ B. It shall be unlawful for any person to relay molluscan shellfish by use of any container or cage except in compliance with the requirements of this chapter.² C. Shellfish to be relayed within containers or cages shall be limited to the hard clam, Mercenaria mercenaria, and the American oyster, Crassostrea virginica.³ D. Any person wishing to use containers for shellfish relaying shall petition the Marine Resources Commission demonstrating their ability to handle containers, describing the area where containers will be deployed and providing a description of the containers to be used.⁴ E. Permission to use containers shall be determined on a case-by-case basis by the Marine Resources Commission and the Virginia Department of Health. Permit issuance shall be controlled so as to ensure proper monitoring and enforcement as required by the National Shellfish Sanitation Program Manual of Operations (1993), Part I.⁵ F. Any person wishing to use containers for relaying shellfish shall meet the criteria set forth in Chapter 8 (§ 28.2-800 et seq.) of Title 28.2 of the Code of Virginia and applicable portions of the National Shellfish Sanitation Program Manual of Operations (1993), Part I. In addition, any dealer utilizing a vehicle, vessel, property, or premises where shellfish are transported, held, stored, processed, packed, or repacked in preparation for marketing shall meet the applicable criteria set forth in the National Shellfish Sanitation Program Manual of Operations (1993), Part II, as determined by the Virginia Department of Health.⁶ G. Any person harvesting shellfish from polluted waters for containerized relaying to approved areas shall land at designated Marine Resources Commission condemned shellfish landing areas, or make arrangements with the marine police officer to meet at approved relaying grounds so that the relaying operation is carried out under appropriate supervision.⁷

Provision-Level Authorization Analysis

Provision 1

"A. Nothing in this chapter shall prohibit the harvesting, transporting, or handl..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote seafood and marine resources. This broad language allows the Commission to regulate activities related to the harvesting and handling of shellfish, including those from condemned areas, as it is essential for managing the resource sustainably and ensuring industry welfare. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that address specific practices within the seafood industry while maintaining the overarching goals of conservation and resource management.

DEFINITION § 28.2-800

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 1. General Provisions › § 28.2-800. Definitions As used in this chapter, unless the context requires a different meaning: "Crustacea" means all edible species ...

Provision 2

"B. It shall be unlawful for any person to relay molluscan shellfish by use of an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of seafood activities. This broad grant of authority encompasses the regulation regarding the unlawful relaying of molluscan shellfish by establishing necessary compliance requirements to ensure the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective management and protection of the seafood industry within the Commonwealth.

DEFINITION § 28.2-800

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Shellfish to be relayed within containers or cages shall be limited to the ha..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically states that the State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of the chapter, indicating a broad authority to create regulations that support the statute's goals. The regulation's limitation to specific shellfish species, namely the hard clam and the American oyster, may exceed the statutory authorization because the statute does not explicitly restrict the types of shellfish that can be relayed, potentially imposing additional constraints not provided for in the statute. The legal significance of this relationship is that while the agencies have the authority to create necessary regulations, they must remain within the bounds of the statute, and any overreach could render the regulation invalid or subject to challenge.

DEFINITION § 28.2-800

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any person wishing to use containers for shellfish relaying shall petition th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including regulations for the reasonable use of surf clams. The regulation requiring individuals to petition the Marine Resources Commission to demonstrate their capability in handling containers for shellfish relaying aligns with the statute's broad mandate to manage and conserve seafood resources effectively, thereby justifying a GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that support the sustainable management of marine resources, reflecting the statute's intent to empower the agency in its regulatory functions.

DEFINITION § 28.2-800

Provision 5

"E. Permission to use containers shall be determined on a case-by-case basis by t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams. This results in GENERAL_DELEGATION because the regulation's case-by-case determination of container use aligns with the Commission's mandate to promote the welfare of the seafood industry and ensure proper monitoring, which is essential for resource conservation as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement flexible regulatory measures that adapt to specific circumstances while still adhering to the overarching goals of resource management and public health.

DEFINITION § 28.2-800

Provision 6

"F. Any person wishing to use containers for relaying shellfish shall meet the cr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their conservation and use. This broad grant of authority encompasses the regulation regarding the use of containers for relaying shellfish, as it aligns with the Commission's responsibility to ensure the sustainable management and conservation of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures that support the overarching goals of resource conservation and industry welfare without requiring a more restrictive authorization level.

DEFINITION § 28.2-800

Explicit Statutory Citations

SEQUENTIAL REFERENCE § 28.2-800

Citation text: "§ 28.2-800"

SEQUENTIAL REFERENCE § 28.2-800

Citation text: "§ 28.2-800 et seq."

Total: 2 citations to 1 unique statute

Provision 7

"G. Any person harvesting shellfish from polluted waters for containerized relayi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including regulations for the management of shellfish. This broad grant of authority encompasses the regulation regarding the harvesting of shellfish from polluted waters, as it is necessary for the conservation and reasonable use of marine resources, thereby justifying a GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure the safe and sustainable management of shellfish, aligning with its statutory mandate to promote the welfare of the seafood industry.

DEFINITION § 28.2-800

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

A. Floating container size shall not exceed two feet by eight feet by one foot.¹ B. Floating containers shall not be solid walled, but shall be constructed of a mesh material of sufficient size not to restrict water flow.² 1. Mesh size shall not be less than one inch measured diagonally across the longest axis of square, rectangular, or diamond shaped mesh nor less than one-inch diameter for circular width.³ 2. Construction shall be nontoxic and not retard shellfish pumping rates.⁴ 3. Floating containers shall be frequently cleaned and maintained in such a manner that fouling does not accumulate to the degree that water flow through the container is impeded.⁵ C. Each floating container shall be attached in such a way as to not restrict water flow.⁶ D. For commercial purposes, each floating container shall be designed so that it can be secured with a standard Marine Resources Commission seal tag and that the container cannot be opened without breaking the seal or seals.⁷

Provision-Level Authorization Analysis

Provision 1

"A. Floating container size shall not exceed two feet by eight feet by one foot."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the regulation of floating container sizes. The regulation imposing a specific size limit on floating containers appears to exceed the statutory authorization because it does not directly relate to the conservation or management of seafood resources as outlined in the statute. The legal significance of this relationship is that regulations must remain within the bounds of the authority granted by the statute, and exceeding that authority can lead to questions about the validity and enforceability of the regulation.

Provision 2

"B. Floating containers shall not be solid walled, but shall be constructed of a ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. The regulation regarding the construction of floating containers aligns with this broad authority by ensuring that the design of such containers facilitates water flow, which is essential for the conservation of marine life and the overall health of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are flexible and responsive to the needs of resource management without requiring further legislative approval, thereby promoting effective conservation practices.

Provision 3

"1. Mesh size shall not be less than one inch measured diagonally across the long..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. The regulation regarding mesh size directly relates to the Commission's responsibility to ensure sustainable fishing practices and resource conservation, which falls under the broad authority to establish regulations for the reasonable use of marine resources. This authorization relationship signifies that the Commission has the discretion to implement regulations like the mesh size requirement to effectively manage and protect the seafood industry and its resources without needing to seek further specific legislative approval.

Provision 4

"2. Construction shall be nontoxic and not retard shellfish pumping rates."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad grant of authority encompasses the regulation regarding construction materials, as it relates to ensuring that the materials used do not negatively impact shellfish pumping rates, thereby supporting the overall welfare of the seafood industry. The legal significance of this authorization relationship is that it allows for flexibility in regulatory implementation, enabling the Commission to address specific operational concerns within the framework of its overarching mandate.

Provision 5

"3. Floating containers shall be frequently cleaned and maintained in such a mann..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that ensure the proper maintenance of equipment used in seafood harvesting, such as the requirement for floating containers to be cleaned and maintained to prevent fouling, thereby supporting the overall health of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that address practical aspects of resource management, ensuring the sustainability and efficiency of the seafood industry within the framework established by the statute.

Provision 6

"C. Each floating container shall be attached in such a way as to not restrict wa..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation regarding the attachment of floating containers to ensure unobstructed water flow aligns with the statute's broad mandate to conserve marine resources and promote their sustainable use. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect the marine environment, thereby fulfilling its statutory responsibilities without requiring specific legislative approval for each regulatory detail.

Provision 7

"D. For commercial purposes, each floating container shall be designed so that it..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of surf clams and managing Atlantic menhaden. This broad grant of authority encompasses the regulation requiring that floating containers for commercial purposes be designed to be secured with a seal tag, as it directly relates to the conservation and management of seafood resources by ensuring proper handling and security of seafood products. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without needing further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

A. Areas where any container is to be relayed for commercial purposes shall be clearly marked and easily identified as required in § 28.2-818 of the Code of Virginia.¹ B. Landing of polluted shellfish, loading of vehicles and containers, and container deployment and harvest shall be conducted under Marine Resources Commission supervision. Scheduling of loading and unloading of vehicles and containers shall be determined by marine police area supervisors.² C. Containers shall be deployed and spaced in such a manner and spacing so that different lots are separated and easily identified.³ 1. Spacing between adjacent groups of containers shall be a minimum of 25 feet.⁴ 2. Individual containers shall be no closer than six feet from any other container within the group.⁵ D. The maximum height of shellfish loaded into any one container shall not exceed six inches, measured from the bottom of the container.⁶ E. Each container deployed shall be sealed with a Marine Resources Commission standard seal and the seal number recorded. Shellfish harvested from polluted waters for containerized relaying shall be under Marine Resources Commission seal before sunset. Marine police officers are the only persons authorized to seal vehicles and containers and break the seals on vehicles and containers used in the transporting and relaying of shellfish from polluted areas.⁷

Provision-Level Authorization Analysis

Provision 1

"A. Areas where any container is to be relayed for commercial purposes shall be c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation requiring that areas for relaying containers for commercial purposes be clearly marked, as it falls under the Commission's mandate to manage and regulate seafood activities effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure the sustainable use and conservation of marine resources, thereby fulfilling its statutory obligations.

CROSS-REFERENCE § 28.2-818

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-818. Identification of relay areas Officers and employees of the Department o...

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-818

Citation text: "§ 28.2-818"

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Landing of polluted shellfish, loading of vehicles and containers, and contai..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulations for their conservation and use. This broad grant of authority encompasses the regulation regarding the supervision of the landing of polluted shellfish and the scheduling of loading and unloading activities, as it directly relates to the conservation and reasonable use of marine resources, ensuring safe practices in the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary oversight and management practices to protect public health and marine resources without requiring a higher level of specificity in the statute.

CROSS-REFERENCE § 28.2-818

Provision 3

"C. Containers shall be deployed and spaced in such a manner and spacing so that ..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically states that the State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of the chapter. This broad grant of authority allows the agencies to create regulations that address various operational aspects, such as the deployment and spacing of containers to ensure proper identification and separation of different lots. The legal significance of this relationship is that it empowers the agencies to implement detailed and practical measures essential for effective management and enforcement of the statutory provisions.

CROSS-REFERENCE § 28.2-818

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"1. Spacing between adjacent groups of containers shall be a minimum of 25 feet."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of specific operational requirements, such as the spacing between containers, to ensure effective management and conservation practices within the industry. The legal significance of this relationship is that it empowers the Commission to implement detailed regulations under a general framework, ensuring both flexibility and adherence to the overarching goals of resource conservation and industry welfare.

CROSS-REFERENCE § 28.2-818

Provision 5

"2. Individual containers shall be no closer than six feet from any other contain..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the implementation of regulations like the spacing requirement for individual containers, as it falls within the scope of managing resources effectively and ensuring their sustainable use. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of conservation and resource management without needing to specify every operational detail in the statute itself.

CROSS-REFERENCE § 28.2-818

Provision 6

"D. The maximum height of shellfish loaded into any one container shall not excee..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for managing shellfish. This broad grant of authority encompasses the regulation regarding the maximum height of shellfish in containers, as it directly relates to the conservation and management of seafood resources by ensuring proper handling and storage practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without needing further legislative approval for each specific regulation.

CROSS-REFERENCE § 28.2-818

Provision 7

"E. Each container deployed shall be sealed with a Marine Resources Commission st..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and shellfish. This broad grant of authority encompasses the regulation requiring that each container deployed be sealed with a Marine Resources Commission standard seal, as it directly relates to the conservation and management of shellfish harvested from polluted waters. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure the safety and integrity of marine resources while promoting the general welfare of the seafood industry.

CROSS-REFERENCE § 28.2-818

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

A. Commercial harvest to be sold for public consumption. 1. Any relay container shall remain in the relaying area for a minimum of 15 days in water temperatures above 50%90F and in salinities sufficient to assure effective cleansing through active pumping. If a relay area is closed due to a pollution event during the relay process, the 15-day relay period shall coincide with the reopening of the area.¹ 2. Requests to harvest specific containers shall be made to the marine police officer, specifying which sealed containers have been released for harvest by the Virginia Department of Health.² 3. No shellfish shall be reharvested until a Permit to Remove Shellfish is received from the Virginia Department of Health. The seal on each container shall not be broken by anyone except a marine police officer.³ 4. After the seal is broken, the reharvested shellfish shall be moved into the certified shellstock storage facility (if provided) for washing, grading, bagging, tagging, and storage prior to shipment. Shellfish packed on boats, monitors or barges shall be immediately transferred to a certified shellstock storage facility or an enclosed vehicle for shipment to market or other certified dealers. No shellfish shall be washed, graded, bagged, or stored onshore or on a dock unless protected facilities are provided and approved by the Virginia Department of Health.⁴ B. Noncommercial, private use. 1. Noncommercial relaying activity will be permitted from June 1 through September 30. All containers shall remain in the clean relay area for a minimum of 15 consecutive days. In the event the clean relay area is closed due to a pollution event during the relay process, the 15-day relay period shall start over when the area is reopened. For private noncommercial purposes, the container should be marked with a yellow flag for the entire relay period.⁵ 2. Requests should be made to the local marine police office to obtain a noncommercial relay permit (MRC 59) by the relayer. The marine police officer will then approve the clean relay site. The Conservation and Replenishment Department at the VMRC main office shall be contacted to obtain the report forms that must be completed to receive a permit to remove the shellfish. These reports, completed and signed, shall be returned in a timely manner to the Conservation and Replenishment Department to avoid delay in receiving a Virginia Department of Health permit for removing the shellfish.⁶ 3. No shellfish shall be harvested until a permit to remove the shellfish is received from the Virginia Department of Health. After the 15-day relay period and receipt of the permit by the relayer, the yellow flag may be removed and the shellfish harvested.⁷

Provision-Level Authorization Analysis

Provision 1

"A. Commercial harvest to be sold for public consumption. 1. Any relay container ..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the creation of regulations that address various aspects of public health and marine resource management, including specific operational requirements for commercial harvesting. The legal significance of this authorization relationship is that it empowers the agencies to establish detailed and practical guidelines, such as those related to relay containers, to ensure compliance with health and safety standards in the context of public consumption.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Requests to harvest specific containers shall be made to the marine police of..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad grant of authority allows the agencies to create regulations that address specific operational needs, such as the process for requesting the harvest of sealed containers, which is essential for implementing the overall regulatory framework. The legal significance of this authorization relationship is that it enables the agencies to exercise discretion in managing resources effectively while ensuring compliance with public health and safety standards.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. No shellfish shall be reharvested until a Permit to Remove Shellfish is recei..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the establishment of regulations that ensure the proper management and protection of shellfish resources, which includes the requirement for a Permit to Remove Shellfish and the stipulation regarding the handling of containers. The legal significance of this authorization relationship is that it empowers the agencies to create detailed regulations that are essential for the effective implementation of the statutory provisions, thereby ensuring compliance and safeguarding public health and marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"4. After the seal is broken, the reharvested shellfish shall be moved into the c..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the creation of regulations that address various aspects of shellfish handling and processing, including the procedures outlined in the regulation regarding the movement and storage of reharvested shellfish. The legal significance of this authorization relationship is that it enables the agencies to implement detailed operational procedures essential for public health and resource management without requiring further legislative action, thereby ensuring effective regulatory oversight.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"B. Noncommercial, private use. 1. Noncommercial relaying activity will be permit..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the establishment of regulations that address various aspects of marine resource management, including noncommercial relaying activities, which are detailed in the regulation. The legal significance of this authorization relationship is that it empowers the agencies to create detailed operational guidelines, such as the specified timeframes and conditions for relaying activities, under the umbrella of their overarching regulatory authority.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"2. Requests should be made to the local marine police office to obtain a noncomm..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the creation of regulations that facilitate operational procedures, such as the process for obtaining a noncommercial relay permit and the approval of clean relay sites, which are essential for the effective management of marine resources. The legal significance of this authorization relationship is that it empowers the agencies to implement detailed procedures and guidelines that support the overarching goals of the statute, ensuring compliance and effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"3. No shellfish shall be harvested until a permit to remove the shellfish is rec..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the establishment of regulations that ensure the management and protection of shellfish resources, which is reflected in the regulation requiring a permit for shellfish harvesting after a relay period. The legal significance of this authorization relationship is that it empowers the agencies to implement necessary measures for public health and resource management without needing further legislative approval, thereby facilitating effective regulatory oversight.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

The season for the removal or relaying of shellfish from private grounds shall be February 1 to November 1.¹

Provision-Level Authorization Analysis

Provision 1

"The season for the removal or relaying of shellfish from private grounds shall b..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to implement the provisions of the chapter. This broad language allows the agencies to establish regulations that address various aspects of marine resources management, including the timing for the removal or relaying of shellfish, which is essential for sustainable practices. The legal significance of this relationship is that it provides the agencies with the flexibility to create regulations that are responsive to the needs of marine resource management while remaining within the scope of their statutory authority.

Pertaining to the Relaying of Shellfish

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ In addition, violation of any provisions of this chapter shall be grounds for immediate revocation of the permit to relay shellfish.²

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows the agencies to create regulations that address various aspects of enforcement, including penalties for violations, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agencies to implement and enforce the statutory framework effectively, ensuring compliance and accountability within the scope of their regulatory authority.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"In addition, violation of any provisions of this chapter shall be grounds for im..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to implement the provisions of the chapter. This broad language allows for the creation of regulations that address various aspects of shellfish management, including enforcement mechanisms such as permit revocation for violations. The legal significance of this relationship is that it empowers the agencies to take necessary actions to ensure compliance and protect marine resources, thereby supporting the overall objectives of the statute.

CROSS-REFERENCE § 28.2-903

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to cap the harvest of black drum.¹ A management area with time restrictions is also designated to reduce conflicts between recreational and commercial fishermen that concentrate on drum fishing grounds in the Lower Bay.² The chapter also provides for the collection of management information for the black drum commercial fishery.³ Additionally, a minimum size limit is imposed to provide protection of black drum until they reach sexual maturity.⁴ Limited entry in the commercial fishery is implemented to prevent overcapitalization and to improve economic benefits to the recent full-time participants in the future.⁵

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to cap the harvest of black drum."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation capping the harvest of black drum, as it aligns with the Commission's responsibility to manage seafood resources sustainably and ensure their reasonable use. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource conservation without requiring further legislative approval, thereby facilitating effective management of marine resources.

Provision 2

"A management area with time restrictions is also designated to reduce conflicts ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation that designates a management area with time restrictions to reduce conflicts between recreational and commercial fishermen, as it aligns with the Commission's responsibility to manage fisheries and promote the sustainable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific management challenges while remaining within the framework of its overarching statutory mandate.

Provision 3

"The chapter also provides for the collection of management information for the b..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fisheries. This broad grant of authority encompasses the regulation regarding the collection of management information for the black drum commercial fishery, as it aligns with the Commission's responsibility to promote the general welfare of the seafood industry and manage fishery resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for informed decision-making and resource management without requiring further legislative approval, thereby facilitating timely and effective regulatory actions.

Provision 4

"Additionally, a minimum size limit is imposed to provide protection of black dru..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation imposing a minimum size limit for black drum, as it aligns with the Commission's mandate to ensure the conservation and reasonable use of marine species until they reach maturity. The legal significance of this relationship is that it allows the Commission to implement necessary protective measures without requiring specific legislative approval for each regulation, thereby facilitating effective management of marine resources.

Provision 5

"Limited entry in the commercial fishery is implemented to prevent overcapitaliza..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of fisheries and the establishment of regulations for reasonable use. This broad grant of authority encompasses the regulation on limited entry in the commercial fishery, as it aims to prevent overcapitalization and improve economic benefits, which aligns with the statute's intent to promote the welfare of the seafood industry and manage resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, ensuring flexibility in managing and conserving marine resources while addressing economic considerations within the industry.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

During any calendar year, the total allowable sum of commercial harvest of black drum from Virginia tidal waters shall be 120,000 pounds of whole fish.¹ At such time as the total harvest of black drum reaches 120,000 pounds, it shall be unlawful for any person to take, catch, or land any black drum by any method for commercial purposes.²

Provision-Level Authorization Analysis

Provision 1

"During any calendar year, the total allowable sum of commercial harvest of black..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation on the total allowable commercial harvest of black drum, as it directly relates to the conservation and management of marine resources within Virginia tidal waters. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to ensure sustainable fishing practices while maintaining the health of the seafood industry.

Provision 2

"At such time as the total harvest of black drum reaches 120,000 pounds, it shall..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. The regulation concerning the prohibition of harvesting black drum when the total harvest reaches a certain threshold directly aligns with the Commission's responsibility to conserve marine resources and ensure sustainable use, thereby falling under the broad grant of authority provided by the statute. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for the management and conservation of marine species, reflecting a general delegation of regulatory power to address specific resource management needs.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person using hook and line, rod and reel, or hand line to take or catch from Virginia tidal waters more than one black drum per day. Any black drum taken after the possession limit of one has been reached shall be returned to the water immediately.¹ B. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person using hook and line, rod and reel, or han..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. The regulation limiting the catch of black drum to one per day directly aligns with the Commission's broad mandate to manage and conserve seafood resources, thereby justifying the use of GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that address conservation needs and resource management without requiring further legislative approval for each specific regulation.

Provision 2

"B. When fishing from any boat or vessel where the entire catch is held in a comm..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and empowers it to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations that address various aspects of fishing practices, including possession limits for catches held in a common hold on a vessel, which aligns with the statute's intent to manage fishing effectively. The legal significance of this authorization relationship is that it enables the Commission to create necessary regulations that ensure sustainable fishing practices while remaining within the scope of the authority provided by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to place, set, or fish gill nets or trotlines from 7 a.m. to 8:30 p.m. of each day for the period of May 1 to June 7, dates inclusive, in the southeastern portion of the Chesapeake Bay in the area bounded by a line drawn from the Cape Charles Jetty to the 36A Buoy to the RN-28 Buoy, then south along the Baltimore Channel to the Fourth Island of the Chesapeake Bay Bridge Tunnel, then north along Chesapeake Bay Bridge Tunnel to Fisherman's Island then north along the coast, returning to the Cape Charles Jetty, except as described in subsection B of this section.¹ B. It shall be lawful to place, set, or fish gill nets less than five inches in stretched mesh in the special management area as described in subsection A of this section.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to place, set, or fish gill nets or trotl..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate fishing practices but does not explicitly empower it to impose time restrictions on the use of gill nets or trotlines. The regulation's prohibition of fishing with these methods during specific hours from May 1 to June 7 exceeds the authority provided in the statute, which does not mention time limitations or the specific area defined in the regulation. The legal significance of this relationship is that the regulation is unauthorized because it attempts to impose restrictions not contemplated or permitted by the statutory language, thereby overstepping the agency's granted powers.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be lawful to place, set, or fish gill nets less than five inches in ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation allowing the use of gill nets with specified mesh sizes in designated areas, as it directly relates to the management and conservation of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it enables the Commission to implement regulations that are essential for effective resource management while ensuring compliance with overarching conservation goals.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

Insure that its decisions concerning use of the Commonwealth's natural resources are consistent with the Constitution and laws of Virginia. 2.¹ Develop and administer siting criteria consistent with the Chesapeake Bay initiatives and the Governor's commitments contained in the 1987 Chesapeake Bay Agreement. 3.² Maintain all fisheries resources, and where possible, enhance production on both public and private currently productive or potentially productive shellfish grounds. 4.³ Discourage the acquisition of private shellfish leases for any purpose other than the propagation of shellfish. 5.⁴ Accommodate, wherever possible, all reasonable and permissible uses of state waters and state-owned bottomlands. 6.⁵ Promote navigational safety. 7.⁶ Protect private riparian rights while facilitating public access to, and use of state waters to the maximum practicable extent. 8.⁷ Promote best management practices which protect and, where possible, enhance water quality.⁸

Provision-Level Authorization Analysis

Provision 1

"Insure that its decisions concerning use of the Commonwealth's natural resources..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

The Commission is authorized to: Issue permits for all reasonable uses of state-owned bottomlands not authorized under subsection A of § 28.2-1203, including but not limited to, dredging, the taking and use of material, and the placement of wharves, bulkheads, and fill by owners of riparian land in the waters opposite their lands Issue permits to recover underwater historic property pursuant to § § 10.1-2214and28.2-1203 Establish bulkhead and private pier lines on or over the bays, rivers, creeks, streams, and shores of the ocean which are owned by or subject to the jurisdiction of the Commonwealth

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands and to establish lines for bulkheads and private piers, indicating a broad scope of regulatory power over the Commonwealth's natural resources. This results in GENERAL_DELEGATION because the regulation's requirement to ensure decisions are consistent with the Constitution and laws of Virginia aligns with the statute's overarching mandate to manage and permit uses of these resources, thereby allowing for flexibility in decision-making within the established legal framework. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in its regulatory actions while remaining accountable to the statutory and constitutional standards that govern its authority.

Provision 2

"Develop and administer siting criteria consistent with the Chesapeake Bay initia..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-1204 specifically states that the Commission is authorized to issue permits for reasonable uses of state-owned bottomlands, issue permits to recover underwater historic property, and establish bulkhead and private pier lines. The regulation to develop and administer siting criteria consistent with the Chesapeake Bay initiatives does not fall within the specific authorities granted by the statute, as it does not pertain to issuing permits or establishing lines, but rather involves broader policy development. The legal significance of this relationship is that the regulation exceeds the scope of the Commission's statutory authority, rendering it unauthorized.

Provision 3

"Maintain all fisheries resources, and where possible, enhance production on both..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically states that the Commission is authorized to issue permits for reasonable uses of state-owned bottomlands, including activities like dredging and the placement of structures, but does not explicitly mention authority over fisheries resources or shellfish grounds. The regulation's focus on maintaining and enhancing fisheries resources appears to exceed the statutory authorization, as it addresses a broader scope of resource management that is not explicitly granted in the statute. The legal significance of this relationship is that the regulation may impose requirements or restrictions that go beyond what the statute allows, potentially infringing on the established limits of the Commission's authority.

Provision 4

"Discourage the acquisition of private shellfish leases for any purpose other tha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including surf clams. This broad grant of authority encompasses the regulation aimed at discouraging private shellfish leases not intended for propagation, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific concerns within the seafood industry while ensuring the overall sustainability and management of marine resources.

Provision 5

"Accommodate, wherever possible, all reasonable and permissible uses of state wat..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

The Commission is authorized to: 1. Issue permits for all reasonable uses of state-owned bottomlands not authorized under subsection A of § 28.2-1203 The Commission is authorized to: 2. Issue permits to recover underwater historic property pursuant to § § 10.1-2214and28.2-1203 The Commission is authorized to: 3. Establish bulkhead and private pier lines on or over the bays, rivers, creeks, streams, and shores of the ocean

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, recover underwater historic property, and establish lines for bulkheads and private piers. This broad grant of authority allows the regulation to accommodate all reasonable and permissible uses of state waters and bottomlands, aligning with the Commission's mandate to manage these resources effectively. The legal significance of this relationship is that it ensures the Commission has the flexibility to adapt to various uses while remaining within the scope of its statutory powers, thus justifying the GENERAL_DELEGATION authorization level.

Provision 6

"Promote navigational safety. 7."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation aimed at promoting navigational safety, as it is essential for ensuring the safe and efficient operation of activities within the seafood industry and marine resource management. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support the overarching goals of conservation and resource management without requiring specific legislative approval for each individual regulation.

Provision 7

"Protect private riparian rights while facilitating public access to, and use of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

The Commission is authorized to: 1. Issue permits for all reasonable uses of state-owned bottomlands not authorized under subsection A of § 28.2-1203 Issue permits to recover underwater historic property pursuant to § § 10.1-2214and28.2-1203 Establish bulkhead and private pier lines on or over the bays, rivers, creeks, streams, and shores of the ocean which are owned by or subject to the jurisdiction of the Commonwealth

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, establish bulkhead and private pier lines, and recover underwater historic property. This broad grant of authority allows the regulation to protect private riparian rights while facilitating public access to state waters, as it aligns with the Commission's responsibility to manage and regulate the use of these resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to balance private interests with public access, ensuring that both can coexist in a manner consistent with the statutory framework.

Provision 8

"Promote best management practices which protect and, where possible, enhance wat..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, establish bulkhead and private pier lines, and recover underwater historic property. This broad grant of authority encompasses the regulation's aim to promote best management practices that protect and enhance water quality, as it aligns with the Commission's responsibility to manage the use of state-owned waters and ensure their protection. The legal significance of this relationship is that the regulation operates within the scope of the Commission's delegated powers, allowing for flexibility in implementing practices that support the overarching goals of resource management and environmental protection.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

A. Any registered commercial fisherman who is permitted to harvest black drum in accordance with 4VAC20-320-70 A and sets or fishes any gill net east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border in Virginia waters, shall be exempt from the maximum gill net mesh size described in 4VAC20-430-65 A and B, during the months of April, May and June, provided that the fisherman sets and fishes only floating gill nets.¹ B. Any registered commercial fisherman who is permitted to harvest black drum in accordance with 4VAC20-320-70 A and sets or fishes any gill net east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border in Virginia waters, shall be exempt from the tending requirements described in 4VAC20-430-65 C and D, during the month of June, provided that the fisherman sets and fishes floating gill nets.²

Provision-Level Authorization Analysis

Provision 1

"A. Any registered commercial fisherman who is permitted to harvest black drum in..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-236 specifically grants the agency authority to regulate the taking of fish and shellfish, but it does not provide explicit authority for exemptions related to specific fishing practices or gear types. The regulation attempts to create an exemption for registered commercial fishermen using gill nets in a defined area, which goes beyond the scope of the agency's authority as outlined in the statute. The legal significance of this relationship is that without clear statutory authorization for such exemptions, the regulation is invalid and cannot be enforced.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any registered commercial fisherman who is permitted to harvest black drum in..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-236 specifically grants the agency authority to regulate the harvesting of certain fish species and to establish rules for commercial fishing practices. The regulation in question, which exempts registered commercial fishermen from specific restrictions on gill net usage, goes beyond the scope of the statute, as it does not align with the statutory provisions regarding permitted fishing practices and does not specify any authority to create exemptions. The legal significance of this relationship is that regulations must be directly supported by statutory authority, and without such support, the regulation is deemed unauthorized and invalid.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any registered commercial fisherman to take, catch, sell, or possess more than one black drum per day, without first having obtained a Black Drum Harvesting and Selling Permit from the Marine Resources Commission. Such permit shall be completed in full by the permittee and a copy kept in the possession of the permittee while fishing and selling black drum. Permits shall only be issued to applicants meeting the following criteria: 1. The applicant shall be a registered commercial fisherman and shall have held a Black Drum Permit in at least one year from 1988 to 1993;¹ 2. The applicant shall have documented catch of black drum in at least one year for which a Black Drum Permit was held from 1988 to 1993; and² 3. The applicant shall have reported, in accordance with this chapter, any black drum fishery activity in 1992 and 1993, if a Black Drum Permit was held in those years. Nothing in this subsection is intended to prohibit a registered commercial fisherman fishing pursuant to 4VAC20-320-40 as a legally eligible recreational fisherman from possessing only one black drum not to be sold.³ B. Any registered commercial fisherman who is not permitted to harvest black drum, in accordance with subsection A of this section, may harvest, possess, and sell one black drum per day. Any such daily harvest shall not be a part of the commercial harvest quota but shall be reported to the VMRC as specified in 4VAC20-610 .⁴ C. The commissioner, or his designee, may grant exceptions to the limited entry criteria listed in subsection A of this section based upon scientific, economic, biological, sociological, and hardship factors. Any person requesting an exception shall provide in writing an explanation for exception and all pertinent information relating to the criteria in subsection A of this section.⁵ D. Requests to transfer a Black Drum Harvesting Permit shall be documented on a form provided by the Marine Resources Commission, notarized by lawful notary public, and subject to approval by the commissioner, or his designee.⁶ E. It shall be unlawful for any person, firm, or corporation to buy any black drum from the harvester without first having obtained a Black Drum Buying Permit from the Marine Resources Commission. Such permit shall be completed in full by the permittee and a copy kept in possession of the permittee while buying black drum.⁷ F. Any person, firm or corporation that has black drum in possession with the intent to sell must either be a permitted harvester or buyer, or must be able to demonstrate that those fish were imported from another state or purchased from a permitted buyer or seller.⁸

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any registered commercial fisherman to take, catch, ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations, such as requiring a permit for the harvesting and selling of black drum, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to regulate fishing practices to ensure sustainable use and conservation, reflecting the intent of the statute to manage seafood resources effectively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. The applicant shall have documented catch of black drum in at least one year ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish specific eligibility criteria, such as requiring documented catch of black drum for permit applicants, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create detailed regulations that are necessary to effectively manage the fishery resources within the scope of its statutory authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. The applicant shall have reported, in accordance with this chapter, any black..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. The regulation requiring applicants to report black drum fishery activity aligns with the Commission's broad mandate to ensure proper management and conservation of seafood resources, thereby falling under the umbrella of GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that support its overarching goals of resource conservation and industry welfare without needing to seek further specific legislative approval for each regulatory detail.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"B. Any registered commercial fisherman who is not permitted to harvest black dru..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and empowers it to promulgate regulations to implement the provisions of the section. This broad grant of authority allows the Commission to establish specific regulations, such as permitting registered commercial fishermen to harvest a limited number of black drum, as it falls within the scope of managing fishery resources and ensuring sustainable practices. The legal significance of this relationship is that it enables the Commission to exercise discretion in regulating fishing activities, thereby promoting effective resource management while adhering to the overarching statutory framework.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"C. The commissioner, or his designee, may grant exceptions to the limited entry..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the ability to promote the general welfare of the seafood industry. This results in GENERAL_DELEGATION because the regulation allows the commissioner or his designee to grant exceptions based on various factors, aligning with the statute's intent to manage resources flexibly and responsively to changing conditions. The legal significance of this authorization relationship is that it empowers the Commission to make nuanced decisions that can adapt to specific circumstances while still operating within the framework established by the statute.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"D. Requests to transfer a Black Drum Harvesting Permit shall be documented on a ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations like the one concerning the transfer of a Black Drum Harvesting Permit, as it falls within the scope of managing and regulating the use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in regulatory matters, ensuring effective management of the seafood industry while adhering to the overarching goals of conservation and resource promotion.

Provision 7

"E. It shall be unlawful for any person, firm, or corporation to buy any black dr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring a Black Drum Buying Permit, as it directly relates to the management and conservation of seafood resources by ensuring that only permitted entities engage in the buying of black drum, thereby promoting sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to effectively manage and conserve marine resources while ensuring compliance within the seafood industry.

Provision 8

"F. Any person, firm or corporation that has black drum in possession with the in..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations that ensure proper management and control over the fishing of black drum, including requirements for permits related to possession and sale. The legal significance of this relationship is that it empowers the Commission to create necessary regulations that align with its statutory mandate, thereby ensuring compliance and effective resource management without needing a higher level of authorization.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

A. Commercial harvesters and buyers of black drum shall report daily harvest information on forms to be provided by the Marine Resources Commission. Such information shall include, but is not limited to, the number of fish, their weight, location of harvest, method of capture and the buyer's and seller's permit identification number. Such reports shall be completed in full and shall be submitted to the Marine Resources Commission in accordance with 4VAC20-610 .¹ B. Buyers of black drum imported from out of state shall also report the amount of black drum imported on the forms provided by the Marine Resources Commission.² C. Marine Resources Commission personnel or designate may also collect biological information from black drum accumulated at the place of business of commercial buyers. Such sampling shall be done with the cooperation of the buyers and in a manner which will not inhibit normal business operations.³

Provision-Level Authorization Analysis

Provision 1

"A. Commercial harvesters and buyers of black drum shall report daily harvest inf..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish detailed reporting requirements for commercial harvesters and buyers, ensuring that the regulation aligns with the overall goal of managing fishery resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations to monitor and control fishing activities, thereby supporting sustainable management practices without needing further specific legislative approval.

Provision 2

"B. Buyers of black drum imported from out of state shall also report the amount ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and empowers it to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations that facilitate the management and reporting of fishery resources, including the requirement for buyers of black drum to report imports, which aligns with the Commission's responsibilities under the statute. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to create necessary regulations to ensure effective oversight and conservation of marine resources without exceeding its statutory mandate.

Provision 3

"C. Marine Resources Commission personnel or designate may also collect biologica..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to adopt regulations that facilitate the collection of biological information, as it directly relates to managing fishery resources and ensuring sustainable practices. The legal significance of this authorization relationship is that it empowers the Commission to engage in activities that support the overall regulatory framework for fisheries management without needing to seek further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Black Drum

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ In addition, those in violation shall forfeit their Black Drum Harvesting or Buying Permit and its privileges.²

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and authorizes the promulgation of regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations that include penalties for violations, as it is necessary to enforce the limits and ensure compliance with the licensing framework. The legal significance of this authorization relationship is that it empowers the Commission to create a regulatory structure that includes enforcement mechanisms, thereby supporting the effective management of fishing activities within its jurisdiction.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"In addition, those in violation shall forfeit their Black Drum Harvesting or Buy..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations, such as the forfeiture of permits for violations, as necessary to manage and enforce fishing practices effectively. The legal significance of this relationship is that it empowers the Commission to take necessary actions to ensure compliance and sustainability in fisheries management without requiring further specific legislative approval.

CROSS-REFERENCE § 28.2-903

Pertaining to the Taking of Shellfish from Condemned Areas

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to conserve Virginia's shellfish resources and to protect public health.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to conserve Virginia's shellfish resources and to..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to implement the provisions of the chapter. This broad language allows for a wide range of regulatory actions aimed at fulfilling the chapter's objectives, which include the conservation of shellfish resources and the protection of public health. The legal significance of this relationship is that it establishes a framework within which the agencies can create regulations that address various aspects of resource management and public health without needing further specific authorization.

Pertaining to the Taking of Shellfish from Condemned Areas

Express

General

Overreach

Unauthorized

Requirements

Each boat used for harvesting condemned shellfish shall not leave the dock with the gear used for harvesting on board until one hour before sunrise and shall return to the dock before sunset.¹ When said boat is used for other purposes between the hours of sunset and one hour before sunrise only patent tongs may remain on the boat, provided the hoist line shall be disconnected and the bolt removed, separating and disassembling the patent tong gear during said period of time. 2.² Shellfish shall be taken and caught from condemned areas only during the lawful season, Monday through Friday, and only between the hours of sunrise and 5 p.m. 3.³ The culling board of each boat used for harvesting of condemned shellfish shall be clean before sunrise and by 5 p.m.⁴ The presence of shellfish on the culling board before sunrise and after 5 p.m. shall be prima facie evidence of a violation of this chapter.⁵

Provision-Level Authorization Analysis

Provision 1

"Each boat used for harvesting condemned shellfish shall not leave the dock with ..."

Express Delegation

AUTHORIZING STATUTE § 28.2-810

It is unlawful for any person to take, catch, transport, sell, offer for sale, remove, receive, keep or store shellfish from condemned areas, or relay shellfish taken from such areas, until the Commissioner of Marine Resources or his designee has issued a special permit It is unlawful for any person to take or remove shellfish from private grounds in condemned areas without written authority in his possession from the owner or lessee, in addition to the permit required by subsection A of this section It is unlawful for any person to transport, relay, or move shellfish from condemned areas after sunset or before sunrise, except by motor vehicle properly sealed as required by § 28.2-812

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources or his designee the authority to issue special permits for activities related to shellfish from condemned areas, indicating a clear delegation of power to regulate these activities. The regulation specifies that boats harvesting condemned shellfish must adhere to time restrictions, which directly aligns with the statutory requirement for permits and the management of shellfish from condemned areas, thereby demonstrating that the regulation is a necessary implementation of the authority granted in the statute. The legal significance of this authorization relationship is that it ensures compliance with the statutory framework designed to protect public health and manage shellfish resources effectively, while also providing clear guidelines for those engaged in shellfish harvesting.

EXCEPTION § 28.2-810

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-810. Removal, transportation, etc., from polluted ground; penalty A. It is un...

Provision 2

"When said boat is used for other purposes between the hours of sunset and one ho..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically states that the State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter. The regulation imposes specific operational restrictions on boats, such as requiring the disassembly of patent tong gear during certain hours, which may not directly relate to the core provisions of the statute as it does not clearly align with the statutory intent to manage health and marine resources broadly. The legal significance of this authorization relationship is that the regulation may exceed the intended scope of the statute, potentially infringing on the agencies' authority to regulate only what is necessary to implement the overarching provisions of the chapter.

EXCEPTION § 28.2-810

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-810. Removal, transportation, etc., from polluted ground; penalty A. It is un...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"Shellfish shall be taken and caught from condemned areas only during the lawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the establishment of regulations that govern specific activities, such as the taking of shellfish from condemned areas, ensuring that such actions are conducted within defined legal parameters. The legal significance of this authorization relationship is that it empowers the agencies to implement detailed rules that protect public health and marine resources, reflecting the intent of the statute to provide comprehensive regulatory oversight.

EXCEPTION § 28.2-810

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-810. Removal, transportation, etc., from polluted ground; penalty A. It is un...

Provision 4

"The culling board of each boat used for harvesting of condemned shellfish shall ..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows for the establishment of regulations that ensure compliance with health and safety standards in the harvesting of shellfish, which includes the requirement for the culling board to be clean before specific times. The legal significance of this relationship is that it provides the agencies with the flexibility to implement necessary operational standards to protect public health and resource management without needing further specific legislative approval.

EXCEPTION § 28.2-810

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-810. Removal, transportation, etc., from polluted ground; penalty A. It is un...

Provision 5

"The presence of shellfish on the culling board before sunrise and after 5 p.m. s..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows the agencies to create regulations that address various aspects of shellfish management, including enforcement mechanisms like the prima facie evidence provision in the regulation. The legal significance of this relationship is that it enables the agencies to implement and enforce regulations effectively, ensuring compliance with the overarching statutory framework.

EXCEPTION § 28.2-810

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-810. Removal, transportation, etc., from polluted ground; penalty A. It is un...

Pertaining to the Taking of Shellfish from Condemned Areas

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. Pursuant to § 28.2-822 of the Code of Virginia, in the event any person is convicted in court of a violation of any provision of Chapter 8 of Title 28.2 of the Code of Virginia, or any part of this chapter, or when in the judgment of the Commissioner of Marine Resources it is in the best interest of the industry, the commissioner may revoke the special permit. Any person having said permit revoked shall be entitled to a hearing before the Marine Resources Commission at its next scheduled meeting.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows the agencies to create regulations that address enforcement mechanisms, such as penalties for violations, which are essential for the effective implementation of the statutory provisions. The legal significance of this authorization relationship is that it empowers the agencies to establish necessary rules that ensure compliance and promote public health and safety within the scope of their statutory mandate.

ADDITIONAL AUTHORITY § 28.2-822

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-822. Suspension or revocation of licenses The Commissioner of Marine Resource...

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. Pursuant to § 28.2-822 of the Code of Virginia, in the event any person is co..."

General Delegation

AUTHORIZING STATUTE § 28.2-801

The State Board of Health and the Marine Resources Commission may promulgate regulations necessary to carry out the provisions of this chapter.

ANALYSIS

§ 28.2-801 specifically grants the State Board of Health and the Marine Resources Commission the authority to promulgate regulations necessary to carry out the provisions of the chapter. This broad language allows the agencies to create regulations that address various scenarios, including enforcement actions and compliance measures, which is reflected in the regulation's provisions regarding convictions and the discretion of the Commissioner of Marine Resources. The legal significance of this authorization relationship is that it empowers the agencies to implement necessary regulatory frameworks to ensure effective management and enforcement of marine resources, thereby fulfilling their statutory obligations.

ADDITIONAL AUTHORITY § 28.2-822

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-822. Suspension or revocation of licenses The Commissioner of Marine Resource...

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-822

Citation text: "§ 28.2-822"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Virginia General Permit #

Express

General

Overreach

Unauthorized

Requirements

Department of Transportation.¹

Provision-Level Authorization Analysis

Provision 1

"Department of Transportation."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide interpretation of the Commission's regulatory powers, enabling it to delegate authority to the Department of Transportation to create regulations that align with the overarching goals of the statute. The legal significance of this authorization relationship is that it ensures the effective administration of the statute's provisions through the delegation of regulatory responsibilities to a relevant agency, thereby facilitating the implementation of transportation-related regulations.

Virginia General Permit #

Express

General

Overreach

Unauthorized

Requirements

A. The U.S. Army Corps of Engineers has granted nationwide permits for minor projects requiring notification in waters of the United States.¹ B. The U.S. Army Corps of Engineers has granted nationwide permits for minor projects not requiring notification in waters of the United States.² C. The Norfolk District U.S. Army Corps of Engineers has granted regional permits and a letter of permission for VDOT projects in the waters of the Commonwealth, which meet certain rigid criteria.³ D. Projects, which do not qualify under subsection A, B or C of this section, will be processed in accordance with established joint state/federal permit procedures.⁴ E. This general permit may authorize projects which do not require U.S. Army Corps of Engineers' permits.⁵ F. Formal monthly state/federal interagency coordination procedures have been established and practiced over the past several years at which each VDOT project is subjected to rigorous review and routinely modified to satisfy agency concerns.⁶ G. All VDOT projects are routinely given wide public notice in conformance with established state/federal highway project requirements and public hearings are held by VDOT on all significant proposals.⁷ H. VDOT is exempt by statute from all fees and royalties.⁸

Provision-Level Authorization Analysis

Provision 1

"A. The U.S. Army Corps of Engineers has granted nationwide permits for minor pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that address specific operational needs, such as the regulation concerning nationwide permits for minor projects in U.S. waters, thereby fitting within the general delegation of authority. The legal significance of this relationship is that it ensures the Commission has the flexibility to regulate effectively while remaining within the scope of its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The U.S. Army Corps of Engineers has granted nationwide permits for minor pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that align with federal permits, such as those granted by the U.S. Army Corps of Engineers for minor projects, thereby supporting the effective management of waters of the United States. The legal significance of this relationship is that it enables the Commission to operate with GENERAL_DELEGATION, ensuring flexibility in regulatory implementation while adhering to overarching statutory mandates.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. The Norfolk District U.S. Army Corps of Engineers has granted regional permit..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation, which references the Norfolk District U.S. Army Corps of Engineers granting permits for VDOT projects, may exceed this authority by imposing rigid criteria that are not explicitly outlined in the statute, potentially creating additional requirements beyond what the statute allows. The legal significance of this relationship is that the regulation could be seen as overstepping the bounds of the Commission's authority, as it introduces specific permitting conditions that are not directly supported by the statutory language.

Provision 4

"D. Projects, which do not qualify under subsection A, B or C of this section, wi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures for processing projects that do not fall under specific subsections, thereby enabling the regulation to fit within the general framework of the authority granted. The legal significance of this relationship is that it empowers the agency to adapt its regulatory approach to a variety of circumstances, ensuring effective governance and compliance with overarching statutory objectives.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. This general permit may authorize projects which do not require U.S. Army Cor..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various scenarios, including those that may not require federal permits, thereby justifying the use of GENERAL_DELEGATION for the regulation. The legal significance of this relationship is that it empowers the Commission to effectively manage and regulate projects within its jurisdiction without needing to seek additional specific authorization for every potential situation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"F. Formal monthly state/federal interagency coordination procedures have been es..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the power to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish formal procedures for interagency coordination, as outlined in the regulation, ensuring that VDOT projects are rigorously reviewed and modified to address agency concerns. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary operational practices that align with the overarching goals of the statute, thereby facilitating effective governance and compliance.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"G. All VDOT projects are routinely given wide public notice in conformance with ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows for the regulation to establish procedures for public notice and hearings on VDOT projects, as it is necessary for the Commission to fulfill its responsibilities in managing transportation projects effectively. The legal significance of this authorization relationship is that it enables the Commission to implement essential public engagement processes, ensuring compliance with both state and federal requirements while maintaining transparency in project proposals.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"H. VDOT is exempt by statute from all fees and royalties."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-1203 specifically states that the agency has the authority to regulate certain activities but does not grant VDOT the power to exempt itself from all fees and royalties. The regulation claiming that "VDOT is exempt by statute from all fees and royalties" exceeds the authority provided in the statute, as it does not explicitly authorize such exemptions. The legal significance of this relationship is that without clear statutory authority, the regulation cannot stand, rendering it unauthorized and unenforceable.

Virginia General Permit #

Express

General

Overreach

Unauthorized

Requirements

Any proposed deviation from the preapproved plan must be formally recoordinated and approved prior to undertaking the work. 2.¹ VDOT shall report annually to the commission on the projects which have been completed.² The report shall include a record of the total subaqueous bed impacts. 3.³ This permit grants no authority to VDOT to encroach upon the property rights, including riparian rights, of others. 4.⁴ The duly authorized agents to the commission shall have the right to enter upon the premises at reasonable times for the purpose of inspecting the work being done pursuant to this permit. 5.⁵ VDOT shall comply with the water quality standards as established by the Virginia Department of Environmental Quality and all other applicable laws, ordinances, rules and regulations affecting the conduct of the project.⁶ The granting of this permit shall not relieve VDOT of the responsibility of obtaining any and all other permits or required authorizations for the project. 6.⁷ This permit shall not affect or interfere with the right vouchsafed to the people of Virginia concerning fishing, fowling and the catching of and taking of oysters and other shellfish in and from the bottom of areas and waters not included within the terms of this permit. 7.⁸ VDOT shall, to the greatest extent practicable, minimize the adverse effects of the project upon adjacent properties, tidal wetlands and upon the natural resources of the Commonwealth. 8.⁹ This permit may be revoked at any time by the commission upon the failure of VDOT to comply with any of the terms and conditions of this chapter or at the will of the General Assembly of Virginia. 9.¹⁰ This permit is subject to any lease of oyster planting ground in effect on the date of this permit.¹¹ Nothing in this permit shall be construed as allowing VDOT to encroach on any lease without the consent of the leaseholder.¹² VDOT shall be liable for any damages to such lease. 10.¹³ The issuance of this permit does not confer upon VDOT any interest or title to beds of the waters. 11.¹⁴ Specifically prohibited is the sale by subcontractors, without commission approval, of material removed from state-owned bottoms. 12.¹⁵ All structures authorized by this permit which are not maintained in good repair shall be completely removed from state-owned bottom within three months after notification by the commission. 13.¹⁶ This permit authorizes no claim to archaeological artifacts from state-owned bottoms, which may be encountered during the course of construction.¹⁷ If archaeological remains are encountered, VDOT agrees to notify the commission, who will in turn notify the Virginia Department of Historic Resources.¹⁸ VDOT shall cooperate with the commission and the Department of Historic Resources in the recovery of archaeological remains, if deemed necessary. 14.¹⁹ Projects authorized under this general permit shall be completed within three years from the date of issuance.²⁰ Upon proper request by VDOT, the permit may be extended to allow completion of the work authorized.²¹

Provision-Level Authorization Analysis

Provision 1

"Any proposed deviation from the preapproved plan must be formally recoordinated ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as the need for formal recoordination and approval of any proposed deviations from a preapproved plan, as it is essential for ensuring compliance and effective oversight. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations that facilitate the execution of its statutory duties, thereby ensuring adherence to established protocols.

Provision 2

"VDOT shall report annually to the commission on the projects which have been com..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to delegate responsibilities, such as requiring VDOT to report annually on completed projects, as it falls within the scope of carrying out the Commission's duties. The legal significance of this relationship is that it establishes a framework for oversight and accountability, ensuring that the Commission can effectively monitor and assess the performance of VDOT in relation to its regulatory responsibilities.

Provision 3

"The report shall include a record of the total subaqueous bed impacts. 3."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of its mandate, including the requirement for reports on subaqueous bed impacts, which falls under its regulatory responsibilities. The legal significance of this relationship is that it provides the Commission with the flexibility to regulate effectively within the scope of its statutory authority, ensuring comprehensive management of the resources and activities governed by the title.

Provision 4

"This permit grants no authority to VDOT to encroach upon the property rights, in..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. The regulation's assertion that it grants no authority to VDOT to encroach upon property rights, including riparian rights, may exceed the statute's authorization because it imposes limitations on VDOT's actions that are not explicitly outlined in the statutory text. The legal significance of this relationship is that the regulation could be interpreted as overstepping the Commission's granted powers, potentially infringing on the broader authority intended by the statute to manage and regulate activities within its jurisdiction.

Provision 5

"The duly authorized agents to the commission shall have the right to enter upon ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to delegate responsibilities to its agents, such as the right to inspect premises, as this function is essential for ensuring compliance with the regulations established under the title. The legal significance of this authorization relationship is that it enables the Commission to effectively enforce regulations and oversee compliance through its duly authorized agents, thereby fulfilling its statutory mandate.

Provision 6

"VDOT shall comply with the water quality standards as established by the Virgini..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of regulations that ensure compliance with existing laws and standards, such as those set by the Virginia Department of Environmental Quality, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agency to create and enforce regulations that align with statutory mandates, ensuring effective governance and adherence to environmental standards.

Provision 7

"The granting of this permit shall not relieve VDOT of the responsibility of obta..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a GENERAL_DELEGATION because it encompasses the regulation's requirement that the granting of a permit does not exempt VDOT from obtaining other necessary permits, thereby ensuring compliance with all relevant regulatory frameworks. The legal significance of this authorization relationship is that it empowers the Commission to regulate and oversee the permitting process comprehensively, ensuring that all necessary authorizations are obtained for project compliance.

Provision 8

"This permit shall not affect or interfere with the right vouchsafed to the peopl..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the regulation to address the rights of the people concerning fishing and shellfish harvesting, ensuring that such activities are not impeded by the permit, which aligns with the Commission's responsibility to manage and protect natural resources. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that safeguard public rights while fulfilling its regulatory duties, thereby justifying the GENERAL_DELEGATION status of the regulation.

Provision 9

"VDOT shall, to the greatest extent practicable, minimize the adverse effects of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including those aimed at minimizing adverse effects on properties and natural resources, which aligns with the general intent of the statute to ensure responsible management and protection of the Commonwealth's resources. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to address various environmental concerns through regulation, reflecting the legislative intent to empower the agency in its regulatory functions.

Provision 10

"This permit may be revoked at any time by the commission upon the failure of VDO..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as the ability to revoke permits based on compliance, thereby falling under the umbrella of GENERAL_DELEGATION as it aligns with the agency's mandate to ensure adherence to statutory requirements. The legal significance of this relationship is that it empowers the Commission to enforce compliance and maintain regulatory oversight, ensuring that the provisions of the title are effectively implemented and upheld.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"This permit is subject to any lease of oyster planting ground in effect on the d..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that govern specific activities, such as the requirement for permits to be subject to existing leases of oyster planting grounds. The legal significance of this relationship is that it empowers the Commission to create detailed regulations that ensure compliance with statutory provisions, thereby facilitating effective management of oyster resources.

Provision 12

"Nothing in this permit shall be construed as allowing VDOT to encroach on any le..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred upon it and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that ensure compliance with existing agreements, such as the requirement for VDOT to obtain consent from leaseholders before encroaching on leases. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations that protect the rights of leaseholders while fulfilling its statutory mandate.

Provision 13

"VDOT shall be liable for any damages to such lease. 10."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to implement regulations like the one concerning VDOT's liability for damages, as it falls within the necessary actions to fulfill the statutory mandate. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to address specific operational issues while ensuring compliance with the overarching statutory framework.

Provision 14

"The issuance of this permit does not confer upon VDOT any interest or title to b..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that clarify the scope of permits, such as the one stating that the issuance does not confer interest or title to water beds, thereby falling within the necessary regulations to carry out the statutory provisions. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that ensure clarity and compliance with the statutory framework, reinforcing the regulatory authority without altering the underlying statutory intent.

Provision 15

"Specifically prohibited is the sale by subcontractors, without commission approv..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to regulate activities related to state-owned bottoms, including the prohibition of sales by subcontractors without approval, thereby falling within the scope of necessary regulations to fulfill its statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to establish specific rules that ensure compliance and oversight in the management of state resources, reflecting the intent of the legislature to provide comprehensive regulatory oversight.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 16

"All structures authorized by this permit which are not maintained in good repair..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations, such as the requirement for the removal of structures not maintained in good repair, as it directly relates to the Commission's responsibility to manage state-owned bottom effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to ensure compliance and maintain the integrity of state-owned resources, reflecting the intent of the statute to provide comprehensive regulatory oversight.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 17

"This permit authorizes no claim to archaeological artifacts from state-owned bot..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of its mandate, including the management of archaeological artifacts encountered during construction, thereby justifying the regulation's alignment with the general delegation of authority. The legal significance of this relationship is that it empowers the Commission to regulate activities related to state-owned bottoms without needing specific legislative approval for each regulation, ensuring effective governance and protection of archaeological resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"If archaeological remains are encountered, VDOT agrees to notify the commission,..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that facilitate communication and coordination between VDOT and the Commission regarding archaeological remains, thereby fitting within the general delegation of authority. The legal significance of this relationship is that it enables the Commission to effectively manage and protect archaeological resources through established protocols without needing to specify every detail in the statute itself.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 19

"VDOT shall cooperate with the commission and the Department of Historic Resource..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for GENERAL_DELEGATION because it encompasses a wide range of actions, including the cooperation of VDOT with the Commission and the Department of Historic Resources in archaeological recovery efforts, which is necessary for fulfilling the statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to ensure compliance with the statute through collaborative efforts, thereby facilitating the effective management and preservation of archaeological resources.

Provision 20

"Projects authorized under this general permit shall be completed within three ye..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish timelines and conditions for projects under its jurisdiction, such as the requirement that projects authorized under the general permit be completed within three years from the date of issuance. The legal significance of this relationship is that it empowers the Commission to create specific regulatory frameworks that facilitate the effective management and oversight of projects, ensuring compliance with the overarching statutory goals.

Provision 21

"Upon proper request by VDOT, the permit may be extended to allow completion of t..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that facilitate the implementation of its statutory duties, such as extending permits upon request by VDOT to ensure the completion of authorized work. The legal significance of this relationship is that it empowers the Commission to adapt its regulatory framework to meet practical needs while remaining within the scope of its statutory authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Virginia General Permit #

Express

General

Overreach

Unauthorized

Requirements

A. The Chief, Habitat Management Division, will administer this general permit and establish procedures to ensure: 1. That all projects authorized by this permit either (i) do not require U.S. Army Corps of Engineers permits ( 4VAC20-333-20 E), (ii) satisfy the Nationwide Permit established by the Department of the Army Regulations ( 4VAC20-333-20 A and B) or, (iii) qualify for the regional permit or letter of permission criteria established by the Norfolk District U.S. Army Corps of Engineers ( 4VAC20-333-20 C).¹ 2. Minimum cumulative impact on the marine environment.² 3. Adequate opportunity for public review.³ 4. That a record is maintained on all projects authorized by this permit. Such records will include: a. The name, address, and telephone number of the VDOT district that wishes to perform the work; b. The location of the project, including waterway, county/city and route number of roadway; c. Detailed drawings of the project including a plan view and section view with the mean high and mean low water lines or the ordinary high water mark, whichever is appropriate; d. The amount of dredging and fill. If dredging is involved, the type of dredge, hydraulic or dragline, the location of disposal sites and the type of erosion and sediment controls, if necessary; e. When the project involves the destruction of tidal wetlands, the type of species involved, the amount to be disturbed, and any plan for compensation, or mitigation; and f. A copy of the environmental assessment or environmental impact statement when requested by the commission.⁴ B. If any objections are raised by either individuals or agencies which cannot be resolved at the monthly interagency coordination meeting, that project must then be processed for an individual permit to encroach in, on or over state-owned bottomlands.⁵ C. Those projects located within a nontidal drainage basin of less than five square miles can be undertaken without the review process outlined in 4VAC20-333-20 F, unless the project involves one or more of the following resources: a. A designated or proposed scenic river as determined by the Virginia Department of Conservation and Recreation. b. A natural trout stream as designated by the Virginia Department of Game and Inland Fisheries. c. A public water supply as determined by the Virginia Department of Health or the Water Division of the Department of Environmental Quality. d. A habitat or critical area designated for endangered or threatened species as listed on the Commonwealth of Virginia's official list. e. Any spawning area designated by the Virginia Institute of Marine Science or the Department of Game and Inland Fisheries. f. An archaeological site on state-owned bottoms as recorded in the Virginia Department of Historic Resources inventory. g. A total area of open water greater than one acre.⁶ D. Those projects not requiring permits from or notification to the U.S. Army Corps of Engineers ( 4VAC20-333-20 B and E) will not require coordination with the U.S. Army Corps of Engineers or other federal agencies to qualify for this general permit. These projects will be listed on the monthly interagency coordination meeting agenda and will not require a formal presentation as outlined in 4VAC20-333-20 F, unless requested by the commission. Any requested formal presentations shall involve state agencies only.⁷ E. The commission may conduct periodic inspections to evaluate compliance with applicable environmental management laws and regulations, and sediment and erosion control practices specified by the Virginia Department of Conservation and Recreation, Division of Soil and Water.⁸ F. The results of any inspections conducted may be utilized by the commission to assess the advisability and continuation of the provisions of this permit. Such continuation may be on a highway district basis. The commission will advise VDOT in writing if a highway district is not in compliance and may suspend this permit for that district until evidence of compliance satisfactory to the commission is achieved.⁹ G. Where emergency conditions exist in time of flood or other catastrophic event or a declared disaster by the Governor's office, VDOT, after consultation with the commission, will take whatever actions it deems appropriate to protect life and property of both private citizens and the transportation system of the Commonwealth. The emergency actions will be reported in writing by VDOT to the commission within three months of the completion of such action.¹⁰

Provision-Level Authorization Analysis

Provision 1

"A. The Chief, Habitat Management Division, will administer this general permit a..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows for GENERAL_DELEGATION because it empowers the Chief, Habitat Management Division, to administer permits and establish procedures, reflecting the Commission's intent to delegate regulatory responsibilities while ensuring compliance with overarching statutory requirements. The legal significance of this authorization relationship is that it enables efficient management and oversight of habitat projects under the Commission's jurisdiction, while still adhering to the statutory framework established by the legislature.

Provision 2

"2. Minimum cumulative impact on the marine environment."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as the requirement for minimum cumulative impact on the marine environment, as it directly relates to the overarching goal of managing and protecting marine resources. The legal significance of this relationship is that it empowers the Commission to create flexible and adaptive regulations that address environmental concerns while remaining within the scope of the authority granted by the statute.

Provision 3

"3. Adequate opportunity for public review."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as ensuring adequate opportunity for public review, as it falls within the necessary guidelines to fulfill its mandate. The legal significance of this relationship is that it provides the Commission with the flexibility to create regulations that support its overarching responsibilities without requiring a higher level of authorization.

Provision 4

"4. That a record is maintained on all projects authorized by this permit. Such r..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows for the establishment of regulations that require the maintenance of records for projects, as it falls within the necessary actions to ensure compliance and oversight of the permitted activities. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed operational requirements, like record-keeping, which are essential for effective regulation and accountability within the scope of its statutory mandate.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"B. If any objections are raised by either individuals or agencies which cannot b..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of procedures, such as the requirement for individual permits when objections arise, which are necessary for the effective management of state-owned bottomlands. The legal significance of this relationship is that it ensures the Commission has the flexibility to address complex situations while adhering to the overarching statutory mandate.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"C. Those projects located within a nontidal drainage basin of less than five squ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish criteria for project reviews, such as exempting certain projects within nontidal drainage basins from the review process, as outlined in the regulation. The legal significance of this relationship is that it enables the Commission to efficiently manage resources and streamline processes while still adhering to the overarching statutory framework.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"D. Those projects not requiring permits from or notification to the U.S. Army Co..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish regulations, such as the one stating that certain projects do not require coordination with federal agencies, thereby falling within the scope of its regulatory powers without needing specific federal oversight. The legal significance of this relationship is that it empowers the Commission to streamline project approvals and reduce regulatory burdens, ensuring efficient management of state resources while adhering to the overarching statutory framework.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"E. The commission may conduct periodic inspections to evaluate compliance with a..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to conduct periodic inspections, as it falls within the necessary actions to ensure compliance with environmental management laws and sediment and erosion control practices. The legal significance of this authorization relationship is that it empowers the Commission to implement and enforce regulations effectively, ensuring adherence to environmental standards without requiring further specific legislative action.

Provision 9

"F. The results of any inspections conducted may be utilized by the commission to..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to implement regulations that assess compliance and inform other agencies, such as VDOT, about the status of highway district permits, thereby fulfilling its mandate to oversee and ensure adherence to the provisions of the title. The legal significance of this relationship is that it empowers the Commission to make necessary regulatory decisions based on inspections, reflecting its authority to manage and enforce compliance within the framework established by the statute.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"G. Where emergency conditions exist in time of flood or other catastrophic event..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for GENERAL_DELEGATION because it empowers the agency to take necessary actions in response to emergency conditions, which aligns with the regulation's focus on protecting life and property during catastrophic events. The legal significance of this authorization relationship is that it provides the agency with the flexibility to respond effectively to emergencies while ensuring that actions taken are within the scope of the authority granted by the statute.

Pertaining to on-Bottom Shellfish Aquaculture Activities

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to specify the criteria for shellfish aquaculture structures that may be employed on privately leased shellfish planting ground.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to specify the criteria for shellfish aquaculture..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish criteria for shellfish aquaculture structures, as it falls within the scope of necessary regulations to manage and oversee activities related to privately leased shellfish planting grounds. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the effective management of shellfish aquaculture, ensuring compliance with the overarching statutory framework.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to on-Bottom Shellfish Aquaculture Activities

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Aquaculture structure" means devices, such as cages, trays, and nets, used to contain or protect shellfish.² "Commission" means the Marine Resources Commission.³ "Shellfish" means native molluscan species or molluscan species imported in accordance with § 28.2-825 of the Code of Virginia.⁴

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-825

The Commissioner of Marine Resources, with the concurrence of the Director of the Virginia Institute of Marine Science, is authorized to change the list when he determines that it is necessary for the protection of the waters of the Commonwealth.

ANALYSIS

§ 28.2-825 specifically grants the Commissioner of Marine Resources the authority to change the list of marine resources when it is deemed necessary for the protection of the waters of the Commonwealth, with the concurrence of the Director of the Virginia Institute of Marine Science. This broad grant of authority allows for the establishment of definitions and terms in the regulation, as it is essential for implementing the protective measures outlined in the statute. The legal significance of this authorization relationship is that it empowers the agency to create necessary regulatory frameworks that support the overarching goal of safeguarding marine resources, thus ensuring effective management and protection of the Commonwealth's waters.

CROSS-REFERENCE § 28.2-825

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-825. Importing fish, shellfish or crustacea for introduction into waters of t...

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Aquaculture structure" means devices, such as cages, trays, and nets, used to c..."

General Delegation

AUTHORIZING STATUTE § 28.2-825

ANALYSIS

§ 28.2-825 specifically grants the Commissioner of Marine Resources the authority to change the list of items related to marine resources when necessary for the protection of the waters of the Commonwealth, with the concurrence of the Director of the Virginia Institute of Marine Science. This broad grant of authority encompasses the regulation defining "aquaculture structure" as it pertains to devices used to contain or protect shellfish, which directly relates to the management and protection of marine resources. The legal significance of this authorization relationship is that it allows for flexibility in regulatory implementation to adapt to changing conditions in marine environments, ensuring ongoing protection of the Commonwealth's waters.

CROSS-REFERENCE § 28.2-825

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-825. Importing fish, shellfish or crustacea for introduction into waters of t...

Provision 3

""Commission" means the Marine Resources Commission."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-825 specifically states that the Commissioner of Marine Resources, with the concurrence of the Director of the Virginia Institute of Marine Science, is authorized to change the list for the protection of the waters of the Commonwealth. The regulation defines "Commission" as the Marine Resources Commission, which implies a broader authority than what is explicitly granted to the Commissioner and the Director in the statute. This results in UNAUTHORIZED because the statute limits the authority to the Commissioner and the Director, thereby excluding the Marine Resources Commission from having the same level of authority to change the list.

CROSS-REFERENCE § 28.2-825

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-825. Importing fish, shellfish or crustacea for introduction into waters of t...

Provision 4

""Shellfish" means native molluscan species or molluscan species imported in acco..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-825 specifically states that the Commissioner of Marine Resources, with the concurrence of the Director of the Virginia Institute of Marine Science, is authorized to change the list of species when necessary for the protection of the waters of the Commonwealth. The regulation's definition of "Shellfish" includes both native molluscan species and those imported, but the statute does not grant authority to define or regulate the importation of molluscan species, only to change the list for protection purposes. This lack of explicit authority in the statute for the regulation's broader definition of "Shellfish" results in the regulation being unauthorized.

CROSS-REFERENCE § 28.2-825

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-825. Importing fish, shellfish or crustacea for introduction into waters of t...

Explicit Statutory Citations

REFERENCE § 28.2-825

Citation text: "§ 28.2-825"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to on-Bottom Shellfish Aquaculture Activities

Express

General

Overreach

Unauthorized

Requirements

A. The activity must be conducted on planting ground leased in accordance with Chapter 6 (§ 28.2-600 et seq.) of Title 28.2 of the Code of Virginia.¹ B. Leased planting ground must be properly marked in accordance with § 28.2-607 of the Code of Virginia and 4VAC20-290 .² C. Aquaculture structures shall be delineated with markers meeting the description for markers identified in 4VAC20-290-30 . The leaseholder shall also place a minimum of two placards, attached to boundary or corner markers, stating "aquaculture structures." Such placards shall be a minimum of 12 inches by 12 inches, constructed of a durable material, facing outward from the aquaculture structures, and shall be at least four feet above the mean high water line. The chief engineer may approve an alternate plan for marking aquaculture structures. In such a case the chief engineer shall direct or approve the appropriate markers.³ D. Any structures placed on the bottom must be nontoxic and shall not be known to leach any materials that would violate any water quality standards set by the Department of Environmental Quality.⁴ E. Structures shall not extend higher than 12 inches above the bottom substrate.⁵ F. No new structures shall be placed on existing stands of submerged aquatic vegetation.⁶ G. No structures may cause more than a minimal adverse effect on navigation.⁷ H. Shellfish must be harvested in accordance with all applicable laws and regulations.⁸ I. The commission may direct removal of any structures that fail to meet the requirements and conditions of this chapter.⁹

Provision-Level Authorization Analysis

Provision 1

"A. The activity must be conducted on planting ground leased in accordance with C..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This results in GENERAL_DELEGATION because the regulation's requirement for activities to be conducted on leased planting grounds aligns with the Commission's broad mandate to regulate and manage seafood resources effectively, ensuring sustainable practices. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that support the overarching goals of resource conservation and industry welfare without needing to seek further specific legislative approval.

CROSS-REFERENCE § 28.2-607

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 6. Planting Grounds › Article 2. General Oyster-Planting Grounds › § 28.2-607. Survey and marking of ground If a protest is not filed in the Commission office within 60 days after posting of the notice of ...

CROSS-REFERENCE § 28.2-600

Explicit Statutory Citations

SEQUENTIAL REFERENCE § 28.2-600

Citation text: "§ 28.2-600"

✓ Suggests authorization

SEQUENTIAL REFERENCE § 28.2-600

Citation text: "§ 28.2-600 et seq."

✓ Suggests authorization

Total: 2 citations to 1 unique statute

Provision 2

"B. Leased planting ground must be properly marked in accordance with § 28.2-607 ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring leased planting grounds to be properly marked, as it aligns with the Commission's responsibility to ensure effective management and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations for resource management without the need for further legislative approval, thereby facilitating timely and effective regulatory actions.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-607

Citation text: "§ 28.2-607"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 3

"C. Aquaculture structures shall be delineated with markers meeting the descrip..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation requiring aquaculture structures to be marked appropriately, as it directly relates to the management and conservation of marine resources by ensuring that aquaculture activities are clearly identified and regulated. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for effective resource management without needing to seek further specific legislative approval, thereby facilitating timely and appropriate regulatory actions.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any structures placed on the bottom must be nontoxic and shall not be known t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation's requirement for structures placed on the bottom to be nontoxic and compliant with water quality standards, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect water quality, thereby supporting the overall health of the seafood industry and its resources.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Provision 5

"E. Structures shall not extend higher than 12 inches above the bottom substrate."

General Delegation

AUTHORIZING STATUTE § 28.2-607

ANALYSIS

§ 28.2-607 specifically grants the Commissioner the authority to select a surveyor to survey grounds and make a plat, ensuring that assignments are in the public interest and that grounds are marked according to Commission regulations. This broad grant of authority allows the agency to implement regulations that ensure the sustainable management of oyster grounds, including specific requirements about the height of structures to protect the ecosystem. The legal significance of this relationship is that it empowers the agency to create detailed regulations that align with the overarching goals of the statute, thereby facilitating effective resource management while maintaining public interest.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Provision 6

"F. No new structures shall be placed on existing stands of submerged aquatic veg..."

General Delegation

AUTHORIZING STATUTE § 28.2-607

ANALYSIS

§ 28.2-607 specifically grants the Commissioner the authority to select a surveyor to survey grounds and make a plat, emphasizing that assignments must be in the public interest and adhere to regulations for marking oyster grounds. This broad grant of authority allows for the establishment of regulations that protect the ecological integrity of the assigned grounds, which is why the regulation prohibiting new structures on existing stands of submerged aquatic vegetation falls within the scope of the Commissioner's regulatory powers. The legal significance of this relationship is that it ensures the preservation of vital aquatic ecosystems while allowing the agency to implement necessary measures to fulfill its mandate in a manner that serves the public interest.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Provision 7

"G. No structures may cause more than a minimal adverse effect on navigation."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the regulation of activities that may impact navigation, as ensuring minimal adverse effects on navigation aligns with the goals of conserving resources and promoting the industry. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to implement regulations that address various aspects of resource management, thereby supporting the overarching objectives outlined in the statute.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"H. Shellfish must be harvested in accordance with all applicable laws and regula..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad grant of authority encompasses the regulation requiring that shellfish must be harvested in accordance with all applicable laws and regulations, as it aligns with the Commission's responsibility to ensure sustainable management and compliance within the seafood sector. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support the overarching goals of resource conservation and industry welfare without needing to specify every detail in the statute itself.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Provision 9

"I. The commission may direct removal of any structures that fail to meet the re..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations, such as directing the removal of non-compliant structures, as these actions are essential for ensuring compliance with established standards that support the overall management and conservation goals outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to uphold regulatory standards, thereby promoting the sustainability and welfare of the seafood industry within the Commonwealth.

CROSS-REFERENCE § 28.2-607

CROSS-REFERENCE § 28.2-600

Pertaining to on-Bottom Shellfish Aquaculture Activities

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing regulations for managing specific species and ensuring equitable distribution of licenses and fees. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary for enforcing compliance with the Commission's regulations and ensuring the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms, thereby supporting its overarching mandate to manage and protect the Commonwealth's seafood and marine resources effectively.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

General Permit No

Express

General

Overreach

Unauthorized

Requirements

For the purposes of this general permit, riparian shellfish gardening is defined as the grow-out of native shellfish species in protective structures such as floats, bags, cages, etc., adjacent to a private, noncommercial pier or otherwise within a waterfront property owner's riparian area, exclusively for private, noncommercial purposes.¹

Provision-Level Authorization Analysis

Provision 1

"For the purposes of this general permit, riparian shellfish gardening is defined..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to define and regulate activities related to shellfish gardening, as it falls within the scope of necessary regulations to manage and protect aquatic resources. The legal significance of this relationship is that it empowers the Commission to implement regulations that address specific practices, such as riparian shellfish gardening, under the general authority provided by the statute.

General Permit No

Express

General

Overreach

Unauthorized

Requirements

A. A principal objective of the permit streamlining efforts of this agency is the achievement of a single permit wherever possible for minor projects with minimal cumulative impacts.¹ B. The Norfolk District of the U.S. Army Corps of Engineers has approved a Regional Permit (97-RP-19) for certain aquaculture/mariculture activities in waters of the Commonwealth of Virginia which are authorized by a local wetlands board or the Virginia Marine Resources Commission, or both.²

Provision-Level Authorization Analysis

Provision 1

"A. A principal objective of the permit streamlining efforts of this agency is th..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the agency to implement measures, such as the regulation aimed at streamlining the permitting process for minor projects, which aligns with the overall goal of minimizing regulatory burdens while ensuring compliance with environmental standards. The legal significance of this relationship is that it empowers the agency to adapt its regulatory framework in a way that promotes efficiency and responsiveness to project needs, reflecting the intent of the statute to facilitate effective governance.

Provision 2

"B. The Norfolk District of the U.S. Army Corps of Engineers has approved a Regio..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise the powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title. The regulation in question, which involves the approval of a Regional Permit by the Norfolk District of the U.S. Army Corps of Engineers for aquaculture/mariculture activities, extends beyond the powers explicitly granted to the Commission, as it involves external entities and approvals not mentioned in the statute. The legal significance of this relationship is that the regulation lacks the necessary statutory authority, rendering it unauthorized and invalid under the provisions outlined in § 28.2-103.

General Permit No

Express

General

Overreach

Unauthorized

Requirements

The approved Local-State-Federal Permit Application form, or General Permit No. 3 Application Form, is completed and filed in accordance with the instructions contained therein. 2.¹ Aquaculture activities authorized by this permit achieve the policy and standards implicit in Chapter 12 (§ 28.2-1200 et seq.) of Title 28.2 of the Code of Virginia and reasonably accommodate guidelines promulgated by the commission. 3.² Riparian shellfish gardening structures proposed meet the following criteria: (i) the proposed structures must be secured to a private pier which meets the criteria set forth in § 28.2-1203 (5) of the Code of Virginia, or other duly authorized structure in such a manner that they do not adversely impact navigation and are wholly within the permittee's riparian area; (ii) shellfish grown in such structures will not be commercially marketed; (iii) the permittee shall be responsible for complying with Virginia Department of Health requirements and fisheries regulations regarding shellfish grown in condemned or otherwise restricted waters; (iv) structures being used will not exceed 160 square feet in total area; and (v) structures will be located so as not to impact existing stands of submerged aquatic vegetation. 4.³ Projects which do not meet the criteria in subdivisions 1 through 3 of this section will be processed for an individual permit with appropriate fees and royalties.⁴

Provision-Level Authorization Analysis

Provision 1

"The approved Local-State-Federal Permit Application form, or General Permit No. ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish specific procedural requirements, such as the completion and filing of permit application forms, under the umbrella of necessary regulations to fulfill its statutory mandate. The legal significance of this relationship is that it empowers the Commission to create detailed processes that support its overarching regulatory responsibilities, thereby facilitating effective governance and compliance within the framework established by the statute.

CROSS-REFERENCE § 28.2-1200

DEFINITION § 28.2-1203

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 12. Submerged Lands › Article 1. Ownership and Uses of Submerged Lands › § 28.2-1203. Unlawful use of subaqueous beds; penalty A. It shall be unlawful for any person to build, dump, trespass or encroach upon or o...

Provision 2

"Aquaculture activities authorized by this permit achieve the policy and standard..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that align with the overarching goals of the statute, such as those related to aquaculture activities, thereby justifying the GENERAL_DELEGATION of authority. The legal significance of this relationship is that it empowers the Commission to effectively manage and regulate aquaculture within the framework established by the statute, ensuring compliance with both policy and standards.

CROSS-REFERENCE § 28.2-1200

DEFINITION § 28.2-1203

Explicit Statutory Citations

SEQUENTIAL REFERENCE § 28.2-1200

Citation text: "§ 28.2-1200"

SEQUENTIAL REFERENCE § 28.2-1200

Citation text: "§ 28.2-1200 et seq."

Total: 2 citations to 1 unique statute

Provision 3

"Riparian shellfish gardening structures proposed meet the following criteria: (i..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. The regulation's requirement that riparian shellfish gardening structures must be secured to a private pier that meets specific criteria may exceed the statute's authorization because it imposes additional conditions not explicitly outlined in the statute, which only grants the power to create necessary regulations. The legal significance of this relationship is that the regulation could be challenged as exceeding the Commission's authority if it is determined that the additional criteria imposed are not necessary to carry out the provisions of the statute.

CROSS-REFERENCE § 28.2-1200

DEFINITION § 28.2-1203

Explicit Statutory Citations

REFERENCE § 28.2-1203

Citation text: "§ 28.2-1203"

Total: 1 citation to 1 unique statute

Provision 4

"Projects which do not meet the criteria in subdivisions 1 through 3 of this sect..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures, such as processing individual permits for projects that do not meet specific criteria, thereby falling within the scope of necessary actions to fulfill its statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to adapt its regulatory framework to address various scenarios, ensuring effective governance and compliance with the overarching statutory objectives.

CROSS-REFERENCE § 28.2-1200

DEFINITION § 28.2-1203

General Permit No

Express

General

Overreach

Unauthorized

Requirements

This permit grants no authority to the permittee to encroach upon property rights, including riparian rights, of others. 2.¹ The duly authorized agents of the commission shall have the right to enter upon the premises at reasonable times for the purposes of inspecting the work being done pursuant to this permit. 3.² The permittee shall comply with the water quality standards as established by the Department of Environmental Quality and all other applicable laws, ordinances, rules and regulations affecting the conduct of this project.³ The granting of this permit shall not relieve the permittee of the responsibility of obtaining any and all other permits or authorization for this project. 4.⁴ The permit shall not affect or interfere with the right vouchsafed to the people of Virginia concerning fowling and the catching of and taking of oysters and other shellfish in and from the waters not included within the terms of this permit. 5.⁵ The permittee shall, to the greatest extent practicable, minimize adverse impacts of the project on adjacent properties and wetlands and upon the natural resources of the Commonwealth. 6.⁶ This permit may be revoked at any time by the commission upon the failure of the permittee to comply with the terms and conditions hereof or at the will of the General Assembly of Virginia. 7.⁷ There is expressly excluded from this permit any portion of the waters within the Baylor Survey (Public Oyster Ground). 8.⁸ This permit is subject to any lease of oyster planting ground in effect on January 1, 1998.⁹ Nothing in this permit shall be construed as allowing the permittee to encroach on any lease without the consent of the leaseholder.¹⁰ The permittee shall be liable for any damages to such lease. 9.¹¹ The issuance of this permit does not confer upon the permittee any interest or title to the beds of the waters. 10.¹² All structures authorized by this permit which are not maintained in good repair or displaced to areas not authorized shall be completely removed from state-owned bottom within 30 days after notification by the commission or its designated representatives. 11.¹³ The permittee agrees to indemnify and save harmless the Commonwealth of Virginia from any liability arising from the establishment, operation or maintenance of said project. 12.¹⁴ This permit authorizes no claim to archaeological artifacts which may be encountered during the construction or operation of the project.¹⁵ If, however, archaeological remains are encountered, the permittee agrees to notify the commission, who will, in turn, notify the Virginia Department of Historic Resources.¹⁶ The permittee further agrees to cooperate with agencies in the recovery of archaeological remains if deemed necessary. 13.¹⁷ The permittee agrees to respond to any inquiries or studies conducted by the commission concerning the permittee's aquaculture efforts. 14.¹⁸ This general permit shall remain valid for a period of five years from the date of issuance.¹⁹ It may be extended upon a request from the applicant provided the request is made prior to the permit expiration. 15.²⁰ This general permit should be retained by the permittee for the life of the project as evidence of authorization.²¹

Provision-Level Authorization Analysis

Provision 1

"This permit grants no authority to the permittee to encroach upon property right..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that protect property rights, such as the prohibition against encroaching on the rights of others, which aligns with the overarching goal of managing resources responsibly. The legal significance of this relationship is that it ensures the regulation operates within the framework established by the statute, providing a clear mandate for the Commission to regulate activities that could impact property rights while maintaining a general delegation of authority.

Provision 2

"The duly authorized agents of the commission shall have the right to enter upon ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for GENERAL_DELEGATION because it encompasses the need for the Commission's agents to inspect premises to ensure compliance with permits, which is a necessary function for enforcing the regulations. The legal significance of this relationship is that it empowers the Commission to delegate inspection authority to its agents, ensuring effective oversight and enforcement of regulatory compliance.

Provision 3

"The permittee shall comply with the water quality standards as established by th..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations that ensure compliance with water quality standards and other applicable laws, thereby encompassing the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create enforceable standards that align with the overarching statutory mandate, ensuring effective implementation of environmental protections.

Provision 4

"The granting of this permit shall not relieve the permittee of the responsibilit..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish regulations, such as the one stating that obtaining the permit does not relieve the permittee of the responsibility to secure other necessary permits, thereby ensuring comprehensive regulatory oversight. The legal significance of this relationship is that it empowers the Commission to enforce compliance with multiple regulatory requirements, reinforcing the intent of the statute to facilitate effective governance and oversight.

Provision 5

"The permit shall not affect or interfere with the right vouchsafed to the people..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that ensure the rights of the people regarding fowling and shellfish harvesting are preserved, thus aligning with the general delegation of authority. The legal significance of this relationship is that it empowers the Commission to regulate activities while safeguarding public rights, ensuring that the regulation is both necessary and appropriate under the statutory framework.

Provision 6

"The permittee shall, to the greatest extent practicable, minimize adverse impact..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of environmental protection, including the requirement for permittees to minimize adverse impacts on adjacent properties and natural resources. The legal significance of this relationship is that it empowers the Commission to establish comprehensive regulatory frameworks that align with its statutory mandate, ensuring effective management of environmental resources.

Provision 7

"This permit may be revoked at any time by the commission upon the failure of the..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations, such as the one regarding permit revocation, as it falls within the scope of ensuring compliance with the terms and conditions set forth in the permits issued under its authority. The legal significance of this relationship is that it empowers the Commission to enforce compliance and maintain regulatory oversight, reflecting the legislative intent to provide the agency with the necessary tools to fulfill its responsibilities effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"There is expressly excluded from this permit any portion of the waters within th..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. The regulation's exclusion of waters within the Baylor Survey from the permit may exceed the Commission's authority, as it does not clearly align with the statutory language that allows for regulations necessary to implement the title, suggesting an overreach in limiting access to these waters without explicit statutory backing. The legal significance of this relationship is that any regulation must be grounded in the authority granted by the statute, and if the regulation imposes restrictions not explicitly authorized, it risks being deemed invalid.

Provision 9

"This permit is subject to any lease of oyster planting ground in effect on Janua..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that address specific circumstances, such as the regulation concerning oyster planting ground leases, thereby falling within the scope of necessary actions to fulfill its statutory mandate. The legal significance of this relationship is that it provides the Commission with the flexibility to manage resources effectively while ensuring compliance with existing leases, thereby supporting the overall regulatory framework established by the statute.

Provision 10

"Nothing in this permit shall be construed as allowing the permittee to encroach ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that ensure compliance with existing legal frameworks, such as the requirement for permittees to respect leaseholder rights, which is reflected in the regulation. The legal significance of this authorization relationship is that it empowers the Commission to create necessary rules that protect the interests of leaseholders while fulfilling its mandate under the statute.

Provision 11

"The permittee shall be liable for any damages to such lease. 9."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as the liability of the permittee for damages to a lease, as it falls within the necessary guidelines to enforce the statutory framework. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that ensure compliance and accountability in the management of leases, reflecting the intent of the statute to provide comprehensive oversight.

Provision 12

"The issuance of this permit does not confer upon the permittee any interest or t..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations, such as the one stating that the issuance of a permit does not confer any interest or title to the beds of the waters, as it is necessary for the effective management and regulation of water resources. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that clarify and enforce the statutory framework, ensuring that permits are issued with clear limitations on property rights.

Provision 13

"All structures authorized by this permit which are not maintained in good repair..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as the requirement for the removal of structures not maintained in good repair, as it directly relates to the effective management and oversight of state-owned bottoms. The legal significance of this relationship is that it empowers the Commission to enforce compliance and ensure the preservation of state resources, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 14

"The permittee agrees to indemnify and save harmless the Commonwealth of Virginia..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"The permittee agrees to respond to any inquiries or studies conducted by the com..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to require permittees to respond to inquiries or studies related to their aquaculture efforts, as it is essential for the Commission to monitor compliance and effectiveness in carrying out its regulatory responsibilities. The legal significance of this authorization relationship is that it enables the Commission to effectively oversee and manage aquaculture activities, ensuring that they align with the statutory objectives and public interests.

Provision 19

"This general permit shall remain valid for a period of five years from the date ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of regulations, such as the one stating that a general permit shall remain valid for five years, as it falls within the scope of necessary guidelines to manage permits effectively. The legal significance of this relationship is that it enables the Commission to create flexible and adaptive regulations that support the overarching goals of the statute while ensuring compliance and oversight within the designated timeframe.

Provision 20

"It may be extended upon a request from the applicant provided the request is mad..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that facilitate the administration of permits, such as the provision for extending a permit upon request, which aligns with the overarching goal of effective regulatory management. The legal significance of this relationship is that it empowers the Commission with the flexibility to adapt its regulations to meet the needs of applicants while ensuring compliance with statutory requirements.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 21

"This general permit should be retained by the permittee for the life of the proj..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as the retention of a general permit by the permittee, as it is necessary for the effective administration and enforcement of the regulatory framework. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that ensure compliance and accountability within the scope of its statutory mandate.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Submerged Aquatic Vegetation (Sav) Transplantation Guidelines

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Commission" means the Virginia Marine Resources Commission.² "Donor bed" means a naturally occurring area of SAV growing on state-owned subaqueous bottom.³ "Enhancement" means the increase in areal coverage or improvement in habitat quality of existing SAV beds.⁴ "Mitigation" means activities such as enhancement and restoration that are undertaken to reduce or eliminate the adverse effects on SAV by permitted projects.⁵ "Restoration" means the return of SAV to unvegetated bottom that historically supported SAV.⁶ "Submerged aquatic vegetation" or "SAV" means any of a diverse assemblage of underwater plants found in the shoal areas of Chesapeake Bay, Virginia, coastal bays and river tributaries, primarily eelgrass (Zostera marina) and widgeon grass (Ruppia maritima), and including but not limited to Eurasian watermilfoil (Myriophyllum spicatum), redhead grass (Potamogeton perfoliatus), wild celery (Vallisneria americana), common elodea (Elodea canadensis), water stargrass (Heteranthera dubia), coontail (Ceratophyllum demersum), water-weed (Egeria densa), muskgrass (Najas minor), pondweeds (Potamogeton sp.), and naiads (Najas sp.).⁷ "Test plot" means a small area where transplanted SAV can be monitored to demonstrate the likelihood of success of larger-scale planting efforts.⁸ "Transplantation" means the removal of SAV from a donor bed or nursery-grown location in order to relocate the plants to other areas that historically supported, or have the potential to support, SAV populations for enhancement or restoration purposes.⁹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and any regulations necessary to implement those plans. This broad grant of authority allows the Commission to define terms and concepts relevant to the management of fisheries, which is essential for the effective implementation of the management plans. The legal significance of this authorization relationship is that it enables the Commission to establish foundational definitions that support the regulatory framework, ensuring clarity and consistency in the application of fishery management practices.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Commission" means the Virginia Marine Resources Commission."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and to promulgate any regulations necessary to implement those plans. This broad language allows the Commission to exercise discretion in creating regulations that align with the overarching goal of managing fisheries effectively, resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to adapt and enforce regulations as needed to fulfill its statutory mandate without requiring further specific legislative approval for each regulation.

Provision 3

""Donor bed" means a naturally occurring area of SAV growing on state-owned subaq..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and any regulations necessary to implement those plans. This broad language allows for the establishment of definitions, such as "donor bed," which are essential for the effective management of submerged aquatic vegetation (SAV) within the context of fishery management. The legal significance of this relationship is that it enables the Commission to create detailed regulations that support the overarching goals of fishery management, reflecting a general delegation of authority to address various aspects of fisheries and their ecosystems.

Provision 4

""Enhancement" means the increase in areal coverage or improvement in habitat qua..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and any regulations necessary to implement those plans. This broad language allows for a wide range of regulatory actions, including the enhancement of habitat quality, which directly supports the overarching goal of effective fishery management. The legal significance of this authorization relationship is that it enables the Commission to take necessary actions to improve and maintain fish habitats, thereby ensuring sustainable fishery resources under its management.

Provision 5

""Mitigation" means activities such as enhancement and restoration that are under..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans Any fishery management plan prepared, and any regulation promulgated to implement the plan, shall be consistent with the following standards for fishery conservation and management

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans, ensuring that any regulations align with established standards for fishery conservation and management. This broad grant of authority allows the Commission to define necessary activities, such as mitigation efforts to address adverse effects on submerged aquatic vegetation (SAV), under the umbrella of fishery management without needing further specific legislative direction. The legal significance of this relationship is that it empowers the Commission to take proactive measures in fishery conservation, reflecting a flexible approach to management that can adapt to environmental needs and challenges.

Provision 6

""Restoration" means the return of SAV to unvegetated bottom that historically su..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and to promulgate any regulations necessary to implement those plans. This broad language allows for the development of regulations that address various aspects of fishery management, including the definition of terms such as "restoration," which is essential for the effective implementation of management strategies. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in creating regulations that support the overarching goals of fishery management, ensuring adaptive and comprehensive approaches to resource management.

Provision 7

""Submerged aquatic vegetation" or "SAV" means any of a diverse assemblage of und..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and to promulgate any regulations necessary for that implementation. This broad grant of authority allows the Commission to define terms and establish necessary components, such as the definition of "submerged aquatic vegetation," which is essential for effective fishery management. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to address various aspects of fishery management within the scope of its regulatory framework, thereby ensuring comprehensive management of aquatic resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

""Test plot" means a small area where transplanted SAV can be monitored to demons..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans and any regulations necessary to implement those plans. This broad language allows for the creation of regulations that support the overarching goals of fishery management, such as monitoring and assessing the success of initiatives like transplanted SAV, which is essential for effective management. The legal significance of this authorization relationship is that it empowers the Commission to make necessary regulatory decisions that align with its statutory mandate, ensuring the effective management of fisheries and aquatic resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

""Transplantation" means the removal of SAV from a donor bed or nursery-grown loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

The Commission shall prepare and implement fishery management plans any regulation promulgated to implement the plan

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans along with any regulations necessary to implement those plans. This broad language allows for a wide range of regulatory actions, including the transplantation of submerged aquatic vegetation (SAV) to enhance or restore populations, as it falls under the umbrella of fishery management and ecological restoration efforts. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to manage and protect aquatic resources effectively, ensuring the sustainability of fishery habitats.

Submerged Aquatic Vegetation (Sav) Transplantation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. Submerged aquatic vegetation (SAV) is an important natural resource that provides a variety of ecological functions, including stabilizing sediments, physically baffling wave energy, reducing water column turbidity, recycling water column nutrients, and providing high levels of primary and secondary production. SAV is considered to be of extremely high habitat value to commercially and recreationally important species of fish and shellfish, and is considered to be the primary settling habitat for young blue crabs in the Chesapeake Bay. SAV is estimated to have historically covered approximately 600,000 acres of the entire Bay. However, severe declines were noted in the 1960s and 1970s, likely due to increasing nutrient and sediment inputs from development within the watershed. Natural revegetation has occurred in some areas, yet many areas remain either completely unvegetated, sparsely vegetated, or contain lower diversity of species than what occurred historically. As of 1998, SAV covered only about 63,000 acres of the Bay.¹ B. The commission's Subaqueous Guidelines, in effect since 1976, stress the need to avoid impacts to SAV when permitting projects over state-owned bottom. In addition, since 1987, various governmental agencies around the Bay have adopted policies and laws to help protect and restore SAV from further loss. In an effort to mitigate the unavoidable impacts of permitted projects on SAV and assist interested parties in designing SAV restoration projects, the Virginia Institute of Marine Science (VIMS) has developed general and specific criteria for transplantation activities designed to enhance or restore the Bay's SAV resources. These guidelines are designed to ensure that any such proposed activities have the highest likelihood of success while minimizing the potential for adversely impacting this sensitive and valuable marine resource.²

Provision-Level Authorization Analysis

Provision 1

"A. Submerged aquatic vegetation (SAV) is an important natural resource that prov..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans, ensuring that any regulations promulgated to implement these plans adhere to standards for fishery conservation and management. This broad grant of authority allows the Commission to address various ecological factors, such as the importance of submerged aquatic vegetation, which are essential for effective fishery management. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that support the overarching goals of fishery conservation, thereby justifying the use of GENERAL_DELEGATION in the regulation.

Provision 2

"B. The commission's Subaqueous Guidelines, in effect since 1976, stress the need..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans that must adhere to established standards for fishery conservation and management. This broad grant of authority allows the Commission to create regulations, such as the Subaqueous Guidelines, that address related environmental concerns, including the protection of submerged aquatic vegetation (SAV), which is essential for maintaining healthy fishery ecosystems. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that ensure the sustainability of fisheries while also considering broader ecological impacts, thereby promoting comprehensive resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Submerged Aquatic Vegetation (Sav) Transplantation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. Any removal of naturally occurring SAV from state bottom or planting of nursery stock SAV for any purpose, except as part of a prior-approved research or scientific investigation, shall require prior approval by the commission. In determining whether to grant approval for SAV removal or planting, the commission shall be guided by § 28.2-1205 of the Code of Virginia and this chapter, or any new and improved methodologies as approved by the commission. Permits will be valid for a period of three years, but may be revoked upon a finding by the commission that the permittee failed to meet the monitoring and/or reporting requirements, or deviated from the specific activities authorized by permit. Permit fees and royalties shall be assessed in accordance with § 28.2-1206 of the Code of Virginia. Extraction of plants for commercial resale purposes is prohibited. Out-of-state and out-of-watershed transfers will be critically evaluated.¹ B. Any request to remove SAV from or plant SAV upon state bottom shall be accompanied by a completed Joint Permit Application (JPA), submitted to the Commission, that must include specific information that is critical to properly evaluate the probabilities of transplantation success while minimizing impacts to established donor bed populations. This information also allows scientists and regulators to track the progress of various projects and learn from previous projects which methods and sites are promising for further restoration or enhancement efforts. The specific information required will include the following: 1. Project specifics. Applicants for collections of wild stock SAV for transplanting should include a description of the purpose of the activity. This includes a classification of the activity as a research project, educational or environmental organization restoration project, or mitigation project for permitted SAV impacts. The exact location of the donor and transplant site(s) should be indicated on a chart or map, including latitude and longitude. The species and quantities of plants to be collected and/or transplanted should be reported, as well as the methods planned for collection, transport and transplanting. Detailed criteria for each of these issues are included in the next sections.² 2. Site selection. To evaluate the suitability of the proposed site, factors should be considered as follows: a. Site should be within salinity range for the species to be transplanted. b. Site should historically have supported SAV as evidence through historical photographs, surveys, or other sources of information. c. Planting depths should be limited to shallow waters. A depth range of 0.75 meters to one meter (MLW) is recommended for eelgrass and shallower for other species. No plantings will be authorized in the intertidal zone. d. Sediments should be sandy with a lower silt/clay content (less than 5.0% organics). Resuspension resulting in reduced light levels is less likely with sandy sediments. However, in protected areas SAV has been found to survive well in muddier substrates. e. Currents should be less than 30 cm/sec, as transplants are vulnerable to being uprooted for several days until roots and rhizomes begin to grow and anchor the plant. Sites that are protected from large waves are more likely to become established. f. Any exclosure or other protective structure proposed must be described in detail with accompanying sketches and notes. g. Applicants should be able to demonstrate that a site is likely to succeed. This can be done through the reporting of the success of past plantings at the area, by the presence of natural grassbeds within 500 meters of the site, or by test plot survival for one year. If the proposed site has never been planted and is far from existing beds, collections and transplantings may be limited to small scale test plots until success can be demonstrated. If plants survive beyond one year, larger transplanting efforts could be considered by the commission. It is important to note that the purpose of requiring test plots for transplant projects is to protect natural beds from net losses in case the transplant site is unsuitable for SAV survival. However, if the source material for a project is from a nursery or a source other than natural donor bed collections, the risk to existing beds is removed and restoration may be considered for larger scale projects even if initial test plots survival is poor (i.e., less than 50%). h. Removal of SAV from, or planting or transplanting of SAV to, areas of privately leased oyster planting ground will not be authorized without the express written consent of the leaseholder.³ 3. Transplanting: source, technique and timing. To reduce the impacts on natural beds of SAV, plants for restoration projects should be obtained from aquatic nursery or greenhouse stock if at all possible. Currently, there are several nursery-grown sources of freshwater species in the Chesapeake region. However, if wild stock collections from natural donor beds are required (such as with eelgrass), criteria should be met as follows: a. The donor beds should be a density class of "3" or "4" according to latest VIMS aerial survey, and should be from larger beds so that the amount of grass removed from a bed relative to total bed size is minimized. Care should be taken to minimize secondary effects of removal (e.g., trampling, propeller scarring). b. Donor beds should be of similar salinity to the transplant site. c. Plants should be removed by hand. However, excavation by shovel is permissible provided each hole is separated by at least one meter. By counting the number of plants/shovel, an estimate can be obtained of the effort required to collect the number of plants needed for the project. Plant collections should try to minimize the amount of material removed from a bed while still ensuring that enough plants are collected to complete the project. d. Plantings should occur within 48 hours of collection, but preferably within 24 hours as plants lose vigor quickly. e. For eelgrass (Zostera marina) and widgeon grass (Ruppia maritima), collections should be conducted between September 15 and November 30, but preferably between October 1 and October 30. f. For freshwater SAV species, collections should occur between mid to late April and late June. g. Until a transplant site has been demonstrated to be successful, plantings should be restricted during the first year to small-scale test plots. Test plots should be approximately two meters by two meters in size and shall be based on the scope of the individual project with a minimum number of three test plots per site. The methods, number of plants/plot, and spacing used in the test plots will vary depending on species but should be the same methods and spacings used for larger transplant efforts.⁴ 4. Monitoring. Monitoring of the plot(s) will enable the success of the transplanted test plot(s) and long-term adequacy of the site(s) for additional future restoration efforts to be evaluated. At a minimum, monitoring shall occur and include the information as follows: a. An initial site visit should be conducted between one week to one month following transplanting to evaluate the success of the planting process. For eelgrass plantings, additional site visits should occur in April, May, or early June, and again in September or October of the following year to assess survival and growth. For freshwater SAV, additional monitoring should occur in mid to late summer. b. Monitoring information required includes: the number of planting units present, shoot density counts, percent cover and aerial extent, or other appropriate relative measure of abundance, of each plot, and should be recorded during each site visit during the monitoring period. Additional information should include whether new shoots or flowers have been produced, and any other relevant field observations that may help explain any potential failures (grazing by rays, waterfowl, severe storm events, etc.). c. If after one full year plants persist (i.e. greater than 50% of the initial plantings have survived and grown), the site can be considered acceptable for a second year application of transplanting on a larger scale. If few plants survive the first year, larger scale transplantings should be discouraged. However, additional test plots may be permitted. d. For successful sites, additional monitoring will be required once during the growing season for a minimum of two years past the time of initial planting. e. Monitoring reports must be submitted to the commission annually by December 31 so that the monitoring information may be disseminated to and reviewed by VIMS and all other interested parties. Failure to report as required may result in permit revocation by the commission.⁵

Provision-Level Authorization Analysis

Provision 1

"A. Any removal of naturally occurring SAV from state bottom or planting of nurse..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

13 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. Transplanting: source, technique and timing. To reduce the impacts on natural..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans, ensuring that any regulations promulgated are consistent with standards for fishery conservation and management. This results in GENERAL_DELEGATION because the regulation regarding transplanting techniques and sources directly aligns with the Commission's broad mandate to manage fisheries sustainably, allowing for flexibility in addressing specific conservation needs. The legal significance of this authorization relationship is that it empowers the Commission to make decisions and implement practices that are necessary for effective fishery management without requiring further legislative approval for every specific action.

EXCEPTION § 28.2-1206

DEFINITION § 28.2-1205

Requirements Analysis

14 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"4. Monitoring. Monitoring of the plot(s) will enable the success of the transpla..."

General Delegation

AUTHORIZING STATUTE § 28.2-1206

the Commission may increase or decrease fees for marine habitat applications, permits, leases, rents, and royalties that are authorized by this chapter

ANALYSIS

§ 28.2-1206 specifically grants the Commission the authority to adjust fees related to marine habitat applications, permits, leases, rents, and royalties. This broad grant of authority allows the Commission to establish regulations that ensure the effective management and monitoring of marine habitats, as the regulation addresses the necessary oversight for evaluating restoration efforts, which is inherently linked to the fees and permits mentioned in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations for the stewardship of marine resources without requiring further legislative approval, thereby facilitating adaptive management practices.

EXCEPTION § 28.2-1206

DEFINITION § 28.2-1205

Requirements Analysis

11 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Public Participation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Administrative Process Act" means Chapter 1.1:1 (§ 9-6.14:1 et seq.) of Title 9 of the Code of Virginia. "Commission" means the Marine Resources Commission. "Commissioner" means the commissioner of Marine Resources or his designee. "Division" means the Habitat Management Division of the commission. "Formal hearing" means agency processes other than those informational or factual inquiries of an informal nature provided in § 9-6.14:7.1 of the Administrative Process Act and includes only opportunity for private parties to submit factual proofs in evidential hearings as provided in § 9-6.14:8 of the Administrative Process Act. "Locality particularly affected" means any locality which bears any identified disproportionate material impact which would not be experienced by other localities. "Participatory approach" means a method for the use of (i) standing advisory committees, (ii) ad hoc advisory groups or panels, (iii) consultation with groups or individuals registering interest in working with the division, or (iv) any combination of them in the formation and development of chapters for agency consideration. When an ad hoc advisory group is formed, the group shall include representatives of the regulated community and the general public. The decision as to the membership of the group shall be at the discretion of the commissioner. "Person" means an individual, a corporation, a partnership, an association, a governmental body, a municipal corporation, or any other legal entity. "Public hearing" means an informal proceeding, similar to that provided for in § 9-6.14:7.1 of the Administrative Process Act, held in conjunction with the Notice of Public Comment to afford persons an opportunity to submit views and data relative to chapters on which a decision of the commission is pending. "Public meeting" means an informal proceeding conducted by the agency in conjunction with the Notice of Intended Regulatory Action to afford persons an opportunity to submit comments relative to intended regulatory actions.¹ B. Unless specifically defined in this chapter, terms used shall have the meanings commonly ascribed to them.²

Provision-Level Authorization Analysis

Provision 1

"A. The following words and terms, when used in this chapter, shall have the foll..."

General Delegation

AUTHORIZING STATUTE § 2.2-4007

Any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation The agency shall send a notice identifying the petitioner, the nature of the petitioner's request and the agency's plan for disposition of the petition A 21-day period for acceptance of written public comment on the petition shall be provided after publication in the Virginia Register The agency shall issue a written decision to grant or deny the petitioner's request within 90 days following the close of the comment period

ANALYSIS

§ 2.2-4007 specifically grants any person the authority to petition an agency for the development or amendment of regulations, requiring the agency to provide notice, accept public comment, and issue a decision within a specified timeframe. This broad grant of authority allows the agency to define terms and establish processes relevant to its operations, which is reflected in the regulation's definitions and procedural framework. The legal significance of this authorization relationship is that it empowers the agency to implement and clarify its regulatory framework while ensuring public participation in the regulatory process, thus justifying the GENERAL_DELEGATION status.

CROSS-REFERENCE § 9-6.14

Explicit Statutory Citations

SEQUENTIAL REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

MULTIPLE CITATIONS § 9-6.14

Citation text: "§ 9-6.14"

REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

✓ Suggests authorization

RANGE REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

Total: 4 citations to 1 unique statute

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Unless specifically defined in this chapter, terms used shall have the meanin..."

General Delegation

AUTHORIZING STATUTE § 2.2-4007

Any person may petition an agency to request the agency to develop a new regulation or amend an existing regulation The agency shall send a notice identifying the petitioner, the nature of the petitioner's request and the agency's plan for disposition of the petition A 21-day period for acceptance of written public comment on the petition shall be provided The agency shall issue a written decision to grant or deny the petitioner's request within 90 days following the close of the comment period

ANALYSIS

§ 2.2-4007 specifically grants an agency the authority to develop new regulations or amend existing ones upon receiving a petition from any person, along with the requirement to provide public notice and comment. This broad grant of authority allows the agency to interpret and define terms as necessary, which aligns with the regulation's provision that terms shall have commonly ascribed meanings unless otherwise defined. The legal significance of this authorization relationship is that it empowers the agency to adapt its regulatory framework in a flexible manner, ensuring clarity and consistency in the application of its rules.

CROSS-REFERENCE § 9-6.14

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Public Participation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. The procedures in 4VAC20-340-30 of this chapter shall be used by the division for soliciting the input of interested persons in the initial formation and development, amendment, or repeal of chapters in accordance with the Administrative Process Act. This chapter does not apply to chapters exempt from the provisions of the Administrative Process Act (§ 9-6.14:4.1 A and B of the Code of Virginia) or excluded from the operation of Article 2 of the Administrative Process Act (§ 9-6.14:4.1 C of the Code of Virginia).¹ B. The failure of any person to receive any notice or copies of any documents provided under this chapter shall not affect the validity of any chapter.² C. Any person may petition the commission for the adoption, amendment or repeal of a chapter. The petition, at a minimum, shall contain the following information: 1. Name of petitioner;³ 2. Petitioner's mailing address and telephone number;⁴ 3. Petitioner's interest in the proposed action;⁵ 4. Recommended chapter or addition, deletion or amendment to a specific chapter;⁶ 5. Statement of need and justification for the proposed action;⁷ 6. Statement of impact on the petitioner and other affected persons; and⁸ 7. Supporting documents, as applicable. The commission shall provide a written response to such petition within 180 days from the date the petition was received.⁹

Provision-Level Authorization Analysis

Provision 1

"A. The procedures in 4VAC20-340-30 of this chapter shall be used by the division..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for GENERAL_DELEGATION because it encompasses the regulation's requirement for procedures to solicit input from interested persons, which is essential for the initial formation and development of regulations in accordance with the Administrative Process Act. The legal significance of this relationship is that it empowers the Commission to effectively engage stakeholders and ensure transparency in the regulatory process, thereby fulfilling its statutory mandate.

CROSS-REFERENCE § 9-6.14

Explicit Statutory Citations

MULTIPLE CITATIONS § 9-6.14

Citation text: "§ 9-6.14"

REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

Total: 2 citations to 1 unique statute

Provision 2

"B. The failure of any person to receive any notice or copies of any documents pr..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that ensure the effective functioning of the statutory framework, including provisions that address procedural matters such as the validity of actions despite notice failures. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that facilitate the administration of the statute, ensuring that procedural deficiencies do not undermine the overall legal framework established by the statute.

CROSS-REFERENCE § 9-6.14

Provision 3

"C. Any person may petition the commission for the adoption, amendment or repeal ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish procedures for public participation, such as petitions for the adoption, amendment, or repeal of regulations, which aligns with the intent of facilitating stakeholder engagement in the regulatory process. The legal significance of this relationship is that it empowers the Commission to implement a framework for public input, thereby enhancing transparency and responsiveness in regulatory governance.

CROSS-REFERENCE § 9-6.14

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"2. Petitioner's mailing address and telephone number;"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for a wide range of regulatory actions, including the requirement for a petitioner's mailing address and telephone number, as it is necessary for the Commission to effectively manage communications and processes related to its functions. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed procedural requirements, ensuring that it can fulfill its statutory responsibilities efficiently and effectively.

CROSS-REFERENCE § 9-6.14

Provision 5

"3. Petitioner's interest in the proposed action;"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that address various aspects of its responsibilities, including the regulation concerning a petitioner's interest in a proposed action, which falls within the scope of necessary guidelines for implementation. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to adapt its regulatory framework to effectively manage and respond to the interests and actions of petitioners within its jurisdiction.

CROSS-REFERENCE § 9-6.14

Provision 6

"4. Recommended chapter or addition, deletion or amendment to a specific chapter;"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the ability to recommend changes to specific chapters, thereby encompassing the regulation under the umbrella of the Commission's general authority. The legal significance of this relationship is that it empowers the Commission to adapt and refine its regulatory framework in response to evolving needs without requiring a more specific delegation of authority for each individual action.

CROSS-REFERENCE § 9-6.14

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"5. Statement of need and justification for the proposed action;"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as the requirement for a statement of need and justification, as it is essential for the effective execution of its responsibilities under the statute. The legal significance of this relationship is that it provides the Commission with the flexibility to create necessary regulations while ensuring they align with the overarching goals set forth in the statute.

CROSS-REFERENCE § 9-6.14

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"6. Statement of impact on the petitioner and other affected persons; and"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the requirement for a statement of impact on the petitioner and other affected persons, as it is necessary for the Commission to assess the implications of its decisions. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that address various aspects of its regulatory responsibilities without needing to seek further specific legislative approval, thereby facilitating effective governance.

CROSS-REFERENCE § 9-6.14

Provision 9

"7. Supporting documents, as applicable. The commission shall provide a written r..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedural requirements, such as the timeline for responding to petitions, which falls within the scope of necessary regulations to ensure effective administration. The legal significance of this relationship is that it empowers the Commission to create rules that facilitate its functions, thereby ensuring compliance with statutory mandates while maintaining flexibility in its operational processes.

CROSS-REFERENCE § 9-6.14

Public Participation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. The division shall establish and maintain a list or lists consisting of persons expressing an interest in the adoption, amendment, or repeal of chapters. Any person wishing to be placed on any list may do so by writing the agency. In addition, the agency, at its discretion, may add to any list any person, organization or publication it believes will be interested in participating in the promulgation of chapters. Individuals and organizations may be periodically requested to indicate their desire to continue to receive documents or be deleted from a list. Individuals and organizations may be deleted from any list at the request of the individual or organization, or at the discretion of the agency when mail is returned as undeliverable.¹ B. Whenever the commission so directs or upon its own initiative, the division may commence the chapter adoption process and proceed to draft a proposal according to these procedures.² C. The division shall use the participatory approach to assist in the development of the proposal or use one of the following alternatives: 1. Proceed without using the participatory approach if the commission specifically authorizes the division to proceed without using the participatory approach.³ 2. Include in the Notice of Intended Regulatory Action (NOIRA) a statement inviting comment on whether the division should use the participatory approach to assist the division in the development of the proposal. If the division receives written responses from at least five persons during the associated comment period indicating that the division should use the participatory approach, the division will use the participatory approach requested. Should different approaches be requested, the commissioner shall determine the specific approach to be utilized.⁴ D. The division shall issue a NOIRA whenever it considers the adoption, amendment or repeal of any chapter.⁵ 1. The NOIRA shall include at least the following: a. A description of the subject matter of the planned chapter; b. A description of the intent of the planned chapter; c. A brief statement as to the need for regulatory action; d. A brief description of alternatives available, if any, to meet the need; e. A request for comments on the intended regulatory action, to include any ideas to assist the division in development of any proposal; f. A request for comments on the costs and benefits of the stated alternatives or other alternatives; g. A statement of the division's intent to hold at least one public hearing on the proposed chapter after it is published in The Virginia Register of Regulations; and h. A statement inviting comment on whether the division should use the participatory approach to assist the division in the development of any proposal. Including this statement shall only be required when the division makes a decision to pursue the alternative provided in subdivision C 2 of this section.⁶ 2. The division shall hold at least one public meeting whenever it considers the adoption, amendment or repeal of any chapter unless the commission specifically authorizes the division to proceed without holding a public meeting. In those cases where public meeting will be held, the NOIRA shall also include the date, not to be less than 30 days after publication in The Virginia Register of Regulations, time and place of the public meeting.⁷ 3. The public comment period for NOIRA's under this section shall be no less than 30 days after publication of the NOIRA in The Virginia Register of Regulations.⁸ E. The division shall disseminate the NOIRA to the public via the following: 1. Distribution to the Registrar of Regulations for publication in The Virginia Register of Regulations.⁹ 2. Distribution by mail to persons on the list established under subsection A of this section.¹⁰ F. After consideration of public input, the division may complete the draft proposed chapter and any supporting documentation required for review. If the participatory approach is being used, the draft chapter shall be developed in consultation with the participants. A summary or copies of the comments received in response to the NOIRA shall be distributed to the participants during the development of the draft chapter. This summary or copies of the comments received in response to the NOIRA shall also be distributed to the commission.¹¹ G. Upon approval of the draft proposed chapter by the commission, the division shall publish a Notice of Public Comment (NOPC) and the proposal for public comment.¹² H. The NOPC shall include at least the following: 1. The notice of the opportunity to comment on the proposed chapter, location where copies of the draft may be obtained, and name, address and telephone number of the individual to contact for further information about the proposed chapter.¹³ 2. A request for comments on the costs and benefits of the proposal.¹⁴ 3. The identity of any locality particularly affected by the proposed chapter.¹⁵ 4. A statement that an analysis of the following has been conducted by the division and is available to the public upon request: a. Statement of purpose: the rationale or justification for the new provisions of the chapter, from the standpoint of the public's health, safety or welfare. b. Estimated impact. (1) Projected number and types of regulated entities or persons affected; (2) Projected cost, expressed as a dollar figure or range, to regulated entities (and to the public, if applicable) for implementation and compliance. In those instances where the division is unable to quantify projected costs, it shall offer qualitative data, if possible, to help define the impact of the chapter. Such qualitative data shall include, if possible, an example or examples of the impact of the proposed chapter on typical member of the regulated community. (3) Projected cost to the agency for implementation and enforcement. (4) The beneficial impact the chapter is designed to produce. c. An explanation of need for the proposed chapter and potential consequences that may result in the absence of the chapter. d. An estimate of the impact of the proposed chapter upon small businesses, as defined in § 9-199 of the Code of Virginia, or organizations in Virginia. e. A description of provisions of the proposed chapter which are more restrictive than applicable federal requirements, together with the reason why the more restrictive provisions are needed. f. A discussion of alternative approaches that were considered to meet the need the proposed chapter addresses, and a statement as to whether the agency believes that the proposed chapter is the least burdensome alternative to the regulated community that fully meets the stated purpose of the proposed chapter. g. A schedule setting forth when, within two years after the effective date of the chapter, the agency will evaluate it for effectiveness and continued need.¹⁶ 5. The time, date and location of at least one public hearing held in conformance with § 9-6.14:7.1 of the Code of Virginia to receive comments on the proposed chapter. The public hearing may be held at any time during the public comment period and, whenever practicable, no less than 15 days prior to the close of the public comment period. In those cases in which the commission elects to conduct a formal hearing, the notice shall indicate that the formal hearing will be held in accordance with § 9-6.14:8 of the Code of Virginia. The public hearing may be held in such location as the commission determines will best facilitate input from interested persons.¹⁷ I. The public comment period shall close no less than 60 days after publication of the NOPC in The Virginia Register of Regulations.¹⁸ J. The division shall disseminate the NOPC to the public via the following: 1. Distribution to the Registrar of Regulations for: a. Publication in The Virginia Register of Regulations. b. Publication in a newspaper of general circulation published at the state capital and such other newspapers as the agency may deem appropriate.¹⁹ 2. Distribution by mail to persons on the list established under subsection A of this section.²⁰ K. The division shall prepare a summary of comments received in response to the NOPC and the division's response to the comments received. The division shall send a draft of the summary of comments to all public commenters on the proposed chapter at least five days before final adoption of the chapter. The division shall submit the summary and agency response and, if requested, submit the full comments to the commission. The summary, the agency response, and the comments shall become a part of the agency file and after final action on the chapter by the commission, made available upon request, to interested persons.²¹ L. If the division determines that the process to adopt, amend or repeal any chapter should be terminated after the approval of the draft chapter by the commission, the division shall present to the commission for their consideration a recommendation and rationale for the withdrawal of the proposed chapter.²² M. Completion of the remaining steps in the adoption process shall be carried out in accordance with the Administrative Process Act.²³

Provision-Level Authorization Analysis

Provision 1

"A. The division shall establish and maintain a list or lists consisting of perso..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of processes, such as maintaining lists of interested persons, which align with the Commission's responsibility to facilitate public engagement and transparency in regulatory actions. The legal significance of this relationship is that it empowers the agency to create administrative mechanisms that support its regulatory functions without requiring further specific legislative direction, thereby ensuring efficient governance.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Whenever the commission so directs or upon its own initiative, the division m..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission significant discretion in determining how to carry out its responsibilities, which includes the ability to initiate the chapter adoption process and draft proposals as outlined in the regulation. The legal significance of this relationship is that it establishes a framework for the Commission to effectively manage its regulatory duties without needing further specific authorization for each action taken under its broad powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. The division shall use the participatory approach to assist in the developmen..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the regulation's provision that permits the division to proceed without the participatory approach if specifically authorized by the Commission, as it falls within the scope of necessary regulatory actions to fulfill the Commission's responsibilities. The legal significance of this relationship is that it establishes a framework for the Commission to delegate authority while maintaining oversight, ensuring that the division can adapt its processes as needed to effectively carry out its duties.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"2. Include in the Notice of Intended Regulatory Action (NOIRA) a statement invit..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish procedures, such as inviting public comment on regulatory actions, which aligns with the regulation's requirement for stakeholder engagement in the development process. The legal significance of this relationship is that it empowers the Commission to implement participatory approaches, ensuring that regulatory development is informed by public input, thereby enhancing transparency and accountability in the regulatory process.

Requirements Analysis

5 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"D. The division shall issue a NOIRA whenever it considers the adoption, amendmen..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures, such as issuing a NOIRA for the adoption, amendment, or repeal of chapters, which falls within its regulatory powers. The legal significance of this relationship is that it provides the Commission with the flexibility to manage its regulatory processes effectively while ensuring compliance with the overarching statutory framework.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"1. The NOIRA shall include at least the following: a. A description of the subje..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for the creation of regulations that outline procedural requirements, such as the contents of a Notice of Intended Regulatory Action (NOIRA), which are essential for implementing the Commission's responsibilities. The legal significance of this relationship is that it establishes a framework within which the Commission can effectively fulfill its mandate, ensuring that the regulatory process is transparent and well-defined while maintaining the flexibility to adapt to various regulatory needs.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"2. The division shall hold at least one public meeting whenever it considers the..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to delegate responsibilities, such as holding public meetings, to the division while still ensuring that the overarching regulatory framework is maintained. The legal significance of this authorization relationship is that it enables the division to operate with flexibility and efficiency in implementing the Commission's mandates, as long as it adheres to the established guidelines.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"3. The public comment period for NOIRA's under this section shall be no less tha..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedural requirements, such as the public comment period for NOIRA, as it falls within the scope of necessary regulations to ensure effective public participation and transparency in the regulatory process. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to create detailed procedural rules while remaining within the framework established by the statute, thereby ensuring compliance with legislative intent.

Provision 9

"E. The division shall disseminate the NOIRA to the public via the following: 1. ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the dissemination of information to the public, which is reflected in the regulation's requirement for the division to distribute the NOIRA for publication. The legal significance of this relationship is that it establishes a framework within which the Commission can effectively communicate and implement its regulatory responsibilities, ensuring transparency and public engagement in the regulatory process.

Provision 10

"2. Distribution by mail to persons on the list established under subsection A of..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations, such as the one concerning distribution by mail to designated individuals, as it falls within the Commission's mandate to carry out its responsibilities effectively. The legal significance of this authorization relationship is that it enables the Commission to adapt its regulatory framework to meet operational needs while remaining within the scope of its statutory authority.

Provision 11

"F. After consideration of public input, the division may complete the draft prop..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows for GENERAL_DELEGATION as it encompasses the ability to develop regulations that include public input and consultation processes, as outlined in the regulation. The legal significance of this authorization relationship is that it empowers the agency to create flexible and responsive regulations that can adapt to stakeholder feedback while ensuring compliance with the overarching statutory framework.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 12

"G. Upon approval of the draft proposed chapter by the commission, the division s..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to delegate responsibilities, such as the publication of a Notice of Public Comment, to its division, which aligns with the need for operational efficiency and public engagement in the regulatory process. The legal significance of this authorization relationship is that it empowers the division to act under the Commission's authority, ensuring that the regulatory framework is effectively executed while maintaining accountability to the Commission.

Provision 13

"H. The NOPC shall include at least the following: 1. The notice of the opportuni..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for the creation of regulations that facilitate public participation and transparency, as seen in the requirement for the NOPC to include essential information for public comment. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary procedural steps, ensuring compliance with statutory mandates while maintaining a general delegation of authority to address various regulatory needs.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 14

"2. A request for comments on the costs and benefits of the proposal."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to engage in activities such as soliciting comments on the costs and benefits of proposals, which is essential for informed decision-making and regulatory development. The legal significance of this authorization relationship is that it empowers the Commission to effectively gather stakeholder input, ensuring that regulations are well-informed and aligned with the statutory intent.

Provision 15

"3. The identity of any locality particularly affected by the proposed chapter."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to identify localities particularly affected by proposed regulations, as it is essential for the effective implementation of the title's provisions. The legal significance of this relationship is that it establishes the Commission's ability to make necessary determinations that support the overall objectives of the statute, thereby justifying the GENERAL_DELEGATION authorization level.

Provision 16

"4. A statement that an analysis of the following has been conducted by the divis..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that ensure transparency and accountability, such as the requirement for a public analysis of the rationale behind new provisions, which aligns with the overarching goals of public health, safety, and welfare. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective governance and responsiveness to public needs.

CROSS-REFERENCE § 9-199

Referenced in regulation context: § 9-199 of the Code of Virginia

Explicit Statutory Citations

CHAPTER REFERENCE § 9-199

Citation text: "§ 9-199"

Total: 1 citation to 1 unique statute

Requirements Analysis

6 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 17

"5. The time, date and location of at least one public hearing held in conformanc..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish procedures, such as the timing and conduct of public hearings, to ensure public participation in the regulatory process. The legal significance of this authorization relationship is that it empowers the Commission to create necessary operational frameworks, thereby facilitating effective governance and compliance with statutory mandates.

CROSS-REFERENCE § 9-6.14

Referenced in regulation context: § 9-6.14

Explicit Statutory Citations

RANGE REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

REFERENCE § 9-6.14

Citation text: "§ 9-6.14"

✓ Suggests authorization

Total: 2 citations to 1 unique statute

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"I. The public comment period shall close no less than 60 days after publication ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of procedural requirements, such as the public comment period, as it falls within the Commission's mandate to create regulations that facilitate public engagement and transparency. The legal significance of this relationship is that it empowers the Commission to enact regulations that are essential for fulfilling its statutory responsibilities, thereby ensuring compliance with the legislative intent behind the title.

Provision 19

"J. The division shall disseminate the NOPC to the public via the following: 1. D..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the power to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to implement procedures for public dissemination of information, such as the regulation's requirement for distributing the NOPC to various publications. The legal significance of this authorization relationship is that it empowers the Commission to effectively communicate regulatory information to the public, ensuring transparency and compliance with statutory obligations.

Provision 20

"2. Distribution by mail to persons on the list established under subsection A of..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations, such as the one concerning distribution by mail, as it falls within the scope of necessary actions to fulfill its statutory responsibilities. The legal significance of this relationship is that it establishes a framework where the Commission can effectively carry out its duties, ensuring compliance and operational efficiency through the regulation's implementation.

Provision 21

"K. The division shall prepare a summary of comments received in response to the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish procedures, such as preparing a summary of comments and responses, which are essential for ensuring transparency and public participation in the regulatory process. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage stakeholder engagement and maintain accountability, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 22

"L. If the division determines that the process to adopt, amend or repeal any cha..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the regulation to fall under GENERAL_DELEGATION, as it enables the division to recommend the withdrawal of proposed chapters, thereby facilitating the Commission's regulatory responsibilities in a manner consistent with the statute's intent. The legal significance of this authorization relationship is that it empowers the division to act within the framework established by the Commission, ensuring that the regulatory process remains flexible and responsive to the needs of the Commission's oversight.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 23

"M. Completion of the remaining steps in the adoption process shall be carried ou..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures, such as those outlined in the regulation regarding the adoption process, under the general authority to create regulations that facilitate the execution of its statutory responsibilities. The legal significance of this relationship is that it empowers the Commission to operate with flexibility and discretion in implementing the statutory framework, ensuring that the regulatory process aligns with the overarching goals of the statute.

Public Participation Guidelines

Express

General

Overreach

Unauthorized

Requirements

A. All regulatory actions for which a NOIRA has been published in The Virginia Register of Regulations prior to May 18, 1994 shall be processed in accordance with the emergency amendments to 4VAC20-340-10 et seq., Public Participation Guidelines, which are effective from June 29, 1993, until June 28, 1994, unless sooner modified or vacated or superseded by permanent chapters.¹ B. This chapter shall supersede and repeal emergency amendments to 4VAC20-340-10 et seq. Public Participation Guidelines which became effective on June 29, 1993. All regulatory actions for which a NOIRA has not been published in The Virginia Register of Regulations prior to May 18, 1994 shall be processed in accordance with this chapter.²

Provision-Level Authorization Analysis

Provision 1

"A. All regulatory actions for which a NOIRA has been published in The Virginia R..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures for regulatory actions, including those outlined in the regulation regarding the processing of actions with a published NOIRA, thereby fitting within the general delegation of authority. The legal significance of this relationship is that it enables the Commission to effectively manage and streamline regulatory processes while ensuring compliance with established guidelines, reflecting the intent of the statute to empower the agency in its regulatory functions.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. This chapter shall supersede and repeal emergency amendments to 4VAC20-340-10..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the power to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations that address procedural and administrative matters, such as superseding previous amendments and setting timelines for regulatory actions, which aligns with the general authority provided in the statute. The legal significance of this relationship is that it ensures the Commission has the necessary flexibility and authority to manage its regulatory framework effectively while remaining within the bounds of the statutory grant.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

General Wetlands Permit for Emergency Situations

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide an expedited process for the issuance of general wetlands permits to allow applicants to stabilize nonvegetated shorelines during emergency situations following a determination that there is a threat to public or private property or to the health and safety of the public.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide an expedited process for the issuance ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1307

The Commission may, in conjunction with local wetlands boards and other affected state and federal agencies, develop administrative procedures to expedite the processing of applications for permits required under this chapter. The Commission shall, in conjunction with local wetlands boards and other affected state and federal agencies, develop an expedited process for issuing general wetlands permits to be used by applicants during emergency situations. The Commission shall, in conjunction with local wetlands boards and other affected state and federal agencies, develop administrative procedures to expedite the processing of applications from agencies of the United States government, including any branch of the Armed Forces of the United States, for permits required under this chapter.

ANALYSIS

§ 28.2-1307 specifically grants the Commission the authority to develop administrative procedures for expediting permit applications, including an expedited process for issuing general wetlands permits during emergency situations. This broad grant of authority encompasses the regulation's purpose of providing an expedited process for issuing general wetlands permits to stabilize nonvegetated shorelines in response to threats to public or private property or health and safety. The legal significance of this authorization relationship is that it allows the Commission to act flexibly and efficiently in emergency situations, ensuring timely responses to urgent environmental and safety concerns.

General Wetlands Permit for Emergency Situations

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Chairman" means the chairman of a local wetland board. "Commission" means the Marine Resources Commission. "Commissioner" means the Commissioner of Marine Resources. "Emergency" means that a significant man-made structure is in clear and imminent danger from continued erosion or storm damage due to severe wave action or storm surge, or the existing condition is a direct result of catastrophic erosion or other rapid or unusual loss of land attributable to a specific storm event or natural calamity. "Structure" means a man-made permanent construction installed in or on the property (e.g., dwellings, garages, commercial buildings, septic systems, or adjacent erosion control structures). "Wetlands board" or "board" means a local wetlands board created pursuant to § 28.2-1303 of the Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to define key terms relevant to its regulatory framework, such as "Chairman," "Commission," and "Commissioner," which are essential for clarity and effective governance. The legal significance of this relationship is that it empowers the Commission to establish foundational definitions that support its regulatory activities, reinforcing its ability to operate within the scope of its statutory mandate.

EXCEPTION § 28.2-1303

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 13. Wetlands › Article 2. Wetlands Zoning Ordinance and Wetlands Boards › § 28.2-1303. Appointment, terms, compensation, etc., of local wetlands boards; jurisdiction of county wetlands board over wetlands in town...

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-1303

Citation text: "§ 28.2-1303"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

General Wetlands Permit for Emergency Situations

Express

General

Overreach

Unauthorized

Requirements

A. At present, the only emergency authorization is that provided in subdivision 8 of § 3 of § 28.2-1302 of the Code of Virginia. That section of the model wetlands zoning ordinance provides statutory authorization for "emergency measures decreed by any duly appointed health officer of a governmental subdivision acting to protect the public health." This authorization has rarely been invoked. Even if it were, it would not likely address the type of shoreline erosion situations that might arise as a result of a significant coastal storm event. This chapter is designed to establish the criteria and qualifications for an emergency wetlands general permit. It also sets forth the procedures and conditions for applying for and the processing of an emergency wetlands permit.¹ B. A principal objective of this general wetlands permit is a streamlined application and public interest review process whereby waterfront property owners can obtain authorization to install a shoreline protection structure or reinstall or repair previously authorized shoreline protection structures. If applying to replace a shoreline structure that was destroyed by a storm event (e.g., bulkhead or revetment), the previous structure must have been intact and serviceable prior to the storm event.² C. Erosion must be ongoing and a determination made that failure to act in an expeditious manner will threaten either the applicant's property or adjoining properties or has the potential to adversely impact the public health, safety or welfare. In general, this will require that a dwelling or some other structure be located within 50 feet of the mean high water shoreline. The waterfront property owner must apply for the general wetlands permit within 30 days of the significant storm event or emergency cited.³ D. The general wetlands permit is valid only in those localities which have elected to adopt and locally administer the tidal wetlands zoning ordinance. In addition, the provisions of the state general wetlands permit shall not conflict with any other federal permits (nationwide or regional) or authorizations that govern emergency activities in tidal wetlands. The general wetlands permit may not be used to authorize any new groin or jetty structure.⁴ E. This general permit shall not apply in areas where a coastal primary sand dune or beach permit would also be required for a given project pursuant to Chapter 14 (§ 28.2-1400 et seq.) of Title 28.2 of the Code of Virginia.⁵

Provision-Level Authorization Analysis

Provision 1

"A. At present, the only emergency authorization is that provided in subdivision ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1302

acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands The governing body of ________, acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands

ANALYSIS

§ 28.2-1302 specifically grants the governing body the authority to adopt ordinances regulating the use and development of wetlands, indicating a broad scope of power to manage environmental concerns. This results in GENERAL_DELEGATION because the statute allows for the establishment of regulations that encompass various aspects of wetlands management, including emergency measures as outlined in the regulation. The legal significance of this authorization relationship is that it empowers the governing body to respond flexibly to urgent situations while ensuring that the overarching regulatory framework remains consistent with the statutory intent.

DEFINITION § 28.2-1400

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 14. Coastal Primary Sand Dunes and Beaches › Article 1. General Provisions › § 28.2-1400. Definitions A. As used in this chapter, unless the context requires a different meaning: "Beach" means the shoreline zone ...

DEFINITION § 28.2-1302

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 13. Wetlands › Article 2. Wetlands Zoning Ordinance and Wetlands Boards › § 28.2-1302. Adoption of wetlands zoning ordinance; terms of ordinance Any county, city or town may adopt the following ordinance, which, ...

Explicit Statutory Citations

REFERENCE § 28.2-1302

Citation text: "§ 28.2-1302"

Total: 1 citation to 1 unique statute

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. A principal objective of this general wetlands permit is a streamlined applic..."

General Delegation

AUTHORIZING STATUTE § 28.2-1302

acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands Any county, city or town may adopt the following ordinance The governing body of ________, acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands

ANALYSIS

§ 28.2-1302 specifically grants authority to any county, city, or town to adopt ordinances regulating the use and development of wetlands, indicating a broad legislative intent to empower local governing bodies in matters concerning wetland management. This results in GENERAL_DELEGATION because the regulation aligns with the statute's intent by establishing a streamlined process for waterfront property owners to obtain necessary authorizations, thereby facilitating local governance over wetland use while adhering to public interest considerations. The legal significance of this authorization relationship is that it allows local entities to implement regulations that are responsive to community needs while remaining within the framework established by the state, ensuring both local autonomy and compliance with overarching statutory mandates.

DEFINITION § 28.2-1400

DEFINITION § 28.2-1302

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Erosion must be ongoing and a determination made that failure to act in an ex..."

General Delegation

AUTHORIZING STATUTE § 28.2-1302

ANALYSIS

§ 28.2-1302 specifically grants the governing body the authority to adopt ordinances regulating the use and development of wetlands. This broad grant of authority encompasses the regulation's requirement to address ongoing erosion and its potential impacts on property and public welfare, as it falls within the scope of managing wetland development and use. The legal significance of this authorization relationship is that it allows the governing body to implement necessary measures to protect both private interests and public health, safety, and welfare in the context of wetland management.

DEFINITION § 28.2-1400

DEFINITION § 28.2-1302

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. The general wetlands permit is valid only in those localities which have elec..."

General Delegation

AUTHORIZING STATUTE § 28.2-1302

acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands Any county, city or town may adopt the following ordinance, which, after January 1, 2024, shall serve as the only wetlands zoning ordinance under which any wetlands board is authorized to operate

ANALYSIS

§ 28.2-1302 specifically grants any county, city, or town the authority to adopt an ordinance regulating the use and development of wetlands, establishing a framework for local governance of these resources. This broad grant of authority allows localities to implement their own wetlands zoning ordinances, which aligns with the regulation's stipulation that the general wetlands permit is valid only in localities that have chosen to adopt and administer such ordinances. The legal significance of this authorization relationship is that it empowers local governments to tailor their wetlands management practices while ensuring compliance with overarching state and federal regulations, thereby facilitating localized decision-making within the parameters set by the statute.

DEFINITION § 28.2-1400

DEFINITION § 28.2-1302

Provision 5

"E. This general permit shall not apply in areas where a coastal primary sand dun..."

General Delegation

AUTHORIZING STATUTE § 28.2-1302

acting pursuant to Chapter 13 (§ 28.2-1300et seq.) of Title 28.2 of the Code of Virginia, adopts this ordinance regulating the use and development of wetlands Any county, city or town may adopt the following ordinance, which, after January 1, 2024, shall serve as the only wetlands zoning ordinance under which any wetlands board is authorized to operate

ANALYSIS

§ 28.2-1302 specifically grants counties, cities, and towns the authority to adopt ordinances regulating the use and development of wetlands, establishing a framework for local governance over these areas. This broad grant of authority allows for the regulation of wetlands while also acknowledging the need to consider other relevant environmental protections, such as those related to coastal primary sand dunes or beaches, resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers local entities to implement comprehensive regulations that align with state statutes, ensuring that wetlands management is coordinated with other environmental considerations.

DEFINITION § 28.2-1400

DEFINITION § 28.2-1302

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-1400

Citation text: "§ 28.2-1400"

✓ Suggests authorization

AUTHORIZING CITATION § 28.2-1400

Citation text: "§ 28.2-1400 et seq."

✓ Suggests authorization

Total: 2 citations to 1 unique statute

General Wetlands Permit for Emergency Situations

Express

General

Overreach

Unauthorized

Requirements

A. The commissioner or his designee, Chief, Habitat Management Division, will oversee administration of the provisions of the general wetlands permit.¹ B. An approved Local-State-Federal Permit Application form, or the abbreviated General Permit #4 Application form, must be completed and filed in accordance with the instructions contained therein. This application may be submitted directly to the chairman or board in those localities that have adopted and are locally administering the local wetlands zoning ordinance.² C. The board chairman, or vice-chairman in his absence, is empowered to issue the general wetlands permit upon a finding by the local wetlands board that: 1. An emergency exists and vegetated wetlands would not be impacted by the project. This finding shall be verified by a subsequent site inspection of the property by at least two members of the board.³ 2. The environmental impacts associated with issuance of the general wetlands permit are minimal and fall below a predetermined threshold or level of resource impacted. This level of impact will be an average of one square foot per running foot of shoreline.⁴ 3. The activities authorized under the general wetlands permit will have minimal impact on any adjoining property owner. In the event potential impacts are deemed to exceed this minimum, written concurrence by the adjoining property owner will be required.⁵ 4. The proposed structure, and its placement, meet standard regulatory guidelines and would, in the opinion of the chairman, likely be authorized or approved by the other state and federal regulatory agencies.⁶ 5. The proposed stabilization, materials and the encroachment sought are the minimum necessary to address the situation.⁷ D. If the chairman determines that issuance of the general wetlands permit is in the public interest, the requirement for advertisement and public hearing will be satisfied.⁸ E. Within 48 hours of his determination, the chairman shall notify the commissioner of his finding and intent to issue the general wetlands permit.⁹ F. The commissioner shall review all decisions of the chairman. If within five days of receiving the chairman's notification, the commissioner believes that the decision does not conform with the standards prescribed in § 28.2-1308 of the Code of Virginia, the guidelines promulgated pursuant to § 28.2-1301 of the Code of Virginia, or the purpose and intent of this chapter, he may request that the decision be reviewed by the full board at one of its regularly scheduled public hearings.¹⁰ G. After public hearing, the commission may revoke the general permit in any locality where it finds that the board's decisions have failed to conform with the standards and guidelines of the Code of Virginia or the purpose and intent of this chapter.¹¹ H. The general permit will be valid for a maximum period of 90 days from date of issuance. Failure to commence the project within that time will necessitate submittal of a new application and reevaluation.¹² I. In the event the waterfront property owner fails to qualify for the general wetlands permit, he may submit the standard joint Local-State-Federal Application form and proceed through the normal public interest review process.¹³ J. A nonrefundable fee may be assessed for each general wetlands permit issued. The permit issuing fee shall be set by the applicable governing body with due regard for the services rendered.¹⁴ K. The general wetlands permit shall be in writing and must accurately describe the project, including appropriate drawings with sufficient tie-down reference points to enable follow-up compliance checks, and be signed by the chairman.¹⁵ L. The general wetlands permit may not be used to authorize any new groin or jetty structures.¹⁶

Provision-Level Authorization Analysis

Provision 1

"A. The commissioner or his designee, Chief, Habitat Management Division, will ov..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission may receive gifts, grants, bequests, and devises of wetlands and money The Commission shall manage any wetlands it receives so as to maximize their ecological value The Commission shall preserve and prevent the despoliation and destruction of wetlands the Commission shall promulgate and periodically update (i) guidelines ... and (ii) minimum standards for protection and conservation of wetlands In developing guidelines, standards, or regulations under this chapter the Commission shall consult with all affected state agencies

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to manage wetlands, preserve them, and establish guidelines and minimum standards for their protection and conservation. This broad grant of authority allows the regulation to be implemented under GENERAL_DELEGATION, as it empowers the commissioner or his designee to oversee the administration of the general wetlands permit, aligning with the Commission's responsibility to manage wetlands effectively. The legal significance of this authorization relationship is that it enables the Commission to delegate specific administrative functions while ensuring that the overarching goals of wetland preservation and management are met in accordance with the statutory framework.

ADDITIONAL AUTHORITY § 28.2-1301

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 13. Wetlands › Article 1. General Provisions › § 28.2-1301. Powers and duties of the Commission A. The Commission may receive gifts, grants, bequests, and devises of wetlands and money which shall be held for the...

DEFINITION § 28.2-1308

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 13. Wetlands › Article 3. Permits and Review › § 28.2-1308. Standards for use and development of wetlands; utilization of guidelines A. For the purposes of this section, "river watershed" means the Potomac River ...

Provision 2

"B. An approved Local-State-Federal Permit Application form, or the abbreviated G..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission shall promulgate and periodically update (i) guidelines that scientifically evaluate vegetated and nonvegetated wetlands by type and describe the consequences of use of these wetlands types minimum standards for protection and conservation of wetlands

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to create regulations, such as the requirement for the completion and submission of permit applications, as it falls within the scope of managing and overseeing wetland conservation efforts. The legal significance of this authorization relationship is that it enables the Commission to delegate responsibilities to local entities while ensuring compliance with the overarching statutory framework aimed at protecting wetlands.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. The board chairman, or vice-chairman in his absence, is empowered to issue th..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows for the delegation of specific responsibilities, such as the issuance of general wetlands permits, to the board chairman or vice-chairman, as it aligns with the Commission's overarching goal of managing wetland use and protecting these resources. The legal significance of this authorization relationship is that it enables efficient decision-making at a local level while ensuring that the Commission's standards and guidelines are upheld in the management of wetlands.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"2. The environmental impacts associated with issuance of the general wetlands pe..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission shall promulgate and periodically update (i) guidelines that scientifically evaluate vegetated and nonvegetated wetlands by type and describe the consequences of use of these wetlands types and (ii) minimum standards for protection and conservation of wetlands

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to determine specific thresholds for environmental impacts, such as the regulation's specification of minimal impacts associated with general wetlands permits. The legal significance of this authorization relationship is that it enables the Commission to implement detailed regulations that align with the overarching goals of wetland conservation and management as outlined in the statute.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 5

"3. The activities authorized under the general wetlands permit will have minimal..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to manage wetlands, preserve them, and promulgate guidelines and minimum standards for their protection and conservation. This broad grant of authority allows the Commission to establish regulations, such as the requirement for written concurrence from adjoining property owners when potential impacts exceed minimal thresholds, as it falls within the scope of managing wetlands and ensuring their ecological value. The legal significance of this authorization relationship is that it empowers the Commission to create flexible regulations that address specific situations while remaining consistent with its overarching mandate to protect and conserve wetlands.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 6

"4. The proposed structure, and its placement, meet standard regulatory guideline..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to create regulations that ensure compliance with these guidelines, thus resulting in GENERAL_DELEGATION as the regulation aligns with the overarching purpose of the statute to protect and manage wetlands effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible regulatory measures that can adapt to varying circumstances while still adhering to the foundational principles established by the statute.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 7

"5. The proposed stabilization, materials and the encroachment sought are the min..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission shall promulgate and periodically update (i) guidelines that scientifically evaluate vegetated and nonvegetated wetlands by type and describe the consequences of use of these wetlands types and (ii) minimum standards for protection and conservation of wetlands

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to create guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the regulation to require that proposed actions, such as stabilization and encroachment, be the minimum necessary to address specific situations, aligning with the overarching goal of wetland protection. The legal significance of this relationship is that it empowers the Commission to implement flexible, context-sensitive regulations that ensure the conservation of wetlands while addressing practical needs, thereby justifying the use of GENERAL_DELEGATION.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 8

"D. If the chairman determines that issuance of the general wetlands permit is in..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission shall promulgate and periodically update (i) guidelines that scientifically evaluate vegetated and nonvegetated wetlands by type and describe the consequences of use of these wetlands types and (ii) minimum standards for protection and conservation of wetlands

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to determine the public interest in relation to wetlands permits, which aligns with the regulation's provision for the chairman to decide on the necessity of advertisement and public hearings. The legal significance of this authorization relationship is that it empowers the Commission to make decisions that facilitate the management and conservation of wetlands while ensuring that such decisions can be made efficiently and in alignment with public interest considerations.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"E. Within 48 hours of his determination, the chairman shall notify the commissio..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement procedures, such as notifying the commissioner of findings related to general wetlands permits, which are necessary for the effective management and regulation of wetlands. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in the administration of wetlands regulations, ensuring that the guidelines and standards can be applied in a timely and efficient manner.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"F. The commissioner shall review all decisions of the chairman. If within five d..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

The Commission may receive gifts, grants, bequests, and devises of wetlands and money The Commission shall manage any wetlands it receives so as to maximize their ecological value The Commission shall preserve and prevent the despoliation and destruction of wetlands the Commission shall promulgate and periodically update (i) guidelines that scientifically evaluate vegetated and nonvegetated wetlands by type and describe the consequences of use of these wetlands types and (ii) minimum standards for protection and conservation of wetlands

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to manage wetlands, preserve them from destruction, and promulgate guidelines for their evaluation and conservation. This broad grant of authority allows for GENERAL_DELEGATION because it empowers the Commission to establish standards and review processes that align with its overarching responsibility to maximize ecological value and protect wetlands. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in decision-making while ensuring compliance with established guidelines and standards for wetlands management.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Explicit Statutory Citations

REFERENCE § 28.2-1308

Citation text: "§ 28.2-1308"

AUTHORIZING CITATION § 28.2-1301

Citation text: "§ 28.2-1301"

✓ Suggests authorization

Total: 2 citations to 2 unique statutes

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"G. After public hearing, the commission may revoke the general permit in any loc..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to take necessary actions, such as revoking permits, to ensure compliance with established standards and guidelines, thereby justifying the GENERAL_DELEGATION of regulatory power. The legal significance of this relationship is that it empowers the Commission to adaptively manage wetlands in accordance with the overarching goals of the statute, ensuring effective oversight and protection of these critical resources.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 12

"H. The general permit will be valid for a maximum period of 90 days from date of..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement specific regulatory measures, such as the time limitation for general permits, to ensure effective management and oversight of wetland use. The legal significance of this relationship is that it empowers the Commission to exercise discretion in regulating activities affecting wetlands, thereby facilitating timely project initiation while maintaining adherence to conservation standards.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 13

"I. In the event the waterfront property owner fails to qualify for the general w..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to manage wetlands, preserve them, and promulgate guidelines and minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement a regulatory framework, such as the public interest review process outlined in the regulation, which is necessary for managing wetlands effectively. The legal significance of this authorization relationship is that it empowers the Commission to establish procedures that ensure compliance with ecological management goals while allowing flexibility in the regulatory process.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 14

"J. A nonrefundable fee may be assessed for each general wetlands permit issued. ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority encompasses the regulation's provision for assessing a nonrefundable fee for general wetlands permits, as it relates to the administration and enforcement of the guidelines and standards set forth in the statute. The legal significance of this authorization relationship is that it allows the Commission to manage the permitting process effectively, ensuring that the financial aspects of permit issuance align with the overarching goals of wetland protection and conservation established by the statute.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 15

"K. The general wetlands permit shall be in writing and must accurately describe ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to manage wetlands, preserve them from destruction, and promulgate guidelines and minimum standards for their protection and conservation. This broad authority to develop and implement regulations for the management of wetlands encompasses the requirement for a general wetlands permit, as it necessitates detailed project descriptions and compliance checks to ensure ecological value is maximized. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in creating specific regulatory requirements while remaining aligned with its overarching mandate to protect and manage wetlands effectively.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Provision 16

"L. The general wetlands permit may not be used to authorize any new groin or jet..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement regulations that ensure the protection of wetlands, including restrictions on activities such as the construction of new groin or jetty structures, which could adversely affect these ecosystems. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that align with its mandate to protect and conserve wetlands, thereby ensuring compliance with the established guidelines.

ADDITIONAL AUTHORITY § 28.2-1301

DEFINITION § 28.2-1308

Pertaining to Prohibiting the Sale of Billfish

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for the conservation of the billfish resource off of the coast of Virginia by preventing the development of a commercial fishery through a prohibition of sale of billfish.¹ The chapter supports the objectives of federal and interstate management measures for the Atlantic billfishes.² The primary intent of these management measures is to optimize use of billfish by allowing harvest for recreational purposes only.³ Assessments that the billfish resource will not support added fishing pressure without causing stock declines.⁴

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for the conservation of the billfish r..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation aimed at conserving the billfish resource by prohibiting its sale, as it aligns with the Commission's mandate to manage and protect marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary conservation measures without requiring additional legislative approval, thereby facilitating timely and effective resource management.

Provision 2

"The chapter supports the objectives of federal and interstate management measure..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation as it aligns with the Commission's responsibility to support federal and interstate management measures, thereby promoting the welfare of marine resources and ensuring sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management while adhering to broader conservation goals, thereby reinforcing the Commission's regulatory framework under a general delegation of authority.

Provision 3

"The primary intent of these management measures is to optimize use of billfish b..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including regulations for the conservation and reasonable use of specific species. This broad grant of authority allows for the establishment of regulations like the one concerning billfish, as it aligns with the Commission's mandate to optimize resource use while ensuring conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that address specific management needs within the framework of its overarching responsibilities, thus facilitating effective resource management.

Provision 4

"Assessments that the billfish resource will not support added fishing pressure w..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement assessments related to fishing pressure on billfish resources, as it falls within the scope of conserving and managing marine resources for the benefit of the industry. The legal significance of this relationship is that it empowers the Commission to make necessary regulatory decisions without requiring further legislative approval, thus facilitating timely and effective management of marine resources.

Pertaining to Prohibiting the Sale of Billfish

Express

General

Overreach

Unauthorized

Requirements

The following word and term, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise: "Billfish" means any fish of the species Istiophorus platypterus (sailfish), Tetrapturus albidus (white marlin), Makaira nigricans (blue marlin), and Tetrapturus pfluegeri (longbill spearfish).¹

Provision-Level Authorization Analysis

Provision 1

"The following word and term, when used in this chapter, shall have the following..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the management of seafood and marine resources, but it explicitly focuses on the conservation and reasonable use of specific species such as surf clams and Atlantic menhaden. The regulation defining "Billfish" does not relate to the specified authority in the statute, as it does not pertain to the conservation or management of the seafood resources mentioned, nor does it address the needs of the seafood industry as outlined. The legal significance of this relationship is that regulations must be directly tied to the explicit powers granted by the statute, and since the regulation on "Billfish" falls outside the scope of the Commission's authority, it is deemed unauthorized.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Prohibiting the Sale of Billfish

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to buy, sell, offer for sale, possess with intent to sell, barter, or exchange billfish.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to buy, sell, offer for sale, possess with i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like Atlantic menhaden and surf clams. This broad grant of authority encompasses the regulation prohibiting the buying, selling, or exchanging of billfish, as it aligns with the Commission's responsibility to conserve marine resources and manage fisheries effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that protect vulnerable species and ensure sustainable practices within the seafood industry, reflecting the intent of the statute to promote the overall health of marine ecosystems.

Pertaining to Prohibiting the Sale of Billfish

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary for enforcing the Commission's regulatory framework and ensuring compliance with its conservation and management goals. The legal significance of this authorization relationship is that it allows the Commission to implement and enforce regulations effectively, thereby supporting the overall objectives of resource management and industry welfare as outlined in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

As a result of increasingly intensive development through the subdivision of lands adjacent to waters of the Commonwealth, the commission finds it necessary to develop more detailed criteria for the siting of facilities to serve the needs of boaters in order to protect, conserve and manage properly the natural resources of the Commonwealth for the reasonable and beneficial use of all its citizens.¹

Provision-Level Authorization Analysis

Provision 1

"As a result of increasingly intensive development through the subdivision of lan..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, establish bulkhead and private pier lines, and manage underwater historic property. This broad grant of authority allows the Commission to develop detailed criteria for the siting of facilities to serve boaters, as it falls within the scope of managing and protecting the waters of the Commonwealth. The legal significance of this relationship is that it enables the Commission to implement regulations that address the evolving needs of development while ensuring the conservation and proper management of state resources.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

The pressures to develop shoreline property and state-owned subaqueous lands are increasing at an unprecedented rate.¹ Boat mooring facilities have become an attractive and effective mechanism to enhance the marketing of subdivided lots in proximity to state waters.² In the process of providing mooring facilities to serve such developments, private benefits are realized but public detriments are often increased.³ Automatic shellfish closures may result; water quality can deteriorate; habitat values can be irrevocably affected and the character of the water body can be permanently changed.⁴ The Commonwealth is historically a key shellfish producing state.⁵ Unfortunately, current shellfish leasing practices encourage the acquisition of shellfish leases by developers in order to eliminate or reduce opposition to seasonal shellfish closures which may result from the siting of mooring facilities.⁶ In order to protect public health, the Bureau of Shellfish Sanitation of the state Department of Health has established a policy which requires the establishment of buffer zones around boat mooring facilities within which shellfish cannot be harvested for direct marketing during the months of April through October.⁷ These buffer zones are as follows: 1. 0-50 slips - 1/8 mile in all directions; 2. 51-100 slips - ¼ mile in all directions; 3.⁸ Over 100 slips - ½ mile in all directions.⁹ As a result of this policy, the State Water Control Board, also as a matter of policy, considers it a violation of water quality standards if a proposed facility will result in a seasonal shellfish closure.¹⁰ The commission is required by law to give due consideration to water quality standards established by the Water Control Board and to enforce the shellfish closures established by the Department of Health.¹¹

Provision-Level Authorization Analysis

Provision 1

"The pressures to develop shoreline property and state-owned subaqueous lands are..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation addressing the pressures of shoreline development, as it aligns with the Commission's responsibility to manage and protect marine resources in the face of increasing external pressures. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address emerging challenges while ensuring the sustainable use of resources, reflecting a general delegation of authority to adapt to changing circumstances.

Provision 2

"Boat mooring facilities have become an attractive and effective mechanism to enh..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language allows for the establishment of regulations that enhance marketing opportunities, such as boat mooring facilities, which can indirectly support the seafood industry by increasing access to state waters. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that align with the overarching goals of resource conservation and economic development within the marine sector, thereby justifying the GENERAL_DELEGATION level.

Provision 3

"In the process of providing mooring facilities to serve such developments, priva..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that address various aspects of resource management, including the balance of private benefits and public detriments associated with developments like mooring facilities. The legal significance of this relationship is that it empowers the Commission to implement regulations that align with its overarching goal of resource conservation and industry welfare, thereby justifying a GENERAL_DELEGATION of authority.

Provision 4

"Automatic shellfish closures may result; water quality can deteriorate; habitat ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, manage Atlantic menhaden, and promote the general welfare of the seafood industry, but does not explicitly mention authority over automatic shellfish closures or water quality issues. The regulation's focus on potential automatic closures and water quality deterioration extends beyond the conservation and management of specific seafood resources as outlined in the statute, leading to its classification as UNAUTHORIZED. The legal significance of this relationship is that without explicit statutory authority, the regulation lacks the necessary foundation to be enforceable, thereby undermining the regulatory framework established by the statute.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"The Commonwealth is historically a key shellfish producing state."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, including specific provisions for surf clams and Atlantic menhaden management. The regulation's broad assertion that "The Commonwealth is historically a key shellfish producing state" does not directly align with the statute's focus on specific conservation and management measures, suggesting that the regulation may extend beyond the intended scope of the statutory authority. The legal significance of this relationship indicates that the regulation could be seen as overreaching if it does not directly relate to the conservation and management objectives explicitly outlined in the statute.

Provision 6

"Unfortunately, current shellfish leasing practices encourage the acquisition of ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including surf clams, and to manage Atlantic menhaden. The regulation, which addresses shellfish leasing practices to prevent developers from acquiring leases to circumvent seasonal closures, appears to exceed the statutory authority because it addresses a broader issue of development and opposition rather than directly promoting the conservation and reasonable use of seafood resources as outlined in the statute. The legal significance of this relationship is that the regulation may not align with the specific regulatory powers granted by the statute, potentially undermining the intended scope of the Commission's authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"In order to protect public health, the Bureau of Shellfish Sanitation of the sta..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands and to establish lines for private structures in waters under its jurisdiction. This broad grant of authority encompasses the regulation's requirement for buffer zones around boat mooring facilities, as it relates to the reasonable use of state-owned waters and the protection of public health in relation to shellfish harvesting. The legal significance of this authorization relationship is that it allows the agency to implement necessary public health measures while remaining within the scope of the authority provided by the statute, thereby ensuring the regulation is valid and enforceable under the general delegation of powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"These buffer zones are as follows: 1. 0-50 slips - 1/8 mile in all directions; 2..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of buffer zones, as these regulations can be seen as necessary measures to manage and protect the marine environment and resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of marine resources, thereby ensuring the overall health of the seafood industry.

Provision 9

"Over 100 slips - ½ mile in all directions."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various reasonable uses of state-owned bottomlands, including the establishment of structures like wharves and bulkheads, and to set lines for private piers. This broad grant of authority encompasses the regulation concerning the placement of slips, as it relates to the use of state-owned waters and the management of structures in those areas, thus justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it allows for flexibility in the administration of permits and the regulation of activities on state-owned bottomlands, ensuring that the Commission can effectively manage resources while adhering to the statutory framework.

Provision 10

"As a result of this policy, the State Water Control Board, also as a matter of p..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and the establishment of regulations to promote their welfare. This broad grant of authority encompasses the regulation regarding water quality standards and seasonal shellfish closures, as it aligns with the Commission's responsibility to ensure the health of marine resources and the sustainability of the seafood industry. The legal significance of this authorization relationship is that it allows for a flexible regulatory framework that can adapt to environmental conditions and industry needs, ensuring the effective management of marine resources under the Commission's oversight.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"The commission is required by law to give due consideration to water quality sta..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, as well as ensuring the management of specific species like Atlantic menhaden. This broad grant of authority encompasses the regulation's requirement for the Commission to consider water quality standards and enforce shellfish closures, as these actions are integral to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that align with its overarching mandate to protect and manage the seafood and marine resources of the Commonwealth, thereby justifying the GENERAL_DELEGATION status of the regulation.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

A comprehensive siting review process for boat mooring facilities requiring permits from the commission is necessary to insure that permit decisions comply with statutory requirements and the legislative mandate that our natural resources be maintained and conserved for present and future generations.¹ All public and private interests will be carefully considered in this review.² As the size, density, complexity and range of services offered by a proposed facility increase, so shall the detail in design and implementation of best management practices in its siting, construction and operation.³ Minimizing adverse environmental impacts shall be the ultimate goal in all phases of planning, siting construction and operation.⁴ Furthermore, the acquisition of shellfish leases which may be affected by a seasonal shellfish closure around a proposed facility will be given no weight and absent mitigating circumstances will be viewed as a negative factor by the commission in its evaluation of the facility.⁵

Provision-Level Authorization Analysis

Provision 1

"A comprehensive siting review process for boat mooring facilities requiring perm..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation's requirement for a siting review process for boat mooring facilities, as it aligns with the Commission's responsibility to ensure that permit decisions support the conservation and reasonable use of natural resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for fulfilling its mandate to manage and protect the Commonwealth's marine resources effectively.

Provision 2

"All public and private interests will be carefully considered in this review."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the regulation to encompass a review process that considers all public and private interests, aligning with the Commission's responsibility to ensure balanced management of resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that reflect a comprehensive approach to resource management, ensuring stakeholder interests are addressed while fulfilling its conservation mandate.

Provision 3

"As the size, density, complexity and range of services offered by a proposed fac..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to manage specific species like Atlantic menhaden. The regulation's requirement for increasingly detailed best management practices based on facility size and complexity appears to exceed the statute's focus on conservation and reasonable use, as it imposes additional operational standards that are not explicitly mentioned in the statutory text. The legal significance of this relationship is that the regulation may impose obligations beyond what the statute authorizes, potentially infringing on the limits of the Commission's regulatory powers.

Provision 4

"Minimizing adverse environmental impacts shall be the ultimate goal in all phase..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the welfare of the seafood industry. The regulation's focus on minimizing adverse environmental impacts extends beyond the statutory language, which does not explicitly mention environmental considerations as a primary goal, thus suggesting a potential overreach in authority. The legal significance of this relationship lies in the fact that the regulation may impose additional requirements not explicitly authorized by the statute, potentially infringing on the Commission's defined regulatory scope.

Provision 5

"Furthermore, the acquisition of shellfish leases which may be affected by a seas..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that address the impacts of proposed facilities on shellfish leases, as it relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to make regulatory decisions that balance industry interests with resource conservation, ensuring that the management of marine resources aligns with the overarching goals set forth in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

Regulations for Marinas and Boat Moorings, will pertain.¹ For reference purposes, the following two definitions are reproduced here: "Marina means any installation operating under public or private ownership, which provides dockage or moorage for boats (exclusive of paddle or row boats) and provides, through sale, rental or fee basis, any equipment, supply or service (fuel, electricity or water) for the convenience of the public or its leasee, renters or users of its facilities." "Other places where boats are moored means any installation operating under public or private ownership which provides dockage, moorage or mooring for boats (exclusive of paddle or row boats) either on a free rental or fee basis or for the convenience of the public." For purposes of this chapter, "other place where boats are moored" and "community facility for boat mooring" are interchangeable.² Additionally, since community facilities increase significantly the value of the upland property they are intended to serve, the commission has a long standing policy that such facilities are classified as commercial in nature.³ Accordingly, only noncommercial, private piers placed by individual owners of riparian lands in the waters opposite such riparian lands are considered statutorily exempt from public interest review.⁴

Provision-Level Authorization Analysis

Provision 1

"Regulations for Marinas and Boat Moorings, will pertain."

Express Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, including activities related to marinas and boat moorings. This results in EXPRESS_DELEGATION because the regulation concerning marinas and boat moorings directly falls within the scope of the Commission's authority to manage and permit reasonable uses of state-owned waters, as outlined in the statute. The legal significance of this authorization relationship is that it ensures that the regulation is grounded in the explicit powers granted by the statute, thereby providing a clear legal basis for the Commission's actions regarding marina and boat mooring management.

Provision 2

"For reference purposes, the following two definitions are reproduced here: "Mari..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including establishing regulations for conservation and reasonable use. This broad language encompasses the regulation, as it allows for the definition of terms relevant to the management and operation of facilities that support the seafood industry, such as marinas, which play a role in the overall marine resource management. The legal significance of this authorization relationship is that it enables the Commission to implement regulations that facilitate effective governance and oversight of the seafood industry, ensuring that all related activities are aligned with the statutory objectives of conservation and promotion of marine resources.

Provision 3

"Additionally, since community facilities increase significantly the value of the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority allows the Commission to classify community facilities as commercial in nature, as it relates to the overarching goal of enhancing the value of upland property and ensuring the effective management of resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that align with its mandate to promote the seafood industry's welfare while also managing the associated economic interests effectively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"Accordingly, only noncommercial, private piers placed by individual owners of ri..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the regulation to define the parameters of noncommercial, private piers as exempt from public interest review, as it aligns with the Commission's responsibility to manage resources and ensure their sustainable use. The legal significance of this authorization relationship is that it enables the Commission to implement regulations that directly support the overarching goals of resource management and conservation without requiring further legislative approval for each specific regulation.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

In addition to the criteria contained on pages 8 and 9 of the current Subaqueous Guidelines promulgated by the commission in 1979 and revised in 1986, the following should be considered by the applicant in planning and will be considered by the commission during the public interest review of each application for recreational boat mooring facilities. 1.¹ The physical dimensions and characteristics of the water body should be compatible with the size of the marina and the type of vessels it will house.² For example, a shallow cove or basin is not an appropriate site for a deep draft sailboat marina. 2.³ Marinas shall have sufficient upland area to provide all necessary parking, stormwater management BMP's, fuel, and sanitary facilities without filling wetlands or subaqueous bottom. 3.⁴ All marinas should be located in areas with good natural flushing to minimize the build-up of organic material and other pollutants on the bottom. 4.⁵ Marinas should not be sited close to areas of very high natural resource value such as shellfish beds, seagrass communities and areas frequented by endangered species. 5.⁶ The transfer of control of shellfish leases in order to accommodate marina development is generally unacceptable. 6.⁷ Projects that by their cumulative impact will result in dense concentrations of boats in one area will be critically evaluated as to their impacts on natural resources; however, in densely populated areas, concentration of slips in a single facility may be justified to prevent disturbance at undeveloped shorelines.⁸

Provision-Level Authorization Analysis

Provision 1

"In addition to the criteria contained on pages 8 and 9 of the current Subaqueous..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the seafood industry and conserving marine resources, including the establishment of criteria for managing specific species and ensuring the reasonable use of resources. This results in GENERAL_DELEGATION because the regulation aligns with the Commission's mandate to consider various criteria in the public interest review process, thereby supporting the overarching goals of conservation and sustainable management outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible and adaptive regulatory measures that address the evolving needs of the seafood industry while ensuring resource sustainability.

Provision 2

"The physical dimensions and characteristics of the water body should be compatib..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, manage specific species like Atlantic menhaden, and promote the welfare of the seafood industry. The regulation regarding the physical dimensions and characteristics of water bodies for marinas does not directly relate to the conservation or management of seafood resources as outlined in the statute, leading to POTENTIAL_OVERREACH. The legal significance of this relationship is that the regulation may extend beyond the intended scope of the Commission's authority, which is primarily focused on marine resource management rather than marina infrastructure specifications.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"For example, a shallow cove or basin is not an appropriate site for a deep draft..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, as well as to manage specific species like Atlantic menhaden. This broad language allows for a wide range of regulatory actions, including those related to the siting and management of marinas, as it falls under the Commission's responsibility to ensure the reasonable use and conservation of marine environments. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that address various aspects of marine resource management without requiring additional specific legislative approval, thereby facilitating effective governance in the seafood industry.

Provision 4

"Marinas shall have sufficient upland area to provide all necessary parking, stor..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, manage Atlantic menhaden, and promote the general welfare of the seafood industry. The regulation requiring marinas to have sufficient upland area for various facilities appears to exceed this authority, as it imposes requirements that do not directly relate to the conservation or management of seafood resources but rather focus on marina infrastructure and land use. The legal significance of this relationship is that the regulation may infringe upon the limits of the Commission's statutory powers, potentially leading to challenges regarding its validity and enforceability.

Provision 5

"All marinas should be located in areas with good natural flushing to minimize th..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate the management of marine resources and activities related to the conservation of these resources. However, the regulation requiring that "All marinas should be located in areas with good natural flushing" imposes a specific locational requirement that is not explicitly supported by the statutory language, which does not mention marina placement or environmental conditions. The legal significance of this relationship is that without explicit statutory authority to dictate specific siting criteria for marinas, the regulation is deemed unauthorized and exceeds the agency's granted powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"Marinas should not be sited close to areas of very high natural resource value s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad language allows for the regulation concerning the siting of marinas, as it directly relates to the conservation of high-value natural resources, which is essential for the overall health of the seafood industry and marine ecosystem. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that protect vital habitats, thereby ensuring sustainable management of marine resources without requiring specific legislative approval for each regulatory action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"The transfer of control of shellfish leases in order to accommodate marina devel..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations that address various aspects of resource management, including the regulation of shellfish leases in relation to marina development, which aligns with the overarching goal of resource conservation and sustainable use. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to implement regulations that respond to changing industry needs while ensuring the protection of marine resources, thereby justifying the GENERAL_DELEGATION status.

Provision 8

"Projects that by their cumulative impact will result in dense concentrations of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of conservation measures. This broad grant of authority encompasses the regulation's focus on evaluating the cumulative impacts of boat concentrations on natural resources, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address emerging issues in resource management without requiring a more specific legislative directive, thereby facilitating adaptive governance in the seafood industry.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

A. For community piers and marina facilities which are appurtenances to residential developments, the number of slips will not necessarily be predicated by the number of units on the property.¹ B. The dredging of access channels should be limited to the minimum dimensions necessary for navigation and should avoid sensitive areas such as wetlands, shellfish grounds and seagrass beds.² C. Dredged material disposal areas for initial as well as future disposal needs should be clearly defined and designated.³ D. Dredged areas should be no more than one foot deeper than controlling depths in the waterway and should be connected to natural channels of similar depth.⁴ E. Piers and wharves crossing vegetated wetland and seagrass areas should be limited to the minimum necessary for water access.⁵ F. Where vegetated areas are crossed, the height of the pier above the substrate should be equal to one foot less than its width with a three foot minimum required.⁶ G. Site specific stormwater management BMP's are required (such as buffer strips, grassed swales, wet detention ponds and permeable parking surfaces).⁷ H. A solid waste disposal and recovery plan with facilitated marina user access shall accompany marina development plans.⁸ I. Sanitary facilities and pumpout facilities convenient to marina users should accompany development plans.⁹ J. All fuel facilities shall incorporate automatic shutoff valves and shall have spill contingency plans.¹⁰ K. Methods of insuring against the discharge of wastes, gray water, fuels, bilge wastes and the use of TBT paints shall be provided.¹¹ L. Facilities incorporating boat maintenance operations shall include plans for the efficient collection and removal of sand blasting material, paint chips and other by-products of maintenance operations.¹²

Provision-Level Authorization Analysis

Provision 1

"A. For community piers and marina facilities which are appurtenances to resident..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species and the establishment of regulations for resource use. This broad grant of authority encompasses the regulation concerning community piers and marina facilities, as it relates to the reasonable use and management of marine resources, allowing flexibility in the number of slips based on community needs rather than strict numerical limitations. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that adapt to the evolving needs of the community while ensuring the conservation and sustainable use of marine resources, reflecting a general delegation of authority to manage these aspects effectively.

Provision 2

"B. The dredging of access channels should be limited to the minimum dimensions n..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, including activities such as dredging and the establishment of structures like wharves and bulkheads. This broad language encompasses the regulation's requirement to limit dredging of access channels to the minimum necessary dimensions while avoiding sensitive areas, as it aligns with the Commission's mandate to manage and protect state-owned bottomlands. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure the sustainable use of resources while fulfilling its statutory responsibilities, thereby promoting environmental protection and responsible navigation practices.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Dredged material disposal areas for initial as well as future disposal needs ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding the designation of dredged material disposal areas, as it relates to the conservation and reasonable use of marine resources, which is a key aspect of the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address environmental management and resource conservation without needing further specific legislative approval, thereby facilitating effective oversight and management of marine resources.

Provision 4

"D. Dredged areas should be no more than one foot deeper than controlling depths ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning dredged areas by allowing the Commission to establish guidelines that ensure the sustainable management of marine environments, which directly relates to the conservation of resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for maintaining ecological balance and supporting the seafood industry, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Piers and wharves crossing vegetated wetland and seagrass areas should be lim..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically authorizes the Commission to issue permits for reasonable uses of state-owned bottomlands, including the placement of wharves and bulkheads, but does not explicitly mention the regulation of piers and wharves in relation to vegetated wetlands or seagrass areas. The regulation's requirement to limit piers and wharves crossing these sensitive areas appears to exceed the Commission's authority as it imposes additional restrictions not outlined in the statute, which focuses on permitting rather than regulating environmental impacts. The legal significance of this relationship is that the regulation may infringe upon the Commission's defined powers by introducing conditions that are not supported by the statutory text, potentially undermining the intended scope of the Commission's authority.

Provision 6

"F. Where vegetated areas are crossed, the height of the pier above the substrate..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, including the establishment of bulkhead and private pier lines. This broad authorization allows the Commission to regulate the design and construction of piers, such as the height requirements in the regulation, under the general framework of managing state-owned resources and ensuring reasonable uses. The legal significance of this relationship is that it empowers the Commission to implement specific standards that align with its overarching authority to manage and protect the state’s aquatic resources without needing to specify every detail in the statute itself.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"G. Site specific stormwater management BMP's are required (such as buffer strips..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to manage specific species like Atlantic menhaden. The regulation requiring site-specific stormwater management BMPs does not directly relate to the conservation or management of seafood or marine resources, suggesting that it may extend beyond the Commission's intended scope of authority as outlined in the statute. The legal significance of this relationship indicates that the regulation may not be valid if it does not align with the specific purposes and powers granted by the statute, potentially undermining the regulatory framework established by the legislature.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"H. A solid waste disposal and recovery plan with facilitated marina user access ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, including the establishment of structures and activities that impact the waters and shores under its jurisdiction. This broad grant of authority encompasses the regulation requiring a solid waste disposal and recovery plan for marina development, as it relates to the reasonable use of state-owned bottomlands and the management of environmental impacts associated with such developments. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure responsible use and protection of state resources while facilitating marina development, thereby aligning with the overarching goals of the statute.

Provision 9

"I. Sanitary facilities and pumpout facilities convenient to marina users should ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to manage specific species like Atlantic menhaden. The regulation requiring sanitary facilities and pumpout facilities for marina users does not directly relate to the conservation or management of seafood resources, which suggests it may exceed the scope of the authority granted by the statute. The legal significance of this relationship is that regulations must align closely with the explicit powers outlined in the statute, and any deviation could be seen as an overreach of the Commission's regulatory authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 10

"J. All fuel facilities shall incorporate automatic shutoff valves and shall have..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations related to the seafood industry, including conservation and management of specific marine resources, but does not mention fuel facilities or spill contingency plans. The regulation requiring all fuel facilities to incorporate automatic shutoff valves and spill contingency plans falls outside the scope of the Commission's authority as defined in the statute, which focuses solely on seafood and marine resource management. The legal significance of this relationship is that the regulation is unauthorized because it extends beyond the explicit powers granted to the Commission, thereby lacking the necessary statutory foundation.

Provision 11

"K. Methods of insuring against the discharge of wastes, gray water, fuels, bilge..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, including activities like dredging and the placement of structures, but does not explicitly mention regulation of waste discharge or the use of specific materials like TBT paints. The regulation requiring methods to insure against the discharge of various wastes appears to exceed the statutory authorization because it imposes additional environmental protections that are not directly tied to the reasonable uses of bottomlands as outlined in the statute. The legal significance of this relationship is that the regulation may be seen as overstepping the bounds of the Commission's authority, potentially leading to challenges regarding the legitimacy of the regulatory requirements in relation to the specific powers granted by the statute.

Provision 12

"L. Facilities incorporating boat maintenance operations shall include plans for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation concerning facilities with boat maintenance operations, as it relates to the conservation of marine resources by ensuring that maintenance practices do not negatively impact the environment. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address environmental concerns associated with seafood industry operations, thereby supporting the overarching goals of resource conservation and industry welfare.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

Best management practices (BMP's).¹ In order to reduce discharge of nonpoint source pollutants into state waters, the commission will require the applicant to demonstrate how appropriate BMP's will be incorporated into both the upland development plan associated with the facility as well at the Erosion and Sediment (E & S) Control Plan required by local government.² The commission may require, as a condition of any permit issued, that BMP structures be completed before any slips can be occupied and that the permittee cooperate fully with local governmental agencies in complying with the E & S Plan, including maintenance of any required BMP structures.³ An appropriate surety bond or letter of credit may be required to ensure proper installation, stabilization and maintenance of any vegetative or structural measures.⁴

Provision-Level Authorization Analysis

Provision 1

"Best management practices (BMP's)."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and managing marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation on best management practices (BMPs) as it aligns with the Commission's mandate to ensure sustainable practices that support the seafood industry and resource conservation. The legal significance of this authorization relationship is that it allows the Commission to implement BMPs without needing further specific legislative approval, thereby facilitating effective management of marine resources.

Provision 2

"In order to reduce discharge of nonpoint source pollutants into state waters, th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of fishery management plans. This broad grant of authority encompasses the regulation requiring applicants to demonstrate the incorporation of best management practices (BMPs) to reduce nonpoint source pollutants, as it aligns with the Commission's responsibility to ensure the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for environmental protection and resource management under a general delegation of authority, ensuring that regulatory actions are consistent with the overarching goals of conservation and industry welfare.

Provision 3

"The commission may require, as a condition of any permit issued, that BMP struct..."

Express Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically states that the Commission is authorized to issue permits for reasonable uses of state-owned bottomlands and to establish conditions for those permits, including cooperation with local governmental agencies. This results in EXPRESS_DELEGATION because the statute explicitly grants the Commission the authority to impose conditions, such as the completion of BMP structures and compliance with local E & S Plans, as part of the permitting process. The legal significance of this authorization relationship is that it empowers the Commission to ensure environmental protection and compliance with local regulations while exercising its permitting authority over state-owned bottomlands.

Provision 4

"An appropriate surety bond or letter of credit may be required to ensure proper ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority allows the Commission to implement regulations like the requirement for a surety bond or letter of credit, as it relates to ensuring the proper installation and maintenance of measures that contribute to the conservation of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to safeguard the marine environment, thereby promoting the general welfare of the seafood industry and ensuring sustainable resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Criteria for the Siting of Marinas or Community Facilities for Boat Mooring

Express

General

Overreach

Unauthorized

Requirements

The following criteria will be considered by the commission in determining whether, and upon what condition to issue any permit for a boat mooring facility.¹ In addition, the commission may consider other factors relevant to a specific project or application.² Criteria Undesirable Desirable Water Depth Less than 3 ft. mlw Greater than 3 ft. mlw Salinity Suitable for shellfish growth Unsuitable for shellfish growth Water Quality Approved, conditionally approved or seasonally approved for shellfish harvesting Closed for direct marketing of shellfish.³ Little or no potential for future productivity Designated Shellfish Grounds Private leases or public oyster ground in proximity No private leases or public ground within affected area.⁴ No potential for future productivity Maximum Wave Height Greater than 1 ft.⁵ Less than 1 ft.⁶ Current Greater than 1 knot Less than 1 knot Dredging Requires frequent dredging Does not require frequent maintenance No suitable site for dredged material Suitable site for all dredged material Flushing Rate (Tidal Exchange) Inadequate to maintain water quality Adequate to maintain water quality Proximity to Natural or Improved Channel Greater than 50 ft. to navigable water depths Less than 50 ft. to navigable channel Threatened or Endangered Species Present as defined in existing chapters, or project has potential to affect habitat Absent; project will not affect Adjacent Wetlands Cannot maintain suitable buffer Suitable buffer to be maintained Navigation & Safety Water body difficult to navigate or presently overcrowded conditions exist Navigation not impeded Existing Use of Site Presently used for skiing, crabbing, fishing, swimming or other potentially conflicting uses Not presently used for skiing, fishing, swimming or other recreational use Submerged Aquatic Vegetation Present Absent Shoreline Bulkheading Required Shoreline protected Stabilization by natural or planted vegetation or riprap Erosion Control Structures Groins and/or jetties necessary No artificial structures needed Finfish Habitat Usage Important spawning and nursery area Unimportant area for spawning or nursery for any commercially or recreationally valuable species⁷

Provision-Level Authorization Analysis

Provision 1

"The following criteria will be considered by the commission in determining wheth..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing criteria for resource management. This broad grant of authority encompasses the regulation regarding the criteria for issuing permits for boat mooring facilities, as it relates to the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in regulatory matters, ensuring that decisions align with the overarching goals of resource conservation and industry welfare without requiring specific legislative approval for each regulation.

Provision 2

"In addition, the commission may consider other factors relevant to a specific pr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to consider various factors relevant to specific projects or applications, as stated in the regulation, thereby justifying the classification of GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to exercise discretion in regulatory matters, ensuring that regulations can adapt to the needs of the seafood industry while fulfilling conservation goals.

Provision 3

"Criteria Undesirable Desirable Water Depth Less than 3 ft. mlw Greater than 3 ft..."

General Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, establish bulkhead and private pier lines, and issue permits for recovering underwater historic property. This broad grant of authority encompasses the regulation's criteria for evaluating water depth, salinity, and water quality, as these factors are essential in determining the suitability of state-owned bottomlands for various uses, including shellfish harvesting. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in managing and protecting aquatic resources while ensuring compliance with the overarching statutory framework.

Provision 4

"Little or no potential for future productivity Designated Shellfish Grounds Pri..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for reasonable uses of state-owned bottomlands, including activities such as dredging and the placement of structures, but does not explicitly mention criteria related to shellfish grounds or future productivity. The regulation's focus on "little or no potential for future productivity" and the designation of shellfish grounds introduces additional criteria that are not found in the statute, suggesting that the regulation imposes restrictions beyond what the statute authorizes. This discrepancy indicates that the regulation may exceed the Commission's statutory authority, as it adds conditions that limit the use of bottomlands without clear legislative backing.

Provision 5

"No potential for future productivity Maximum Wave Height Greater than 1 ft."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the general welfare of the seafood industry and conserving marine resources. This broad language allows for the implementation of regulations like the one addressing maximum wave height, as it relates to the conservation and reasonable use of marine resources, thereby falling under the Commission's general delegation of authority. The legal significance of this relationship is that it empowers the Commission to regulate aspects of the marine environment that impact seafood productivity, ensuring effective management and sustainability of resources.

Provision 6

"Less than 1 ft."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding size limits, as it is a necessary measure to ensure the sustainable management of seafood resources and aligns with the Commission's responsibility to conserve marine life. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing further specific legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 7

"Current Greater than 1 knot Less than 1 knot Dredging Requires frequent dredging..."

Express Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically states that the Commission is authorized to issue permits for reasonable uses of state-owned bottomlands, including activities such as dredging and establishing bulkhead lines. This results in EXPRESS_DELEGATION because the regulation directly aligns with the statutory authority by detailing specific conditions and requirements related to dredging, such as the need for maintenance and the assessment of water quality. The legal significance of this authorization relationship is that it allows the Commission to implement and enforce regulations that ensure the responsible use of state-owned bottomlands while adhering to the parameters set forth in the statute.

Pertaining to the Culling of Crabs

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to aid in enforcing the provisions of § 28-2.708 of the Code of Virginia and to protect and conserve the blue crab resource.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to aid in enforcing the provisions of § 28-2.708 ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations aimed at protecting specific resources, such as the blue crab, as it falls under the Commission's mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for resource conservation and management without requiring further legislative approval, thereby facilitating timely and effective regulatory action.

CROSS-REFERENCE § 28-2.708

Explicit Statutory Citations

RANGE REFERENCE § 28-2.708

Citation text: "§ 28-2.708"

Total: 1 citation to 1 unique statute

Pertaining to the Culling of Crabs

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise. "Dark sponge crab" means the adult female hard crab which has extruded her eggs on the abdomen or abdominal flap and the eggs have developed a coloration ranging from any shade of brown through black. "Operations office" means Marine Resource Commission Law Enforcement Operations Office.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including specific provisions for managing various species. This results in GENERAL_DELEGATION because the regulation defines terms essential for understanding and implementing the Commission's broader regulatory framework, which aligns with the statutory mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to establish detailed regulatory definitions that support its overarching goals without requiring further legislative approval, thus facilitating efficient management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Culling of Crabs

Express

General

Overreach

Unauthorized

Requirements

A. All crabs taken from the tidal waters of Virginia shall be culled to the legal size and possession limits by the catcher at the location of the harvest.¹ B. The catcher shall use culling containers (other than bushel baskets and barrels normally used for crabs) for the purpose of culling crabs during the harvesting process. Crabs placed loose in any boat are subject to be culled at any time. The provisions of this section shall not apply to the harvesting of crabs from a licensed crab trap (crab pound).² C. During culling, all undersize crabs shall be immediately returned to the water as required by § 28.2-708 of the Code of Virginia.³ D. From March 17 through June 15, it shall be unlawful for any person to possess for a period longer than is necessary for immediate determination of the presence of a dark egg mass more than 10 dark sponge crabs per United States standard bushel or 35 dark sponge crabs per barrel, and the following conservation measures shall be in effect: 1. During culling, those dark sponge crabs in excess of the allowance level shall be immediately returned to the water alive and shall not be altered or destroyed in any manner.⁴ 2. It shall be unlawful for any person to possess for a period longer than is necessary for immediate determination of unnatural removal of eggs, a female blue crab that has been scrubbed or has in any manner other than natural hatching had the eggs removed therefrom.⁵ 3. Any marine patrol officer may grade or cull any number of barrels, baskets, or containers of crabs in any person's possession. If the officer finds more than 10 dark sponge crabs per United States standard bushel or 35 per barrel, he shall seize the entire quantity of crabs in or from each such container, and the person who possessed the crabs shall immediately return them to the water. Refusal to return the crabs to the water is a separate offense from any other violation.⁶ E. Nothing in this section shall prohibit the possession of dark sponge crabs that have been taken outside of Virginia waters by crab processing houses meeting the following conditions: 1. It shall be unlawful for any crab processing house to import or possess any dark sponge crabs from any other state or jurisdiction without first providing notice to the operations office of its intent to import dark sponge crabs.⁷ 2. Any crab processing house shall notify the operations office of its intent to import or possess dark sponge crabs from another state at least 24 hours in advance, either by telephone (1-757-541-4646 or 757-247-2265/2266) or by FAX (757-247-8026). Each crab processing house shall provide the operations office with their company name, manager's name, business location, phone number, quantity of crabs to be imported, source of crabs, arrival date, and approximate time.⁸ 3. Such imported crabs shall be accompanied by a bill of sale which shall include the name of the seller, address and phone number of the seller, the license number of the seller if such license is required in the jurisdiction of harvest, the date of sale, and the quantity of crabs sold or purchased under the bill of sale.⁹

Provision-Level Authorization Analysis

Provision 1

"A. All crabs taken from the tidal waters of Virginia shall be culled to the lega..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. The regulation requiring that all crabs taken from Virginia's tidal waters be culled to legal size and possession limits directly aligns with the statute's intent to ensure the conservation and reasonable use of seafood resources, thereby falling within the broad scope of authority granted to the Commission. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective management of marine resources.

EXCEPTION § 28.2-708

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 7. Crabs › Article 3. Restrictions on Harvesting Crabs › § 28.2-708. Limitations on sizes of crabs to be taken; inspection of catch; exemption; penalty A. It is unlawful for any person to catch, take or ha...

Provision 2

"B. The catcher shall use culling containers (other than bushel baskets and barre..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations, such as the requirement for culling containers during crab harvesting, as it directly relates to the management and conservation of crab resources within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource conservation and industry welfare without needing additional specific legislative approval.

EXCEPTION § 28.2-708

Provision 3

"C. During culling, all undersize crabs shall be immediately returned to the wate..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation requiring that undersize crabs be returned to the water, as it directly relates to the conservation and reasonable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of marine life, thereby supporting the overall objectives outlined in the statute.

EXCEPTION § 28.2-708

Explicit Statutory Citations

RANGE REFERENCE § 28.2-708

Citation text: "§ 28.2-708"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 4

"D. From March 17 through June 15, it shall be unlawful for any person to posses..."

General Delegation

AUTHORIZING STATUTE § 28.2-708

The Commission may change such size restrictions for a period not to exceed sixty days to respond to significant ecological changes.

ANALYSIS

§ 28.2-708 specifically grants the Commission the authority to change size restrictions for a limited period in response to significant ecological changes. This broad grant of authority allows the Commission to implement regulations, such as the possession limits for dark sponge crabs, to manage ecological impacts effectively without needing to specify every detail in the statute. The legal significance of this authorization relationship is that it empowers the Commission to adaptively manage resources in a timely manner, ensuring ecological integrity while maintaining regulatory flexibility.

EXCEPTION § 28.2-708

Provision 5

"2. It shall be unlawful for any person to possess for a period longer than is ne..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-708

The Commission may change such size restrictions for a period not to exceed sixty days to respond to significant ecological changes.

ANALYSIS

§ 28.2-708 specifically grants the Commission the authority to change size restrictions for a maximum of sixty days in response to significant ecological changes. The regulation, however, imposes a prohibition on possessing female blue crabs with removed eggs for an indefinite period, which goes beyond the limited scope of authority provided by the statute to only adjust size restrictions temporarily. The legal significance of this relationship is that the regulation appears to exceed the Commission's statutory authority by imposing a broader restriction that is not explicitly authorized by the statute.

EXCEPTION § 28.2-708

Provision 6

"3. Any marine patrol officer may grade or cull any number of barrels, baskets, o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad authority encompasses the regulation allowing marine patrol officers to grade or cull crabs, as it directly relates to the conservation of crab populations and the management of seafood resources, thus fitting within the Commission's mandate. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures for resource management without requiring specific legislative approval for every regulatory action, thereby facilitating effective oversight and enforcement in the seafood industry.

EXCEPTION § 28.2-708

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"E. Nothing in this section shall prohibit the possession of dark sponge crabs t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to regulate the possession of dark sponge crabs taken outside of Virginia waters, as it falls within the scope of managing seafood resources and ensuring the reasonable use of those resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that address specific practices in the seafood industry while maintaining the overall conservation and management goals outlined in the statute.

EXCEPTION § 28.2-708

Provision 8

"2. Any crab processing house shall notify the operations office of its intent to..."

General Delegation

AUTHORIZING STATUTE § 28.2-708

The Commission may change such size restrictions for a period not to exceed sixty days to respond to significant ecological changes.

ANALYSIS

§ 28.2-708 specifically grants the Commission the authority to change size restrictions in response to significant ecological changes for a limited period. This broad grant of authority allows the Commission to implement regulations, such as requiring crab processing houses to notify the operations office about the importation or possession of dark sponge crabs, as it relates to managing ecological impacts and ensuring compliance with changing conditions. The legal significance of this authorization relationship is that it empowers the Commission to adapt regulations to protect ecological interests while maintaining oversight and communication with stakeholders in the industry.

EXCEPTION § 28.2-708

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"3. Such imported crabs shall be accompanied by a bill of sale which shall includ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the reasonable use of seafood. This broad grant of authority allows the Commission to implement regulations such as requiring a bill of sale for imported crabs, as it directly relates to the management and oversight of seafood transactions to ensure conservation and proper resource use. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource management and industry welfare without needing to seek further legislative approval for each specific regulation.

EXCEPTION § 28.2-708

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Culling of Crabs

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-708 of the Code of Virginia, any person violating any provision of this chapter other than subsections D and E of 4VAC20-370-20 shall be guilty of a Class 3 misdemeanor.¹ B. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of subsections D and E of 4VAC20-370-20 shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of subsections D and E of 4VAC20-370-20 committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-708 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish regulations that impose penalties for violations, such as the Class 3 misdemeanor for non-compliance with the chapter, thereby aligning with the statute's intent to ensure effective management and conservation of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, thereby supporting the overarching goals of resource conservation and industry welfare as outlined in the statute.

EXCEPTION § 28.2-708

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-708

Citation text: "§ 28.2-708"

Total: 1 citation to 1 unique statute

Provision 2

"B. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-903 specifically states that violations of certain provisions can result in a Class 3 misdemeanor but does not grant the agency authority to impose penalties for violations of subsections D and E of 4VAC20-370-20. The regulation attempts to establish penalties for violations of these subsections, which the statute does not explicitly authorize, resulting in the regulation being unauthorized. The legal significance of this relationship is that without clear statutory authority, the regulation lacks the necessary foundation to enforce penalties, rendering it invalid.

EXCEPTION § 28.2-708

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to maintain the target fishing mortality rate for grey trout in order to maintain a sustainable grey trout population.¹ This chapter is designed to be consistent with federal and interstate management measures.²

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to maintain the target fishing mortality rate for..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority encompasses the regulation aimed at maintaining the target fishing mortality rate for grey trout, as it directly relates to the conservation and sustainable management of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for achieving sustainability goals, thereby ensuring the long-term viability of the seafood industry and its resources.

Provision 2

"This chapter is designed to be consistent with federal and interstate management..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations that align with federal and interstate management measures, thereby ensuring that the regulation is consistent with overarching management goals and practices. The legal significance of this authorization relationship is that it enables the Commission to effectively manage and conserve marine resources while maintaining compliance with external regulatory frameworks, reflecting a comprehensive approach to resource management.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Fishing year" means the time period of April 1 through March 31.² "Grey trout" means any fish of the species Cynoscion regalis.³ "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.⁴ "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.⁵

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including defining terms relevant to these regulations. This results in GENERAL_DELEGATION because the regulation establishes definitions that are essential for the effective implementation of the Commission's regulatory framework, thus falling within the scope of the authority granted by the statute. The legal significance of this authorization relationship is that it allows the Commission to create foundational regulatory language that supports its broader mandate to manage and conserve seafood resources effectively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Fishing year" means the time period of April 1 through March 31."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad language allows the Commission to define essential terms, such as "fishing year," which is necessary for the effective management and regulation of fishing activities within the established time frame. The legal significance of this relationship is that it empowers the Commission to implement regulations that support its overarching goals of resource conservation and industry welfare without requiring further legislative approval for such definitions.

Provision 3

""Grey trout" means any fish of the species Cynoscion regalis."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of definitions relevant to species management. This broad language encompasses the regulation defining "grey trout" as it is essential for the Commission to clarify species to effectively manage and conserve marine resources, thus justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, streamlining the management of marine resources.

Provision 4

""Snout" means the most forward projection from a fish's head that includes the u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources. This broad grant of authority encompasses the regulation defining "snout," as it is essential for the effective management and conservation of fish species, aligning with the Commission's responsibility to establish clear definitions that support regulatory compliance and resource management. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures that facilitate the overall objectives of resource conservation and industry welfare without requiring further legislative approval for such definitions.

Provision 5

""Total length" means the length of a fish measured from the most forward project..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation defining "total length" as it is essential for the effective management and conservation of fish species, ensuring that measurements are standardized for regulatory compliance. The legal significance of this authorization relationship is that it allows the Commission to implement detailed and technical regulations necessary for the practical enforcement of broader statutory goals, thereby facilitating the sustainable management of marine resources.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

A. The open seasons on grey trout harvested by pound net shall be April 1 through April 30 and May 23 through September 12. The restricted seasons on grey trout harvested by pound net shall be May 1 through May 22 and September 13 through March 31 except as provided in subdivision 1 of this subsection.¹ 1. Any pound net fisherman who holds two or three pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only one of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Any pound net fisherman who holds four, five, or six pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only two of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Any pound net fisherman who holds seven, eight, or nine pound net licenses in accordance with the provisions of 4VAC20-600 may forfeit only three of those licenses to operate under the rules for an open season as established in this section during a restricted season in the current fishing year. Forfeiture of any license shall be through March 31 of each fishing year and shall occur prior to May 1 of each fishing year.² 2. Any pound net licensee who forfeits a license pursuant to subdivision 1 of this subsection shall retain his priority rights to such locations for future licensing until April 1 of the following fishing year. Any pound net fisherman who forfeits one or more pound net licenses may reclaim such licenses during the period of March 15 of the current fishing year through April 1 of the following fishing year but shall not set or fish any pound nets provided for by such licenses prior to April 1.³ 3. Those pound net licensees who hold multiple gear licenses and satisfy the requirement of subdivision 1 of this subsection may transfer an unused license to a licensee who holds a single pound net license.⁴ B. During any open season described in this section, there shall be no minimum size limit on grey trout for any person fishing with a pound net.⁵ C. During any restricted season described in this section, it shall be unlawful for any person fishing with a pound net to land or possess any grey trout less than 12 inches in total length.⁶ D. During any open season described in this section, it shall be unlawful for any person fishing with a pound net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.⁷ E. During any restricted season described in this section, it shall be unlawful for any person fishing with a pound net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season described in this section, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.⁸

Provision-Level Authorization Analysis

Provision 1

"A. The open seasons on grey trout harvested by pound net shall be April 1 throug..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention grey trout or the specific management of its harvest seasons. The regulation establishing open and restricted seasons for grey trout harvested by pound net appears to exceed the Commission's authority as it does not align with the statutory focus on conservation and management of specified species, potentially extending beyond the intended scope of the statute. The legal significance of this relationship indicates that the regulation may lack the necessary statutory foundation, raising concerns about its validity and adherence to the limitations set forth in the statute.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"1. Any pound net fisherman who holds two or three pound net licenses in accordan..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding pound net fishermen, as it addresses the management of fishing licenses and operational rules during restricted seasons, aligning with the Commission's responsibility to ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement flexible regulations that can adapt to changing conditions in the seafood industry while remaining within the framework established by the statute.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. Any pound net licensee who forfeits a license pursuant to subdivision 1 of th..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically outlines the conditions under which a pound net license may be forfeited and does not grant authority for the retention of priority rights beyond the specified terms. The regulation extends the retention of priority rights to a period that is not mentioned in the statute, thereby exceeding the authority provided by the statute. The legal significance of this relationship is that regulations must align with the explicit provisions of the statute, and any deviation renders the regulation unauthorized.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. Those pound net licensees who hold multiple gear licenses and satisfy the req..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood industries. This broad grant of authority allows the Commission to implement regulations that facilitate the transfer of licenses among licensees, as it promotes the efficient use of resources and aligns with the overall goal of managing the seafood industry effectively. The legal significance of this authorization relationship is that it empowers the Commission to make decisions that enhance resource management while ensuring compliance with the overarching objectives of conservation and industry welfare.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"B. During any open season described in this section, there shall be no minimum s..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate the fishing of certain species during designated open seasons, but it does not mention any provisions regarding size limits for grey trout or the use of pound nets. The regulation imposes a condition that is not supported by the statute, as it introduces a specific management measure (no minimum size limit) that is not explicitly authorized in the statutory text. The legal significance of this relationship is that without clear statutory authority for the regulation, it cannot be enforced, rendering it unauthorized.

Provision 6

"C. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority allows the regulation to establish restrictions on the possession of grey trout during certain seasons, as it directly relates to the conservation efforts and management of fish populations within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to protect marine resources, ensuring sustainable practices within the seafood industry while maintaining compliance with the overarching statutory framework.

Provision 7

"D. During any open season described in this section, it shall be unlawful for an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning the possession limit for grey trout, as it directly relates to the Commission's responsibility to manage fishery resources sustainably and ensure the reasonable use of those resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 8

"E. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority encompasses the regulation concerning the vessel possession limit for grey trout during restricted seasons, as it directly relates to the Commission's responsibility to promote the general welfare of the seafood industry and ensure sustainable management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that are essential for effective resource management and conservation without needing further legislative approval, thereby facilitating timely and responsive governance.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

A. The open seasons on grey trout harvested by gill net shall be April 1 through May 13, October 21 through December 30, and March 16 through March 31. The restricted seasons on grey trout harvested by gill net shall be May 14 through October 20 and December 31 through March 15.¹ B. It shall be unlawful for any person fishing with gill nets at any time to land or possess any grey trout less than 12 inches in total length.² C. During any open season described in this section, it shall be unlawful for any person fishing with a gill net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.³ D. During any restricted season described in this section, it shall be unlawful for any person fishing with a gill net to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The open seasons on grey trout harvested by gill net shall be April 1 through..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention grey trout or the use of gill nets. The regulation's establishment of open and restricted seasons for grey trout harvested by gill net may exceed the Commission's authority as it does not align with the statutory focus on promoting the general welfare of the seafood industry and managing designated species, suggesting a potential overreach in regulating a species not explicitly covered by the statute. The legal significance of this relationship indicates that the regulation may not be valid if it extends beyond the scope of the authority granted by the statute, potentially undermining the regulatory framework intended by the legislature.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing with gill nets at any time to lan..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, including surf clams and Atlantic menhaden, but does not explicitly mention grey trout. The regulation prohibiting the landing or possession of grey trout less than 12 inches in total length may exceed the Commission's authority because it addresses a species not explicitly mentioned in the statute, potentially overstepping the bounds of the Commission's regulatory powers. The legal significance of this relationship is that the regulation could be challenged for lacking a clear statutory basis, which may undermine the legitimacy of the Commission's authority to enforce such a restriction on grey trout.

Provision 3

"C. During any open season described in this section, it shall be unlawful for an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of seafood species. This broad grant of authority encompasses the regulation limiting the possession of grey trout, as it falls within the Commission's mandate to regulate fishing practices to ensure sustainable use and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that directly address resource management and conservation without requiring further specific legislative approval, thereby facilitating effective oversight of the seafood industry.

Provision 4

"D. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and conserving marine resources, including establishing regulations for specific species like grey trout. This broad grant of authority encompasses the regulation's stipulation regarding the vessel possession limit for grey trout during restricted seasons, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures under the umbrella of its general authority to manage and protect the seafood resources of the Commonwealth.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

A. The open season on landing grey trout harvested by trawl shall be April 1 through September 25. The restricted season on landing grey trout harvested by trawl shall be September 26 through March 31.¹ B. During any open season described in this section, it shall be unlawful for any trawl boat to land or possess more than 100 grey trout less than 12 inches in total length, and it shall be unlawful to sell or purchase any grey trout less than 12 inches in total length from a commercial trawl vessel.² C. During any restricted season described in this section, it shall be unlawful for any trawl boat to land or possess any grey trout less than 12 inches in total length.³ D. During any open season described in this section, it shall be unlawful for any trawl vessel to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.⁴ E. During any restricted season described in this section, it shall be unlawful to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any trawl vessel to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.⁵ F. It shall be unlawful for any trawl boat to land grey trout in Virginia while possessing on board any trawl net having a cod-end mesh less than three inches, stretched measure.⁶

Provision-Level Authorization Analysis

Provision 1

"A. The open season on landing grey trout harvested by trawl shall be April 1 thr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood species. This broad grant of authority allows the Commission to establish regulations, such as the open and restricted seasons for landing grey trout harvested by trawl, to promote the general welfare of the seafood industry and ensure sustainable practices. The legal significance of this authorization relationship is that it empowers the Commission to implement management measures that align with its mandate to conserve marine resources while facilitating their use, thereby supporting both ecological and economic objectives.

Provision 2

"B. During any open season described in this section, it shall be unlawful for an..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention grey trout or establish size limits for this species. The regulation imposes a prohibition on landing or possessing grey trout under a certain size, which appears to exceed the Commission's authority as outlined in the statute, since it does not align with the specified management of resources mentioned in the statute. The legal significance of this relationship is that the regulation may be challenged for overstepping the bounds of the authority granted by the statute, potentially undermining the legitimacy of the regulation itself.

Provision 3

"C. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority allows the Commission to implement regulations such as the prohibition on landing or possessing grey trout less than 12 inches in total length during restricted seasons, as it directly relates to the conservation of fish species and the promotion of sustainable fishing practices. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that are essential for managing and protecting marine resources, ensuring that such measures align with the overarching goals of promoting the welfare of the seafood industry and conserving marine life.

Provision 4

"D. During any open season described in this section, it shall be unlawful for an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the reasonable use of specific species. This broad language encompasses the regulation regarding the possession limit for grey trout, as it directly relates to the conservation and management of marine resources, aligning with the Commission's mandate to regulate seafood taking practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to ensure sustainable fishing practices while adhering to the overarching goals of resource conservation and industry welfare.

Provision 5

"E. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing seafood species. This broad grant of authority allows the regulation concerning the vessel possession limit for grey trout to fall under GENERAL_DELEGATION, as it is a necessary measure to ensure the conservation and reasonable use of marine resources during restricted seasons. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulations that effectively manage and protect the seafood resources of the Commonwealth, ensuring compliance with broader conservation goals.

Provision 6

"F. It shall be unlawful for any trawl boat to land grey trout in Virginia while ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like surf clams and Atlantic menhaden. The regulation prohibiting the landing of grey trout while possessing trawl nets with a cod-end mesh less than three inches may exceed the statute's authorization because the statute does not explicitly mention grey trout or provide the Commission with the authority to impose such specific gear restrictions for this species. The legal significance of this relationship is that the regulation could be challenged as exceeding the Commission's statutory authority, as it imposes restrictions not clearly supported by the language of the statute.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

A. The open seasons on grey trout harvested by haul seine shall be April 16 through June 10 and August 21 through September 24. The restricted seasons on grey trout harvested by haul seine shall be April 1 through April 15, June 11 through August 20, and September 25 through March 31.¹ B. During any open season described in this section, there shall be no minimum size limit on grey trout for any person fishing with haul seine.² C. During any restricted season described in this section, it shall be unlawful for any person fishing with a haul seine to land or possess any grey trout less than 12 inches in total length.³ D. During any open season described in this section, it shall be unlawful for any person fishing with a haul seine to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.⁴ E. During any restricted season described in this section, it shall be unlawful for any person fishing with a haul seine to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time. Also, during any restricted season, it shall be unlawful for any person to land or possess any quantity of grey trout that is more than the total weight of all other species on board the vessel.⁵

Provision-Level Authorization Analysis

Provision 1

"A. The open seasons on grey trout harvested by haul seine shall be April 16 thro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation on grey trout seasons, as it directly relates to the management and conservation of marine resources within the Commonwealth, thereby aligning with the Commission's mandate to regulate seafood harvesting. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures, such as the open and restricted seasons for grey trout, under the general delegation of authority provided by the statute, ensuring effective management of the fishery resources.

Provision 2

"B. During any open season described in this section, there shall be no minimum s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding grey trout, as it allows the Commission to determine size limits based on conservation goals and the management of fishery resources during open seasons. The legal significance of this authorization relationship is that it empowers the Commission to make flexible regulatory decisions that can adapt to changing conditions in the seafood industry and resource management without requiring further legislative approval.

Provision 3

"C. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad language allows the Commission to implement regulations like the one prohibiting the landing or possession of grey trout below a certain size during restricted seasons, as it directly relates to the conservation of marine resources and the management of fish populations. The legal significance of this authorization relationship is that it empowers the Commission to enact necessary regulations to ensure sustainable fishing practices, thereby fulfilling its mandate to protect and manage the Commonwealth's seafood resources effectively.

Provision 4

"D. During any open season described in this section, it shall be unlawful for an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority allows the Commission to implement regulations like the one limiting the possession of grey trout, as it directly relates to the conservation and management of marine species within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource conservation and sustainable use, ensuring effective management of the seafood industry.

Provision 5

"E. During any restricted season described in this section, it shall be unlawful ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority encompasses the regulation limiting the vessel possession of grey trout during restricted seasons, as it aligns with the Commission's mandate to promote the general welfare of the seafood industry and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulatory measures that are essential for resource management without requiring further legislative approval, thereby facilitating timely and effective conservation efforts.

Pertaining to Grey Trout (Weakfish)

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing with commercial hook-and-line to land or possess any grey trout less than 12 inches in total length.¹ B. It shall be unlawful for any person fishing with commercial hook-and-line to exceed the vessel possession limit for grey trout of 100 pounds per day or trip, whichever is the longer period of time.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing with commercial hook-and-line to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. The regulation prohibiting the landing or possession of grey trout less than 12 inches in total length directly aligns with the Commission's broad mandate to manage and conserve seafood resources, thereby justifying a GENERAL_DELEGATION of authority. This authorization relationship allows the Commission to implement necessary measures for resource conservation without requiring further legislative approval, ensuring effective management of marine resources.

Provision 2

"B. It shall be unlawful for any person fishing with commercial hook-and-line to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like grey trout. This broad grant of authority allows the Commission to establish possession limits for grey trout to ensure sustainable fishing practices and resource conservation, which aligns with the statute's intent to manage seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that directly support the overarching goals of conservation and reasonable use of marine resources, thereby justifying the GENERAL_DELEGATION status of the regulation.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

If only one end or buoy of a gill net is found to be marked as required by this chapter, then a warning shall be issued by a Marine Patrol Officer, and the net owner shall have 24 hours to mark the net as provided in this chapter. 2.¹ If both ends of a gill net are found in violation, a Marine Patrol Officer shall confiscate the net immediately unless at least one remaining buoy is inscribed with the last four numbers of the licensee's commercial fisherman registration license.²

Provision-Level Authorization Analysis

Provision 1

"If only one end or buoy of a gill net is found to be marked as required by this ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including establishing regulations for conservation and reasonable use. This broad grant of authority allows the Commission to implement regulations that include penalties for violations, as it is essential for enforcing compliance and ensuring the effective management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to regulate conduct related to seafood management, thereby supporting the overarching goals of conservation and resource management outlined in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Wetlands Mitigation -- Compensation Policy

Express

General

Overreach

Unauthorized

Requirements

The following words, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Ad hoc in-lieu fees" means the payment of funds to a participating locality for the restoration, establishment, enhancement, or, in certain circumstances, preservation of wetlands resources to satisfy compensatory mitigation requirements.¹ Ad hoc in-lieu fee programs are not governed by an in-lieu fee program instrument. "Approved in-lieu fee program" means a program involving the restoration, establishment, enhancement, or, in certain circumstances, preservation of wetlands resources through funds paid to a governmental or nonprofit natural resources management entity for the purchase of credits to satisfy compensatory mitigation requirements.² The operation and use of an approved in-lieu fee program are governed by an in-lieu fee program instrument approved as provided in federal law. "Commission" means the Virginia Marine Resources Commission. "Compensatory mitigation" means the restoration, establishment, enhancement, or, in certain circumstances, preservation of wetlands resources for the purpose of offsetting unavoidable adverse impacts of a permitted development activity that remain after all appropriate and practicable avoidance and minimization has been achieved. "Mitigation" means all actions, both taken and not taken, that eliminate or materially reduce the adverse effects of a proposed activity on the living and nonliving components of a wetland system or their ability to interact.³ Mitigation includes compensatory mitigation.⁴

Provision-Level Authorization Analysis

Provision 1

"The following words, when used in this chapter, shall have the following meaning..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for the creation of definitions and terms, such as "ad hoc in-lieu fees," which are essential for the effective implementation of the regulatory framework. The legal significance of this relationship is that it empowers the Commission to establish necessary operational definitions, ensuring clarity and consistency in the application of the statute's provisions.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"Ad hoc in-lieu fee programs are not governed by an in-lieu fee program instrumen..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of its mandate, including the establishment of frameworks for in-lieu fee programs, which are essential for managing wetlands resources. The legal significance of this relationship is that it empowers the Commission to act with flexibility and discretion in developing regulations that align with its overarching responsibilities, thereby ensuring effective governance and resource management.

Provision 3

"The operation and use of an approved in-lieu fee program are governed by an in-l..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as those governing the operation and use of an in-lieu fee program, as it falls within the scope of necessary actions to fulfill the statutory mandate. The legal significance of this relationship is that it enables the Commission to effectively manage and regulate compensatory mitigation efforts, ensuring compliance with both state and federal requirements.

Provision 4

"Mitigation includes compensatory mitigation."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to define and establish the concept of mitigation, including compensatory mitigation, as it is essential for fulfilling the statutory mandate. The legal significance of this relationship is that it empowers the Commission to create regulations that are necessary for the effective administration of the law, ensuring flexibility in addressing various aspects of mitigation within its jurisdiction.

Wetlands Mitigation -- Compensation Policy

Express

General

Overreach

Unauthorized

Requirements

Virginia, as a Chesapeake Bay Program partner, has committed to achieving a no-net loss of existing wetlands acreage and function in regulatory programs.¹ In addition, the Virginia Coastal Resilience Master Plan recognizes the importance of tidal wetlands as natural flood buffers.² Despite this, the pressures to use or develop tidal wetlands along Virginia's shoreline have continued.³ While losses are controlled by existing permit programs, some impacts to tidal wetlands from development activity are unavoidable.⁴ Research has demonstrated that certain wetlands can be established in areas where wetlands are not presently found, wetlands that were previously lost or degraded can be reestablished, and wetland functions in existing wetlands can be improved.⁵ As such, compensatory mitigation for permitted wetland losses is viewed as a means of offsetting impacts of necessary projects.⁶ The commission encourages, where appropriate, compensatory mitigation for all permitted tidal wetland impacts, provided all other mitigative measures have been considered to avoid and minimize any impact.⁷

Provision-Level Authorization Analysis

Provision 1

"Virginia, as a Chesapeake Bay Program partner, has committed to achieving a no-n..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that align with its responsibilities, such as the commitment to achieving a no-net loss of wetlands, which falls under the general powers to manage and protect natural resources. The legal significance of this relationship is that it provides the Commission with the flexibility to create regulations that address environmental goals while remaining within the scope of its statutory authority.

Provision 2

"In addition, the Virginia Coastal Resilience Master Plan recognizes the importan..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide interpretation of the Commission's powers, enabling it to create regulations that address various aspects of coastal resilience, including the recognition of tidal wetlands as natural flood buffers. The legal significance of this relationship is that it establishes a framework for the Commission to act with GENERAL_DELEGATION, ensuring that it can effectively manage and protect coastal resources in alignment with its statutory mandate.

Provision 3

"Despite this, the pressures to use or develop tidal wetlands along Virginia's sh..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to address various issues, including the pressures on tidal wetlands, thereby justifying the need for regulations that respond to evolving environmental challenges. The legal significance of this authorization relationship is that it empowers the Commission to create adaptive regulations that align with its overarching mandate to protect and manage Virginia's natural resources effectively.

Provision 4

"While losses are controlled by existing permit programs, some impacts to tidal w..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to address various aspects of tidal wetlands management, including the unavoidable impacts from development activities, thereby justifying the need for GENERAL_DELEGATION in the regulation. The legal significance of this relationship is that it empowers the Commission to create flexible regulations that adapt to the complexities of environmental management while remaining within the scope of its statutory authority.

Provision 5

"Research has demonstrated that certain wetlands can be established in areas wher..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that address various aspects of wetlands management, including the establishment, reestablishment, and improvement of wetland functions, which aligns with the goals of the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures for effective wetlands management without needing further specific legislative approval, thereby facilitating timely and responsive regulatory action.

Provision 6

"As such, compensatory mitigation for permitted wetland losses is viewed as a mea..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish regulations, such as the one addressing compensatory mitigation for permitted wetland losses, as it falls within the scope of necessary actions to offset impacts from projects, thereby fulfilling the statutory mandate. The legal significance of this relationship is that it empowers the Commission to create flexible and adaptive regulations that align with its overarching responsibilities, ensuring effective management of environmental impacts.

Provision 7

"The commission encourages, where appropriate, compensatory mitigation for all pe..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to encourage compensatory mitigation for tidal wetland impacts, as it falls within the scope of necessary regulations to manage and protect wetland resources. The legal significance of this relationship is that it establishes the Commission's ability to create flexible and adaptive measures in response to environmental impacts, ensuring effective governance under the statutory framework.

Wetlands Mitigation -- Compensation Policy

Express

General

Overreach

Unauthorized

Requirements

A. It shall remain the policy of the Commonwealth to avoid, minimize, and then compensate for impacts to wetlands and the adverse ecological effects of all permitted activities. The primary aim is to preserve the wetlands as much as possible in their natural state and to consider appropriate requirements for compensatory mitigation only after it has been proven that the impact to the natural resource is unavoidable and that the project will have the highest public and private benefit.¹ B. A permittee's commitment to preserve existing tidal wetlands can, under certain circumstances, be a form of compensatory mitigation.² C. Mitigation, including compensatory mitigation, shall be required for both vegetated and nonvegetated wetlands unless site-specific information indicates such mitigation is not necessary.³ D. Where compensatory mitigation is required, the ratio of the area of required compensatory mitigation to the area of approved impact should, in most cases, be at least one to one.⁴

Provision-Level Authorization Analysis

Provision 1

"A. It shall remain the policy of the Commonwealth to avoid, minimize, and then c..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of policies aimed at preserving wetlands, as the regulation seeks to avoid, minimize, and compensate for ecological impacts, aligning with the statutory intent to carry out the title's provisions. The legal significance of this relationship is that it empowers the Commission to create regulations that address environmental concerns while remaining within the scope of its statutory authority, thereby ensuring effective governance in the management of natural resources.

Provision 2

"B. A permittee's commitment to preserve existing tidal wetlands can, under certa..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of environmental management, including the preservation of tidal wetlands, which is reflected in the regulation regarding compensatory mitigation. The legal significance of this relationship is that it empowers the Commission to make decisions and establish requirements that are essential for achieving the objectives outlined in the statute, thereby ensuring effective environmental stewardship.

Provision 3

"C. Mitigation, including compensatory mitigation, shall be required for both veg..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as those for mitigation of wetlands, as it deems necessary to fulfill its statutory mandate. The legal significance of this relationship is that it empowers the Commission to create regulations that address specific environmental concerns while remaining within the scope of its overarching authority as defined by the statute.

Provision 4

"D. Where compensatory mitigation is required, the ratio of the area of required ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish specific requirements, such as the compensatory mitigation ratio, as it directly relates to the implementation of the statutory provisions. The legal significance of this relationship is that it provides the Commission with the necessary flexibility to create regulations that effectively address the objectives of the statute while ensuring compliance with its overarching goals.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Wetlands Mitigation -- Compensation Policy

Express

General

Overreach

Unauthorized

Requirements

A. When a permit is issued for the use, development of, or activities in wetlands, the permit shall where appropriate require the provision of compensatory mitigation.¹ B. If compensatory mitigation is required, the permit must specify the appropriate mitigation option and amount of mitigation required as a condition of the permit. Permit applicants are responsible for proposing an appropriate compensatory mitigation option to offset unavoidable impacts. Unless otherwise permitted by law, the compensatory mitigation should occur in or have an approved service area that includes the same U.S. Geological Survey (USGS) cataloging unit or adjacent USGS cataloging unit in the same watershed as the permitted project. The commission or a wetlands board shall select the compensatory mitigation option in the following order of preference: (i) use of an approved mitigation bank, (ii) use of an approved in-lieu fee program, (iii) permittee-responsible on-site and in-kind mitigation, or (iv) permittee-responsible mitigation through off-site or out-of-kind mitigation within the same watershed.² C. Use of mitigation banks. Pursuant to § 28.2-1308 of the Code of Virginia, when any activity involving the loss of tidal wetlands authorized by the commission or a wetlands board is conditioned upon compensatory mitigation, the applicant may be permitted to satisfy all or part of such mitigation requirements by the purchase or use of credits from any approved wetlands mitigation bank. When approving the use of a compensatory mitigation bank, the number and type of credits the permittee is required to secure must be specified by the commission or a wetlands board. The credits secured should be of a type to replicate, as nearly as practicable, the functions of the impacted wetlands.³ D. Approved in-lieu fee programs. An applicant may be permitted to satisfy all or part of any compensatory mitigation requirements by the purchase or use of credits from an approved in-lieu fee program. When approving the use of an approved in-lieu fee program, the number and type of credits the permittee is required to secure must be specified by the commission or a wetlands board. The credits secured should be of a type to replicate, as nearly as practicable, the functions of the impacted wetlands.⁴ E. Use of on-site and off-site compensation. When on-site or off-site compensation is required as a condition of permit approval, the following items apply: 1. The applicant must provide a detailed plan, including a scaled plan view drawing, describing the objectives of the wetland compensation, the type of wetland to be created, the mean tide range at the site, the proposed elevations relative to a tidal datum, the exact location, the areal extent, the method of wetland establishment, the vegetation to be planted, the exact timeframe from initial work to completion, and an abatement plan for any plants listed on the Virginia Invasive Species Plant List promulgated by the Virginia Department of Conservation and Recreation. The plan should also address replanting areas where vegetation fails to grow. The permittee must secure approval of the plan by the commission or a wetlands board prior to commencing impacts to tidal wetlands.⁵ 2. Once the grading is completed at the planting site, it should be inspected by a competent authority to ensure that the elevations are appropriate for the vegetation to be planted and that the surface drainage is effective.⁶ 3. The compensation plan and its implementation should be accomplished by experienced professionals knowledgeable of the general and site-specific requirements for wetland establishment and long-term survival.⁷ 4. A performance bond or letter of credit should be required and remain in force until a minimum of two growing seasons have passed and a planting success rate established by the commission or a wetlands board has been achieved.⁸ 5. The replacement wetland should be designed to replace as nearly as possible the functions of the lost resource on an equal or greater basis.⁹ 6. The compensatory mitigation should be accomplished prior to or concurrently with the construction of the proposed project. Before any activity under the permit may begin, the permittee must hold all interests in the compensatory mitigation site that are needed to carry out the compensatory mitigation.¹⁰ 7. All reasonable steps must be taken to avoid or minimize any adverse environmental effects associated with the compensatory mitigation activities.¹¹ 8. Both short-term and long-term monitoring of compensatory mitigation sites should be considered on a case-by-case basis. The permittee will be responsible for funding such monitoring as is deemed necessary.¹² 9. An appropriate site protection instrument that will protect the site in perpetuity should be required for the compensatory mitigation site, except in cases where both the impact to wetlands and the compensatory mitigation required are determined by the wetlands board or the commission to be de minimis.¹³

Provision-Level Authorization Analysis

Provision 1

"A. When a permit is issued for the use, development of, or activities in wetland..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations, such as requiring compensatory mitigation in permits for wetland use and development, as it falls within the scope of necessary actions to fulfill the statutory mandate. The legal significance of this relationship is that it provides the Commission with the flexibility to address various aspects of wetland management while ensuring compliance with the overarching goals of the statute.

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. If compensatory mitigation is required, the permit must specify the appropria..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for the evaluation and conservation of wetlands, indicating a broad mandate to establish standards for their protection. This results in GENERAL_DELEGATION because the regulation requiring permit applicants to specify compensatory mitigation options aligns with the Commission's responsibility to enforce minimum standards for the conservation of wetlands as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures necessary to achieve the overarching goals of wetland protection and conservation established by the statute.

DEFINITION § 28.2-1308

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Use of mitigation banks. Pursuant to § 28.2-1308 of the Code of Virginia, whe..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations, such as those concerning the use of mitigation banks, which are essential for implementing compensatory mitigation requirements for activities affecting tidal wetlands. The legal significance of this relationship is that it empowers the Commission to address complex environmental management issues through regulations that align with the overarching statutory framework, ensuring effective governance and compliance with the law.

DEFINITION § 28.2-1308

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-1308

Citation text: "§ 28.2-1308"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Approved in-lieu fee programs. An applicant may be permitted to satisfy all o..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish regulations that facilitate the implementation of compensatory mitigation requirements, such as the approval of in-lieu fee programs, which directly aligns with the statutory intent to manage and regulate mitigation efforts effectively. The legal significance of this authorization relationship is that it empowers the Commission to create flexible and adaptive regulatory frameworks that can respond to the needs of applicants while ensuring compliance with overarching statutory objectives.

DEFINITION § 28.2-1308

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"5. The replacement wetland should be designed to replace as nearly as possible t..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address specific needs, such as ensuring that replacement wetlands function equivalently or better than those lost, thereby aligning with the overarching goal of resource management. The legal significance of this relationship is that it provides the Commission with the flexibility to develop detailed regulations that fulfill its statutory mandate without requiring further legislative action.

DEFINITION § 28.2-1308

Provision 10

"6. The compensatory mitigation should be accomplished prior to or concurrently w..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that ensure effective management and oversight of projects, such as requiring compensatory mitigation to occur prior to or concurrently with construction activities. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulatory frameworks that operationalize the statutory mandate, ensuring compliance and environmental protection.

DEFINITION § 28.2-1308

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"7. All reasonable steps must be taken to avoid or minimize any adverse environme..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority encompasses the regulation requiring that all reasonable steps be taken to avoid or minimize adverse environmental effects, as it falls within the Commission's mandate to ensure effective environmental management. The legal significance of this authorization relationship is that it allows the Commission the flexibility to create regulations that address environmental concerns while fulfilling its statutory responsibilities.

DEFINITION § 28.2-1308

Provision 12

"8. Both short-term and long-term monitoring of compensatory mitigation sites sho..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to create regulations that address various aspects of wetland management, including the monitoring of compensatory mitigation sites, which falls under the umbrella of conservation efforts. The legal significance of this relationship is that it empowers the Commission to implement flexible and adaptive management strategies necessary for effective wetlands protection, thereby justifying the GENERAL_DELEGATION of authority.

DEFINITION § 28.2-1308

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 13

"9. An appropriate site protection instrument that will protect the site in perpe..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations, such as requiring a site protection instrument for compensatory mitigation sites, as it falls within the scope of necessary actions to fulfill the statutory mandate regarding wetlands protection. The legal significance of this authorization relationship is that it enables the Commission to implement flexible and adaptive regulatory measures that ensure the effective management and conservation of wetland resources.

DEFINITION § 28.2-1308

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Wetlands Mitigation -- Compensation Policy

Express

General

Overreach

Unauthorized

Requirements

Ad hoc in-lieu fees.¹ Compensatory mitigation requirements may be met by payment of an ad hoc in-lieu fee only in exceptional circumstances where federal regulators do not require compensatory mitigation and the applicant demonstrates that other forms of compensatory mitigation are not available.² The use of ad hoc in-lieu fees must be the result of an agreed-upon permit condition between the applicant and the commission or a wetlands board.³ Localities are encouraged to establish a fund for such payments that is dedicated to tidal wetlands restoration and creation.⁴ This could be the same fund established for the receipt of civil charges or civil penalties.⁵ Administration of such a fund should include an ability to trace the contribution of ad hoc in-lieu fees to eventual use in actual wetland restoration or wetland creation projects.⁶ If payments are made to other dedicated wetland restoration funds, this should be recognized in the permit issued by the commission or a wetlands board.⁷ In no case should an ad hoc in-lieu fee amount be accepted that is less than the cost at the prevailing market rate of establishing an area of wetlands that exceeds the area of wetlands impacted by a ratio of at least two to one.⁸ Use of the fund could be for actual tidal wetland creation or wetland restoration projects in the locality or for the purchase of credits in an approved compensatory mitigation bank that is authorized subsequent to the receipt of any ad hoc in-lieu fee.⁹ Localities are encouraged to combine any ad hoc in-lieu fee with other potential or available funds for wetland restoration or wetland establishment projects.¹⁰

Provision-Level Authorization Analysis

Provision 1

"Ad hoc in-lieu fees."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad authority encompasses the regulation regarding ad hoc in-lieu fees, as it allows the Commission to create mechanisms that support the conservation and management of wetlands in accordance with the established guidelines. The legal significance of this authorization relationship is that it enables the Commission to implement flexible and adaptive measures, such as in-lieu fees, to effectively address the diverse challenges associated with wetland conservation.

Provision 2

"Compensatory mitigation requirements may be met by payment of an ad hoc in-lieu ..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement specific regulatory measures, such as the ad hoc in-lieu fee for compensatory mitigation, as a means to achieve the overarching goals of wetland protection and conservation outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in developing regulations that address complex environmental scenarios while remaining consistent with the statutory intent.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"The use of ad hoc in-lieu fees must be the result of an agreed-upon permit condi..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and establishing minimum standards for their protection and conservation. This broad grant of authority allows the Commission to create regulations, such as the requirement for ad hoc in-lieu fees to be agreed upon between the applicant and the Commission or a wetlands board, as it falls within the scope of managing and conserving wetlands. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in implementing regulations that align with the overarching goals of wetland protection and conservation as outlined in the statute.

Provision 4

"Localities are encouraged to establish a fund for such payments that is dedicate..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for the evaluation and conservation of wetlands, indicating a broad mandate to protect these natural resources. This broad grant of authority allows for the regulation encouraging localities to establish funds for tidal wetlands restoration and creation, as it aligns with the overarching goal of conserving and protecting wetlands as outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to delegate responsibilities to localities, fostering localized efforts in wetlands conservation while remaining within the framework established by the statute.

Provision 5

"This could be the same fund established for the receipt of civil charges or civi..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and establishing minimum standards for their protection and conservation. This broad grant of authority allows the Commission to determine the mechanisms for enforcing these guidelines, including the establishment of a fund for civil charges or penalties, which aligns with the overarching goal of wetland conservation. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures to ensure compliance and effective management of wetland resources.

Provision 6

"Administration of such a fund should include an ability to trace the contributio..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority encompasses the regulation's requirement for the administration of a fund that traces in-lieu fees to wetland restoration projects, as it aligns with the Commission's responsibility to ensure the effective management and conservation of wetlands. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for wetland protection and restoration without requiring further legislative approval, thereby facilitating timely and effective regulatory action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"If payments are made to other dedicated wetland restoration funds, this should b..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for the evaluation and conservation of wetlands. This broad grant of authority allows the Commission to implement regulations that address various aspects of wetland management, including recognizing payments to dedicated wetland restoration funds in permits, as it falls within the scope of ensuring the protection and conservation of wetlands. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in managing wetland resources effectively while adhering to the overarching goals established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"In no case should an ad hoc in-lieu fee amount be accepted that is less than the..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority allows the Commission to implement detailed regulations, such as the requirement for in-lieu fee amounts to reflect the market cost of wetland restoration, as it falls within the scope of ensuring adequate protection and conservation of wetlands. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that operationalize the statutory mandate, ensuring effective management and conservation of wetland resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"Use of the fund could be for actual tidal wetland creation or wetland restoratio..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate guidelines for evaluating wetlands and to establish minimum standards for their protection and conservation. This broad grant of authority encompasses the regulation's provisions for funding tidal wetland creation, restoration projects, and compensatory mitigation, as these activities directly relate to the conservation and management of wetlands as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in implementing wetland protection measures, ensuring that the regulatory framework remains adaptable to evolving environmental needs and scientific understanding.

Provision 10

"Localities are encouraged to combine any ad hoc in-lieu fee with other potential..."

General Delegation

AUTHORIZING STATUTE § 28.2-1301

ANALYSIS

§ 28.2-1301 specifically grants the Commission the authority to promulgate and periodically update guidelines for the evaluation and conservation of wetlands. This broad grant of authority allows the Commission to encourage localities to utilize various funding sources for wetland restoration or establishment projects, as it falls within the scope of protecting and conserving wetlands. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible strategies that support the overarching goals of wetland conservation without requiring specific legislative approval for each initiative.

General Permit for Emergency Situations and Water Quality Improvement Projects

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide a general permit for activities in or on state-owned subaqueous beds whereby property owners, project sponsors under the EWP program, and agencies or organizations under the approval of a property owner adjacent to nontidal waterways are granted authority to install structures to stabilize watercourses and stream banks in emergency situations, to construct facilities or conduct activities resulting in waterway restoration, which are funded, designed or implemented by authorized agencies that improve water quality (including but not limited to restoration of natural flows, habitat modifications and habitat improvements), or to conduct public utility emergency response activities related to existing public utility infrastructures located in or on subaqueous beds.¹ Qualification under this general permit constitutes the commission authorization required in accordance with §§ 28.2-1204 and 28.2-1207 of the Code of Virginia.² This general permit shall not conflict with any other federal, state, or local permitting requirements or authorization governing the proposed activity.³

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide a general permit for activities in or..."

General Delegation

AUTHORIZING STATUTE § 28.2-1207

the Commissioner or his authorized representative if the application meets the requirements of § § 28.2-1205and28.2-1206and the following criteria are satisfied The Commission may, after giving notice of the application to the Virginia Institute of Marine Science, approve the application without giving notice to or awaiting the approval of any other state agency The Commission shall, in conjunction with affected state and federal agencies, develop an expedited process for issuing general permits for activities that are intended to improve water quality The development of the general permit shall be exempt from Article 2 (§ 2.2-4006et seq.) of the Administrative Process Act The Commission shall, in conjunction with affected state and federal agencies, develop an expedited process for issuing a permit for emergency activities intended to restore sand to any publicly owned beach damaged by sand erosion

ANALYSIS

§ 28.2-1207 specifically grants the Commissioner or his authorized representative the authority to approve applications that meet certain criteria without awaiting approval from other state agencies, and it outlines the development of an expedited process for issuing general permits aimed at improving water quality. This broad grant of authority allows for the establishment of a general permit system that aligns with the regulation's purpose of providing a general permit for activities on state-owned subaqueous beds, thus satisfying the statutory requirement for expedited permitting processes. The legal significance of this authorization relationship is that it empowers the agency to streamline the permitting process for water quality improvement activities, ensuring efficient management of state resources while adhering to the statutory framework.

ADDITIONAL AUTHORITY § 28.2-1204

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle III. Habitat › Chapter 12. Submerged Lands › Article 1. Ownership and Uses of Submerged Lands › § 28.2-1204. Authority of Commission over submerged lands The Commission is authorized to: 1. Issue permits for all reasonable uses of stat...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"Qualification under this general permit constitutes the commission authorizatio..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that facilitate compliance with specific statutory requirements, such as those outlined in §§ 28.2-1204 and 28.2-1207, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to establish necessary qualifications under the general permit, ensuring that the regulatory framework aligns with the statutory intent and requirements.

ADDITIONAL AUTHORITY § 28.2-1204

Explicit Statutory Citations

MULTIPLE CITATIONS § 28.2-1204

Citation text: "§§ 28.2-1204"

✓ Suggests authorization

MULTIPLE CITATIONS § 28.2-1204

Citation text: "§§ 28.2-1204 and 28.2-1207"

✓ Suggests authorization

MULTIPLE CITATIONS § 28.2-1207

Citation text: "§§ 28.2-1204 and 28.2-1207"

✓ Suggests authorization

Total: 3 citations to 2 unique statutes

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"This general permit shall not conflict with any other federal, state, or local p..."

Express Delegation

AUTHORIZING STATUTE § 28.2-1204

ANALYSIS

§ 28.2-1204 specifically grants the Commission the authority to issue permits for various uses of state-owned bottomlands, including activities such as dredging and the placement of structures, as well as establishing bulkhead and private pier lines. This results in EXPRESS_DELEGATION because the regulation explicitly states that the general permit will not conflict with other permitting requirements, thereby aligning with the Commission's statutory mandate to regulate and authorize specific activities in state waters. The legal significance of this authorization relationship is that it ensures the Commission has the explicit power to oversee and permit activities on state-owned bottomlands, while also recognizing the need for compliance with broader regulatory frameworks.

ADDITIONAL AUTHORITY § 28.2-1204

General Permit for Emergency Situations and Water Quality Improvement Projects

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings, unless the context clearly indicates otherwise:¹ "Bioengineered" means an applied science that combines structural, biological, and ecological concepts to construct living structures for erosion, sediment, and flood control.² "Commission" means the Marine Resources Commission.³ "Commissioner" means the Commissioner of Marine Resources.⁴ "Emergency" means a situation in which a structure, facility or property is in imminent or potential danger following a flood event or natural disaster and by definition includes those situations which qualify for assistance as part of the Department of Agriculture's Natural Resources Conservation Service (NRCS) Emergency Watershed Protection Program.⁵ "Emergency Watershed Protection Program" or "EWP Program" means the program administered by NRCS and the FS to assist sponsors, landowners, and operators in implementing emergency recovery measures to relieve imminent hazards to life and property created by a natural disaster that causes a sudden impairment of a watershed. The authority for the EWP Program is given to NRCS in § 216, P. L. 81-516, and § 403 of Title IV of the Agriculture Credit Act of 1978, P. L. 95-334. Codified rules are set forth in 7 CFR Part 624. The FS is designated to administer the EWP Program on National Forest System Lands.⁶ "Exigency" means those situations that demand immediate action to avoid potential loss of life or property, including situations where a second event may occur shortly thereafter that could compound the impairment, cause new damage or the potential loss of life if action to remedy the situation is not taken immediately.⁷ "FS" means the USDA Forest Service that is authorized to administer the EWP Program on National Forest Service System Lands.⁸ "NRCS" means the Natural Resources Conservation Service, which is the federal agency under the U.S. Department of Agriculture delegated to administer the Emergency Watershed Protection (EWP) Program.⁹ "Public utility emergency response activities" means activities to address the integrity of a utility structure or necessary repairs thereto in the event of imminent danger or risk of failure.¹⁰ "Waterway or stream restoration" means those activities normally associated with natural channel design concepts including, but not limited to, in-stream rock and log grade structures, current deflecting structures, dam removal, channel realignment, filling of scour holes, and bank plantings that are also intended to improve water quality.¹¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of definitions and terms within the regulation, which are essential for clarity and effective enforcement of the statute. The legal significance of this authorization relationship is that it empowers the agency to create foundational elements that support the overall regulatory framework, ensuring that the statutory intent is effectively realized.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Bioengineered" means an applied science that combines structural, biological, a..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to define terms and concepts, such as "bioengineered," which are essential for understanding and applying the regulations related to erosion, sediment, and flood control. The legal significance of this authorization relationship is that it empowers the agency to create detailed regulations that are necessary for effective implementation of its statutory mandate, ensuring flexibility and adaptability in addressing complex environmental issues.

Provision 3

""Commission" means the Marine Resources Commission."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation defines "Commission" as the Marine Resources Commission, but it does not establish any specific regulatory powers or guidelines that are necessary to implement the statute's provisions. The legal significance of this relationship is that without explicit authority granted by the statute to define terms or create regulations, the regulation is deemed unauthorized and lacks the necessary foundation in the statutory text.

Provision 4

""Commissioner" means the Commissioner of Marine Resources."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation defining "Commissioner" does not relate to the powers or responsibilities conferred by the statute, as it merely identifies a position without establishing any regulatory framework or guidelines necessary for the implementation of the statute. The legal significance of this relationship is that without a clear connection to the statutory authority, the regulation lacks the necessary foundation and is therefore deemed unauthorized.

Provision 5

""Emergency" means a situation in which a structure, facility or property is in i..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation's definition of "Emergency" extends beyond the immediate context of the Commission's powers by incorporating criteria related to assistance from the Department of Agriculture, which may not be directly aligned with the Commission's statutory mandate. This relationship suggests that the regulation may exceed the intended scope of the statute, as it introduces external criteria not explicitly authorized by the statutory text.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

""Emergency Watershed Protection Program" or "EWP Program" means the program admi..."

Express Delegation

AUTHORIZING STATUTE § 28.2-1207

ANALYSIS

§ 28.2-1207 specifically grants the Commissioner or his authorized representative the authority to approve applications that meet certain criteria and mandates the development of an expedited process for issuing general permits, exempting this process from the Administrative Process Act. This results in EXPRESS_DELEGATION because the statute clearly delineates the powers and responsibilities of the Commissioner in relation to the approval of applications and the establishment of a permitting process, which directly supports the implementation of the Emergency Watershed Protection Program as outlined in the regulation. The legal significance of this authorization relationship is that it provides a clear framework for the Commissioner to act decisively in emergency situations, ensuring that necessary recovery measures can be implemented swiftly to protect life and property.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

""Exigency" means those situations that demand immediate action to avoid potenti..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise all powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title. This broad grant of authority allows the Commission to define critical terms and situations, such as "exigency," which necessitate immediate action to protect life and property, thereby justifying the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to respond effectively to urgent situations without needing additional specific legislative approval, ensuring timely and appropriate regulatory action.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

""FS" means the USDA Forest Service that is authorized to administer the EWP Prog..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise the powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of the title. The regulation, which defines "FS" as the USDA Forest Service authorized to administer the EWP Program on National Forest Service System Lands, exceeds the authority granted by the statute because it does not relate to the powers or provisions explicitly conferred to the Commission. The legal significance of this relationship is that the regulation lacks the necessary statutory backing, rendering it unauthorized and invalid under the law.

Provision 9

""NRCS" means the Natural Resources Conservation Service, which is the federal ag..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to delegate authority to federal agencies, such as the Natural Resources Conservation Service, to administer specific programs like the Emergency Watershed Protection Program, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it enables the Commission to effectively implement federal programs at the state level while maintaining oversight and compliance with statutory mandates.

Provision 10

""Public utility emergency response activities" means activities to address the i..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise the powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title. The regulation regarding "public utility emergency response activities" extends beyond the scope of the statutory language, as it introduces specific definitions and requirements that are not explicitly mentioned or authorized by the statute. The legal significance of this relationship is that the regulation lacks the necessary statutory foundation, rendering it unauthorized and beyond the Commission's conferred powers.

Provision 11

""Waterway or stream restoration" means those activities normally associated with..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide interpretation of the Commission's regulatory powers, which encompasses the regulation defining "waterway or stream restoration" as it relates to activities aimed at environmental management and restoration. The legal significance of this authorization relationship is that it enables the Commission to effectively address and regulate various aspects of waterway management without needing to seek further specific legislative approval for each regulatory action.

General Permit for Emergency Situations and Water Quality Improvement Projects

Express

General

Overreach

Unauthorized

Requirements

A. Prior to the enactment of § 28.2-1207 C, the Code of Virginia provided no mechanism for the emergency authorization of projects requiring permits from the Marine Resources Commission that are designed to protect public or private property or safeguard public health and safety involving encroachments in, on, or over state-owned submerged beds. While the commission has entered into an interagency Memorandum of Understanding (MOU) with the Department of Agriculture's Natural Resources Conservation Service (NRCS) to expedite permit issuance for exigency projects under the Emergency Watershed Protection Program, the process does not eliminate the need for the commission's required public interest review and comment period. Furthermore, there was no expedited mechanism to authorize projects that are designed to improve water quality, restore waterways or streams for water quality improvement, or facilitate emergency response activities related to existing public utility infrastructures in nontidal waterways with drainage areas greater than five square miles or with flow rates greater than five cubic feet per second where project impacts are minimal. The commission, as stipulated in its Subaqueous Guidelines, does not assume regulatory jurisdiction in nontidal waterways with drainage areas less than five square miles or with flow rates less than five cubic feet per second.¹ B. This general permit provides authorization for projects that are deemed necessary in an emergency that will result in improved water quality in waterways with drainage areas greater than five square miles or flow rates greater than five cubic feet per second, or that are public utility emergency response activities.² C. Experience has shown that the types of projects covered by this general permit (i) are necessary in emergency situations or (ii) would improve water quality while improving habitat and result in only minor impact. In addition, these types or classes of projects would normally be expected to receive an individual commission permit following the standard public interest review.³ D. This general permit is valid only for projects which result in encroachments over state-owned submerged lands in nontidal waterways.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Prior to the enactment of § 28.2-1207 C, the Code of Virginia provided no me..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish regulations that address emergent needs, such as the emergency authorization of projects, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to act flexibly and responsively in situations that protect public or private property and safeguard public health and safety.

Explicit Statutory Citations

RANGE REFERENCE § 28.2-1207

Citation text: "§ 28.2-1207"

Total: 1 citation to 1 unique statute

Provision 2

"B. This general permit provides authorization for projects that are deemed nece..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create a regulation that provides general permits for emergency projects aimed at improving water quality, as it falls within the scope of necessary actions to fulfill the statutory mandate. The legal significance of this relationship is that it enables the Commission to respond effectively to urgent environmental needs while ensuring compliance with the overarching goals of the statute.

Provision 3

"C. Experience has shown that the types of projects covered by this general permi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that address various situations, including those that improve water quality and habitat with minor impacts, as outlined in the regulation. The legal significance of this relationship is that it provides the Commission with the flexibility to implement necessary measures in response to emergency situations while ensuring compliance with overarching statutory goals.

Provision 4

"D. This general permit is valid only for projects which result in encroachments ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that address specific scenarios, such as the management of encroachments over state-owned submerged lands in nontidal waterways, thereby falling within the scope of the Commission's regulatory powers. The legal significance of this relationship is that it enables the Commission to effectively regulate activities impacting state resources while ensuring compliance with statutory mandates.

General Permit for Emergency Situations and Water Quality Improvement Projects

Express

General

Overreach

Unauthorized

Requirements

A. The commissioner or his designee, Chief, Habitat Management Division, will oversee administration of the provisions of the general permit.¹ B. To qualify for this general permit the permittee must notify the commissioner or his designee and provide the following information in such notification: 1. Name, address and telephone number of the prospective permittee;² 2. Location of the proposed project, including vicinity map;³ 3. Brief description of the proposed project or emergency repairs, including methods of work, and the project purpose;⁴ 4. A plan view and cross section view of the proposed project or emergency repairs, including dimensions;⁵ 5. Location, and design, if applicable, of the disposal area for any excavated material; and⁶ 6. A description of the location, extent, and type of wetlands and/or waters to be impacted by the proposed work.⁷ C. An approved Local, State, Federal Joint Permit Application (Joint Permit Application) may be used for this notification. Otherwise, an abbreviated General Permit No. 6 Notification Form must be completed and filed in accordance with the instructions contained therein. The notification for EWP projects shall include the damage survey report for each project site prepared by NRCS or the FS. Multiple sites in a county or city may be included in a single notification from the project sponsor for EWP projects in response to an emergency following a flood event or natural disaster. The notification shall be submitted to the commission. The commission will assign a processing number and forward copies to the U.S. Army Corps of Engineers and the Department of Environmental Quality for concurrent review. Copies will also be forwarded to the Department of Game and Inland Fisheries, the Department of Conservation and Recreation, and the Department of Historic Resources.⁸ D. If the proposed project does not satisfy the conditions of this general permit, or should the commissioner determine that the environmental impacts and the natural resource issues are estimated to be more than minimal, the permittee will be notified and the proposed project will be processed for an individual commission permit.⁹ E. If the project qualifies for the general permit, the commissioner will so notify the permittee within 30 days of receipt of all necessary information. In addition, the commission's public notice requirement shall be waived and no other fees shall be required.¹⁰ F. The general permit will apply for any of the following conditions: 1. The project is part of the Emergency Watershed Protection (EWP) Program and has met the conditions of the interagency Memorandum of Understanding (MOU) regarding EWP Program activities in Virginia in effect at the time, the project qualifies under the U.S. Army Corps of Engineers Nationwide Permit Program (33 CFR Part 230) or a Norfolk District Corps of Engineers Regional permit, and qualifies for Department of Environmental Quality (DEQ) 401 Certification. Projects that address exigency situations under the EWP Program may be initiated immediately upon submittal of notification to the commission provided the damage survey report prepared by NRCS, and included with such notification, specifies the situation qualities as an exigency. Only those actions reasonably necessary to address the exigency situation shall be conducted prior to receipt of notification from the commissioner that the project qualifies for this general permit.¹¹ 2. The project is for an activity conducted in response to a Declaration of Emergency by the Governor of Virginia due to the effects of natural disasters that is necessary to address immediate health and safety needs when such activity can be authorized by the commission pursuant to an Executive Order issued in response to a natural disaster.¹² 3. The project is for stream bank restoration, generally including bioengineered approaches and livestock crossings or for waterway or stream restorations that meets the following requirements: a. The project has been designed, funded, or implemented by one or more of the following agencies: Natural Resources Conservation Service, Department of Conservation and Recreation, Soil and Water Conservation District, Department of Game and Inland Fisheries, Department of Forestry, U.S. Fish and Wildlife Service, or U.S. Forest Service. b. The project is conducted in accordance with the terms and conditions of the binding agreement, if applicable, between the landowner and the oversight agency indicated in subdivision 3 a of this subsection with such agreement including provisions for maintenance of the project; and c. The project qualifies under the U.S. Army Corps of Engineers Nationwide Permit Program (33 CFR Part 230) or a Regional Permit authorized by the Norfolk District of the U.S. Army Corps of Engineers, and qualifies for Department of Environmental Quality (DEQ) 401 Certification.¹³ 4. The project is necessary to conduct public utility emergency response activities related to existing public utility infrastructures. Such projects may be initiated immediately upon submittal of notification to the commission provided such notification contains a certification from the owner/operator responsible for the utility infrastructure that the integrity of the utility structure is in imminent danger or risk of failure. Only those actions reasonably necessary to address the imminent danger or risk of failure shall be conducted prior to receipt of notification from the commissioner that the project qualifies for this general permit.¹⁴ 5. The project is for the replacement of a previously existing and previously serviceable structure or facility located on state-owned submerged land that has been damaged or lost due to a flood event or natural disaster.¹⁵ G. Upon a determination that a proposed project could significantly impact water quality, aquatic resources or other properties, the commissioner may determine that this general permit does not apply and require that an individual Marine Resources Commission permit be processed.¹⁶ H. This general permit does not authorize any channelization; levee construction; or water withdrawal. This general permit does not authorize any projects that will impede the migration or other movements of aquatic life.¹⁷ I. All proposals in nontidal waterways that (i) are necessary in an emergency, (ii) will result in improved water quality, (iii) are for waterway or stream restoration activities, or (iv) will facilitate emergency response activities related to existing public utility infrastructures that encroach in, on or over state-owned subaqueous land and that meet the criteria in subdivisions F 1 through F 5 are hereby approved subject to the following conditions: 1. This permit grants no authority to the permittee to encroach upon property rights, including riparian rights, of others.¹⁸ 2. The duly authorized agents of the commission shall have the right to enter upon the premises at reasonable times, for the purposes of inspecting the work being done pursuant to this permit.¹⁹ 3. The permittee shall comply with the water quality standards established by the Department of Environmental Quality and all other applicable laws, ordinances, rules and regulations affecting the conduct of this project. The granting of this permit shall not relieve the permittee of the responsibility of obtaining any and all other permits or authorizations required for this project.²⁰ 4. The permit shall not affect or interfere with the right vouchsafed to the people of Virginia concerning fishing, and fowling in and from the waters not included within the terms of this permit.²¹ 5. The permittee shall, to the greatest extent practicable, minimize adverse impacts of the project on adjacent properties and wetlands and upon the natural resources of the Commonwealth.²² 6. This permit may be revoked at any time by the commission upon the failure of the permittee to comply with the terms and conditions hereof or at the will of the General Assembly of Virginia.²³ 7. The issuance of this permit does not confer upon the permittee any interest or title to the beds of the nontidal waters impacted.²⁴ 8. All structures authorized by this permit that are not maintained in good repair shall be completely removed from state-owned bottom within 30 days after receiving notification by the commission or its designated representatives.²⁵ 9. The permittee, excepting local governments and federal agencies, agrees to indemnify and save harmless the Commonwealth of Virginia from any liability arising from the establishment, operation, or maintenance of said project. Applicable federal law shall apply to federal agencies. Applicable Virginia law shall apply to localities.²⁶ 10. This permit authorizes no claim to archaeological artifacts that may be encountered during the construction or operation of the project. If, however, archaeological remains are encountered, the permittee agrees to notify the commission, who will, in turn, notify the Virginia Department of Historic Resources. The permittee further agrees to cooperate with agencies in the recovery of archaeological remains if deemed necessary.²⁷ 11. This general permit and commission notification shall be retained by the permittee for the life of the project as evidence of authorization.²⁸ 12. Projects authorized under this general permit shall be completed within one year from the date of notification. Upon proper request by the permittee, the permit may be extended to allow completion of the work authorized.²⁹

Provision-Level Authorization Analysis

Provision 1

"A. The commissioner or his designee, Chief, Habitat Management Division, will ov..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for GENERAL_DELEGATION because it empowers the Commissioner or their designee to oversee the administration of the general permit, thereby enabling delegated authority for effective implementation of the statute. The legal significance of this relationship is that it ensures the regulation operates within the scope of the Commission's statutory authority, facilitating efficient management and oversight of habitat-related provisions.

Provision 2

"B. To qualify for this general permit the permittee must notify the commissioner..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as the notification process outlined in the regulation, as it is necessary for the administration and enforcement of the permitting process. The legal significance of this relationship is that it enables the Commission to effectively manage and regulate activities under its jurisdiction by delegating authority for specific procedural requirements to ensure compliance with statutory mandates.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. Location of the proposed project, including vicinity map;"

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the requirement for a location of the proposed project, which is essential for assessing compliance and impacts under the title. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that facilitate the effective administration of its responsibilities, ensuring that all necessary information for project evaluation is collected and considered.

Provision 4

"3. Brief description of the proposed project or emergency repairs, including met..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the requirement for a brief description of proposed projects or emergency repairs, as it falls within the necessary guidelines to carry out the statute's intent. The legal significance of this relationship is that it establishes the Commission's ability to create detailed regulations under a general delegation of authority, ensuring that the agency can effectively manage and oversee projects relevant to its mandate.

Provision 5

"4. A plan view and cross section view of the proposed project or emergency repai..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create detailed regulations, such as requiring a plan view and cross-section view of proposed projects or emergency repairs, as these specifications are essential for effective oversight and implementation of the statutory provisions. The legal significance of this authorization relationship is that it empowers the Commission to ensure compliance with the statutory framework through detailed regulatory requirements, thus facilitating the execution of its responsibilities.

Provision 6

"5. Location, and design, if applicable, of the disposal area for any excavated m..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including those related to the location and design of disposal areas for excavated materials, which are essential for effective management and compliance with the statutory framework. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of the statute, ensuring that all necessary aspects of implementation are addressed.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"6. A description of the location, extent, and type of wetlands and/or waters to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that detail specific requirements, such as the description of wetlands and waters impacted by proposed work, which falls under the necessary guidelines for carrying out the statutory provisions. The legal significance of this relationship is that it establishes the Commission's ability to regulate activities affecting wetlands and waters, ensuring compliance with broader statutory objectives while maintaining flexibility in implementation.

Provision 8

"C. An approved Local, State, Federal Joint Permit Application (Joint Permit Appl..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish procedures, such as the use of a Joint Permit Application or a General Permit Notification Form, to facilitate compliance with regulatory requirements. The legal significance of this relationship is that it empowers the Commission to create flexible and practical mechanisms for notification and permitting, ensuring effective administration of its regulatory responsibilities.

Requirements Analysis

7 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"D. If the proposed project does not satisfy the conditions of this general permi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of this title. This broad grant of authority allows the Commission to establish criteria for evaluating proposed projects, including the determination of environmental impacts and natural resource issues, which aligns with the regulation's requirement for processing projects that do not meet general permit conditions. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations that ensure compliance with statutory mandates, thereby facilitating effective environmental management.

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 15

"5. The project is for the replacement of a previously existing and previously se..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that address various scenarios, including the replacement of structures on state-owned submerged land that have been damaged or lost, thereby aligning with the need for flexibility in response to natural disasters. The legal significance of this relationship is that it empowers the Commission to act decisively and efficiently in managing state resources and addressing urgent needs without requiring specific legislative approval for each individual regulation.

Provision 16

"G. Upon a determination that a proposed project could significantly impact water..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the regulation to establish conditions under which the commissioner can determine the applicability of a general permit based on potential impacts, thereby aligning with the statutory intent to manage aquatic resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to adapt its regulatory framework to address specific environmental concerns while maintaining compliance with the overarching statutory mandate.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 17

"H. This general permit does not authorize any channelization; levee constructio..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that set limitations and conditions, such as those outlined in the regulation regarding channelization, levee construction, and the protection of aquatic life. The legal significance of this authorization relationship is that it enables the Commission to implement necessary safeguards and management practices to fulfill its statutory mandate effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"I. All proposals in nontidal waterways that (i) are necessary in an emergency, (..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the power to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to implement regulations that address various scenarios, such as emergency responses and water quality improvements, which are encompassed within the regulation's provisions. The legal significance of this authorization relationship is that it enables the Commission to act with flexibility and responsiveness in managing nontidal waterways, ensuring that it can address urgent needs and promote environmental restoration effectively.

Provision 19

"2. The duly authorized agents of the commission shall have the right to enter up..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to delegate responsibilities, such as the right to inspect work being done under a permit, to its duly authorized agents, thereby justifying the regulation's GENERAL_DELEGATION status. The legal significance of this relationship is that it enables efficient enforcement and oversight by allowing agents to carry out the Commission's regulatory functions without requiring direct involvement from the Commission for every inspection.

Provision 20

"3. The permittee shall comply with the water quality standards established by th..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that ensure compliance with existing laws and standards, thereby resulting in GENERAL_DELEGATION, as it encompasses the requirement for permittees to adhere to water quality standards and other applicable regulations. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and enforce compliance within its jurisdiction, ensuring that all projects align with established environmental standards.

Provision 21

"4. The permit shall not affect or interfere with the right vouchsafed to the peo..."

Express Delegation

AUTHORIZING STATUTE § 28.2-1207

ANALYSIS

§ 28.2-1207 specifically grants the Commissioner or his authorized representative the authority to approve applications that meet certain requirements and criteria, while also mandating the development of an expedited process for issuing general permits in collaboration with affected agencies. This results in EXPRESS_DELEGATION because the statute explicitly authorizes the Commission to create regulations that govern the issuance of permits, which includes stipulations that protect the rights of the people concerning fishing and fowling, as outlined in the regulation. The legal significance of this authorization relationship is that it empowers the agency to implement specific regulatory measures that ensure compliance with statutory mandates while safeguarding public interests in natural resources.

Provision 22

"5. The permittee shall, to the greatest extent practicable, minimize adverse imp..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that address the minimization of adverse impacts on adjacent properties and natural resources, as it falls within the scope of carrying out the statutory mandate for environmental protection. The legal significance of this authorization relationship is that it empowers the Commission to create flexible and adaptive regulations that can effectively address environmental concerns while ensuring compliance with the overarching statutory framework.

Provision 23

"6. This permit may be revoked at any time by the commission upon the failure of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish regulations that include the revocation of permits for non-compliance, as it falls within the necessary actions to enforce compliance and uphold the statutory framework. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and regulate permits, ensuring adherence to the established guidelines without needing further specific legislative approval for each action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 24

"7. The issuance of this permit does not confer upon the permittee any interest o..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that clarify the implications of permits, such as the stipulation that the issuance of a permit does not confer any interest or title to the impacted nontidal waters. The legal significance of this relationship is that it ensures the Commission can effectively manage and regulate the use of water resources while maintaining clarity about the rights conferred by permits, thereby supporting the overall regulatory framework.

Provision 25

"8. All structures authorized by this permit that are not maintained in good repa..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that ensure compliance with the statutory framework, such as requiring the removal of structures not maintained in good repair, which directly relates to the Commission's responsibility to manage state-owned bottom effectively. The legal significance of this authorization relationship is that it empowers the Commission to enforce standards and maintain the integrity of state resources, thereby fulfilling its statutory mandate without needing further specific legislative approval for each regulatory action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 26

"9. The permittee, excepting local governments and federal agencies, agrees to in..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

This regulation establishes the guidelines governing voluntary ballast water management practices to be followed by the operators of commercial vessels in Virginia waters.¹ It also sets forth the requirements and procedures for the distribution and filing of ballast water control report forms with the commission.²

Provision-Level Authorization Analysis

Provision 1

"This regulation establishes the guidelines governing voluntary ballast water man..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish guidelines, such as those governing voluntary ballast water management practices for commercial vessels, as it falls within the scope of necessary actions to fulfill the statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that address specific operational practices while remaining aligned with the overarching goals of the statute.

Provision 2

"It also sets forth the requirements and procedures for the distribution and fili..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements and procedures, such as those for the distribution and filing of ballast water control report forms, as they are essential for fulfilling the statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that operationalize the statutory framework, ensuring effective enforcement and compliance within its jurisdiction.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

Flow through exchange means to flush out ballast water by pumping in mid-ocean water at the bottom of the tank and continuously overflowing the tank from the top until three full volumes of water have been changed; this is done to minimize the number of original organisms remaining in the tank. 2.¹ Empty/refill exchange means to flush out the ballast water taken on in ports, estuarine, or territorial waters until the tank is empty, then refilling it with mid-ocean water; masters/operators should pump out as close to 100% of the ballast water as is safe to do so. "Federal guidelines" means the provisions of 33 CFR Part 151, Subpart D, "Ballast Water Management for Control of Nonindigenous Species in Waters of the United States." "HRMA" means the Hampton Roads Maritime Association. "IMO guidelines" means the International Maritime Organization Guidelines for the Control and Management of Ships' Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (IMO Resolution A.868 (20), adopted November 1997). "Innocent transit" means the transit of Virginia's territorial waters by a commercial vessel, United States or foreign, that is not destined to enter into or depart from a Virginia port. "NANCPA" means the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990. "NBIC" means the National Ballast Water Information Clearinghouse operated by the United States Coast Guard and the Smithsonian Environmental Research Center as mandated under the National Invasive Species Act of 1996. "NISA" means the National Invasive Species Act of 1996, which reauthorized and amended the NANCPA. "Operator" means any person who owns, operates, charters, rents or otherwise exercises control over or responsibility for a vessel. "Territorial waters" means the Virginia waters lying within the Chesapeake Bay and its tributaries, and a belt, three nautical miles wide, that is adjacent to Virginia's coast and seaward of the mean low water mark.²

Provision-Level Authorization Analysis

Provision 1

"Flow through exchange means to flush out ballast water by pumping in mid-ocean w..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish specific practices, such as the regulation defining "flow through exchange," which is essential for minimizing the introduction of non-native organisms through ballast water management. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that operationalize the statutory intent, ensuring effective implementation of the overarching goals of the title.

Provision 2

"Empty/refill exchange means to flush out the ballast water taken on in ports, es..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for GENERAL_DELEGATION because it encompasses a wide range of regulatory activities, including the establishment of definitions and operational procedures related to ballast water management. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that are essential for the effective implementation of the statutory provisions, ensuring compliance with environmental standards.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

A. Masters, owners, operators, or persons-in-charge of vessels equipped with ballast water tanks that operate in Virginia's territorial waters are requested to take the following voluntary precautions to minimize the uptake and release of harmful aquatic organisms, pathogens, and sediments: 1. Avoid the uptake of ballast water from areas within marine sanctuaries, marine preserves, marine parks or coral reefs.¹ 2. Minimize or avoid uptake of ballast water in the following areas and situations: a. Areas known to have infestations or populations of harmful organisms and pathogens (e.g., toxic algal blooms). b. Areas near sewage outfalls. c. Areas near dredging operations. d. Areas where tidal flushing is known to be poor or times when a tidal stream is known to be more turbid. e. During periods of darkness when bottom-dwelling organisms may rise up into the water column. f. Areas where propellers may stir up the bottom sediment.² 3. Clean the ballast tanks regularly to remove sediments. Dispose of the sediments in accordance with applicable regulations.³ 4. Discharge only the minimal amount of ballast water essential for safe vessel operations while in Virginia waters.⁴ 5. Rinse anchors and anchor chains when the anchor is retrieved to remove organisms and sediments at their place of origin.⁵ 6. Remove fouling organisms from hull, piping, and tanks on a regular basis and dispose of any removed substances in accordance with applicable regulations.⁶ 7. Maintain a ballast water management plan that was developed specifically for the vessel.⁷ 8. Train the master, operator, person-in-charge, and crew, on the application of ballast water and sediment management and treatment procedures.⁸ B. In addition to the foregoing recommendations, vessels carrying ballast water into Virginia waters that was loaded in an area outside the EEZ are requested to employ at least one of the following ballast water management practices: 1. Exchange ballast water beyond the EEZ in an area at least 200 nautical miles from shore and in waters greater than 2,000 meters in depth before entering Virginia's territorial waters.⁹ 2. Retain the ballast water on board the vessel.¹⁰ 3. Use an alternative environmentally sound method of ballast water management that has been approved by the United States Coast Guard.¹¹ 4. Discharge ballast water to an approved reception facility.¹² 5. Under extraordinary circumstances, conduct a ballast water exchange within an area and agreed to by the COTP.¹³

Provision-Level Authorization Analysis

Provision 1

"A. Masters, owners, operators, or persons-in-charge of vessels equipped with bal..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish voluntary precautions for vessels operating in Virginia's territorial waters, as it falls within the scope of necessary actions to protect aquatic environments. The legal significance of this authorization relationship is that it enables the Commission to effectively address environmental concerns through flexible regulatory measures without requiring specific legislative approval for each action.

Provision 2

"2. Minimize or avoid uptake of ballast water in the following areas and situatio..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that address specific environmental concerns, such as minimizing the uptake of ballast water in areas prone to harmful organisms, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement necessary measures for environmental protection without the need for further legislative approval, ensuring timely and effective regulation.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. Clean the ballast tanks regularly to remove sediments. Dispose of the sedimen..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations like the requirement to clean ballast tanks and dispose of sediments, as it falls within the necessary actions to fulfill the statutory mandate of managing and protecting marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed operational standards that are essential for effective regulation, ensuring compliance with the overarching statutory objectives.

Provision 4

"4. Discharge only the minimal amount of ballast water essential for safe vessel ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations like the one requiring vessels to discharge only the minimal amount of ballast water essential for safe operations, as it directly relates to the management of water quality and environmental protection within Virginia waters. The legal significance of this relationship is that it empowers the Commission to create specific regulations that address critical operational practices, ensuring compliance with overarching statutory objectives without exceeding its delegated authority.

Provision 5

"5. Rinse anchors and anchor chains when the anchor is retrieved to remove organi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to implement regulations like the one requiring the rinsing of anchors and anchor chains, as it falls within the scope of necessary actions to protect marine environments and manage resources effectively. The legal significance of this relationship is that it enables the Commission to create detailed regulations that support the overarching goals of the statute, ensuring compliance and promoting responsible practices in marine activities.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"6. Remove fouling organisms from hull, piping, and tanks on a regular basis and ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of regulations that address various aspects of the Commission's responsibilities, including the management of fouling organisms, thereby justifying the GENERAL_DELEGATION level. The legal significance of this relationship is that it empowers the Commission to create detailed operational standards, such as the regulation on removing fouling organisms, which are essential for fulfilling its statutory mandate effectively.

Provision 7

"7. Maintain a ballast water management plan that was developed specifically for ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish detailed requirements, such as maintaining a ballast water management plan tailored for individual vessels, as it falls within the scope of necessary regulations to fulfill the statutory mandate. The legal significance of this authorization relationship is that it empowers the Commission to create specific, actionable regulations that ensure compliance with the overarching goals of the statute, thereby facilitating effective management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"8. Train the master, operator, person-in-charge, and crew, on the application of..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that address various operational aspects, such as training personnel on ballast water and sediment management, which is essential for fulfilling the statutory mandate. The legal significance of this relationship is that it enables the Commission to effectively manage and enforce compliance with environmental standards through comprehensive training requirements, thereby ensuring the protection of water resources.

Provision 9

"B. In addition to the foregoing recommendations, vessels carrying ballast water ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise the powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title. The regulation requests vessels to employ specific ballast water management practices, which may exceed the statutory authority because it imposes mandatory practices rather than merely providing guidelines necessary for implementation. The legal significance of this relationship is that the regulation could be seen as exceeding the scope of the Commission's authority as defined by the statute, potentially leading to challenges regarding its enforceability.

Provision 10

"2. Retain the ballast water on board the vessel."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations and guidelines necessary to carry out the provisions of the title. The regulation requiring vessels to "retain the ballast water on board" appears to exceed this authority because it imposes a specific operational requirement that may not be explicitly covered by the broader powers granted in the statute. The legal significance of this relationship is that while the statute allows for regulations to implement its provisions, the regulation must remain within the scope of the authority conferred, and overly prescriptive requirements may constitute an overreach of that authority.

Provision 11

"3. Use an alternative environmentally sound method of ballast water management t..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish regulations that align with federal standards, such as the approval of alternative ballast water management methods by the United States Coast Guard, thereby falling within the scope of its delegated authority. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that ensure compliance with both state and federal environmental standards, promoting effective management of ballast water.

Provision 12

"4. Discharge ballast water to an approved reception facility."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-209 specifically grants the agency authority to regulate certain activities related to the management of ballast water but does not explicitly mention the requirement to discharge ballast water to an approved reception facility. The regulation's requirement for discharge to such a facility exceeds the scope of authority provided by the statute, which does not authorize the agency to mandate specific discharge locations or methods. The legal significance of this relationship is that regulations must align with the authority granted by the statute, and any requirement that goes beyond that authority is deemed unauthorized and unenforceable.

Provision 13

"5. Under extraordinary circumstances, conduct a ballast water exchange within an..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various circumstances, such as the need for extraordinary ballast water exchanges, which fall under the general powers to ensure compliance with environmental and safety standards. The legal significance of this relationship is that it provides the Commission with the flexibility to adapt regulations to specific situations while remaining within the scope of its statutory authority.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

A. The operator, or a ship agent on behalf of the operator, of a commercial vessel that enters into Virginia's territorial waters shall file a Ballast Water Control Report form with the commission.¹ 1. Within 72 hours of the completion of the discharge of ballast water if the commercial vessel discharges ballast water into Virginia waters; or² 2. Prior to the commercial vessel's departure from Virginia waters if the commercial vessel does not discharge ballast water into Virginia waters.³ B. The HRMA shall act as the commission's designated agent and shall be responsible for the receipt and compilation of all Ballast Water Control Report forms filed in Virginia in compliance with this regulation. A Ballast Water Control Report form shall be deemed to have been filed when it has been hand delivered to the HRMA, sent electronically or by facsimile transmission and received by the HRMA, or sent to the HRMA by registered or certified mail, return receipt requested.⁴ C. For commercial vessels whose point of origin is located outside the United States EEZ and whose first port of call within the United States is within Virginia waters, submittal to the HRMA of a copy of the completed form the operator filed with the NBIC, shall be deemed compliance with the reporting requirements of this regulation.⁵ D. The HRMA shall provide the commission with copies of all Ballast Water Control Report forms received from operators of commercial vessels and ship agents acting on behalf of operators of commercial vessels on a monthly basis. The commission shall submit copies of the forms received with the NBIC on a quarterly basis.⁶

Provision-Level Authorization Analysis

Provision 1

"A. The operator, or a ship agent on behalf of the operator, of a commercial vess..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as the filing of a Ballast Water Control Report, as it falls within the scope of necessary regulations to manage activities in Virginia's territorial waters. The legal significance of this relationship is that it provides the Commission with the flexibility to create and enforce regulations that ensure compliance with the statutory framework, thereby promoting effective management of marine resources.

Provision 2

"1. Within 72 hours of the completion of the discharge of ballast water if the co..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation requiring commercial vessels to report ballast water discharges within 72 hours may exceed this authority because the statute does not explicitly grant the Commission the power to impose specific reporting timelines or requirements beyond what is necessary to carry out the title's provisions. The legal significance of this relationship is that if the regulation imposes requirements not explicitly authorized by the statute, it may be deemed invalid or subject to challenge as an overreach of the Commission's regulatory authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"2. Prior to the commercial vessel's departure from Virginia waters if the commer..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that address various operational aspects, such as the requirement for commercial vessels to manage ballast water before departing Virginia waters, thereby falling under the Commission's general regulatory authority. The legal significance of this relationship is that it empowers the Commission to establish necessary measures to protect the state's waters, ensuring compliance with environmental standards without needing further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"B. The HRMA shall act as the commission's designated agent and shall be responsi..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to delegate responsibilities, such as the receipt and compilation of Ballast Water Control Report forms, to designated agents like the HRMA, which aligns with the regulatory requirement. The legal significance of this authorization relationship is that it enables the Commission to effectively manage and enforce compliance with the statute through the delegation of specific tasks, thereby ensuring the regulation's implementation.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"C. For commercial vessels whose point of origin is located outside the United St..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that facilitate compliance with reporting requirements for commercial vessels entering Virginia waters, thus resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations without requiring further specific legislative action, ensuring effective management of maritime activities within its jurisdiction.

Provision 6

"D. The HRMA shall provide the commission with copies of all Ballast Water Contro..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of regulatory actions, including the requirement for the HRMA to provide the Commission with monthly copies of Ballast Water Control Report forms, which falls within the Commission's mandate to oversee compliance and management of water quality. The legal significance of this relationship is that it establishes the Commission's ability to delegate responsibilities to ensure effective oversight and enforcement of regulations related to commercial vessel operations.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

The commercial vessel's point of origin is located from within the United States EEZ; 2.¹ The commercial vessel is engaged in innocent transit; or 3.² The vessel is a passenger vessel equipped with a functioning treatment system designed to kill aquatic organisms in the ballast water.³

Provision-Level Authorization Analysis

Provision 1

"The commercial vessel's point of origin is located from within the United States..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of regulations that address various aspects of the Commission's jurisdiction, including the regulation concerning the point of origin for commercial vessels, which falls within the scope of managing and overseeing maritime activities. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations without needing further specific legislative approval, thereby facilitating effective governance and enforcement within its domain.

Provision 2

"The commercial vessel is engaged in innocent transit; or 3."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that address various scenarios, such as the regulation concerning commercial vessels engaged in innocent transit, thereby falling within the scope of its delegated powers. The legal significance of this authorization relationship is that it enables the Commission to implement necessary regulations without needing further specific legislative approval, ensuring effective governance and regulatory oversight.

Provision 3

"The vessel is a passenger vessel equipped with a functioning treatment system de..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations, such as those concerning passenger vessels and their ballast water treatment systems, as it falls within the scope of ensuring compliance with environmental standards. The legal significance of this authorization relationship is that it empowers the Commission to address specific regulatory needs without limitation, thereby facilitating effective management of aquatic resources.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

A. The Ballast Water Control Report adopted by the commission is consistent with the form adopted by the United States Coast Guard and set forth in 33 CFR Part 151, Subpart D, Appendix.¹ B. The Ballast Water Control Report form and instructions may be obtained in an electronic format from the HRMA. Report forms and instructions are also available electronically via the Internet and may be downloaded through the NBIC link on the SERC web page at http: //invasions.si.edu/bwforms.htm.²

Provision-Level Authorization Analysis

Provision 1

"A. The Ballast Water Control Report adopted by the commission is consistent with..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission shall exercise all powers conferred and may promulgate regulations and guidelines necessary to carry out the provisions of this title. This broad grant of authority allows the Commission to adopt regulations that align with federal standards, such as the Ballast Water Control Report, which is consistent with the form established by the United States Coast Guard. The legal significance of this authorization relationship is that it enables the Commission to implement necessary regulations that ensure compliance with both state and federal requirements, reflecting a comprehensive approach to regulatory oversight.

Provision 2

"B. The Ballast Water Control Report form and instructions may be obtained in an ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create regulations that facilitate the implementation of statutory objectives, including the provision of accessible forms and instructions for compliance, which is reflected in the regulation's allowance for electronic access to the Ballast Water Control Report. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and disseminate information essential for enforcing the statutory requirements, thereby ensuring compliance and promoting public awareness.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

A. Unless specifically exempted from this regulation, the master, owner, operator, or person in charge of a vessel carrying ballast water into Virginia waters, after having operated outside the EEZ, shall keep records in written form that include the following information: 1. Vessel Information a. Name; b. Vessel type; c. IMO number (official number if IMO number not issued); d. Port of registry (Flag); e. Owner or operator; f. Gross tonnage; g. Call sign; and h. Agent.¹ 2. Voyage information. Include the date and port of arrival, vessel agent, last port and country of call, and next port and country of call.² 3. Total ballast water information. Include the total volume of ballast water capacity, total volume of ballast water on board, and total number of ballast water tanks in ballast.³ 4. Ballast water management. Include the total number of ballast tanks/holds that are to be discharged into Virginia waters or to a reception facility. If an alternative ballast water management method is used, please note the number of tanks that were managed using an alternative method, as well as the type of method used. Indicate whether the vessel has a ballast water management plan and IMO guidelines on board, and whether the ballast water management plan is used.⁴ 5. Information on ballast water tanks to be discharged into Virginia waters or to a reception facility. Provide the origin of the ballast water, including the dates, locations, volumes and temperatures of the ballast water when loaded for each tank. Provide the particulars of ballast water exchange if conducted, including the date, location, volume exchanged, thoroughness of exchange (i.e., percent of tank volume exchanged), the sea height at the time of exchange, and the expected date, location, volume and salinity of any ballast water to be discharged into Virginia waters.⁵ 6. Certification of accurate information. Include the master, owner, operator, or responsible person in charge's printed name, title and signature attesting to the accuracy of the information and certifying compliance with the requirements of this regulation.⁶ B. The master, owner, operator or person in charge of a commercial vessel subject to this regulation shall make the required records available to the commission for inspection upon request for a period of two years.⁷

Provision-Level Authorization Analysis

Provision 1

"A. Unless specifically exempted from this regulation, the master, owner, operato..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of managing vessel operations, including record-keeping for ballast water, which falls within the scope of ensuring compliance with environmental protections. The legal significance of this authorization relationship is that it empowers the Commission to establish necessary regulations without needing further specific legislative approval, thereby facilitating effective governance and oversight in the management of Virginia's waters.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Voyage information. Include the date and port of arrival, vessel agent, last ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the creation of regulations that detail specific requirements, such as the inclusion of voyage information, which aligns with the Commission's overarching responsibility to manage maritime activities effectively. The legal significance of this authorization relationship is that it empowers the Commission to establish detailed operational standards without requiring further legislative approval, thereby facilitating efficient governance within its jurisdiction.

Provision 3

"3. Total ballast water information. Include the total volume of ballast water ca..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to create detailed regulations, such as the requirement for total ballast water information, as it falls within the necessary actions to implement the overarching statutory provisions. The legal significance of this relationship is that it provides the Commission with the flexibility to address specific operational details while ensuring compliance with the statutory mandate.

Provision 4

"4. Ballast water management. Include the total number of ballast tanks/holds tha..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred to it and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that address specific operational aspects, such as ballast water management, which are essential for fulfilling its mandate to protect Virginia waters. The legal significance of this authorization relationship is that it enables the Commission to implement detailed regulatory requirements that ensure compliance with environmental standards without needing further legislative approval for each specific regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"5. Information on ballast water tanks to be discharged into Virginia waters or t..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation requiring detailed information on ballast water tanks, including origin, dates, locations, volumes, and temperatures, may exceed the statutory authorization because it imposes extensive reporting requirements that are not explicitly outlined in the statute. The legal significance of this relationship is that the regulation could be seen as overstepping the bounds of what the statute allows, potentially leading to challenges regarding the validity of the regulation based on the limits of the Commission's authority.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"6. Certification of accurate information. Include the master, owner, operator, o..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to create regulations that ensure compliance and accuracy in reporting, as exemplified by the requirement for certification of accurate information by responsible parties. The legal significance of this relationship is that it empowers the Commission to implement necessary oversight and accountability measures, thereby fulfilling its statutory mandate effectively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"B. The master, owner, operator or person in charge of a commercial vessel subjec..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish requirements, such as the obligation for commercial vessel operators to make records available for inspection, as it is necessary for the effective enforcement and oversight of the statutory provisions. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure compliance and facilitate the execution of its statutory responsibilities without requiring further legislative action.

Ballast Water Discharge Reporting

Express

General

Overreach

Unauthorized

Requirements

A. Any operator of a commercial vessel who knowingly fails to file a Ballast Water Control Report form with the commission within the applicable time period set forth in this regulation, or who knowingly makes any false statement in a Ballast Water Control Report form submitted to the commission, shall be guilty of a Class 1 misdemeanor.¹ B. The commission may take samples of ballast water and sediment, examine documents, and make other appropriate inquiries to assess the compliance of any vessel subject to this regulation while that vessel is in Virginia waters.²

Provision-Level Authorization Analysis

Provision 1

"A. Any operator of a commercial vessel who knowingly fails to file a Ballast Wat..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language encompasses the regulation requiring operators of commercial vessels to file a Ballast Water Control Report and imposes penalties for non-compliance, thereby aligning with the Commission's mandate to ensure compliance with relevant environmental protections. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to fulfill its statutory responsibilities without exceeding its delegated authority.

Provision 2

"B. The commission may take samples of ballast water and sediment, examine docume..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language encompasses the regulation's provisions for the Commission to take samples, examine documents, and conduct inquiries, as these actions are necessary for assessing compliance with the statutory requirements. The legal significance of this relationship is that it allows the Commission to effectively implement and enforce the statutory framework, ensuring that vessels comply with environmental standards while operating in Virginia waters.

Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth

Express

General

Overreach

Unauthorized

Requirements

A. The objective is to assure that all suitable dredged material is utilized on eroding beach shorelines to the maximum extent practicable.¹ B. In considering dredging permit applications, the commission will endeavor to: 1. Support § 10.1-704 of the Code of Virginia which provides that the beaches of the Commonwealth be given priority consideration as sites for the disposal of that portion of dredged material determined to be suitable for beach nourishment;² 2. Coordinate and cooperate with the appropriate state and federal agencies to the extent that VMRC regulatory actions can support those agencies in administering House Joint Resolution No. 223, 1987 session, regarding the use of dredged material for beach nourishment; and³ 3. Resolve or minimize legal, environmental and engineering problems which can result from inadequate planning of dredged material placement.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The objective is to assure that all suitable dredged material is utilized on ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of its mandate, including the utilization of suitable dredged material for beach nourishment, thereby justifying the GENERAL_DELEGATION level. The legal significance of this relationship is that it empowers the Commission to effectively manage and regulate activities related to coastal erosion, ensuring that its actions align with the overarching goals outlined in the statute.

CROSS-REFERENCE § 10.1-704

Title 10.1. Conservation › Subtitle I. Activities Administered by the Department of Conservation and Recreation › Chapter 7. Shoreline Erosion and Public Beach Preservation › Article 1. Shore Erosion Control › § 10.1-704. Use of dredged material for beach nourishment; priority The beaches of the Com...

Provision 2

"B. In considering dredging permit applications, the commission will endeavor to:..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to implement regulations that align with the overarching goals of the statute, such as considering the environmental and practical implications of dredging permit applications, which is reflected in the regulation's focus on prioritizing suitable disposal sites for dredged material. The legal significance of this authorization relationship is that it empowers the Commission to make decisions and establish procedures that are essential for fulfilling its statutory mandate, thereby ensuring effective governance and resource management.

CROSS-REFERENCE § 10.1-704

Explicit Statutory Citations

REFERENCE § 10.1-704

Citation text: "§ 10.1-704"

Total: 1 citation to 1 unique statute

Provision 3

"2. Coordinate and cooperate with the appropriate state and federal agencies to t..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to coordinate and cooperate with state and federal agencies, as the regulation requires, to support the administration of specific legislative initiatives like House Joint Resolution No. 223. The legal significance of this relationship is that it enables the Commission to effectively implement its regulatory responsibilities while fostering collaboration with other agencies, thereby fulfilling its mandate under the statute.

CROSS-REFERENCE § 10.1-704

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"3. Resolve or minimize legal, environmental and engineering problems which can r..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to address a wide range of issues related to its mandate, including the resolution of legal, environmental, and engineering problems associated with dredged material placement, thereby justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to take necessary actions and develop regulations that effectively manage and mitigate potential challenges in its operational scope.

CROSS-REFERENCE § 10.1-704

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to develop manageable criteria and threshold levels for use by commission staff in determining which projects justify a requirement for the expenditure of funds by an applicant for sediment tests as well as investigation of legal, environmental and engineering implications inherent in every dredged material placement proposal.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to develop manageable criteria and threshold leve..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to establish criteria and threshold levels for determining the necessity of sediment tests and related investigations, which aligns with the regulation's intent to provide guidance for project evaluations. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed operational frameworks essential for fulfilling its statutory responsibilities, thereby ensuring effective management of resources and compliance with environmental standards.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth

Express

General

Overreach

Unauthorized

Requirements

The commission will strive to achieve maximum beneficial uses of suitable dredged material for those projects which qualify under criteria established here while protecting the interests of the Commonwealth in the land and the resources lying channelward of the mean low water shoreline which land and resources are owned by the Commonwealth and are to be held as a common for use by all its citizens.¹

Provision-Level Authorization Analysis

Provision 1

"The commission will strive to achieve maximum beneficial uses of suitable dredge..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish criteria for the beneficial use of dredged material, ensuring that such activities align with the overarching goal of protecting the Commonwealth's interests in land and resources. The legal significance of this relationship is that it empowers the Commission to implement regulations that are essential for fulfilling its statutory mandate while maintaining flexibility in addressing the specific needs and circumstances related to dredged material management.

Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth

Express

General

Overreach

Unauthorized

Requirements

Increasing interest in the beneficial uses of dredged material dictates a more structured approach to the processing of dredging permit applications.¹ Parameters to be considered in attempting to utilize suitable material for beach nourishment are frequently economic, legal, political, or technical, as well as environmental, and most often a combination of all these factors.² Because of the complexity of interests involved, certain threshold levels are needed to more readily define projects which justify the time and expense of determining whether beach nourishment is a reasonable alternative.³ The following general criteria should be used to determine candidate projects suitable for detailed evaluation: 1.⁴ More than 7,500 cubic yards of material is to be removed and, based on previous experience, there is a reasonable expectation that usable quantities of suitable beach nourishment material free from toxic compounds is present in the material to be dredged. 2.⁵ Beaches with a demonstrated need for and capability of accepting all or a part of the available material are within proximity of the dredging site. 3.⁶ The political subdivision within which the potential placement site is located has expressed an interest in obtaining beach nourishment material. 4.⁷ The applicant understands that he will be required to undertake the research necessary to locate private property owners willing to accept the material if no publicly owned shoreline is in reasonable proximity. 5.⁸ When beach nourishment is incorporated into a dredging project, a more comprehensive subsurface investigation plan is required than if dredging is the only consideration.⁹

Provision-Level Authorization Analysis

Provision 1

"Increasing interest in the beneficial uses of dredged material dictates a more s..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address emerging issues, such as the structured processing of dredging permit applications in response to increased interest in the beneficial uses of dredged material. The legal significance of this relationship is that it empowers the Commission to adapt its regulatory framework to evolving circumstances while remaining within the scope of its statutory authority, thereby ensuring effective governance.

Provision 2

"Parameters to be considered in attempting to utilize suitable material for beach..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for a wide range of considerations, such as economic, legal, political, technical, and environmental factors, which are essential for effective beach nourishment, thereby justifying the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to adapt its regulatory framework to address complex and multifaceted issues without needing further specific legislative approval.

Provision 3

"Because of the complexity of interests involved, certain threshold levels are ne..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish threshold levels for projects, as outlined in the regulation, to effectively manage the complexities of beach nourishment decisions. The legal significance of this relationship is that it empowers the Commission to create necessary criteria that facilitate informed decision-making, thereby ensuring efficient use of resources while adhering to the statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"The following general criteria should be used to determine candidate projects su..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows for the establishment of general criteria for evaluating candidate projects, as it falls within the Commission's mandate to create regulations that facilitate the execution of its responsibilities. The legal significance of this relationship is that it empowers the Commission to develop flexible and adaptive criteria, ensuring effective governance and oversight in project evaluations under its jurisdiction.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"More than 7,500 cubic yards of material is to be removed and, based on previous ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address specific operational needs, such as the removal of material for beach nourishment, thereby justifying the GENERAL_DELEGATION authorization level. The legal significance of this relationship is that it empowers the agency to effectively manage and regulate activities related to environmental protection and resource management without requiring further legislative approval for each specific regulation.

Provision 6

"Beaches with a demonstrated need for and capability of accepting all or a part o..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the Commission to establish regulations that address specific needs, such as identifying beaches capable of accepting dredged material, thereby justifying the GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create flexible and responsive regulations that align with its overarching mandate to manage resources effectively.

Provision 7

"The political subdivision within which the potential placement site is located h..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of its mandate, including the interests of political subdivisions in obtaining beach nourishment material, which falls under the general authority to manage coastal resources. The legal significance of this relationship is that it enables the Commission to respond flexibly to local needs while ensuring compliance with overarching statutory objectives.

Provision 8

"The applicant understands that he will be required to undertake the research nec..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish regulations that require applicants to engage in research for locating private property owners, as it falls within the necessary actions to implement the statutory provisions effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that facilitate the execution of its statutory responsibilities, thereby ensuring compliance with the overarching goals of the title.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"When beach nourishment is incorporated into a dredging project, a more comprehen..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish detailed requirements, such as the need for a more comprehensive subsurface investigation plan when beach nourishment is part of a dredging project, as it falls within the scope of necessary regulations to carry out the title's provisions. The legal significance of this relationship is that it provides the Commission with the flexibility to adapt its regulatory framework to address specific environmental and operational considerations inherent in complex projects like dredging combined with beach nourishment.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Criteria for the Placement of Sandy Dredged Material Along Beaches in the Commonwealth

Express

General

Overreach

Unauthorized

Requirements

A. Sufficient borings must be made and analyzed to develop a clear picture of the vertical and horizontal limit of sand deposits in the dredging area. Such borings are the responsibility of the dredging applicant.¹ B. Shoreline investigations at the nourishment site shall determine the characteristics of the native material, the location of utilities, structures, outfall pipes, property lines along shore transport, and other basic engineering considerations.² C. Engineering information must be analyzed to determine acceptable grain size range of fill material, design berm height, width and length, probable fate of the material, expected loss rates and the resulting maintenance requirements.³ D. Legal easements and public rights-of-way must be obtained from property owners which preserve public use and state ownership of all state-owned submerged land existing channelward of mean low water shoreline prior to the placement of any material. These legal documents are the responsibility of the dredging applicant or property owners, or both.⁴ E. The project should be engineered in a manner which results in the least environmental impact while providing an efficient and cost effective construction plan. Consideration will be given, but not limited to, the project's potential impacts on existing natural resources and habitats. These include, inter alia, existing finfish, shellfish, turtle and avian species and their critical time periods for spawning, nesting and nursery functions in areas of submerged aquatic vegetation, wetlands and submerged or intertidal and beach habitat.⁵

Provision-Level Authorization Analysis

Provision 1

"A. Sufficient borings must be made and analyzed to develop a clear picture of th..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations, such as the requirement for sufficient borings to assess sand deposits, as it falls within the necessary actions to carry out the statutory mandate regarding dredging activities. The legal significance of this authorization relationship is that it empowers the Commission to establish detailed operational standards that ensure compliance with the overarching goals of the statute, thereby facilitating effective management of dredging operations.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Shoreline investigations at the nourishment site shall determine the characte..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language encompasses the regulation, as it requires detailed investigations and assessments that are essential for effective shoreline management and nourishment, aligning with the Commission's mandate to ensure proper execution of its responsibilities. The legal significance of this authorization relationship is that it allows the Commission the flexibility to develop and enforce regulations that address specific operational needs while remaining within the framework established by the statute.

Provision 3

"C. Engineering information must be analyzed to determine acceptable grain size r..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to promulgate regulations and guidelines necessary to carry out the provisions of the title, indicating a broad but defined scope of power. The regulation's requirement for detailed engineering analysis, including specific metrics like grain size range and berm dimensions, appears to exceed the general authority granted by the statute, as it imposes extensive technical requirements that may not be directly necessary to implement the statutory provisions. The legal significance of this relationship is that while the statute allows for regulations, the specificity and technical nature of the regulation may overstep the intended limits of the Commission's authority, potentially infringing on areas not explicitly authorized by the statute.

Provision 4

"D. Legal easements and public rights-of-way must be obtained from property owner..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad grant of authority allows the regulation to require legal easements and public rights-of-way from property owners, as it is necessary to ensure public use and state ownership of submerged lands, thus falling within the scope of the Commission's regulatory powers. The legal significance of this authorization relationship is that it enables the Commission to effectively manage and protect state-owned submerged lands, ensuring compliance with statutory mandates while maintaining public interests.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. The project should be engineered in a manner which results in the least envir..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that address various aspects of environmental impact and construction efficiency, as seen in the regulation's focus on minimizing environmental harm while ensuring cost-effectiveness. The legal significance of this authorization relationship is that it empowers the Commission to make decisions and establish standards that align with the overarching goals of the statute, thereby facilitating effective governance in environmental management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to conserve and protect the public oyster grounds in the James River.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to conserve and protect the public oyster grounds..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation aimed at conserving and protecting public oyster grounds in the James River, as it aligns with the Commission's responsibility to manage and protect marine resources for the general welfare. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific conservation needs while operating within the broader framework established by the statute.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

This chapter shall include all of the public oyster grounds in the James River upstream of the James River bridge.¹

Provision-Level Authorization Analysis

Provision 1

"This chapter shall include all of the public oyster grounds in the James River u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote seafood and marine resources. This broad language encompasses the regulation concerning public oyster grounds in the James River, as it aligns with the Commission’s mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are necessary for the sustainable management of specific seafood resources without requiring further legislative approval, thereby facilitating timely and effective resource management.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to use or operate patent tongs in any manner on any public oyster grounds in the James River upstream of the James River bridge.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to use or operate patent tongs in any manner..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood resources. This broad grant of authority allows the Commission to regulate activities, such as the use of patent tongs on public oyster grounds, to ensure the sustainable management and conservation of oyster populations in the James River. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulations that align with its overarching mandate to protect and manage marine resources effectively.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

One end of each gill net shall be marked by a flag of square dimensions, which shall measure at least 144 square inches. 2.¹ The end of each gill net opposite the square flag marker shall be marked by either a triangular flag of at least 144 square inches or a floating ball of at least 50 inches circumference. 3.² Each flag described in subdivisions 1 and 2 of this section shall be supported on a staff sufficient to maintain the bottom of the flag at least three feet above the surface of the water. 4.³ The end-marker flags on the same net or flag and floating ball on the same net shall be of identical color. 5.⁴ All flag staffs shall be marked with two stripes of two-inch wide reflective material that shall be visible from all sides; all end-marker floating balls shall be marked on three sides with patches of approximately two-inch by two-inch reflective material that shall be visible from all sides above the water line.⁵

Provision-Level Authorization Analysis

Provision 1

"One end of each gill net shall be marked by a flag of square dimensions, which s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring that one end of each gill net be marked by a flag, as it is a necessary measure for the effective management and conservation of marine resources, aligning with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching goals without needing further legislative approval, thereby ensuring efficient resource management.

Provision 2

"The end of each gill net opposite the square flag marker shall be marked by eith..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation regarding the marking of gill nets, as it relates to the conservation and reasonable use of marine resources by ensuring visibility and safety in fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without requiring further legislative approval for each specific regulation.

Provision 3

"Each flag described in subdivisions 1 and 2 of this section shall be supported o..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, manage Atlantic menhaden, and prepare fishery management plans. The regulation requiring flags to be supported on a staff at least three feet above the water's surface does not directly relate to the conservation or management of seafood resources, suggesting it may exceed the scope of the authority granted by the statute. The legal significance of this relationship indicates that the regulation may not align with the specific purposes outlined in the statute, potentially infringing on the limits of the Commission's regulatory power.

Provision 4

"The end-marker flags on the same net or flag and floating ball on the same net s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement regulations that ensure proper identification and management of fishing gear, such as the requirement for end-marker flags to be of identical color, which aids in the conservation and reasonable use of resources. The legal significance of this relationship is that it empowers the Commission to make necessary regulatory decisions without needing specific legislative approval for each individual regulation, thereby facilitating effective management of marine resources.

Provision 5

"All flag staffs shall be marked with two stripes of two-inch wide reflective mat..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad grant of authority encompasses the regulation regarding the marking of flag staffs and end-marker floating balls, as it is necessary for ensuring safety and visibility in the management of marine resources, which aligns with the Commission's mandate to promote the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management while maintaining flexibility to address various aspects of marine resource conservation.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

A staked gill net is a licensed fixed fishing device that is assigned a fixed location.¹ It shall be unlawful for any person to hang any staked gill net on its poles, to drop such net into the fishing position or to fish such net that is not marked in the following manner: 1.² Both ends of each staked gill net shall be marked by a flag of square dimensions, which shall measure at least 144 square inches. 2.³ Each end-marker flag described in subdivision 1 of this section shall be suspended on a pole or stake at least two feet above the surface of the water. 3.⁴ All end-marker flags shall be of blaze-orange color. 4.⁵ Each pole or stake in a gill net stand shall be marked at least two feet above the surface of the water, and visible from all sides, with either reflectors (at least two inches in diameter) or reflective tape (at least two inches wide).⁶

Provision-Level Authorization Analysis

Provision 1

"A staked gill net is a licensed fixed fishing device that is assigned a fixed lo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific fishing devices. The regulation regarding staked gill nets falls within this broad authority as it pertains to the licensing and management of fixed fishing devices, which directly supports the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management, ensuring that the seafood industry operates sustainably within the framework established by the statute.

Provision 2

"It shall be unlawful for any person to hang any staked gill net on its poles, to..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation that prohibits the use of unmarked staked gill nets, as it directly relates to the conservation and management of seafood resources by ensuring proper identification and accountability in fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring specific legislative approval for each individual regulation, thereby facilitating effective resource management.

Provision 3

"Both ends of each staked gill net shall be marked by a flag of square dimensions..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language allows for the establishment of specific regulations, such as the requirement for marking gill nets, as it directly relates to the conservation and management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without needing further legislative approval.

Provision 4

"Each end-marker flag described in subdivision 1 of this section shall be suspend..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the seafood industry. This broad grant of authority encompasses the regulation regarding the end-marker flag, as it relates to the management and conservation of seafood resources by ensuring proper identification and marking practices that promote safety and compliance. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to uphold the welfare of the seafood industry and marine resources without requiring further specific legislative approval for each regulation.

Provision 5

"All end-marker flags shall be of blaze-orange color. 4."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses various regulatory measures, including those related to safety and identification, such as the requirement for blaze-orange end-marker flags, which are essential for ensuring safe practices in the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support the overall management and conservation goals outlined in the statute, reflecting a comprehensive approach to resource management.

Provision 6

"Each pole or stake in a gill net stand shall be marked at least two feet above t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. The regulation requiring that gill net stands be marked for visibility directly aligns with the Commission's mandate to ensure the reasonable use and conservation of marine resources, thereby promoting safety and effective management within the seafood industry. This authorization relationship signifies that the Commission has the discretion to implement regulations that support its broader objectives of resource conservation and industry welfare without needing to seek further specific legislative approval.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

a.¹ James River.² Upstream from a line connecting College Creek and Hog Point. b.³ York River.⁴ Upstream from a line connecting the southernmost point of the northern headland of Poropotank Bay and Croaker Landing. c.⁵ Rappahannock River.⁶ Upstream from a line connecting Greenvale Creek and Weeks Creek.⁷

Provision-Level Authorization Analysis

Provision 1

"a."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion and conservation of seafood and marine resources, as well as to manage specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that address various aspects of the seafood industry, including management practices, conservation efforts, and user group considerations, which aligns with the general delegation of regulatory powers. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that are essential for the effective management and sustainability of marine resources, ensuring that the interests of the seafood industry and ecological balance are maintained.

Provision 2

"James River."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, and to promote the general welfare of the seafood industry. The regulation regarding the James River does not align with the specific authorities outlined in the statute, as it does not pertain to the conservation or management of the seafood resources explicitly mentioned, nor does it address the general welfare of the seafood industry in a manner supported by the statute. The legal significance of this authorization relationship is that without explicit statutory authority, the regulation lacks legitimacy and cannot be enforced, as it exceeds the scope of the powers granted to the Commission.

Provision 3

"Upstream from a line connecting College Creek and Hog Point. b."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including specific provisions for surf clams and management of Atlantic menhaden. This broad language allows the Commission to implement regulations that address various aspects of seafood management, including geographic restrictions like the one stated in the regulation, thus falling under the umbrella of GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create regulations that are essential for effective resource management without requiring further legislative approval, ensuring timely and responsive governance in the seafood sector.

Provision 4

"York River."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, while also emphasizing the need for reasonable use and management of specific species like surf clams and Atlantic menhaden. The regulation concerning the York River may exceed this authority if it imposes restrictions or requirements that do not directly relate to the conservation or reasonable use of the specified resources, as the statute does not provide a broad mandate for regulating all aspects of the marine environment without clear justification. The legal significance of this relationship lies in the need for regulations to align closely with the explicit powers granted by the statute, ensuring that any regulatory actions taken do not overstep the defined boundaries of the Commission's authority.

Provision 5

"Upstream from a line connecting the southernmost point of the northern headland ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad language allows the Commission to implement regulations that address various aspects of seafood management, such as defining geographical boundaries for fishing activities, which is reflected in the regulation concerning the specified line in Poropotank Bay. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in regulating marine resources, ensuring that management practices align with the overarching goals of conservation and industry welfare.

Provision 6

"Rappahannock River."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad grant of authority allows the Commission to implement regulations that address various aspects of seafood management, including those related to specific geographic areas like the Rappahannock River, thereby justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create flexible and adaptive regulations that can respond to the needs of the seafood industry and resource conservation without requiring additional legislative approval for each specific regulation.

Provision 7

"Upstream from a line connecting Greenvale Creek and Weeks Creek."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that address specific geographic areas, such as the delineation of boundaries for fishing activities, which is reflected in the regulation concerning the area upstream from a defined line. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed management measures that are essential for the effective conservation and utilization of seafood resources within the Commonwealth.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

James River and its tributaries: a line connecting Hog Point and the downstream point of the mouth of College Creek; b.¹ York River and its tributaries: the Route 33 bridges; and c.² Rappahannock River and its tributaries: the Route 360 Bridge.³

Provision-Level Authorization Analysis

Provision 1

"James River and its tributaries: a line connecting Hog Point and the downstream ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species and the establishment of regulatory management options. This broad language allows the Commission to implement regulations that address various aspects of marine resource management, such as defining geographical boundaries for fishing areas, which is reflected in the regulation concerning the James River and its tributaries. The legal significance of this authorization relationship is that it empowers the Commission to exercise discretion in creating regulations that are essential for effective resource management while ensuring compliance with the overarching goals of conservation and industry welfare.

Provision 2

"York River and its tributaries: the Route 33 bridges; and c."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language encompasses a wide range of regulatory actions, including those related to specific geographic areas such as the York River and its tributaries, thereby justifying the application of GENERAL_DELEGATION. The legal significance of this relationship is that it allows the Commission to implement regulations that address local resource management needs while still aligning with the overarching goals of conservation and industry welfare as outlined in the statute.

Provision 3

"Rappahannock River and its tributaries: the Route 360 Bridge."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to manage specific species like Atlantic menhaden. The regulation concerning the Rappahannock River and its tributaries, particularly at the Route 360 Bridge, may exceed this authority because it does not clearly align with the conservation and management of seafood resources as outlined in the statute, potentially addressing issues outside the scope of the Commission's explicit powers. The legal significance of this relationship is that any regulation that extends beyond the statutory framework risks being deemed invalid or subject to challenge, as it may not be supported by the authority granted in the statute.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

a.¹ James River.² Upstream of the Jamestown Ferry Docking Station. b.³ Mattaponi and Pamunkey Rivers.⁴ Upstream of the Route 33 bridges at West Point. c.⁵ Rappahannock River.⁶ Upstream of the Route 360 bridge at Tappahannock.⁷

Provision-Level Authorization Analysis

Provision 1

"a."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows for GENERAL_DELEGATION because it encompasses a wide range of regulatory actions that the Commission may take to fulfill its responsibilities, allowing flexibility in addressing various aspects of seafood management. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for effective resource management without needing further specific legislative approval for each regulatory action.

Provision 2

"James River."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-236 specifically grants the agency authority to regulate certain activities related to the management of the James River, but it does not extend to the specific provisions outlined in the regulation. The regulation imposes requirements that go beyond the scope of the agency's authority as defined in the statute, which only allows for regulation of specific activities and does not encompass the broader mandates presented in the regulation. The legal significance of this relationship is that without explicit statutory authority, the regulation cannot be enforced, rendering it unauthorized and invalid.

Provision 3

"Upstream of the Jamestown Ferry Docking Station. b."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the general welfare of the seafood industry. The regulation regarding "Upstream of the Jamestown Ferry Docking Station" may exceed this authority if it imposes restrictions or requirements that are not directly related to the conservation or management of specific seafood resources, such as surf clams or Atlantic menhaden, as outlined in the statute. The legal significance of this relationship is that any regulation that extends beyond the explicit parameters set by the statute could be challenged as invalid, as it would not align with the Commission's designated powers.

Provision 4

"Mattaponi and Pamunkey Rivers."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species and the establishment of fishery management plans. This broad grant of authority allows the Commission to implement regulations that address specific geographic areas, such as the Mattaponi and Pamunkey Rivers, as part of its mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are responsive to the needs of the seafood industry and resource conservation efforts, ensuring that management practices are adaptable to regional conditions and challenges.

Provision 5

"Upstream of the Route 33 bridges at West Point. c."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that address specific geographical areas, such as upstream of the Route 33 bridges at West Point, to ensure the conservation and reasonable use of marine resources in those locations. The legal significance of this authorization relationship is that it empowers the Commission to make decisions and establish regulations that are essential for effective resource management and industry welfare without requiring further legislative approval for each specific regulation.

Provision 6

"Rappahannock River."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of resources. This broad grant of authority allows the Commission to implement regulations that address the management and conservation of specific areas, such as the Rappahannock River, under the general mandate to promote the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are adaptable to the needs of the seafood industry while ensuring sustainable practices, thereby supporting both economic and environmental objectives.

Provision 7

"Upstream of the Route 360 bridge at Tappahannock."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for surf clams and Atlantic menhaden, while emphasizing the promotion of the seafood industry and general welfare. The regulation concerning restrictions "upstream of the Route 360 bridge at Tappahannock" may exceed the Commission's authority as it does not directly relate to the conservation or management of specific seafood resources mentioned in the statute, nor does it appear to promote the general welfare of the seafood industry. The legal significance of this relationship is that the regulation could be challenged for lacking a clear connection to the statutory mandates, potentially undermining the Commission's authority and leading to questions about the validity of its regulatory actions.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"Code of Virginia."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including specific provisions for conservation and reasonable use of resources. This broad language allows for GENERAL_DELEGATION because it encompasses a wide range of regulatory actions that the Commission may take to fulfill its mandate, including those related to the management and conservation of various seafood species. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the effective management and sustainability of marine resources without needing further specific legislative approval for each regulatory action.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to place, set, or fish any gill net with a stretched mesh of less than 2-7/8 inches, except as provided in subsection C of this section.¹ B. Mesh measurement is defined as the inside stretched distance between two knots on opposite sides of the same mesh.² C. As provided in § 28.2-305 of the Code of Virginia, mullet gill nets less than 200 yards long shall consist of a stretched mesh not less than two inches stretched measure after having been tarred. Any person utilizing a mullet gill net may not take or possess quantities of species other than mullet which comprise more than 15% of their total daily catch, in pounds.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to place, set, or fish any gill net with ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of species such as surf clams and Atlantic menhaden. The regulation prohibiting the use of gill nets with a stretched mesh of less than 2-7/8 inches directly aligns with the Commission's broad mandate to conserve marine resources and ensure sustainable practices within the seafood industry. This authorization relationship is legally significant as it empowers the Commission to implement specific measures that support the overarching goals of resource management and conservation as outlined in the statute.

EXCEPTION § 28.2-305

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 3. Finfish › Article 2. Taking of Fish, Net, and Device Restrictions › § 28.2-305. Size of mesh and length and depth of certain nets; penalty A. It is unlawful for any person to use the following nets: 1. ...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Mesh measurement is defined as the inside stretched distance between two knot..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad authority encompasses the regulation defining mesh measurement, as it is essential for ensuring the effective management and conservation of seafood resources, which aligns with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations like mesh measurement under a general delegation of authority, ensuring flexibility in managing specific aspects of the seafood industry.

EXCEPTION § 28.2-305

Provision 3

"C. As provided in § 28.2-305 of the Code of Virginia, mullet gill nets less than..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad language allows for the establishment of detailed regulations, such as those governing the specifications for mullet gill nets, as it falls under the Commission's mandate to ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that are essential for the effective management and conservation of marine resources, reflecting the intent of the statute to protect and promote the seafood industry.

EXCEPTION § 28.2-305

Explicit Statutory Citations

REFERENCE § 28.2-305

Citation text: "§ 28.2-305"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to place, set or fish any gill net with a stretched mesh of greater than or equal to seven inches in Virginia waters east of the COLREGS Line and north of the North Carolina-Virginia border and south of Wachapreague Inlet (37° 34.6' N) from April 1 through January 14, except as described in 4VAC20-320-65 and 4VAC20-252-135 .¹ B. It shall be unlawful for any person to place, set or fish any gill net with a stretched mesh of greater than or equal to seven inches in Virginia waters east of the COLREGS Line and north of Wachapreague Inlet (37° 34.6' N) and south of Chincoteague (37° 56.0' N) from April 16 through January 14, except as described in 4VAC20-320-65 and 4VAC20-252-135 .² C. It shall be unlawful for any person to place, set or fish any anchored gill net with a stretched mesh of greater than or equal to seven inches east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border in Virginia waters from sunset to sunrise from June 1 through October 31 unless that fisherman remains within 0.5 nautical miles of the closest portion of each anchored gill net, except as described in 4VAC20-320-65 .³ D. Any anchored gill net with a stretched mesh of greater than or equal to seven inches set east of the COLREGS Line and north of the North Carolina-Virginia border in Virginia waters and south of the Maryland-Virginia border and fished from sunset to sunrise from June 1 through October 31, must be brought back to port with the vessel, except as described in 4VAC20-320-65 .⁴ E. It shall be unlawful for any person to place, set or fish any gill net with a stretched mesh of greater than or equal to seven inches east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border in Virginia waters from sunset to sunrise from November 1 through December 31, except as described in 4VAC20-252-135 .⁵ F. Any gill net with a stretched mesh of greater than or equal to seven inches set east of the COLREGS Line and north of the North Carolina-Virginia border and south of the Maryland-Virginia border in Virginia waters and fished from sunset to sunrise from November 1 through December 31, must be brought back to port with the vessel, except as described in 4VAC20-252-135 .⁶ G. Mesh measurement is defined as the inside stretched distance between two knots on opposite sides of the same mesh.⁷

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to place, set or fish any gill net with a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that address specific management practices, such as the prohibition of gill nets with certain mesh sizes, to ensure sustainable fishing practices and resource conservation. The legal significance of this relationship is that it empowers the Commission to implement detailed regulations under a general framework, ensuring effective management of marine resources while adhering to the overarching goals established by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to place, set or fish any gill net with a..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the welfare of the seafood industry. The regulation prohibiting the use of gill nets with a stretched mesh of seven inches or greater in specific Virginia waters may exceed the statutory authority because it imposes a blanket restriction on fishing methods without clear justification related to conservation or management of the specific species mentioned in the statute. The legal significance of this relationship is that the regulation could be challenged for lacking a direct connection to the conservation goals outlined in the statute, potentially undermining the Commission's authority to regulate fishing practices in a manner that is consistent with legislative intent.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to place, set or fish any anchored gill n..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including specific provisions for managing species like surf clams and Atlantic menhaden. The regulation prohibiting the use of anchored gill nets with a certain mesh size in designated Virginia waters aligns with the Commission's broad mandate to manage and conserve marine resources, thereby falling under the general authority granted by the statute. This authorization relationship signifies that the regulation is a necessary tool for the Commission to fulfill its statutory responsibilities in resource management and conservation, reflecting a general delegation of authority to address specific regulatory needs.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any anchored gill net with a stretched mesh of greater than or equal to seven..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad grant of authority allows the Commission to establish detailed regulations, such as those governing the use of anchored gill nets, to ensure the sustainable management of marine resources within the defined geographical limits. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulations that align with its overarching mandate to conserve and promote the Commonwealth's seafood and marine resources, thus justifying the GENERAL_DELEGATION status.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. It shall be unlawful for any person to place, set or fish any gill net with a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing regulations for taking seafood. This broad grant of authority encompasses the regulation prohibiting the use of gill nets with a certain mesh size during specified times and locations, as it directly relates to the conservation of marine resources and the promotion of the seafood industry’s welfare. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to manage and protect marine resources effectively, ensuring sustainable practices within the industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"F. Any gill net with a stretched mesh of greater than or equal to seven inches s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority allows the Commission to implement specific regulations, such as those governing gill net usage in designated areas and times, as they are essential for managing and conserving marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that align with its overarching mandate to ensure sustainable practices within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"G. Mesh measurement is defined as the inside stretched distance between two knot..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation defining mesh measurement, as it is essential for ensuring proper fishing practices that align with conservation efforts and the sustainable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations like mesh measurement under a general delegation of authority, facilitating effective management of the seafood industry without requiring specific legislative approval for each regulation.

Pertaining to the Marking and Minimum Mesh Size of Gill Nets

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter, other than 4VAC20-430-60 C, shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter, other than 4VAC20-430-60 C, committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. As set forth in § 28.2-305 of the Code of Virginia, any person violating any provision of 4VAC20-430-60 C of this chapter shall be guilty of a Class 3 misdemeanor.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish regulations that include penalties for violations, as outlined in the regulation, thereby ensuring compliance and promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to enforce its regulations through established penalties, thereby supporting the overall management and conservation goals set forth in the statute.

CROSS-REFERENCE § 28.2-903

EXCEPTION § 28.2-305

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. As set forth in § 28.2-305 of the Code of Virginia, any person violating any ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-903 specifically states that the agency has the authority to enforce provisions related to the management of marine resources, but it does not grant the authority to impose criminal penalties for violations of regulations. The regulation cites a Class 3 misdemeanor for violations of 4VAC20-430-60 C, which exceeds the scope of the agency's authority as defined in the statute, leading to the conclusion that the regulation is unauthorized. The legal significance of this relationship is that without explicit statutory authorization for criminal penalties, the regulation cannot impose such penalties, rendering it invalid.

CROSS-REFERENCE § 28.2-903

EXCEPTION § 28.2-305

Explicit Statutory Citations

REFERENCE § 28.2-305

Citation text: "§ 28.2-305"

Total: 1 citation to 1 unique statute

Coastal Primary Sand Dune/Beaches Guidelines: Barrier Island Policy

Express

General

Overreach

Unauthorized

Requirements

For the purpose of this chapter, the definitions contained within § 62.1-13.22 of the Code of Virginia apply. In addition, the following words and terms when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Barrier islands" means elongated narrow landforms consisting largely of unconsolidated and shifting sand, fronted on one side by the ocean and on the other by a bay or marshland which separates them from the mainland. "Dune crest" means the highest elevation of the coastal primary sand dune on the lot as determined in consultation with the Virginia Institute of Marine Science. "Local 100-year long-term recession rate" means calculating the average shoreline recession over fixed one-mile intervals averaged over the period between surveys of 100 years or more.¹ 2. Background. Barrier islands are transient landforms. Their dynamic and unstable nature poses significant risk to life and property located there. Scientific evidence placed before the Marine Resources Commission supports a finding that some of Virginia's barrier islands, including Cedar Island, are more fragile, more unstable and pose even greater risk to life and property than many other coastal barriers, due to their sand-deficient character. In addition, barrier islands are themselves significant natural resources that contain a number of specific features (coastal primary sand dunes, wetlands, and vast stretches of state-owned sandy beaches) including natural heritage resources and threatened or endangered species that are recognized by the General Assembly for their natural value and are protected by law. This policy applies to the barrier island systems on the seaside of the Virginia portion of the southern Delmarva peninsula, and is not intended to cover military activities essential to national security, or the construction, operation, maintenance or rehabilitation of coast guard facilities or access to them. This exclusion does not obviate compliance with other applicable provisions of the Coastal Primary Sand Dune Protection Act. Survival of these barrier islands often depends on the ability of sand to wash across the island naturally in concert with the local wind and wave climate. The sand is then protected from loss offshore and provides a means of perpetuating the island, albeit in a more landward location. Activities which adversely affect this interaction can have an extremely detrimental impact on the island as well as the structure, form and function of its dune system. The artificial accumulation of sand along the oceanside of an island can make it more susceptible to loss offshore during a storm. Once such a loss occurs, the sand then becomes unavailable for washover and for the continued landward migration of the island. Houses, sand fences and similar structures can also alter wind patterns; this alteration impedes the wind transport of sand across the island. Accumulations adjacent to these impediments can be lost offshore as the shoreline continues to recede, leading to an increased rate of recession and a narrowing of the island. In addition, many of the Commonwealth's rarest species depend on the continuation of natural processes that currently exist on barrier islands. Consequently they are threatened by any interference with those processes. The implementation of the policies and guidelines set forth in this chapter will support a fuller achievement of the purposes of the Virginia Natural Area Preserves Act (§ 10.1-209 et seq. of the Code of Virginia), the Virginia Endangered Species Act (§ 29.1-563 et seq. of the Code of Virginia) and the Virginia Endangered Plant and Insect Species Act (§ 3.1-1020 et seq. of the Code of Virginia). Two of the main natural features of barrier islands are natural dunes and washover areas, both of which are included in the statutory definition of a coastal primary sand dune as a "mound of unconsolidated sandy soil which is contiguous to mean high water, whose landward and lateral limits are marked by a change in grade from 10% or greater to less than 10% and upon any part of which is growing" certain designated plants as listed in § 62.1- 13.22 of the Code of Virginia. Given the particular combination of risks to both natural values and life and property posed by development on barrier islands, the commission finds it necessary and appropriate to establish a policy and supplemental guidelines to assist landowners and decision makers alike in shaping barrier island uses in a manner that preserves and protects the values of coastal primary sand dunes as set forth by the General Assembly.² B. Permits required. 1. Applications for new development. a. No construction or any other activity which has the potential for encroaching on or otherwise damaging coastal primary sand dunes or state-owned beaches shall occur without review and approval by the Marine Resources Commission (commission) or a local wetland board, or both. Consequently, a permit application shall be submitted for any such construction or other activity. Each application shall include: (1) A certified survey of the site which is representative of current conditions showing: (i) one foot contours relative to local mean high water, commencing at the line and proceeding through the site to the first wetlands vegetation, (ii) specific location for all proposed structures including septic system and drainfields, (iii) size, configuration and design of access points, (iv) location of any other activity which may affect coastal primary sand dunes or state-owned shore, and (v) a dune crest, determined in consultation with the Virginia Institute of Marine Science, which identifies the highest elevation of the coastal primary sand dune on the lot. (2) A copy of both a valid building permit and septic or other wastewater handling or disposal system permit. b. All lot pins and proposed construction locations, drainfield sites and access points shall be staked and tied to suitable reference points. c. In its review of the application, the commission (or a local wetlands board) will determine the correctness of the dune crest and will establish a minimum setback necessary to prevent encroachment in or damage to the dune or interference with the natural processes of dune growth.³ 2. Loss of structures and applications for redevelopment. When a structure is destroyed or damaged by natural events such that the structure is condemned by health officials or local building officials, reconstruction in that location may not be authorized. Submission of a new application and evaluation as if no structure were present will be required. In the event a structure is damaged beyond repair and no longer habitable or damaged and not restored to a usable state within one year, the owner of record shall be responsible for the complete removal of all vestiges of the structure and materials resulting from them, including the septic tank, distribution box and drainfields in their entirety, or as directed by the state or local Department of Health. The owner of the lot shall restore the area to as natural a state as possible.⁴ C. Supplemental guidelines. 1. Structures. a. No permanent structure, other than those already specifically allowed by law or provided in subdivision C 2 b below for purposes of permanent access, will be permitted seaward of the crest of the coastal primary sand dune. No permanent alteration of the coastal primary sand dune will be permitted, except in accordance with the standards set forth in the Coastal Primary Sand Dunes Act. b. Since it is well established that the coastal primary sand dunes and the islands themselves recede continually westward at a reasonably predictable rate, and that excessive vehicular and pedestrian use will increase the fragility of coastal primary sand dunes or impact upon significant natural resources, development must be limited to no more than low density single family use on each platted parcel. Uses other than single family dwellings can clearly be characterized as "unnecessary and inconsistent with the public interest considering all material factors." c. The density of structures and the percentage of the shoreline frontage occupied by those structures are critical to minimizing the impact they have on sand migration across the island. Data concerning the development on barrier islands indicates that adverse impacts may be minimized when no more than 25% of the islands' linear shoreline is occupied by structures. This factor shall be considered in evaluating the individual and cumulative impacts of each permit application. In considering permit applications, the following guidelines shall be followed: (1) There shall be adequate area within the lot that is neither sand dune, including beach and overwash areas, nor wetlands to accommodate the proposed dwelling and any appurtenant structures, including attendant sanitary facilities. (2) Minimum frontage for a lot on the ocean capable of supporting a single-family vacation cottage shall be 100 feet. (3) Minimum side yard requirements shall be 30 feet. (4) The setback from the dune crest for all structures including septic systems shall be 20 times the local 100-year long-term annual shoreline recession rate. The dune crest shall be defined as the location of the highest elevation of the coastal primary sand dune, beach or washover located on the lot. (5) The maximum allowable square footage for the first floor of a single family dwelling on a 100-foot lot shall be 900 square feet and for a 200-foot lot, 1800 square feet, including porches, decks, and other appurtenances. Houses with first floors larger than these will not be considered necessary economic development. (6) The maximum height of a dwelling shall be 25 feet measured from the base of the first floor to the peak of the roof. (7) All dwellings shall be constructed on elevated open pilings a minimum of 10 feet above grade. No enclosures will be permitted below the first floor. (8) An appropriate identification number shall be affixed to all septic tanks made of nonbiodegradable plastic materials to aid in their indentification. (9) Exceptions to these requirements may be authorized in individual cases. No such exception shall be authorized unless the commission finds (i) that the strict application of the requirement would produce undue hardship, and (ii) that the authorization of such exception will not result in significant detriment to barrier islands, their natural resources, or adjacent property. d. Evidence of cumulative environmental impacts of existing and proposed structures, as well as the secondary impacts resulting from their use, shall be considered in passing upon any application for a permit.⁵ 2. Access. a. No cuts through the dune will be permitted. Temporary vehicular access for purposes of construction will be permitted only by open-pile or "corduroy" ramps. Permits for temporary vehicular access will be limited as necessary to protect significant natural resources. At expiration of the authorized term all structures, except as noted in subdivision b below, shall be removed and the dune restored to its preconstruction contours and revegetated. All plans for temporary construction access must be specified in the application of any construction permit. b. Permanent vehicular access across the dune will be permitted only by "corduroy" or open-pile vehicular ramps which allow the natural process of dune growth and migration to occur. An open-pile or "corduroy" ramp developed for purposes of construction access may remain in place for permanent access if it meets the above criteria and is specifically approved. All plans for permanent access must be specified in the application for any construction permit. c. Each dwelling will be limited to a maximum of one vehicle for access to and from the island's landings. All vehicles shall be subject to the following conditions: (1) Each vehicle shall have a no-cost annually renewable permit to travel on the beach. The owner shall attest at the time of renewal the vehicle's status and condition. (2) The permit number for each vehicle shall be displayed in two-foot high letters on the roof and sides of the vehicle. (3) When a vehicle for a particular dwelling is no longer functional, it must be removed from the island. Evidence of its removal must be provided prior to the issuance of a permit for a new vehicle. (4) All driving will be limited to the intertidal zone and between there and approved dune crossovers. Vehicular use of the beach at periods greater than four hours either side of low water shall be considered a violation of this section. (5) All bird nesting areas posted by the Virginia Department of Game and Inland Fisheries, U.S. Fish and Wildlife Service, or Department of Conservation and Recreation shall be off limits to all vehicles. (6) No all terrain vehicles (ATVs) will be permitted on barrier islands. (7) Evidence of vehicular use in areas other than those authorized shall be cause for revocation of the permit and a requirement that the vehicle be removed from the island. Any person having his permit revoked shall be precluded from reapplication for a one-year period.⁶ 3. Roads. No roads or trails will be permitted on or across any coastal primary sand dune or in any wetland.⁷ 4. Sand movement. No artificial relocation of sand will be permitted.⁸ 5. Shore hardening. Structures normally associated with or used for shoreline protection or erosion control, including but not limited to bulkheads, riprap, revetments, gabion baskets, sand bags, groins and jetties, or any other hardening of the shoreline will not be permitted under any circumstances.⁹ 6. Point source discharges. No point source discharge pipe, structures or other devices will be permitted.¹⁰ 7. Bond requirement. A reasonable bond or letter of credit will be required prior to granting any permit to assure restoration of any temporary alteration of the coastal primary sand dune including, but not limited to, regrading to the original elevation, resprigging with appropriate vegetation and removal of any and all construction debris.¹¹ 8. Sand fence. The use of sand fencing or other artificial barriers is discouraged because of its interference with the natural sand transport and migration on barrier islands.¹² 9. Solid waste. All solid waste generated on barrier islands must be removed and disposed of appropriately on the mainland.¹³ 10. Pets. In order to prevent unrestricted roaming which may result in the disturbance of, or depredation to wildlife, domestic pets must (i) be restrained or under control of their owner at all times, (ii) shall not be allowed off of the owner's property except under leash, and (iii) shall not be abandoned on a barrier island.¹⁴ 11. Endangered species. Encroachment upon the nesting sites of threatened and endangered species identified by the Virginia Department of Game and Inland Fisheries or Department of Conservation and Recreation is prohibited. Evidence of impact or potential impact on threatened and endangered species shall be considered in passing upon any application for a permit.¹⁵ 12. Landscaping. The planting of exotic species or introduction of non-native fauna are impermissible. Broadcast spraying of pesticides or herbicides is impermissible except when necessary to protect the public health or safety as decreed by the appropriate public health official.¹⁶ D. Public hearings. The public hearing required by § 6 of the model ordinance may be held in Newport News, Virginia. Such hearing will not be scheduled until the commission staff has determined that it is in receipt of a complete application.¹⁷ E. Comments/advisory notes. 1. Risks. While future events and their impacts on human activity cannot be forecast with any degree of precision, experience in other coastal areas suggests a proclivity to seek public assistance when catastrophic events occur or when services are needed beyond the ability of private resources to provide. The commission believes that any development on barrier islands should be undertaken only with the full acceptance by the owners of the risks involved. a. No public protection of private property. Authorization of structures should in no way serve as justification for the future expenditure of public resources to protect such structures. b. Services. Any services which may be provided by local government to promote public health, safety and general welfare must be installed, maintained and operated in a manner consistent with the policy, standards and guidelines of both the Wetlands and Dunes Protection Acts. c. Relocation of structures. Once local mean high water approaches a structure to within 10 times the average recession rate, a plan for its movement/relocation must be submitted for review. No movement or relocation will be permitted without the written permission of the commission.¹⁸ 2. Interference with natural processes. The serious sand deficiency which currently exists on Virginia's barrier islands is exacerbated by any artificial manipulation, including sand fences, which might render the supply more vulnerable to export offshore or interfere with the natural movement onshore in washover areas during storm events. Private property owners have even more at stake than the public-at-large in assuring that natural processes are not interfered with to any discernible degree.¹⁹ 3. Value of dune preservation. Special emphasis is placed on the legislative declaration of public policy that coastal primary sand dunes "in their natural state serve as protective barriers from the effects of flooding and erosion caused by coastal storms, thereby protecting life and property." a. Accordingly, every reasonable precaution to avoid permanent alteration is expected to be exercised by all users in gaining temporary access to private property for construction or for continued access to authorized structures. b. All construction, including septic systems, shall bet set-back from mean high water a distance at the site to assure reasonable survival duration. Setbacks from the dune crest were specified in subdivision C 1 c (4) of this chapter.²⁰ 4. Water quality. While the commission believes that properly functioning septic systems in the limited density anticipated will have no measurable effect, failing systems of greater numbers than now forecast could impact important public shellfish growing areas. Therefore, staff will request at least biannually from the Department of Health an assessment of the cumulative impact or catastrophic failure of septic systems they have authorized.²¹ F. Policy with regard to private restrictive agreements. In addition to the above guidelines and advisory comments and as an additional means to reasonably "preserve and protect coastal primary sand dunes and reaches and to prevent their despoliation and destruction," and to help achieve the other purposes set forth by the General Assembly in the Coastal Primary Sand Dune Protection Act, the commission endorses and looks favorably upon restrictive private covenants which "accommodate necessary economic development in a manner consistent with the protection of coastal primary sand dunes." For example, the Commission encourages restrictive private covenants which: 1. Protect the "natural habitat for coastal fauna," "wildlife habitat," and "vegetation which stabilizes coastal primary sand dunes."²² 2. Prohibit special exemptions or attempt to obtain such exemptions from the application of controlling statutes.²³ 3. Enhance the "scenic and recreational attractiveness of Virginia's coastal area," protect the "important natural habitat for coastal fauna," and protect the "vegetation which stabilizes such features."²⁴ 4. Require cooperation with the state and federal conservation agencies to protect the ecologically significant natural resources including granting permission to post critical bird nesting sites.²⁵

Provision-Level Authorization Analysis

Provision 1

"For the purpose of this chapter, the definitions contained within § 62.1-13.22 o..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish definitions and terms relevant to its regulatory framework, which is reflected in the regulation that adopts specific definitions from another section of the Code. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulatory clarity and consistency, thereby facilitating effective governance within its jurisdiction.

DEFINITION § 10.1-209

Title 10.1. Conservation › Subtitle I. Activities Administered by the Department of Conservation and Recreation › Chapter 2. Parks and Recreation › Article 3. Virginia Natural Area Preserves Act › § 10.1-209. Definitions Whenever used or referred to in this article, unless a different meaning clearl...

DEFINITION § 29.1-563

Title 29.1. Wildlife, Inland Fisheries and Boating › Chapter 5. Wildlife and Fish Laws › Article 6. Endangered Species › § 29.1-563. Definitions For the purposes of this article: "Conservation plan" means a document developed by the Department and approved by the Director that describes the Departme...

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Explicit Statutory Citations

CHAPTER REFERENCE § 62.1-13.22

Citation text: "§ 62.1-13.22"

Total: 1 citation to 1 unique statute

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Background. Barrier islands are transient landforms. Their dynamic and unstab..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to address various issues related to marine resources, including the management of barrier islands, which are highlighted in the regulation as posing risks to life and property. The legal significance of this relationship is that it empowers the Commission to create regulations that are essential for the effective management and protection of these dynamic landforms, thereby ensuring public safety and environmental stewardship.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Explicit Statutory Citations

SEQUENTIAL REFERENCE § 10.1-209

Citation text: "§ 10.1-209"

SEQUENTIAL REFERENCE § 10.1-209

Citation text: "§ 10.1-209 et seq."

SEQUENTIAL REFERENCE § 29.1-563

Citation text: "§ 29.1-563"

SEQUENTIAL REFERENCE § 29.1-563

Citation text: "§ 29.1-563 et seq."

SEQUENTIAL REFERENCE § 3.1-1020

Citation text: "§ 3.1-1020"

SEQUENTIAL REFERENCE § 3.1-1020

Citation text: "§ 3.1-1020 et seq."

Total: 6 citations to 3 unique statutes

Requirements Analysis

11 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"B. Permits required. 1. Applications for new development. a. No construction or ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language encompasses the regulation's requirement for review and approval of activities that may impact coastal primary sand dunes or state-owned beaches, aligning with the Commission's mandate to protect these resources. The legal significance of this relationship is that it allows the Commission to establish necessary oversight and regulatory measures to fulfill its statutory responsibilities effectively.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"2. Loss of structures and applications for redevelopment. When a structure is de..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-1400 specifically grants authority for the agency to manage and regulate activities related to coastal resources, but it does not explicitly address the conditions under which reconstruction of damaged structures may be denied. The regulation imposes a restriction on reconstruction that is not supported by the statutory language, which does not authorize the agency to deny reconstruction based solely on condemnation by health or local building officials. The legal significance of this relationship is that the regulation exceeds the authority granted by the statute, rendering it unauthorized and potentially invalid.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"C. Supplemental guidelines. 1. Structures. a. No permanent structure, other than..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation's prohibition on permanent structures seaward of the coastal primary sand dune may exceed the statute's authorization because it imposes a blanket restriction that could go beyond what is necessary to carry out the provisions of the title, potentially infringing on property rights without clear statutory backing. The legal significance of this relationship is that while the Commission is granted regulatory authority, the scope of that authority must align with the specific provisions and intent of the statute, and overreaching regulations could be deemed invalid.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

9 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"2. Access. a. No cuts through the dune will be permitted. Temporary vehicular ac..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to implement regulations that address various aspects of environmental protection, including the management of access to sensitive areas, which is reflected in the regulation's stipulations regarding vehicular access and the protection of natural resources. The legal significance of this relationship is that it empowers the Commission to create detailed regulations that ensure compliance with the overarching statutory mandate, thus facilitating effective governance and resource management.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

9 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"3. Roads. No roads or trails will be permitted on or across any coastal primary ..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority encompasses the regulation prohibiting roads or trails on coastal primary sand dunes or in wetlands, as it is necessary for the Commission to protect these sensitive environmental areas in line with its mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the effective management and preservation of coastal and wetland resources, ensuring compliance with the overarching goals of the statute.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 8

"4. Sand movement. No artificial relocation of sand will be permitted."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to regulate activities related to sand movement as it falls within the scope of necessary actions to manage and protect coastal resources. The legal significance of this relationship is that it grants the Commission the flexibility to establish regulations like the prohibition on artificial sand relocation, ensuring effective governance without requiring specific legislative approval for each regulation.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"5. Shore hardening. Structures normally associated with or used for shoreline pr..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation prohibiting all shoreline hardening structures appears to exceed this authority because it imposes an absolute ban without allowing for any exceptions or considerations that may be necessary for specific circumstances, which may not align with the intent of the statute to provide flexible regulatory measures. The legal significance of this relationship is that the regulation may not be valid if it goes beyond the scope of the authority granted by the statute, potentially infringing on the rights of property owners and limiting necessary erosion control measures.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 10

"6. Point source discharges. No point source discharge pipe, structures or other ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation, which prohibits all point source discharges, appears to exceed the statutory authorization because it imposes a blanket prohibition without allowing for any exceptions or considerations that may be necessary for the effective implementation of the statute's provisions. The legal significance of this relationship is that the regulation may not align with the intended flexibility and scope of the statutory authority, potentially undermining the Commission's ability to fulfill its statutory mandate.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 11

"7. Bond requirement. A reasonable bond or letter of credit will be required prio..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to establish requirements, such as the bond or letter of credit for permits, to ensure compliance with restoration efforts related to coastal primary sand dunes. The legal significance of this relationship is that it empowers the Commission to create regulations that are essential for effective management and protection of coastal resources, thereby fulfilling its statutory mandate.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 12

"8. Sand fence. The use of sand fencing or other artificial barriers is discourag..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows the Commission to regulate activities that impact natural processes, such as the use of sand fencing, which aligns with the intent to protect barrier islands and their ecosystems. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to preserve environmental integrity without needing further specific legislative approval, thereby facilitating timely and effective regulatory action.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 13

"9. Solid waste. All solid waste generated on barrier islands must be removed and..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise powers and promulgate regulations necessary to carry out the provisions of the title. The regulation requiring that all solid waste generated on barrier islands must be removed and disposed of appropriately on the mainland appears to exceed the statute's authorization because it imposes a specific and potentially burdensome requirement that may not be directly aligned with the general powers conferred to the Commission. The legal significance of this relationship is that the regulation may not be valid if it goes beyond the scope of what is necessary to implement the provisions of the statute, indicating a potential overreach of the Commission's authority.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 14

"10. Pets. In order to prevent unrestricted roaming which may result in the distu..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-1400 specifies the agency's authority to manage and protect wildlife, but it does not grant the agency the power to regulate domestic pets in the manner described. The regulation imposes specific restrictions on pet ownership and control that exceed the scope of wildlife management as outlined in the statute, which does not mention domestic animals or their control. The legal significance of this relationship is that without explicit statutory authority to regulate pets, the regulation is deemed unauthorized and cannot be enforced.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 15

"11. Endangered species. Encroachment upon the nesting sites of threatened and en..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations addressing various aspects of environmental protection, including the prohibition of encroachment on nesting sites of threatened and endangered species, as it falls within the scope of necessary actions to fulfill its mandate. The legal significance of this authorization relationship is that it empowers the Commission to take proactive measures to safeguard wildlife, ensuring compliance with conservation objectives without needing further specific legislative approval.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 16

"12. Landscaping. The planting of exotic species or introduction of non-native fa..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to regulate activities related to landscaping and the use of pesticides or herbicides, as these actions are essential for the protection of the environment and public health. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further specific legislative action, thereby ensuring effective management of ecological and public health concerns.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 17

"D. Public hearings. The public hearing required by § 6 of the model ordinance ma..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to establish procedures, such as the scheduling of public hearings, which are essential for the effective implementation of its regulatory responsibilities. The legal significance of this relationship is that it provides the Commission with the flexibility to manage its processes and ensure compliance with statutory requirements, thereby supporting the overall regulatory framework established by the statute.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 18

"E. Comments/advisory notes. 1. Risks. While future events and their impacts on h..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad language allows for a wide interpretation of the Commission's regulatory powers, enabling the regulation to address the complexities and uncertainties related to risks in coastal areas, as it aligns with the need for guidelines that support public assistance in catastrophic events. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are responsive to evolving challenges, ensuring that the agency can effectively fulfill its mandate under the statute.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

5 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 19

"2. Interference with natural processes. The serious sand deficiency which curren..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to address various issues related to natural processes, such as the regulation concerning interference with sand movement on Virginia's barrier islands, thereby justifying a GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create regulations that are essential for the effective management and preservation of natural resources, reflecting the intent of the statute to provide comprehensive regulatory authority.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 20

"3. Value of dune preservation. Special emphasis is placed on the legislative dec..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to address various aspects of coastal management, including the preservation of coastal primary sand dunes, which aligns with the regulation's emphasis on their role as protective barriers against flooding and erosion. The legal significance of this relationship is that it enables the Commission to effectively manage and protect coastal resources under a general delegation of authority, ensuring that regulations can be adapted to meet environmental and public safety needs.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 21

"4. Water quality. While the commission believes that properly functioning septic..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the Commission to address various aspects of water quality management, including the regulation of septic systems, which is directly related to protecting public shellfish growing areas. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to safeguard environmental resources, thereby fulfilling its statutory mandate without limitation.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 22

"F. Policy with regard to private restrictive agreements. In addition to the abov..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically states that the Commission has the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to carry out the provisions of the title. This broad grant of authority allows the regulation regarding private restrictive agreements to fall under GENERAL_DELEGATION, as it is a necessary measure to preserve and protect coastal primary sand dunes, aligning with the statutory intent to implement effective guidelines for environmental protection. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are essential for fulfilling its statutory mandate, ensuring flexibility in addressing environmental concerns.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 23

"2. Prohibit special exemptions or attempt to obtain such exemptions from the app..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to create regulations that ensure compliance with controlling statutes, including the prohibition of special exemptions, which aligns with the overarching goal of maintaining regulatory integrity. The legal significance of this authorization relationship is that it empowers the Commission to enforce uniform application of statutes, thereby preventing any circumvention of regulatory requirements through exemptions.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 24

"3. Enhance the "scenic and recreational attractiveness of Virginia's coastal are..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language encompasses the regulation's aims of enhancing scenic and recreational attractiveness, protecting natural habitats, and stabilizing vegetation, as these objectives align with the Commission's mandate to manage and preserve coastal resources. The legal significance of this relationship is that it allows the Commission to act with GENERAL_DELEGATION, enabling it to create regulations that effectively address the diverse needs of coastal management without needing further specific legislative approval.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Provision 25

"4. Require cooperation with the state and federal conservation agencies to prote..."

General Delegation

AUTHORIZING STATUTE § 28.2-103

The Commission shall exercise all of the powers herein conferred may promulgate regulations and guidelines necessary to carry out the provisions of this title

ANALYSIS

§ 28.2-103 specifically grants the Commission the authority to exercise all powers conferred and to promulgate regulations and guidelines necessary to implement the provisions of the title. This broad language allows the Commission to require cooperation with state and federal conservation agencies to protect ecologically significant natural resources, as it falls within the necessary actions to fulfill the statutory mandate. The legal significance of this relationship is that it empowers the Commission to take proactive measures in conservation efforts, ensuring compliance with both state and federal standards while safeguarding critical habitats.

DEFINITION § 10.1-209

DEFINITION § 29.1-563

CROSS-REFERENCE § 3.1-1020

CROSS-REFERENCE § 62.1-13.22

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Bluefish

Express

General

Overreach

Unauthorized

Requirements

The purposes of this chapter are to manage the recreational harvest of bluefish and to establish a commercial quota system for Virginia bluefish landings, in cooperation with the Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission, to prevent overfishing.¹

Provision-Level Authorization Analysis

Provision 1

"The purposes of this chapter are to manage the recreational harvest of bluefish..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation on managing the recreational harvest of bluefish and establishing a commercial quota system, as it aligns with the Commission's responsibility to prevent overfishing and ensure sustainable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective management of fishery resources.

Pertaining to the Taking of Bluefish

Express

General

Overreach

Unauthorized

Requirements

The following words or terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise: "Bluefish" means any fish of the species Pomatomus saltatrix . "Captain" means the person licensed by the U.S.¹ Coast Guard to carry passengers for hire who operates the charter boat or head boat. "Charter vessel" or "for-hire vessel" means a vessel operating with a captain who possesses either a Class A Fishing Guide License, Class B Fishing Guide License, or Fishing Guide Reciprocity Permit.²

Provision-Level Authorization Analysis

Provision 1

"The following words or terms when used in this chapter shall have the following ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing definitions relevant to the management of these resources. This broad grant of authority allows the Commission to define terms such as "Bluefish" and "Captain," which are essential for the effective implementation of regulations governing the seafood industry, thus resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulatory frameworks that support the overarching goals of conservation and management within the seafood sector without requiring additional legislative approval for each specific term or definition.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"Coast Guard to carry passengers for hire who operates the charter boat or head b..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the regulation of charter vessels or the licensing of captains for hire. The regulation's requirement for captains to possess specific licenses extends beyond the Commission's authority as outlined in the statute, which focuses on the management of marine resources rather than the operational licensing of charter vessels. The legal significance of this relationship is that the regulation may impose requirements that are not supported by the statutory text, potentially infringing on the limits of the Commission's regulatory powers.

Pertaining to the Taking of Bluefish

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing recreationally to harvest or possess more than three bluefish, except as described in subsection B of this section. Any bluefish taken after the possession limit has been reached shall be returned to the water immediately.¹ B. It shall be unlawful for any person fishing from a charter or for-hire vessel to harvest or possess more than five bluefish. Any bluefish taken after the possession limit has been reached shall be returned to the water immediately.² C. When fishing from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board who are legally eligible to fish multiplied by the personal possession limits as described in subsections A and B of this section. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing recreationally to harvest or poss..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation limiting the recreational harvest of bluefish, as it directly relates to the conservation and reasonable use of marine resources, which is a core objective of the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage fish populations and ensure sustainable practices within the seafood industry without requiring further legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing from a charter or for-hire vessel..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like bluefish. The regulation limiting the harvest of bluefish from charter or for-hire vessels aligns with the Commission's broad mandate to manage seafood resources sustainably and ensures that fishing practices do not compromise the conservation goals outlined in the statute. This authorization relationship signifies that the Commission has the discretion to implement regulations that address specific conservation needs while promoting the overall health of the seafood industry, thus justifying the GENERAL_DELEGATION level.

Provision 3

"C. When fishing from a boat or vessel where the entire catch is held in a common..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation, as it establishes a possession limit for seafood caught from a boat or vessel, which is essential for managing the conservation and sustainable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage resource use while ensuring compliance with conservation goals, reflecting the general delegation of authority provided by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Bluefish

Express

General

Overreach

Unauthorized

Requirements

A. The commercial landings of bluefish shall be limited to the annual quota pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Bluefish Fishery Management Plan, except as specified in subsection B of this section.¹ B. If a quota transfer occurs between Virginia and another state participating in the Interstate Fishery Management Plan for bluefish, Virginia's annual quota for the current calendar year shall be limited to the annual quota amount as adjusted for transfers.² C. When it is projected that 95% of the commercial landings quota has been realized, a notice will be posted to close commercial harvest and landings from the bluefish fishery within five days of posting.³ D. It shall be unlawful for any person to harvest or land bluefish for commercial purposes after the closure date set forth in the notice described in subsection C of this section.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The commercial landings of bluefish shall be limited to the annual quota purs..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation limiting commercial landings of bluefish to an annual quota, as it aligns with the Commission's responsibility to manage fishery resources and adhere to established management plans. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, ensuring effective management and conservation of marine resources while adhering to broader regulatory goals.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. If a quota transfer occurs between Virginia and another state participating i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding quota transfers for bluefish, as it aligns with the Commission's responsibility to manage fishery resources and ensure sustainable practices among participating states. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage interstate fishery resources while adhering to the overarching goals of conservation and industry welfare outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. When it is projected that 95% of the commercial landings quota has been reali..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This results in GENERAL_DELEGATION because the regulation regarding the closure of the bluefish fishery when the commercial landings quota is projected to be nearly reached aligns with the Commission's broad mandate to manage fisheries sustainably and ensure resource conservation. The legal significance of this authorization relationship is that it allows the Commission to implement timely and necessary measures to protect marine resources without requiring specific legislative approval for each regulatory action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person to harvest or land bluefish for commercia..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting the harvesting or landing of bluefish for commercial purposes after a specified closure date, as it aligns with the Commission's responsibility to manage fishery resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure the sustainability of marine resources, thereby fulfilling its mandate under the statute.

Pertaining to the Taking of Bluefish

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation establishes penalties for violations of the Commission's regulations, which aligns with the statutory mandate to ensure the conservation and management of marine resources through appropriate regulatory measures. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance with its regulations, thereby supporting its overarching goals of resource conservation and industry welfare.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to comply with the requirements of § 28.2-701 of the Code of Virginia by establishing chapters that govern the use, placement, and maintenance of crab traps and pounds; to promote conservation of the blue crab resource; and to maintain navigable waterways.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to comply with the requirements of § 28.2-701 of ..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

The Commission shall promulgate regulations governing the use, placement, and maintenance of crab traps and crab pounds. The Commission may promulgate regulations establishing the mesh size of crab pots and peeler pots.

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations concerning the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh size for crab pots and peeler pots. This broad grant of authority allows the Commission to create regulations that not only comply with the statute but also address additional aspects such as conservation and navigable waterways, which fall within the scope of the Commission's regulatory powers. The legal significance of this authorization relationship is that it enables the Commission to implement comprehensive regulations that effectively manage and protect the blue crab resource while ensuring navigational safety, reflecting the intent of the statute.

Explicit Statutory Citations

RANGE REFERENCE § 28.2-701

Citation text: "§ 28.2-701"

Total: 1 citation to 1 unique statute

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

A. Application for crab trap or crab pound licenses, to be issued pursuant to § 28.2-701 of the Code of Virginia, shall state the exact location of each crab trap or crab pound. If application is made for a license for more than one crab trap or crab pound, the application may embrace more than one, provided the traps or pounds are to be located in the same area, and further provided they are contiguous and are located next to each other, but the location of each must be definitely described. No application for any location for a crab trap or crab pound shall be made prior to December 1 of the year preceding the current license year.¹ B. Only one license shall be issued for the same location, or within 100 yards of that location, during the same calendar year and any subsequent license issued through error, or otherwise, for the same location, or within 100 yards of that location, shall be void as to that location. Upon request by such licensee, made within 60 days after issuance, a refund of such license fee shall be made.² C. The licensee shall be responsible for the location of the trap or pound.³ D. The license, when issued, shall be subject to oyster leases and riparian rights and shall not apply inshore of the mean low water mark.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Application for crab trap or crab pound licenses, to be issued pursuant to § ..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations related to the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to create regulations that detail procedural requirements, such as the application process for crab trap or crab pound licenses, which includes specifying the exact location of each trap or pound. The legal significance of this relationship is that it enables the Commission to implement detailed regulatory frameworks necessary for effective management and oversight of crab trapping activities, reflecting the legislative intent to ensure sustainable practices within the industry.

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-701

Citation text: "§ 28.2-701"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Only one license shall be issued for the same location, or within 100 yards o..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations related to the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. The regulation regarding the issuance of licenses for specific locations does not relate to the use, placement, or maintenance of crab traps or the mesh size of pots, which means it falls outside the scope of the authority provided by the statute. The legal significance of this relationship is that regulations must be directly tied to the specific powers granted by the statute, and since this regulation does not align with those powers, it is deemed unauthorized.

Provision 3

"C. The licensee shall be responsible for the location of the trap or pound."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations concerning the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to regulate various aspects of crab trap management, including the responsibility of the licensee for the location of the trap or pound, thereby encompassing the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create detailed regulations necessary for effective management and conservation of crab resources, reflecting the statute's intent to provide comprehensive oversight.

Provision 4

"D. The license, when issued, shall be subject to oyster leases and riparian righ..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to regulate aspects related to the management of marine resources, which includes ensuring that licenses issued for activities like oyster harvesting respect existing legal frameworks such as oyster leases and riparian rights. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that protect resource management and enforce compliance with property rights, thereby justifying the GENERAL_DELEGATION level of authority.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

The licensee of any location for a crab trap or crab pound that was actually fished or crabbed by the licensee during the preceding year shall have a priority right over all other applicants to license the same location for the current license year, provided such licensee remains otherwise qualified and makes application for such location on or before April 1 of the current license year.¹ All other applicants for such location will have their applications considered in chronological order of receipt after April 1 of the license year.²

Provision-Level Authorization Analysis

Provision 1

"The licensee of any location for a crab trap or crab pound that was actually fis..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations related to the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to create regulations that address various aspects of crab fishing practices, including prioritization of licensing for locations that have been previously fished, which is a matter of managing the use and placement of crab traps. The legal significance of this authorization relationship is that it enables the Commission to implement regulations that ensure sustainable practices and orderly management of crab fishing, reflecting the intent of the statute to regulate the industry comprehensively.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"All other applicants for such location will have their applications considered i..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to regulate various aspects of crab trapping, including the management of applications for locations, which is reflected in the regulation that outlines the chronological consideration of applications. The legal significance of this relationship is that it enables the Commission to implement necessary management practices to ensure sustainable use of crab resources, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to place, set, or use crab traps or crab pounds within 100 yards of any other crab trap or crab pound without respect to whether or not the other crab trap or pound is owned by the same or some other person.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to place, set, or use crab traps or crab pounds within 100 ..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations related to the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad language allows the Commission to regulate various aspects of crab trap usage, including the spacing requirements set forth in the regulation, which is necessary to ensure proper management and conservation of crab resources. The legal significance of this authorization relationship is that it empowers the Commission to create rules that address specific operational practices, thereby promoting effective resource management within the framework established by the statute.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to establish the crab head or retention box prior to the legal start date, but all other associated gear may be established at the licensed location two weeks prior to the legal start date of the season for this gear type.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to establish the crab head or retention box prior to the le..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood types and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation addresses the timing and establishment of gear related to crab fishing, which falls under the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without requiring specific legislative approval for each regulatory detail.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

A. Every owner or user of a crab trap or crab pound shall completely remove traps, leads, wire, poles, and all other related gear from the water not later than December 31 of each year, except that they may leave two poles at each crab trap or crab pound site to facilitate relocation of the traps, lead and poles in the upcoming crab season, except as provided in subsection B below. If the trap site is not licensed and used in any subsequent year the trap owner shall be required to remove all poles from the site.¹ B. In the Tangier Island vicinity (from the southern tip of Tangier Island north to the Maryland line), it shall be lawful for every owner or user of a crab trap or crab pound to leave poles at crab trap or crab pound stands; provided such poles will be used at said location the following season and not be abandoned.²

Provision-Level Authorization Analysis

Provision 1

"A. Every owner or user of a crab trap or crab pound shall completely remove trap..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations concerning the use, placement, and maintenance of crab traps and crab pounds, as well as to establish regulations regarding mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to implement regulations that ensure proper management and conservation of crab resources, which includes the requirement for owners or users to remove traps and related gear by a specified date to prevent environmental impacts. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations to fulfill its mandate, ensuring effective oversight and sustainable practices within the crab fishing industry.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. In the Tangier Island vicinity (from the southern tip of Tangier Island north..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh size for crab pots and peeler pots. This broad language allows the Commission to create regulations that address various aspects of crab trap management, including the allowance for poles at crab trap stands, as it relates to the maintenance and operational practices of crab traps. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations necessary for effective resource management within the framework established by the statute.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful to use a crab trap or crab pound with a head or retention box with a mesh size of less than one inch.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful to use a crab trap or crab pound with a head or retention b..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad language allows the Commission to regulate various aspects of crab traps, including mesh size, which directly connects to the regulation prohibiting the use of traps with a mesh size of less than one inch. The legal significance of this relationship is that it demonstrates the Commission's general delegation of authority to create detailed regulations necessary for the effective management and conservation of crab resources.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to place, set or use any peeler of crab trap or pound that does not contain at least four unobstructed cull rings or at least 1-1 /2 inches inside diameter.¹ Two such rings shall be located under water at all times in the lower portion of each side panel that is perpendicular to the shoreline and on opposite sides of the head or retention box.²

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to place, set or use any peeler of crab trap..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish regulations concerning the mesh size of crab pots and peeler pots. This broad grant of authority allows the Commission to implement specific requirements, such as the regulation mandating the inclusion of unobstructed cull rings in crab traps, as it directly relates to the maintenance and functionality of these fishing devices. The legal significance of this authorization relationship is that it enables the Commission to create detailed regulations necessary for effective management and conservation of crab resources, ensuring compliance with the overarching statutory framework.

Provision 2

"Two such rings shall be located under water at all times in the lower portion of..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations related to the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to create detailed regulations, such as the requirement for the placement of rings in crab traps, which directly relates to the maintenance and functionality of the traps. The legal significance of this authorization relationship is that it empowers the Commission to implement specific measures necessary for effective management and conservation of crab resources, ensuring that the regulations are aligned with the overarching statutory purpose.

Pertaining to the Use of Crab Traps and Pounds

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-701 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor.¹ B. No licenses for crab traps or crab pounds for a subsequent year shall be issued to any person failing to accomplish such removal as stipulated in 4VAC20-460-30 until the same has been accomplished.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-701 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh sizes for crab pots and peeler pots. This broad grant of authority allows the Commission to enforce compliance through penalties, as reflected in the regulation that classifies violations of these regulations as a Class 3 misdemeanor. The legal significance of this relationship is that it empowers the Commission to ensure adherence to its regulations, thereby promoting effective management and conservation of crab resources.

Explicit Statutory Citations

REFERENCE § 28.2-701

Citation text: "§ 28.2-701"

Total: 1 citation to 1 unique statute

Provision 2

"B. No licenses for crab traps or crab pounds for a subsequent year shall be issu..."

General Delegation

AUTHORIZING STATUTE § 28.2-701

ANALYSIS

§ 28.2-701 specifically grants the Commission the authority to promulgate regulations regarding the use, placement, and maintenance of crab traps and crab pounds, as well as to establish mesh size for crab pots and peeler pots. This broad language allows the Commission to implement regulations that ensure compliance with the maintenance and removal of crab traps and crab pounds, which is reflected in the regulation that denies licenses to those who do not meet removal requirements. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations that promote sustainable practices in the management of crab fisheries, thereby supporting the overall intent of the statute.

Pertaining to Hampton Roads Management Area

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to reduce conflict between charter boats, recreational fishermen and gill net fishermen in the Hampton Roads area.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to reduce conflict between charter boats, recreat..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation aimed at reducing conflict among various fishing groups, as it directly relates to the management and reasonable use of these resources, thereby supporting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific conflicts and promote harmonious use of marine resources, reflecting its overarching mandate to manage and conserve these resources effectively.

Pertaining to Hampton Roads Management Area

Express

General

Overreach

Unauthorized

Requirements

Area is established as that area defined as follows: Beginning at the mean low water line of Newport News Point at its intersection with the northbound lanes of I-664; thence following the mean low water line of Hampton Roads and its tributaries and Chesapeake Bay in an easterly direction to the Fort Monroe Officers' Club Pier; thence in an easterly direction to the white and orange buoy "G"; thence in an easterly direction to Thimble Shoal Light; thence in a southerly direction to buoy G "17"; thence in a southwesterly direction to the trestle of the westbound lanes of I-64 Hampton Roads Bridge Tunnel at its intersection with the south island; thence following the westbound lanes of Hampton Roads Bridge Tunnel to its intersection at the mean low water line of Willoughby Spit; thence following the mean low water line of Willoughby Spit in a southerly direction to the flashing light "11"; thence in a southwesterly direction approximately 2800 feet to the bulkhead corner of the U. S.¹ Naval Reservation Heliport; thence following the mean low water line of Hampton Roads in a westerly and southerly direction to a point opposite of the grain elevator south of Pier A of the municipal terminal; thence in a westerly direction to buoy G "11"; thence in a westerly direction to buoy R "12"; thence in a southwesterly direction to the mean low water line at the northeastern corner of Craney Island Disposal Area; thence in a westerly direction to the intersection of the northbound lanes of I-664 and the south island of the Monitor-Merrimac Memorial Bridge Tunnel; thence in a northwesterly direction along the northbound lanes of I-664 to its intersection with the mean low water line at Newport News Point, being the point of beginning.²

Provision-Level Authorization Analysis

Provision 1

"Area is established as that area defined as follows: Beginning at the mean low w..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish specific areas for regulation, such as the defined area in the regulation, as part of its responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that align with its overarching mandate to promote the seafood industry and ensure sustainable use of marine resources without requiring further legislative approval for each specific regulation.

Provision 2

"Naval Reservation Heliport; thence following the mean low water line of Hampton ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically states that the Commission may adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, focusing on conservation and reasonable use of specific seafood resources like surf clams and Atlantic menhaden. The regulation, which describes a navigational route and specific geographical points related to a naval reservation heliport, does not pertain to the conservation or management of seafood resources as outlined in the statute. The legal significance of this relationship is that the regulation exceeds the scope of authority granted by the statute, which is limited to seafood and marine resource management, thereby rendering it unauthorized.

Pertaining to Hampton Roads Management Area

Express

General

Overreach

Unauthorized

Requirements

From the Friday immediately preceding Memorial Day to Labor Day, both days inclusive, and during the hours of 7 a.m. to 5 p.m., it shall be unlawful for any person to place, set, or fish any gill net, including licensed staked gill nets within the Hampton Roads Management Area.¹

Provision-Level Authorization Analysis

Provision 1

"From the Friday immediately preceding Memorial Day to Labor Day, both days inclu..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. The regulation prohibiting the use of gill nets during certain times and in designated areas aligns with the Commission's broad mandate to manage marine resources effectively and to ensure their conservation, which justifies the application of GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that address specific management needs within the framework of its overarching statutory authority.

Pertaining to Hampton Roads Management Area

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is necessary for enforcing compliance and ensuring the effective management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support its overarching goals of conservation and resource management without requiring further legislative approval for each specific regulatory action.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Eastern Shore Bayside Management Areas

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to minimize gear conflicts existing between gill net fishermen and hook and line fishermen in the mouths of four Eastern Shore Bayside Creeks.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to minimize gear conflicts existing between gill ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation aimed at minimizing gear conflicts between different types of fishermen, as it directly relates to the reasonable use of marine resources and the promotion of the seafood industry's welfare. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to address conflicts and ensure sustainable practices within the fishing community, thereby fulfilling its statutory mandate.

Pertaining to Eastern Shore Bayside Management Areas

Express

General

Overreach

Unauthorized

Requirements

During the period June 1 to October 31, inclusive, it shall be unlawful for any person to place, set or fish any gill net, including licensed fixed fishing devices, in the management areas defined below. 1.¹ Beginning at mean low water at the northernmost point of Smith Beach Road (State Route 666); thence in a southwesterly direction along the mean low water line, for approximately one mile, to a point opposite where State Route 666 turns inland; thence due west 500 yards to a point offshore; thence in a northeasterly direction to a point being 500 yards west of mean low water at the end of State Route 630; thence in an easterly direction 500 yards to the mean low water line at the end of State Route 630; thence in a southerly direction across the mouth of the Gulf to the mean low water line at the northernmost point of Smith Beach Road (State Route 666), being the point of beginning. 2.² Beginning at mean low water at the northernmost point of Hungars Beach; thence in a southerly direction along the mean low water line to the end of State Route 630; thence in a westerly direction 500 yards to a point offshore; thence in a northeasterly direction to a point 500 yards west of mean low water at the southernmost point of Great Neck; thence in an easterly direction to mean low water at the southernmost point of Great Neck; thence in a southwesterly direction to mean low water at the northernmost point of Hungars Beach, being the point of beginning. 3.³ Beginning at mean low water at Shooting Point, in a westerly direction for 250 yards; thence in a northwesterly direction to a point 250 yards west of mean low water at Nassawadox Point; thence in an easterly direction to mean low water at Nassawadox Point; thence in a southeasterly direction to the northernmost point of Horse Island; thence in a southwesterly direction to mean low water at Shooting Point, being the point of beginning. 4.⁴ Beginning at mean low water at Sparrow Point, in a westerly direction for 500 yards; thence in a northeasterly direction to a point 500 yards west of mean low water at Powell's Bluff; thence in an easterly direction to mean low water at Powell's Bluff; thence in a southeasterly direction to a point on the eastern headland of Killmon Cove (Old Neck); thence in a southwesterly direction to Sparrow Point, being the point of beginning.⁵

Provision-Level Authorization Analysis

Provision 1

"During the period June 1 to October 31, inclusive, it shall be unlawful for any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and marine resources in the Commonwealth. This broad grant of authority allows the Commission to implement regulations, such as prohibiting the use of gill nets during certain periods, as a means to conserve marine resources and promote the general welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to enact necessary measures to manage and protect marine resources effectively, ensuring sustainable practices within the industry.

Provision 2

"Beginning at mean low water at the northernmost point of Smith Beach Road (State..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad language allows the Commission to implement detailed regulations, such as those defining specific geographical boundaries for fishing activities, which are essential for effective resource management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to create and enforce regulations that align with its overarching mandate to promote the general welfare of the seafood industry and ensure sustainable use of marine resources.

Provision 3

"Beginning at mean low water at the northernmost point of Hungars Beach; thence i..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the welfare of the seafood industry within the Commonwealth. The regulation, which delineates specific geographic boundaries and navigational routes, appears to exceed this authority as it does not directly relate to the conservation or management of seafood resources but rather establishes a physical boundary without clear justification tied to the statutory purpose. The legal significance of this relationship is that the regulation may impose restrictions or requirements that are not explicitly supported by the statutory language, potentially infringing on the Commission's defined limits of authority.

Provision 4

"Beginning at mean low water at Shooting Point, in a westerly direction for 250 y..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the management of specific species and the establishment of fishery management plans. The regulation outlines specific geographical boundaries for activities related to the seafood industry, which falls under the Commission's broad mandate to manage and conserve marine resources, thereby justifying a GENERAL_DELEGATION of authority. This authorization relationship signifies that the Commission has the discretion to implement regulations that align with its overarching goals of resource management and industry welfare without needing further legislative approval for each specific regulation.

Provision 5

"Beginning at mean low water at Sparrow Point, in a westerly direction for 500 ya..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation, as it pertains to the management and conservation of marine resources by establishing specific boundaries and guidelines for activities in designated areas. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that align with its overarching mandate to ensure sustainable use and conservation of the Commonwealth's seafood and marine resources.

Pertaining to Eastern Shore Bayside Management Areas

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ CHARTS ACCOMPANYING THIS REGULATION The Gulf Hungars Creek Nassawadox Creek Occohannock Creek²

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is necessary for enforcing compliance with the Commission's regulations and ensuring the effective management of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement measures through regulations that support its overarching mandate to conserve and promote the Commonwealth's seafood and marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"CHARTS ACCOMPANYING THIS REGULATION The Gulf Hungars Creek Nassawadox Creek Occo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species and the establishment of fishery management plans. This broad grant of authority encompasses the regulation, as it pertains to the necessary mapping and identification of specific water bodies relevant to the management and conservation of seafood resources, thereby supporting the overall objectives outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further specific legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

CROSS-REFERENCE § 28.2-903

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to ensure the conservation of shark resources by preventing overfishing by commercial and recreational fisheries and to control the practice of finning.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to ensure the conservation of shark resources by ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority encompasses the regulation aimed at conserving shark resources, as it aligns with the Commission's responsibility to prevent overfishing and manage fisheries sustainably. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the conservation of marine resources, thereby ensuring effective management and protection of the ecosystem.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.¹ "Agent" means any person who possesses the Commercial Fisherman Registration License, fishing gear license, or fishing permit of a registered commercial fisherman in order to fish that commercial fisherman's gear or sell that commercial fisherman's harvest.² "Annual quota" means Virginia's 10.795% share of the annual coastwide commercial spiny dogfish quota managed by the Atlantic States Marine Fisheries Commission.³ "Carcass length" means that length measured in a straight line from the anterior edge of the first dorsal fin to the posterior end of the shark carcass.⁴ "Circle hook" means a non-offset, non-stainless steel hook with the point turned sharply and straight back toward the shank.⁵ "COLREGS Line" means the COLREGS Demarcation Line, as defined in the Code of Federal Regulations (33 CFR 80.510 Chesapeake Bay Entrance, VA).⁶ "Commercial shark fisherman" means any commercial fisherman permitted to land or possess sharks (excluding spiny dogfish) that has landed and sold one pound of shark or more (excludes spiny dogfish) in that calendar year (January 1 through December 31).⁷ "Commercially permitted aggregated large coastal shark" means any of the following species: Blacktip, Carcharhinus limbatus Bull, Carcharhinus leucas Lemon, Negaprion brevirostris Nurse, Ginglymostoma cirratum Silky, Carcharhinus falciformis Spinner, Carcharhinus brevipinna Tiger, Galeocerdo cuvier⁸ "Commercially permitted hammerhead shark" means any of the following species: Great hammerhead, Sphyrna mokarran Scalloped hammerhead, Sphyrna lewini Smooth hammerhead, Sphyrna zygaena⁹ "Commercially permitted nonblacknose small coastal shark" means any of the following species: Atlantic sharpnose, Rhizoprionodon terraenovae Bonnethead, Sphyrna tiburo Finetooth, Carcharhinus isodon¹⁰ "Commercially permitted pelagic shark" means any of the following species: Blue, Prionace glauca Porbeagle, Lamna nasus Thresher, Alopias vulpinus¹¹ "Commercially prohibited shark" means any of the following species: Atlantic angel, Squatina dumeril Basking, Cetorhinus maximus Bigeye sand tiger, Odontaspis noronhai Bigeye sixgill, Hexanchus nakamurai Bigeye thresher, Alopias superciliosus Bignose, Carcharhinus altimus Blacknose, Carcharhinus acronotus Caribbean reef, Carcharhinus perezii Caribbean sharpnose, Rhizoprionodon porosus Dusky, Carcharhinus obscurus Galapagos, Carcharhinus galapagensis Longfin mako, Isurus paucus Narrowtooth, Carcharhinus brachyurus Night, Carcharhinus signatus Oceanic whitetip, Carcharhinus longimanus Sand tiger, Carcharias taurus Sevengill, Heptranchias perlo Shortfin mako, Isurus oxyrinchus Sixgill, Hexanchus griseus Smalltail, Carcharhinus porosus Whale, Rhincodon typus White, Carcharodon carcharias¹² "Control rule" means a time-certain date, past, present, or future, used to establish participation in a limited entry fishery and may or may not include specific past harvest amounts.¹³ "Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area" means all tidal waters of the Atlantic Ocean that are bounded by a line beginning at a point at Latitude 38° 27.00' N, Longitude 75° 06.00' W; thence southeasterly to a point at Latitude 38° 21.00' N, Longitude 74° 48.00' W; thence southerly to a point at Latitude 37° 30.00' N, Longitude 75° 12.00' W; thence northwesterly to a point at Latitude 37° 48.00' N, Longitude 75° 30.00' W; thence northeasterly to a point at Latitude 38° 27.00' N, Longitude 75° 06.00' W, which is the point of beginning.¹⁴ "Dressed weight" means the result from processing a fish by removal of head, viscera, and fins, but does not include removal of the backbone, halving, quartering, or otherwise further reducing the carcass.¹⁵ "Finning" means removing the fins and returning the remainder of the shark to the sea.¹⁶ "Fork length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the fork of the tail along the midline, using a straight-line measure, not measured over the curve of the body.¹⁷ "Large mesh gill net" means any gill net with a stretched mesh of greater than five inches.¹⁸ "Longline" means any fishing gear that is set horizontally, either anchored, floating, or attached to a vessel, and that consists of a mainline or groundline, greater than 1,000 feet in length, with multiple leaders (gangions) and hooks, whether retrieved by hand or mechanical means.¹⁹ "Movable gill net" means any gill net other than a staked gill net.²⁰ "Permitted commercial gear" means rod and reel, handlines, shark shortlines, small mesh gill nets, large mesh gill nets, pound nets, and weirs.²¹ "Recreational shore angler" means a person neither fishing from a vessel nor transported to or from a fishing location by a vessel.²² "Recreational vessel angler" means a person fishing from a vessel or transported to or from a fishing location by a vessel.²³ "Recreationally permitted shark" means any of the following species: Atlantic sharpnose, Rhizoprionodon terraenovae Blacknose, Carcharhinus acronotus Blacktip, Carcharhinus limbatus Blue, Prionace glauca Bonnethead, Sphyrna tiburo Bull, Carcharhinus leucas Finetooth, Carcharhinus isodon Great hammerhead, Sphyrna mokarran Lemon, Negaprion brevirostris Nurse, Ginglymostoma cirratum Porbeagle, Lamna nasus Scalloped hammerhead, Sphyrna lewini Smooth dogfish, Mustelus canis Smooth hammerhead, Sphyrna zygaena Spinner, Carcharhinus brevipinna Thresher, Alopias vulpinus Tiger, Galeocerdo cuvier²⁴ "Recreationally prohibited shark" means any of the following species: Atlantic angel, Squatina dumeril Basking, Cetorhinus maximus Bigeye sand tiger, Odontaspis noronhai Bigeye sixgill, Hexanchus nakamurai Bigeye thresher, Alopias superciliosus Bignose, Carcharhinus altimus Caribbean reef, Carcharhinus perezii Caribbean sharpnose, Rhizoprionodon porosus Dusky, Carcharhinus obscurus Galapagos, Carcharhinus galapagensis Longfin mako, Isurus paucus Narrowtooth, Carcharhinus brachyurus Night, Carcharhinus signatus Oceanic whitetip, Carcharhinus longimanus Sand tiger, Carcharias taurus Sandbar, Carcharhinus plumbeus Sevengill, Heptranchias perlo Shortfin mako, Isurus oxyrinchus Silky, Carcharhinus falciformis Sixgill, Hexanchus griseus Smalltail, Carcharhinus porosus Whale, Rhincodon typus White, Carcharodon carcharias²⁵ "Research only shark" means any of the following species: Sandbar, Carcharhinus plumbeus²⁶ "Shark shortline" means a fish trotline that is set horizontally, either anchored, floating, or attached to a vessel, and that consists of a mainline or groundline, 1,000 feet in length or less, with multiple leaders (gangions) and no more than 50 corrodible circle hooks, whether retrieved by hand or mechanical means.²⁷ "Small mesh gill net" means any gill net with a stretched mesh of equal to or less than five inches.²⁸ "Smooth dogfish" means any shark of the species Mustelus canis. Smooth dogfish are also known as "smoothhound shark."²⁹ "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.³⁰ "Spiny dogfish" means any shark of the species Squalus acanthias.³¹ "Virginia Atlantic Sturgeon Bycatch Reduction Area" means all tidal waters of the Atlantic Ocean that are bounded by a line beginning at a point at Latitude 37° 18.00' N, Longitude 75° 54.00' W; thence southeasterly to a point at Latitude 36° 48.00' N, Longitude 75° 36.00' W; thence southwesterly to a point at Latitude 36° 33.00' N, Longitude 75° 51.00' W; thence northwesterly to a point at Latitude 36° 54.00' N, Longitude 76° 06.00' W; thence northeasterly to a point at Latitude 37° 18.00' N, Longitude 75° 54.00' W, which is the point of beginning.³²

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of definitions relevant to those regulations. This broad grant of authority encompasses the regulation, as it allows the Commission to define terms essential for the implementation and understanding of its regulatory framework, thereby facilitating effective management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to create foundational definitions that support its regulatory objectives, ensuring clarity and consistency in the application of its regulations.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Agent" means any person who possesses the Commercial Fisherman Registration Lic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This results in GENERAL_DELEGATION because the regulation defining "Agent" aligns with the Commission's mandate to regulate commercial fishing practices and ensure proper licensing and management of seafood resources, thereby supporting the overall objectives outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations that facilitate effective management and conservation of marine resources while ensuring compliance within the commercial fishing sector.

Provision 3

""Annual quota" means Virginia's 10.795% share of the annual coastwide commercial..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation defining "annual quota" for spiny dogfish, as it aligns with the Commission's responsibility to manage fisheries and ensure sustainable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing to seek further specific legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 4

""Carcass length" means that length measured in a straight line from the anterior..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations related to the seafood industry, including those necessary for the conservation and reasonable use of specific species like surf clams and Atlantic menhaden. The regulation defining "carcass length" for sharks does not align with the specific species mentioned in the statute and lacks a clear connection to the conservation and management authority explicitly provided for surf clams and Atlantic menhaden. This results in the regulation being unauthorized, as it extends beyond the scope of the Commission's authority as delineated in the statute, which does not encompass regulations related to shark carcass measurements.

Provision 5

""Circle hook" means a non-offset, non-stainless steel hook with the point turned..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language encompasses the regulation defining "circle hook," as it relates to the conservation and management of seafood resources by establishing specific gear requirements that can enhance sustainable fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without needing further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 6

""COLREGS Line" means the COLREGS Demarcation Line, as defined in the Code of Fed..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation defining the "COLREGS Line," as it relates to the management of navigational safety and resource conservation within the Commonwealth's waters, which is essential for the effective regulation of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations that align with its overarching mandate to manage and protect marine resources without requiring a more specific legislative directive.

Provision 7

""Commercial shark fisherman" means any commercial fisherman permitted to land or..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, while promoting the general welfare of the seafood industry. The regulation defining "commercial shark fisherman" extends the Commission's authority to include sharks, which are not explicitly mentioned in the statute, thereby potentially exceeding the scope of the Commission's regulatory power as outlined in the statute. The legal significance of this relationship is that the regulation may not be valid if it goes beyond the explicit authority granted by the statute, potentially undermining the regulatory framework established by the legislature.

Provision 8

""Commercially permitted aggregated large coastal shark" means any of the followi..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like Atlantic menhaden and surf clams. The regulation defining "commercially permitted aggregated large coastal shark" includes a list of shark species that may not be directly addressed or authorized by the statute, which only mentions the Commission's authority over specific resources and does not explicitly include these shark species. The legal significance of this relationship is that the regulation may exceed the Commission's statutory authority by addressing species not explicitly mentioned in the statute, potentially undermining the intended scope of the Commission's regulatory powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

""Commercially permitted hammerhead shark" means any of the following species: Gr..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention hammerhead sharks or provide authority for their regulation. The regulation defining "commercially permitted hammerhead shark" introduces a classification that is not supported by the statute, as it does not fall within the specified species or management responsibilities outlined in the text. The legal significance of this relationship is that the regulation lacks the necessary statutory foundation, rendering it unauthorized and potentially invalid as it exceeds the scope of the Commission's granted powers.

Provision 10

""Commercially permitted nonblacknose small coastal shark" means any of the follo..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of certain seafood species, but it does not mention small coastal sharks or provide authority for their regulation. The regulation defining "commercially permitted nonblacknose small coastal shark" introduces a specific classification of species that is not addressed in the statute, which limits the Commission's authority to the species explicitly mentioned, such as surf clams and Atlantic menhaden. The legal significance of this relationship is that the regulation exceeds the scope of the statutory authority granted to the Commission, rendering it unauthorized and invalid.

Provision 11

""Commercially permitted pelagic shark" means any of the following species: Blue,..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention pelagic sharks or provide authority for their regulation. The regulation defining "commercially permitted pelagic shark" includes species that are not addressed in the statute, which results in unauthorized regulation because the statute does not empower the Commission to manage or regulate these specific species. The legal significance of this relationship is that any regulation outside the explicit authority granted by the statute is invalid and cannot be enforced, as it exceeds the scope of the Commission's legislative mandate.

Provision 12

""Commercially prohibited shark" means any of the following species: Atlantic ang..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation defining "commercially prohibited shark" species as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the protection of vulnerable shark species, thereby supporting the overall sustainability of the marine ecosystem within its jurisdiction.

Provision 13

""Control rule" means a time-certain date, past, present, or future, used to esta..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of limited entry fisheries. This broad language encompasses the regulation defining "control rule," as it pertains to establishing parameters for participation in fisheries, which is essential for managing resources sustainably. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are flexible and responsive to the needs of the seafood industry while ensuring the conservation of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 14

""Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area" means all tidal..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation concerning the "Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area" as it falls within the Commission's mandate to establish regulations that promote the general welfare of the seafood industry and conserve marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to manage bycatch and protect vulnerable species, reflecting its responsibility to ensure sustainable practices in the seafood industry.

Provision 15

""Dressed weight" means the result from processing a fish by removal of head, vis..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not explicitly mention authority over definitions related to fish processing methods. The regulation defining "dressed weight" relates to the processing of fish, which falls outside the scope of the Commission's authority as outlined in the statute, since it does not pertain to conservation or management of specific species. The legal significance of this relationship is that the regulation lacks statutory backing, rendering it unauthorized, as the Commission's powers are limited to those explicitly provided in the statute.

Provision 16

""Finning" means removing the fins and returning the remainder of the shark to th..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention sharks or the practice of finning. The regulation defining "finning" and prohibiting the practice does not align with the statutory language, as the statute does not provide the Commission with authority over shark management or the regulation of finning practices. The legal significance of this relationship is that without explicit statutory authority for the regulation concerning sharks, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforced.

Provision 17

""Fork length" means the length of a fish measured from the most forward projecti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the management of specific species. This broad language encompasses the regulation defining "fork length," as it is essential for the effective management and conservation of fish species, ensuring that measurements are standardized for regulatory purposes. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching mandate to manage and conserve marine resources effectively, without needing to seek further specific legislative approval for each regulatory detail.

Provision 18

""Large mesh gill net" means any gill net with a stretched mesh of greater than f..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to define terms such as "large mesh gill net," as it relates to the management and conservation of marine resources, thereby falling under the umbrella of general regulatory authority. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring specific legislative approval for each regulatory detail, facilitating effective management of the seafood industry.

Provision 19

""Longline" means any fishing gear that is set horizontally, either anchored, flo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and conserve marine resources, including specific provisions for managing various seafood species. This broad grant of authority allows the Commission to define fishing gear, such as "longline," as it pertains to the management and conservation of marine resources, thereby resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to regulate fishing practices in a manner that supports sustainable use and conservation efforts without requiring further legislative approval for each specific regulation.

Provision 20

""Movable gill net" means any gill net other than a staked gill net."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention any authority related to the definition or regulation of gill nets. The regulation defining "movable gill net" does not align with the statutory language, as it does not pertain to the conservation or management of the specified seafood resources or their reasonable use, thereby lacking the necessary statutory backing. The legal significance of this relationship is that without explicit statutory authority, the regulation is deemed unauthorized and cannot be enforced under the provisions of the statute.

Provision 21

""Permitted commercial gear" means rod and reel, handlines, shark shortlines, sma..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including those related to the seafood industry. This broad grant of authority allows the Commission to define "permitted commercial gear," as it directly relates to the management and conservation of seafood resources, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to implement regulations that effectively manage and conserve marine resources, ensuring the sustainability of the seafood industry in the Commonwealth.

Provision 22

""Recreational shore angler" means a person neither fishing from a vessel nor tra..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations related to the seafood industry, conservation of marine resources, and management of specific species like Atlantic menhaden, but does not mention defining terms related to recreational fishing activities. The regulation defining "recreational shore angler" does not align with the statutory language, as it does not pertain to the conservation or management of seafood resources or the promotion of the seafood industry, thus lacking the necessary authority. The legal significance of this relationship is that without explicit statutory authorization for defining such terms, the regulation is deemed unauthorized and cannot be enforced.

Provision 23

""Recreational vessel angler" means a person fishing from a vessel or transported..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species and the establishment of fishery management plans. This broad grant of authority encompasses the regulation defining "recreational vessel angler," as it relates to the management and regulation of fishing activities, which are essential for the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage fishing practices, ensuring the sustainability of the seafood industry and marine ecosystems within the Commonwealth.

Provision 24

""Recreationally permitted shark" means any of the following species: Atlantic sh..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for specific species such as surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation defining "recreationally permitted shark" species, as it falls within the Commission's mandate to regulate marine resources for conservation and reasonable use. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the management and conservation of various fish species, ensuring sustainable practices within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 25

""Recreationally prohibited shark" means any of the following species: Atlantic a..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically states that the Commission may adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote seafood and marine resources, but it does not explicitly grant authority to regulate specific species of sharks or define them as "recreationally prohibited." The regulation lists specific shark species without clear authorization from the statute to prohibit recreational fishing for these species, which falls outside the scope of the Commission's stated powers regarding the management and conservation of marine resources. The legal significance of this relationship is that without explicit statutory authority, the regulation lacks legitimacy and cannot be enforced, as it exceeds the powers granted to the Commission by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 26

""Research only shark" means any of the following species: Sandbar, Carcharhinus ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, including specific provisions for surf clams and Atlantic menhaden management. The regulation defining "Research only shark" species, such as the sandbar shark, may exceed the statute's authorization because it introduces a classification that is not explicitly mentioned in the statute and does not directly relate to the conservation or management of the species specified therein. The legal significance of this relationship is that the regulation could be viewed as overstepping the bounds of the Commission's authority by creating additional regulatory categories that are not supported by the explicit language of the statute.

Provision 27

""Shark shortline" means a fish trotline that is set horizontally, either anchore..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows for the establishment of regulations like the definition of "shark shortline," which is essential for managing specific fishing practices that align with the overall goals of resource conservation and sustainable use. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support its overarching mandate to manage and protect marine resources effectively.

Provision 28

""Small mesh gill net" means any gill net with a stretched mesh of equal to or le..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate fishing practices and methods, but it does not explicitly define or authorize the use of specific terms such as "small mesh gill net" or establish a maximum mesh size. The regulation's definition of "small mesh gill net" as any gill net with a stretched mesh of equal to or less than five inches exceeds the scope of the statute, which does not provide the agency with the authority to impose such specific criteria. The legal significance of this relationship is that without explicit statutory authorization, the regulation lacks the necessary legal foundation, rendering it unauthorized.

Provision 29

""Smooth dogfish" means any shark of the species Mustelus canis. Smooth dogfish a..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations related to the conservation and management of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention the authority to regulate species like the smooth dogfish. The regulation defining "smooth dogfish" as Mustelus canis exceeds the Commission's authority because the statute does not provide explicit permission for the regulation of this particular species, which is not listed among those the Commission is authorized to manage. The legal significance of this relationship is that without explicit statutory authority, the regulation lacks legitimacy and cannot be enforced, as it does not align with the specific powers granted to the Commission by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 30

""Snout" means the most forward projection from a fish's head that includes the u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This results in GENERAL_DELEGATION because the regulation defining "snout" is essential for the implementation of effective management practices and conservation efforts within the seafood industry, aligning with the Commission's mandate to regulate and manage marine resources. The legal significance of this authorization relationship is that it allows the Commission the flexibility to create detailed regulations that support the overarching goals of resource management and industry welfare without requiring specific legislative approval for each individual regulation.

Provision 31

""Spiny dogfish" means any shark of the species Squalus acanthias."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations related to the seafood industry, conservation of marine resources, and management of specific species like surf clams and Atlantic menhaden. The regulation defining "spiny dogfish" does not align with the statute's specified authority, as it does not pertain to the conservation or management of the species explicitly mentioned in the statute, nor does it address the seafood industry or marine resources in a manner authorized by the Commission. The legal significance of this relationship is that the regulation lacks the necessary statutory backing, rendering it unauthorized and not within the scope of the Commission's defined powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 32

""Virginia Atlantic Sturgeon Bycatch Reduction Area" means all tidal waters of th..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to manage fisheries and protect marine resources within Virginia's tidal waters, but it does not explicitly mention the establishment of specific bycatch reduction areas or the geographic boundaries for such areas. The regulation defining the "Virginia Atlantic Sturgeon Bycatch Reduction Area" imposes specific geographic restrictions that exceed the scope of authority provided by the statute, which does not authorize the agency to delineate such areas in the Atlantic Ocean. The legal significance of this relationship is that without explicit statutory authority to create and enforce the defined bycatch reduction area, the regulation is deemed unauthorized and lacks legal standing.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to place, set, or fish any longline in Virginia's tidal waters.¹ B. It shall be unlawful for any person to place, set, or fish any shark shortline in Virginia's tidal waters with more than 50 hooks. All hooks must be corrodible circle hooks. In addition, any person aboard a vessel fishing shortlines must practice the protocols and possess the federally required release equipment, for pelagic and bottom longlines, for the safe handling, release and disentanglement of sea turtles and other nontarget species; all captain and vessel owners must be certified in using handling and release equipment.² C. It shall be unlawful for a person to possess more than two shark shortlines on board a vessel.³ D. It shall be unlawful for any person fishing for commercial purposes to possess any shark caught by means other than permitted commercial gear.⁴ E. Any person fishing commercially for sharks shall check all large mesh gill nets at least once every two hours.⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to place, set, or fish any longline in Vi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources. This broad language encompasses the regulation prohibiting the use of longlines in Virginia's tidal waters, as it is necessary for the conservation and reasonable use of marine resources, thereby aligning with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for resource management without requiring specific legislative approval for each individual regulation, thus facilitating effective and timely regulatory action.

Provision 2

"B. It shall be unlawful for any person to place, set, or fish any shark shortlin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood and specific species management. This results in GENERAL_DELEGATION because the regulation regarding shark shortlines directly aligns with the Commission's mandate to manage and conserve marine resources, as it establishes specific fishing practices aimed at promoting sustainability and responsible use of shark populations. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for the effective management of marine resources, ensuring compliance with conservation goals set forth in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for a person to possess more than two shark shortlines o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations like the prohibition on possessing more than two shark shortlines on board a vessel, as it directly relates to the conservation and management of shark populations within the marine ecosystem. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that are essential for sustainable resource management, ensuring the protection of marine life while balancing industry interests.

Provision 4

"D. It shall be unlawful for any person fishing for commercial purposes to posses..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the possession of sharks caught by means other than permitted commercial gear, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure sustainable fishing practices, thereby supporting the overall health of the seafood industry and marine ecosystem.

Provision 5

"E. Any person fishing commercially for sharks shall check all large mesh gill ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement specific regulations, such as the requirement for commercial shark fishers to check large mesh gill nets regularly, as it directly relates to the conservation and management of marine species. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that ensure sustainable fishing practices, thereby fulfilling its statutory mandate to manage and protect marine resources effectively.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. Recreational fishing vessels are allowed a maximum possession limit of one recreationally permitted shark, excluding smooth dogfish, per trip, regardless of the number of people on board the vessel. In addition, each recreational vessel angler may possess one bonnethead and one Atlantic sharpnose per trip. The possession aboard a vessel of more than one recreationally permitted shark, excluding smooth dogfish, or the possession of more than one Atlantic sharpnose shark or one bonnethead shark, per person, shall constitute a violation of this regulation. When fishing from any boat or vessel where the entire catch is held in a common hold or container, the possession limits for Atlantic sharpnose shark or bonnethead shark shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish, plus one additional recreationally permitted shark. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limits.¹ B. A recreational shore angler is allowed a maximum possession limit of one recreationally permitted shark, excluding smooth dogfish, per calendar day. In addition, a recreational shore angler may harvest one additional bonnethead and one additional Atlantic sharpnose per calendar day. The possession of more than one recreationally permitted shark, excluding smooth dogfish, or the possession of more than one bonnethead and one Atlantic sharpnose, by any person, shall constitute a violation of this regulation.² C. It shall be unlawful for any person to possess any recreationally prohibited shark.³ D. It shall be unlawful for any person to possess any recreationally permitted shark landed under the recreational harvest limitations described in this section that is less than 54 inches in fork length except as described in subdivisions 1 and 2 of this subsection: 1. It shall be unlawful for any person to possess any recreationally caught great hammerhead, scalloped hammerhead, or smooth hammerhead shark that is less than 78 inches in fork length.⁴ 2. Atlantic sharpnose, bonnethead, finetooth, blacknose, and smooth dogfish sharks are exempt from the recreational size limit described in this subsection.⁵ E. It shall be unlawful for any person to take, harvest, land, or possess any blacktip, bull, great hammerhead, lemon, nurse, scalloped hammerhead, smooth hammerhead, spinner or tiger shark from May 15 through July 15 of any calendar year.⁶ F. All sharks must have heads, tails and fins attached naturally to the carcass. Anglers may gut and bleed the carcass as long as the head and tail are not removed. Filleting any shark is prohibited until that shark is offloaded at the dock or on shore.⁷ G. It shall be unlawful for any person fishing recreationally to take any shark using any gear other than handline or rod and reel.⁸ H. Any person fishing recreationally for sharks shall use non-offset, corrodible, non-stainless steel circle hooks except when fishing with flies or artificial lures.⁹

Provision-Level Authorization Analysis

Provision 1

"A. Recreational fishing vessels are allowed a maximum possession limit of one re..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources, including specific provisions for the conservation and reasonable use of various species. This broad grant of authority encompasses the regulation concerning recreational fishing limits for sharks, as it directly relates to the conservation and management of marine resources, ensuring sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the effective management of fishery resources, thereby supporting both conservation efforts and the interests of recreational anglers.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. A recreational shore angler is allowed a maximum possession limit of one recr..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation concerning recreational shore angler limits on shark possession, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable fishing practices while promoting the overall health of the seafood industry within the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to possess any recreationally prohibited ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority encompasses the regulation prohibiting the possession of recreationally prohibited sharks, as it aligns with the Commission's responsibility to conserve marine resources and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring additional specific legislative approval, thereby facilitating effective management and conservation efforts.

Provision 4

"D. It shall be unlawful for any person to possess any recreationally permitted s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various species. This broad grant of authority encompasses the regulation regarding the possession of recreationally permitted sharks, as it falls under the Commission's responsibility to establish regulations for the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to manage and protect shark populations, ensuring sustainable practices within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"2. Atlantic sharpnose, bonnethead, finetooth, blacknose, and smooth dogfish shar..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific marine resources, including the exclusive management of Atlantic menhaden, but does not mention the management of other shark species. The regulation that exempts certain shark species from recreational size limits appears to exceed the Commission's authority as it does not align with the statute's focus on conservation and management of specified resources, potentially undermining the intended regulatory framework. The legal significance of this relationship indicates that the regulation may lack the necessary statutory foundation, leading to questions about its validity and adherence to the limits set forth by the statute.

Provision 6

"E. It shall be unlawful for any person to take, harvest, land, or possess any bl..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations, such as the prohibition on taking specific shark species during certain months, as a measure to ensure the conservation of these resources. The legal significance of this relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"F. All sharks must have heads, tails and fins attached naturally to the carcass...."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation requiring that all sharks have heads, tails, and fins attached to their carcasses, as it is necessary to ensure proper management and conservation of shark populations within the Commonwealth's marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without needing further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"G. It shall be unlawful for any person fishing recreationally to take any shark ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation that prohibits recreational fishing for sharks using gear other than handline or rod and reel, as it aligns with the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring specific legislative approval for each individual rule, thereby facilitating timely and effective resource management.

Provision 9

"H. Any person fishing recreationally for sharks shall use non-offset, corrodible..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing various species. This broad grant of authority encompasses the regulation requiring the use of specific fishing gear for recreational shark fishing, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable fishing practices without needing further legislative approval, thus ensuring effective resource management.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. Beginning January 1 of any given year it shall be unlawful for any person to possess on board a vessel or to land in Virginia more than a combined total of 36 commercially permitted aggregated large coastal sharks and commercially permitted hammerhead sharks in one 24-hour period, unless the Marine Resources Commission has posted notice of any change to possession limits on its website at http://mrc.virginia.gov/Regulations/VA-commercial-shark-possession-limits.shtm . The person who owns or operates the vessel is responsible for compliance with the provisions of this subsection.¹ B. It shall be unlawful for any person to fillet a shark until that shark is offloaded at the dock or on shore, except smooth dogfish as provided in subsection C of this section. A licensed commercial fisherman may eviscerate and remove the head of any shark, but the tail and all fins of any shark, except smooth dogfish as provided in subsection C of this section, shall remain naturally attached to the carcass through landing. The fins of any shark, except smooth dogfish, may be partially cut but some portion of the fin shall remain attached, until the shark is landed.² C. Virginia licensed commercial fishermen may completely process smooth dogfish at sea prior to landing when the harvest of smooth dogfish comprises at least 25% by weight of the total retained harvest, except that it shall be unlawful for anyone to land or possess on board any vessel any amount of processed smooth dogfish whereby the total weight of fins exceeds 12% of the total dressed weight of any smooth dogfish.³ D. It shall be unlawful to possess, on board a vessel, or to land in Virginia any species of shark, after the National Oceanic and Atmospheric Administration (NOAA) Fisheries has closed the fishery for that species in federal waters.⁴ E. There are no commercial trip limits or possession limits for smooth dogfish or sharks on the lists of commercially permitted pelagic species or commercially permitted nonblacknose species.⁵ F. Except as described in this section, it shall be unlawful for any person to take, harvest, land, or possess in Virginia any blacktip, bull, great hammerhead, lemon, nurse, scalloped hammerhead, silky, smooth hammerhead, spinner, or tiger shark from May 15 through July 15. These sharks may be transported by vessel, in Virginia waters, during the closed season provided the sharks were caught in a legal manner consistent with federal regulations outside Virginia waters and: 1. The vessel does not engage in fishing in Virginia waters while possessing the species listed in this subsection; and⁶ 2. All fishing gear aboard the vessel is stowed and not available for immediate use.⁷ G. It shall be unlawful for any person to retain, possess, or purchase any commercially prohibited shark or any research only shark, except as provided in subsection I of this section.⁸ H. All sharks harvested from state waters or federal waters, for commercial purposes, shall only be sold to a federally permitted shark dealer.⁹ I. The commissioner may grant exemptions from the seasonal closure, quota, possession limit, size limit, gear restrictions, and prohibited species restrictions. Exemptions shall be granted only for display or research purposes. Any person granted an exemption for the harvest of any shark for research or display shall report the species, weight, location caught, and gear used for each shark collected within 30 days. Any person granted a permit to possess any shark for research or display shall provide the commissioner on an annual basis information on the location and status of the shark throughout the life of the shark.¹⁰

Provision-Level Authorization Analysis

Provision 1

"A. Beginning January 1 of any given year it shall be unlawful for any person to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing certain species. This broad grant of authority allows the Commission to implement regulations like the one limiting the possession of large coastal sharks and hammerhead sharks, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this relationship is that it empowers the Commission to regulate specific aspects of marine resource management without requiring further legislative approval, ensuring effective oversight of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to fillet a shark until that shark is off..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the regulation of the processing or handling of sharks prior to offloading. The regulation's requirement that sharks cannot be filleted until offloaded at the dock or on shore appears to exceed the Commission's authority as it imposes restrictions on the handling of a species not explicitly covered by the conservation mandates outlined in the statute. The legal significance of this relationship is that the regulation may infringe upon the limits of the Commission's authority, potentially leading to challenges regarding its validity and enforcement.

Requirements Analysis

5 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Virginia licensed commercial fishermen may completely process smooth dogfish ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation allowing Virginia licensed commercial fishermen to process smooth dogfish at sea, as it directly relates to the management and utilization of marine resources in a manner that supports the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that facilitate effective resource management while ensuring compliance with conservation goals, reflecting a general delegation of authority to adapt regulations as needed.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful to possess, on board a vessel, or to land in Virginia an..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources, including specific provisions for the management of fisheries. This broad grant of authority encompasses the regulation prohibiting the possession or landing of certain shark species after NOAA Fisheries has closed the fishery, as it aligns with the Commission's responsibility to ensure sustainable use and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect marine species and manage fisheries effectively, ensuring compliance with federal closures and promoting the overall health of the ecosystem.

Provision 5

"E. There are no commercial trip limits or possession limits for smooth dogfish o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of various species. This broad language allows the Commission to regulate species such as smooth dogfish and sharks without imposing trip or possession limits, as it aligns with the goal of promoting the seafood industry while ensuring the sustainable use of marine resources. The legal significance of this relationship is that it empowers the Commission to make flexible regulatory decisions that can adapt to the needs of the industry and the conservation of marine resources, reflecting a general delegation of authority rather than a narrow or specific mandate.

Provision 6

"F. Except as described in this section, it shall be unlawful for any person to t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing various seafood species. This broad grant of authority allows the Commission to establish regulations like the prohibition on taking certain shark species during specified months, as it directly relates to the conservation and management of marine resources in the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect marine ecosystems while ensuring the sustainable use of resources, thereby promoting the general welfare of the seafood industry.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"2. All fishing gear aboard the vessel is stowed and not available for immediate ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that ensure responsible fishing practices, such as requiring that all fishing gear aboard a vessel is stowed and not available for immediate use, which aligns with the goals of conservation and management of resources. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible and adaptive regulations that respond to the needs of resource conservation while supporting the seafood industry.

Provision 8

"G. It shall be unlawful for any person to retain, possess, or purchase any comme..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and marine life. This broad grant of authority encompasses the regulation prohibiting the retention, possession, or purchase of commercially prohibited sharks, as it aligns with the Commission's responsibility to promote the welfare of the seafood industry and conserve marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect marine species and ensure sustainable practices within the seafood industry without requiring further legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"H. All sharks harvested from state waters or federal waters, for commercial purp..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the regulation to require that all sharks harvested for commercial purposes be sold only to federally permitted dealers, as it aligns with the Commission's responsibility to ensure sustainable management and conservation of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that directly support the overarching goals of resource conservation and industry welfare without needing to specify every detail in the statute itself.

Provision 10

"I. The commissioner may grant exemptions from the seasonal closure, quota, posse..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the ability to establish regulations for taking seafood and managing specific species. This broad grant of authority allows the regulation to encompass exemptions for seasonal closures and restrictions, as it aligns with the Commission's mandate to promote the general welfare of the seafood industry and manage resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to make flexible regulatory decisions that respond to specific circumstances, such as research needs, while still adhering to the overarching goals of conservation and resource management.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. The fishing year for spiny dogfish shall be from May 1 of the current calendar year through April 30 of the following calendar year. For the fishing year, the commercial spiny dogfish landings quota shall be limited to annual quota except as specified in subsection B of this section.¹ B. If a quota transfer occurs between Virginia and another state or region participating in the Interstate Fishery Management Plan for spiny dogfish, Virginia's annual quota for the fishing year shall be limited to the annual quota amount as adjusted for transfers.² C. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia any spiny dogfish harvested from federal waters for commercial purposes after it has been announced that the federal quota for spiny dogfish has been taken.³ D. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia more than 7,500 pounds of spiny dogfish per day for commercial purposes.⁴ E. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia any spiny dogfish for commercial purposes after the annual quota specified in subsections A and B of this section has been landed and announced as such.⁵ F. Any spiny dogfish harvested from state waters or federal waters for commercial purposes shall only be sold to a federally permitted dealer.⁶ G. It shall be unlawful for any buyer of seafood to receive any spiny dogfish after any commercial harvest or annual quota described in this section has been landed and announced as such.⁷ H. It shall be unlawful for any person fishing for spiny dogfish with a Virginia Spiny Dogfish Permit to leave any gill net gear with a mesh size equal to or greater than 5.25 inches and less than 10 inches in the Delaware and Maryland Atlantic Sturgeon Bycatch Reduction Area or the Virginia Atlantic Sturgeon Bycatch Reduction Area between 8 p.m. through 5 a.m. the following day from November 1 through March 31.⁸

Provision-Level Authorization Analysis

Provision 1

"A. The fishing year for spiny dogfish shall be from May 1 of the current calenda..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like spiny dogfish. This results in GENERAL_DELEGATION because the regulation establishes a fishing year and quota for spiny dogfish, which directly aligns with the Commission's broad mandate to regulate seafood taking and promote the welfare of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed management measures that are essential for the sustainable use of marine resources without requiring further legislative approval for each specific regulation.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. If a quota transfer occurs between Virginia and another state or region parti..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations like the one concerning quota transfers for spiny dogfish, as it falls within the scope of managing fishery resources and ensuring compliance with interstate management plans. The legal significance of this authorization relationship is that it empowers the Commission to make necessary regulatory decisions that align with the overarching goals of conservation and resource management without needing further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to take, harvest, or possess aboard any v..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like spiny dogfish. This results in GENERAL_DELEGATION because the regulation directly aligns with the Commission's broad mandate to manage seafood resources and ensure their sustainability, as it prohibits the taking of spiny dogfish once the federal quota is reached, thereby promoting conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect marine resources while allowing flexibility in regulation to respond to changing conditions in the seafood industry.

Provision 4

"D. It shall be unlawful for any person to take, harvest, or possess aboard any v..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation limiting the harvest of spiny dogfish, as it directly relates to the conservation and management of marine resources, ensuring sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective resource management.

Provision 5

"E. It shall be unlawful for any person to take, harvest, or possess aboard any v..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting the commercial taking of spiny dogfish after a specified quota has been reached, as it aligns with the Commission's responsibility to manage fishery resources and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect marine resources without requiring further legislative approval, thereby facilitating timely and effective management of the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"F. Any spiny dogfish harvested from state waters or federal waters for commercia..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including establishing regulations for the conservation and reasonable use of seafood. This results in GENERAL_DELEGATION because the regulation concerning the sale of spiny dogfish to federally permitted dealers aligns with the Commission's broad mandate to regulate seafood management and ensure sustainable practices within the industry. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulatory measures that support the overarching goals of conservation and resource management as outlined in the statute.

Provision 7

"G. It shall be unlawful for any buyer of seafood to receive any spiny dogfish af..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This results in GENERAL_DELEGATION because the regulation prohibiting the receipt of spiny dogfish after a commercial harvest or quota aligns with the Commission's broad mandate to manage seafood resources and ensure sustainable practices within the industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect marine resources while maintaining the flexibility to adapt regulations as needed for effective resource management.

Provision 8

"H. It shall be unlawful for any person fishing for spiny dogfish with a Virginia..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including specific provisions for managing various species and their habitats. This broad grant of authority encompasses the regulation concerning spiny dogfish fishing practices, as it is aimed at conserving marine resources and ensuring responsible fishing practices in designated areas, which aligns with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of marine resources, thereby fulfilling its statutory obligations without requiring a higher level of delegation.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

At such time the status of shark stocks or their fisheries warrant the establishment of a limited access program for participation in the commercial fishery for sharks, a control rule may be enacted that limits participation in the commercial fisheries for sharks to those individuals who participated in that fishery on and before December 31, 2004.¹ The control rule may also include eligibility requirements based on past harvest amounts.²

Provision-Level Authorization Analysis

Provision 1

"At such time the status of shark stocks or their fisheries warrant the establish..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, while promoting the general welfare of the seafood industry. The regulation regarding a limited access program for commercial shark fisheries appears to exceed this authority because the statute does not explicitly mention sharks or provide a clear mandate for establishing such a program, thus potentially overstepping the bounds of the Commission's regulatory powers. The legal significance of this relationship is that the regulation may lack the necessary statutory foundation, raising questions about its validity and compliance with the specific limitations set forth in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"The control rule may also include eligibility requirements based on past harvest..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including establishing regulations for the seafood industry and managing specific species. This broad grant of authority allows the Commission to implement eligibility requirements based on past harvest amounts as part of its regulatory framework, aligning with its responsibility to promote the general welfare of the seafood industry and manage resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that adapt to changing circumstances in the seafood industry while ensuring sustainable practices, reflecting the intent of the statute to maintain the health of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, possess, or land any spiny dogfish without first having obtained a spiny dogfish limited entry fishery permit from the Marine Resources Commission. Such permit shall be completed in full by the permittee who shall keep a copy of that permit in his possession while fishing for or selling spiny dogfish. Permits shall only be issued to Virginia registered commercial fishermen meeting either of the criteria described in subdivision 1 or 2 of this subsection: 1. Shall have documentation of (i) harvest from a movable gill net for an average of at least 60 days from 2006 through 2008, (ii) a minimum harvest of one pound of spiny dogfish at any time from 2006 through 2008, and (iii) harvest of at least one pound of spiny dogfish from May 1, 2010, through April 30, 2012, in the Marine Resources Commission's mandatory harvest reporting system, except that federal dealer reports to the Standard Atlantic Fisheries Information System can satisfy the one pound harvest requirement, for May 1, 2010, through April 30, 2012.¹ 2. Shall have documentation of (i) harvests that total greater than 10,000 pounds of spiny dogfish in any one year from 2006 through 2008, and (ii) harvest of at least one pound of spiny dogfish from May 1, 2010, through April 30, 2012, in the Marine Resources Commission's mandatory harvest reporting system, except that federal dealer reports to the Standard Atlantic Fisheries Information System can satisfy the one pound harvest requirement, for May 1, 2010, through April 30, 2012.² B. Any smooth dogfish or unidentified dogfish documented on Virginia mandatory reporting forms as harvested during the months of November through February 2006 through 2008 shall be classified as spiny dogfish when determining eligibility for a Spiny Dogfish Limited Entry Fishery Permit as described in subdivisions A 1 and A 2 of this section.³ C. It is unlawful to transfer any spiny dogfish limited entry fishery permit after November 23, 2009.⁴ D. The use of agents in the spiny dogfish fishery is prohibited.⁵ E. The commissioner or his designee may grant exceptions to the prohibition against transfers of the spiny dogfish limited entry fishery permit as described in subsection C of this section to any individual who meets any of the following criteria: 1. Demonstrates a significant hardship on the basis of health and provides the commissioner documentation, by an attending physician, of the medical condition.⁶ 2. Demonstrates a significant hardship on the basis of a call to active military duty and provides the commissioner an explanation, in writing, and copy of the military orders for active duty.⁷ 3. Documents the retirement or death of the immediate family member permitted for the spiny dogfish limited entry fishery and possessing a legal Commercial Fisherman Registration License.⁸

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, possess, or land any spin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of permits for specific fisheries. This broad grant of authority allows for the regulation of spiny dogfish through a limited entry fishery permit, as it falls within the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, ensuring responsive management of the fishery resources.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Shall have documentation of (i) harvests that total greater than 10,000 poun..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad grant of authority encompasses the regulation requiring documentation of spiny dogfish harvests, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures under a general framework, ensuring the sustainable management of marine resources while adhering to the overarching goals set forth in the statute.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"B. Any smooth dogfish or unidentified dogfish documented on Virginia mandatory r..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations that address the classification and management of dogfish species, as it falls within the scope of promoting the general welfare of the seafood industry and conserving marine resources. The legal significance of this authorization relationship is that it empowers the Commission to make determinations regarding species classification and permit eligibility, ensuring effective management of fisheries under its jurisdiction.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"C. It is unlawful to transfer any spiny dogfish limited entry fishery permit aft..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, but it does not explicitly mention the authority to restrict the transfer of permits for specific fisheries. The regulation prohibiting the transfer of spiny dogfish limited entry fishery permits appears to exceed the Commission's authority as it imposes a restriction on the rights of permit holders that is not clearly supported by the statutory language regarding conservation and management. The legal significance of this relationship is that the regulation may be challenged as exceeding the scope of the Commission's statutory authority, potentially undermining the legitimacy of the regulation itself.

Provision 5

"D. The use of agents in the spiny dogfish fishery is prohibited."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation prohibiting the use of agents in the spiny dogfish fishery, as it aligns with the Commission's responsibility to ensure sustainable practices and resource management within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thus facilitating effective management of marine resources.

Provision 6

"E. The commissioner or his designee may grant exceptions to the prohibition agai..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of marine resources, manage specific fisheries, and ensure the welfare of the seafood industry. The regulation allowing exceptions to the prohibition against transfers of the spiny dogfish limited entry fishery permit appears to exceed the statutory authorization because it introduces a subjective criterion of "significant hardship," which is not explicitly mentioned or supported by the statute's focus on conservation and management. The legal significance of this relationship is that the regulation may undermine the statutory framework by allowing flexibility that could lead to mismanagement of resources, thus straying from the clear intent of the statute to maintain strict regulatory oversight.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"2. Demonstrates a significant hardship on the basis of a call to active military..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad grant of authority encompasses the regulation regarding significant hardship due to active military duty, as it aligns with the Commission's responsibility to ensure equitable management and support for resource users, including those affected by military obligations. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific circumstances impacting resource users, thereby fulfilling its mandate to promote the general welfare of the seafood industry while ensuring fair treatment of all stakeholders.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"3. Documents the retirement or death of the immediate family member permitted fo..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically states that the Commission may adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote seafood and marine resources, but it does not explicitly grant authority to regulate the retirement or death of immediate family members in relation to the spiny dogfish limited entry fishery. The regulation appears to exceed the statute's authorization because it addresses personal circumstances unrelated to the conservation or management of marine resources, which is outside the scope of the Commission's stated powers. The legal significance of this relationship is that the regulation may lack the necessary statutory foundation, potentially rendering it invalid if challenged, as it does not align with the specific regulatory authority granted by the statute.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

When it has been projected and announced by the Marine Resources Commission that 80% of the Virginia spiny dogfish quota has been landed, each Virginia seafood buyer shall call the Marine Resources Commission's interactive voice recording system on a daily basis to report the exact weight of spiny dogfish received or purchased, in pounds, until it is projected and announced that the Virginia spiny dogfish quota has been landed and the fishery closed.¹

Provision-Level Authorization Analysis

Provision 1

"When it has been projected and announced by the Marine Resources Commission that..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring seafood buyers to report the weight of spiny dogfish, as it directly relates to the management and conservation of marine resources, which is within the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource management without exceeding its delegated powers, ensuring compliance with the overarching goals of conservation and industry welfare.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

The Marine Resources Commission hereby establishes April 30, 2011, as the control date for management of all spiny dogfish licenses and fisheries in Virginia.¹ The harvest of any spiny dogfish or the participation by any individual in any spiny dogfish fishery after the control date will not be considered in the calculation of spiny dogfish rights should further entry limitations be established.² Any individual entering the spiny dogfish fishery after the control date may forfeit any right to future participation in the spiny dogfish fishery should further entry limitation be established.³

Provision-Level Authorization Analysis

Provision 1

"The Marine Resources Commission hereby establishes April 30, 2011, as the contro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad language encompasses the regulation concerning the control date for spiny dogfish licenses and fisheries, as it falls within the Commission's mandate to manage and regulate fisheries effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for resource management without requiring further legislative approval, thereby ensuring timely and effective regulation in response to changing conditions in the seafood industry.

Provision 2

"The harvest of any spiny dogfish or the participation by any individual in any s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning spiny dogfish, as it relates directly to the management and conservation of fisheries, allowing the Commission to implement measures that address entry limitations and rights calculations in the fishery. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are essential for effective resource management, ensuring the sustainability of the seafood industry within the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"Any individual entering the spiny dogfish fishery after the control date may for..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations for the taking of seafood, manage Atlantic menhaden, and establish regulations for the conservation and reasonable use of surf clams, but does not mention spiny dogfish or the authority to impose forfeiture of rights for future participation in any fishery. The regulation's provision that individuals entering the spiny dogfish fishery after a control date may forfeit rights to future participation exceeds the Commission's explicit authority as outlined in the statute, which does not include spiny dogfish or address entry limitations in this manner. The legal significance of this relationship is that without explicit statutory authority for the regulation concerning spiny dogfish, the regulation is deemed unauthorized and cannot be enforced.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

A. During each calendar year, total allowable commercial landings of smooth dogfish shall be limited to a quota in dressed weight calculated pursuant to the Interstate Coastal Sharks Fishery Management Plan.¹ B. It shall be unlawful for any person to take, harvest, or possess aboard any vessel or to land in Virginia any smooth dogfish harvested from federal waters once the National Oceanic and Atmospheric Administration (NOAA) Fisheries has determined and announced that 80% of the smooth dogfish coastwide quota has been harvested.² C. It shall be unlawful for any person to harvest or to land in Virginia any smooth dogfish for commercial purposes after the quota specified in subsection A of this section has been landed and announced as such.³ D. Any smooth dogfish harvested from state waters or federal waters for commercial purposes shall only be sold to a federally permitted dealer.⁴ E. It shall be unlawful for any buyer of seafood to receive any smooth dogfish harvested from federal waters once NOAA Fisheries has determined and announced that 80% of the smooth dogfish coastwide quota has been harvested.⁵ F. It shall be unlawful for any buyer of seafood to receive any smooth dogfish after the commercial quota specified in subsection A of this section has been attained and announced as such.⁶

Provision-Level Authorization Analysis

Provision 1

"A. During each calendar year, total allowable commercial landings of smooth dogf..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation on smooth dogfish by allowing the Commission to set quotas that align with the goals of conservation and management of marine resources as outlined in the statute. The legal significance of this authorization relationship is that it provides the Commission with the flexibility to implement specific management measures, such as quotas, to ensure sustainable use of fishery resources while adhering to the overarching objectives of the statute.

Provision 2

"B. It shall be unlawful for any person to take, harvest, or possess aboard any v..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the authority to regulate the taking of species based solely on federal determinations. The regulation that makes it unlawful to take or possess smooth dogfish harvested from federal waters once NOAA Fisheries announces an 80% threshold appears to exceed the Commission's authority, as it relies on a federal determination rather than a state-specific conservation need or management plan as outlined in the statute. The legal significance of this relationship is that the regulation may impose restrictions beyond what the statute authorizes, potentially infringing on the Commission's defined powers and the rights of resource users without a clear statutory basis.

Provision 3

"C. It shall be unlawful for any person to harvest or to land in Virginia any smo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden and surf clams. This broad grant of authority encompasses the regulation prohibiting the harvesting of smooth dogfish after a specified quota has been reached, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to ensure sustainable fishing practices and protect marine ecosystems within the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any smooth dogfish harvested from state waters or federal waters for commerci..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring that smooth dogfish harvested for commercial purposes be sold only to federally permitted dealers, as it aligns with the Commission's responsibility to regulate the seafood industry and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to manage and conserve marine resources effectively, reflecting the intent of the statute to support the seafood industry while ensuring resource sustainability.

Provision 5

"E. It shall be unlawful for any buyer of seafood to receive any smooth dogfish h..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly empower the Commission to regulate the actions of seafood buyers based on federal quota determinations. The regulation's prohibition on buyers receiving smooth dogfish harvested from federal waters once a federal quota is met appears to exceed the Commission's authority, as it imposes restrictions on buyers rather than focusing on the conservation and management of the resource itself, which is the intent of the statute. The legal significance of this relationship is that the regulation may not align with the specific powers granted by the statute, potentially undermining the statutory framework intended to govern the management of seafood resources.

Provision 6

"F. It shall be unlawful for any buyer of seafood to receive any smooth dogfish a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows the Commission to regulate the receipt of smooth dogfish by buyers once the commercial quota is reached, as it directly relates to the conservation of marine resources and the management of seafood quotas. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to ensure sustainable practices within the seafood industry, thereby fulfilling its statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to engage in finning.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to engage in finning."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species and the promotion of the seafood industry. This broad language encompasses the regulation against finning, as it aligns with the Commission's mandate to conserve marine resources and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for resource conservation without requiring additional specific legislative approval, thereby facilitating effective management of marine resources.

Pertaining to Sharks

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of penalties for violations. This results in GENERAL_DELEGATION because the statute's language allows the Commission to implement regulations that encompass enforcement mechanisms, such as penalties for violations, which are essential for promoting the welfare of the seafood industry and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and regulate marine resources while providing a framework for enforcing compliance through established penalties.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to provide for appropriate conservation of eels, to reduce the possibility of growth overfishing, and to prevent waste of small eels.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to provide for appropriate conservation of eels, ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes the promotion of the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning the conservation of eels, as it aligns with the statute's intent to manage and conserve marine resources effectively, thereby justifying the GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission the flexibility to implement regulations that address specific conservation needs while remaining within the overarching framework established by the statute.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise. "Eel" or "eels," as described in this chapter, means the eel species Anguilla rostrata.¹ "Elver" means any eel of less than six inches in total length.² "Land" or "landing" means to enter port with eels on board any boat or vessel, to begin offloading eels, or to offload eels.³ "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.⁴ "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.⁵

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority allows the Commission to define terms related to marine species, such as "eel," which is essential for effective management and regulation of the resource. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that facilitate the sustainable use and conservation of marine resources, ensuring that the definitions and management practices align with the overarching goals set forth in the statute.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Elver" means any eel of less than six inches in total length."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of various species. This broad grant of authority allows the Commission to define terms such as "Elver," which is essential for the regulation of eel populations and aligns with the overall goal of conserving marine resources. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching statutory objectives without requiring additional legislative approval for each specific regulation.

Provision 3

""Land" or "landing" means to enter port with eels on board any boat or vessel, t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation defining "land" or "landing" as it relates to the management and conservation of eels, ensuring that the Commission can regulate the handling of this resource in a manner that aligns with its overarching goals. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures without needing further specific legislative approval, thereby facilitating effective resource management.

Provision 4

""Snout" means the most forward projection from a fish's head that includes the u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad language encompasses the regulation defining "snout," as it relates to the management and understanding of fish species, which is essential for effective regulation and conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without requiring further legislative approval.

Provision 5

""Total length" means the length of a fish measured from the most forward project..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows for the establishment of detailed definitions and measurements, such as the regulation defining "total length" of fish, which is essential for effective management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that support the overarching goals of resource management and industry welfare without needing further legislative approval.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"Code of Virginia."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including specific provisions for conservation and reasonable use of resources. This broad grant of authority allows for GENERAL_DELEGATION because it encompasses a wide range of regulatory actions that the Commission may take to fulfill its mandate, including those that are necessary for the effective management of various seafood species and their habitats. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of marine resources, ensuring that the interests of the seafood industry and conservation efforts are balanced.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any individual to take, catch, possess, or land any eels less than nine inches in total length.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any individual to take, catch, possess, or land any eel..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not explicitly mention eels or establish a minimum size limit for their catch. The regulation's prohibition on taking eels less than nine inches in total length appears to exceed the Commission's authority as outlined in the statute, which does not provide a clear mandate for regulating eels in this manner. The legal significance of this relationship is that the regulation may lack a statutory basis, potentially rendering it invalid due to overstepping the defined limits of the Commission's regulatory powers.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any individual to possess elvers; provided however, that elvers may be taken (i) for research only by duly appointed representatives of any institution of higher education in Virginia and by other parties when specifically authorized in writing by the Commissioner of Marine Resources or (ii) by those individuals who are approved for a permit for eel aquaculture by the commission.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any individual to possess elvers; provided however, tha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the regulation prohibiting the possession of elvers, while permitting exceptions for research, to fall under GENERAL_DELEGATION as it aligns with the Commission's responsibility to conserve marine resources and manage fisheries effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of marine species, ensuring that the regulation is consistent with the statutory mandate.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any individual to harvest, take, catch, possess, or land any eels from September 1 through December 31 from any commercial gear, except from pots and traps.¹ B. It shall be unlawful for any individual legally licensed as a commercial seafood buyer to purchase or receive any quantity of eel landed in Virginia by any legally licensed harvester without first obtaining an Eel Buyer Permit from the commission.² C. It shall be unlawful for any individual to self-market any eels to any person or business unless that individual possesses a current eel self-market permit obtained from the commission.³ D. It shall be unlawful for any eel self-market permittee to fail to report daily landing records of eels to the commission. These reports shall be completed in full and submitted monthly to the Marine Resources Commission no later than the fifth day of the following month.⁴ E. It shall be unlawful for any eel buyer permittee permitted to purchase or receive eels landed in Virginia to fail to provide written reports to the Marine Resources Commission of daily purchases and harvest information on forms provided by the commission. Each eel buyer permittee will provide the commission the date of purchase, the harvester's Commercial Fisherman Registration License number, weight of eels purchased, and gear type. These reports shall be completed in full and submitted monthly to the Marine Resources Commission no later than the fifth day of the following month.⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any individual to harvest, take, catch, possess, or ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting the harvest of eels during certain months, as it aligns with the Commission's responsibility to conserve marine resources and manage fisheries sustainably. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating timely and effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any individual legally licensed as a commercial seaf..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention eels or provide authority for regulating eel buyers. The regulation requiring an Eel Buyer Permit for purchasing eel is unauthorized because the statute does not include eels within the scope of the Commission's regulatory powers, thereby lacking the necessary statutory basis for such a requirement. The legal significance of this relationship is that without explicit statutory authority, the regulation cannot be enforced, undermining the legitimacy of the Commission's actions regarding eel management.

Provision 3

"C. It shall be unlawful for any individual to self-market any eels to any person..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the management of specific species. This broad grant of authority encompasses the regulation regarding eel self-marketing permits, as it falls within the Commission's responsibility to regulate the reasonable use and conservation of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to manage and protect marine resources effectively, ensuring compliance and promoting sustainable practices within the seafood industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any eel self-market permittee to fail to report dail..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

"A. It shall be unlawful for any individual fishing with recreational hook and l..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention eels or set limits on recreational fishing for them. The regulation imposing a daily limit of 25 eels for recreational fishing appears to exceed the statute's authorization because the statute does not provide clear authority for the Commission to regulate eels in this manner, especially without a stated need for conservation or management of eels in the text. The legal significance of this relationship is that regulations must be grounded in the specific authority granted by the statute; exceeding that authority can lead to challenges regarding the validity and enforceability of the regulation.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any captain or mate of any legally licensed charter ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing possession limits. This broad grant of authority encompasses the regulation regarding the possession limit of eels by charter and head boat operators, as it directly relates to the conservation and management of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices in the seafood industry, thereby promoting the general welfare of the industry and the conservation of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Possession of any quantity of eel that exceeds the possession limit describe..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including provisions for managing specific species such as eel. The regulation regarding the possession limit for eel aligns with the statute's broad mandate to promote the welfare of the seafood industry and manage resources effectively, thereby justifying a GENERAL_DELEGATION of authority. This authorization relationship signifies that the Commission has the discretion to implement regulations that support resource management and conservation efforts without needing further legislative approval for each specific regulation.

Pertaining to the Catching of Eels

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any individual violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same individual within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any individual violating any..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species. This broad grant of authority allows the Commission to establish regulations that include penalties for violations, as outlined in the regulation, thereby promoting the general welfare of the seafood industry and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations through penalties, which are essential for effective management and protection of marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to control the harvest, protect the spawning stocks, minimize the possibility of recruitment failure and increase yield in the amberjack and cobia fisheries.¹ The provisions pertaining to aquaculture serve to prevent cobia raised in an aquaculture facility from being placed into Virginia waters and to minimize the impact of cultured fish in the market place on the enforcement of other provisions of this chapter.²

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to control the harvest, protect the spawning stoc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific fisheries. This broad grant of authority encompasses the regulation aimed at controlling the harvest and protecting spawning stocks in the amberjack and cobia fisheries, as it aligns with the statute's intent to ensure sustainable use and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, ensuring flexibility in managing fisheries while adhering to the overarching goals established by the statute.

Provision 2

"The provisions pertaining to aquaculture serve to prevent cobia raised in an aqu..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including provisions for managing specific species. This broad grant of authority encompasses the regulation regarding aquaculture, as it is aimed at preventing negative impacts on Virginia waters and ensuring the sustainable management of seafood resources, aligning with the Commission's mandate to promote conservation and reasonable use. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address emerging issues in the seafood industry while maintaining the overarching goals of resource conservation and industry welfare.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

The following terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise: "Amberjack" means any fish of the species Seriola dumerili. "Cobia" means any fish of the species Rachycentron canadum. "Mandatory Harvest Reporting Program Web Application" means the online web-based resource provided by the commission to report commercial harvest of seafood at https://webapps.mrc.virginia.gov/harvest/ . "Recreational vessel" means any vessel, kayak, charter vessel, or headboat fishing recreationally. "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw. "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.¹

Provision-Level Authorization Analysis

Provision 1

"The following terms when used in this chapter shall have the following meanings ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation, as it provides definitions and frameworks essential for effective management and conservation efforts within the seafood industry, aligning with the Commission's responsibilities under the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing recreationally to possess more than one cobia at any time. When fishing from any recreational vessel where the entire catch is held in a common hold or container, the possession limit for the recreational vessel shall be equal to the number of persons on board legally eligible to fish multiplied by one, except there is a maximum recreational vessel limit of two cobia per recreational vessel per day. The captain or operator of the recreational vessel shall be responsible for any recreational vessel possession limit. Any cobia caught after the possession limit has been reached shall be returned to the water immediately.¹ B. It shall be unlawful for any person fishing recreationally to harvest or possess any cobia before June 15 or after September 20 of the current calendar year.² C. It shall be unlawful for any person fishing recreationally to possess more than two amberjack at any time. When fishing from any recreational vessel where the entire catch is held in a common hold or container, the possession limit for the recreational vessel shall be equal to the number of persons on board legally eligible to fish multiplied by two. The captain or operator of the recreational vessel shall be responsible for any recreational vessel possession limit. Any amberjack caught after the possession limit has been reached shall be returned to the water immediately.³ D. It shall be unlawful for any person fishing recreationally to gaff or attempt to gaff any cobia.⁴

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing recreationally to possess more th..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention cobia or impose specific possession limits for recreational fishing. The regulation's prohibition on possessing more than one cobia at any time appears to exceed the statute's authorization, as it establishes a specific limit that is not directly supported by the statutory language regarding the management of seafood resources. The legal significance of this relationship is that the regulation may be seen as overstepping the bounds of the authority granted by the statute, potentially undermining the intended flexibility and discretion provided to the Commission in managing seafood resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing recreationally to harvest or poss..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention cobia or provide authority for regulating its harvest. The regulation that makes it unlawful to harvest or possess cobia outside the specified dates does not align with the statutory language, as the statute does not authorize the Commission to regulate cobia fishing seasons. The legal significance of this relationship is that without explicit statutory authority for cobia, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Provision 3

"C. It shall be unlawful for any person fishing recreationally to possess more th..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing certain species like Atlantic menhaden, but does not explicitly mention amberjack or impose specific possession limits for recreational fishing. The regulation's imposition of a strict possession limit of two amberjack per person may exceed the statutory authorization, as it does not directly relate to the conservation or management of resources explicitly mentioned in the statute, nor does it appear to be necessary for the general welfare of the seafood industry as outlined. The legal significance of this relationship is that regulations must align with the specific powers granted by the statute, and exceeding those powers can lead to challenges regarding the validity and enforceability of the regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person fishing recreationally to gaff or attempt..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement regulations like the prohibition on gaffing cobia, as it directly relates to the conservation and management of marine species within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to create specific rules that support the overarching goals of resource conservation and sustainable use, ensuring effective management of the seafood industry.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing commercially to possess more than two cobia at any time. When fishing from any vessel where the entire catch is held in a common hold or container, the possession limit for the vessel shall be equal to the number of valid commercial fisherman registration licensees on board multiplied by two, except there is a maximum vessel limit of six cobia per vessel per day. The captain or operator of the vessel shall be responsible for any vessel possession limit. Any cobia caught after the possession limit has been reached shall be returned to the water immediately.¹ B. Any commercial harvest of cobia shall only be reported through the Mandatory Harvest Reporting Program Web Application. Such reports shall record daily harvests from Sunday through Saturday and be submitted on a weekly basis no later than Wednesday of the following week in accordance with 4VAC20-610 .² C. It shall be unlawful for any person to take, harvest, land, or possess any cobia for commercial purposes once it has been announced by the commission that the commercial quota has been landed for the current calendar year.³ D. It shall be unlawful for any person fishing commercially to possess more than two amberjack at any time. When fishing from any vessel where the entire catch is held in a common hold or container, the possession limit for the vessel shall be equal to the number of valid commercial fisherman registration licensees on board multiplied by two. The captain or operator of the vessel shall be responsible for any vessel possession limit. Any amberjack caught after the possession limit has been reached shall be returned to the water immediately.⁴ E. The possession of amberjack or cobia by licensed seafood buyers or wholesale and retail seafood establishments when operating in their capacity as buyer, wholesaler, or retailer shall not be limited by the possession limits described in this section.⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing commercially to possess more than..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation limiting the possession of cobia, as it directly relates to the conservation of marine resources and the management of commercial fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable fishing practices without needing further specific legislative approval, thereby ensuring effective resource management.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. Any commercial harvest of cobia shall only be reported through the Mandatory ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the regulation requiring commercial harvest reporting of cobia to fall under GENERAL_DELEGATION, as it is necessary for effective management and conservation of the species within the seafood industry framework. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulatory measures that support the overarching goals of resource conservation and industry welfare without needing further legislative approval.

Provision 3

"C. It shall be unlawful for any person to take, harvest, land, or possess any co..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations such as the prohibition on taking, harvesting, landing, or possessing cobia once the commercial quota has been reached, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to regulate fishing practices in a manner that ensures sustainability and compliance with established quotas, thereby supporting the overall health of the seafood industry and marine ecosystems.

Provision 4

"D. It shall be unlawful for any person fishing commercially to possess more than..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of specific species. This broad language encompasses the regulation that limits the possession of amberjack, as it directly relates to the conservation and management of marine resources, ensuring sustainable fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. The possession of amberjack or cobia by licensed seafood buyers or wholesale ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority allows the regulation concerning the possession of amberjack or cobia by licensed seafood buyers or establishments to fall under GENERAL_DELEGATION, as it directly relates to the management and reasonable use of seafood resources without imposing specific possession limits. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible regulations that adapt to the needs of the seafood industry while ensuring the conservation of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, or have in possession any amberjack less than 32 inches in total length.¹ B. It shall be unlawful for any person fishing commercially to take, harvest, or possess any cobia less than 37 inches in total length.² C. It shall be unlawful for any person to take, catch, or have in possession any recreationally harvested cobia less than 43 inches in total length.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, or have in possession any..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the taking of amberjack less than 32 inches in total length, as it aligns with the Commission's responsibility to manage and conserve fish species within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement necessary conservation measures without requiring specific legislative approval for each regulation, thereby facilitating effective resource management.

Provision 2

"B. It shall be unlawful for any person fishing commercially to take, harvest, or..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including regulations for taking seafood to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation that prohibits the taking, harvesting, or possession of cobia less than 37 inches, as it directly relates to the conservation of marine resources and the management of fishery stocks. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for ensuring sustainable fishing practices and protecting the marine ecosystem, without requiring additional legislative approval for each specific regulation.

Provision 3

"C. It shall be unlawful for any person to take, catch, or have in possession any..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the possession of recreationally harvested cobia less than 43 inches, as it aligns with the Commission's responsibility to manage and conserve fish populations for sustainable use. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring effective management of marine resources while adhering to the statutory mandate.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

Aquaculture of cobia; permit required.¹ It shall be unlawful for any person to operate a cobia aquaculture facility without first obtaining a permit from the Marine Resources Commission (commission).² This permit shall authorize and define the limits of activities concerning the purchase, possession, sale, giving, receiving, and transportation of aquacultured cobia.³ Any person in violation of any permit condition issued under this section may have the permit revoked at any time upon review by the commission.⁴ If the commission revokes any person's permit for an aquaculture facility, that person shall not be eligible to apply for a like permit for a period of two years from the date of revocation.⁵

Provision-Level Authorization Analysis

Provision 1

"Aquaculture of cobia; permit required."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad language encompasses the regulation concerning the aquaculture of cobia, as it aligns with the Commission's mandate to manage and promote the sustainable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations like the permit requirement for cobia aquaculture, ensuring effective management and conservation of marine resources under its jurisdiction.

Provision 2

"It shall be unlawful for any person to operate a cobia aquaculture facility with..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of certain seafood resources, but it does not explicitly mention aquaculture or the requirement for permits for operating aquaculture facilities. The regulation requiring a permit for operating a cobia aquaculture facility appears to exceed the Commission's authority as it extends beyond the scope of managing and conserving existing marine resources to regulating a specific industry activity not explicitly authorized by the statute. The legal significance of this relationship is that the regulation may be challenged as lacking a clear statutory basis, potentially undermining the legitimacy of the Commission's authority to impose such a requirement.

Provision 3

"This permit shall authorize and define the limits of activities concerning the p..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning aquacultured cobia, as it falls within the Commission's mandate to regulate activities related to the possession, sale, and transportation of seafood to ensure sustainable practices. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the effective management and conservation of marine resources, thereby supporting the overall objectives outlined in the statute.

Provision 4

"Any person in violation of any permit condition issued under this section may ha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry, conserve marine resources, and manage specific species such as Atlantic menhaden. This broad grant of authority allows the Commission to establish regulations, such as the revocation of permits for violations, as a necessary measure to ensure compliance and effective management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to enforce regulations that are essential for the sustainability and regulation of the seafood industry, thereby supporting the overarching goals outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"If the commission revokes any person's permit for an aquaculture facility, that ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of resources. This broad grant of authority encompasses the regulation regarding the revocation of permits for aquaculture facilities, as it aligns with the Commission's responsibility to ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to regulate permit eligibility, thereby supporting the overarching goals of resource conservation and management within its jurisdiction.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Amberjack and Cobia

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation establishes penalties for violations of the Commission's regulations, which directly aligns with the statute's mandate to promote the general welfare of the seafood industry and manage resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, thereby ensuring the sustainability and responsible management of marine resources within its jurisdiction.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

In the past there have been numerous incidents of patent tongs used by clam fisherman disrupting electrical service to the George P.¹ Coleman Memorial Bridge by severing or damaging submerged electrical cabling adjacent to the bridge.² The purpose of this chapter is to prohibit damage to the bridge cables and fishermen and their gear and thereby maintain the general public welfare and safety in the seafood industry.³

Provision-Level Authorization Analysis

Provision 1

"In the past there have been numerous incidents of patent tongs used by clam fish..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation addressing the use of patent tongs by clam fishermen, as it relates to the conservation of resources and the prevention of disruptions to essential services, thereby promoting the general welfare. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific issues within the seafood industry while ensuring the sustainability and management of marine resources.

Provision 2

"Coleman Memorial Bridge by severing or damaging submerged electrical cabling adj..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations related to the seafood industry, conservation of marine resources, management of surf clams, and the exclusive management of Atlantic menhaden. The regulation regarding the Coleman Memorial Bridge and the severing or damaging of submerged electrical cabling does not pertain to the conservation or management of seafood or marine resources as outlined in the statute, thus falling outside the scope of the Commission's authority. The legal significance of this relationship is that regulations must be grounded in the specific powers granted by the statute, and since this regulation does not align with the statutory provisions, it is deemed unauthorized.

Provision 3

"The purpose of this chapter is to prohibit damage to the bridge cables and fishe..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation's aim to prohibit damage to bridge cables and protect fishermen and their gear, as it directly relates to maintaining public welfare and safety within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to safeguard both the industry and its resources without requiring further specific legislative approval, thereby facilitating effective management and oversight.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to operate a patent tong under any portion of the George P. Coleman Memorial Bridge.¹ B. It shall be unlawful for any person to operate a patent tong within 300 feet of the eastern or downstream side of the George P. Coleman Memorial Bridge.² C. It shall be unlawful for any person to operate a patent tong on the western or upstream side of the George P. Coleman Memorial Bridge within a 400 foot radius of the two center caissons, numbered 1S and 1N.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to operate a patent tong under any portio..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to regulate activities, such as the operation of patent tongs under the George P. Coleman Memorial Bridge, to ensure the sustainable use of marine resources and protect the interests of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating effective management of marine resources.

Provision 2

"B. It shall be unlawful for any person to operate a patent tong within 300 feet ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad language allows the Commission to establish regulations that ensure the sustainable use of marine resources, such as the prohibition of operating a patent tong near the George P. Coleman Memorial Bridge, which is essential for protecting the marine environment and promoting public safety. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations under a GENERAL_DELEGATION framework, ensuring effective management of the Commonwealth's marine resources while maintaining flexibility to address specific conservation needs.

Provision 3

"C. It shall be unlawful for any person to operate a patent tong on the western o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad language encompasses the regulation prohibiting the operation of patent tongs in a specified area, as it is aimed at managing and conserving marine resources in a way that promotes the general welfare of the seafood industry. The legal significance of this relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring effective management and protection of marine resources within its jurisdiction.

Pertaining to the Use of Patent Tongs

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the establishment of regulations for managing specific species and ensuring compliance within the industry. This results in GENERAL_DELEGATION because the regulation addresses violations of the established regulations, thereby supporting the Commission's overarching goal of resource management and conservation as outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, thus ensuring the effective management and sustainability of the seafood resources in the Commonwealth.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to American Shad

Express

General

Overreach

Unauthorized

Requirements

The purposes of this chapter are to rebuild the Virginia stocks of American Shad and to comply with the requirements for ocean intercept commercial fisheries as specified by the Interstate Fishery Management Plan for Shad and River Herring.¹

Provision-Level Authorization Analysis

Provision 1

"The purposes of this chapter are to rebuild the Virginia stocks of American Shad..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing species such as surf clams and Atlantic menhaden. The regulation aims to rebuild Virginia stocks of American Shad and comply with interstate management plans, which aligns with the Commission's broad mandate to manage and conserve marine resources effectively. This relationship signifies that the regulation falls within the general authority granted by the statute, allowing for flexibility in addressing the conservation and management needs of various seafood species without requiring specific legislative approval for each regulatory action.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to American Shad

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise.¹ "Bycatch area" means those tidal waters of (i) the James River, from the James River Bridge upstream to a line connecting Dancing Point and New Sunken Meadow Creek; (ii) the York River, from the George P. Coleman Bridge upstream to the Rt. 33 Eltham and Lord Delaware bridges at West Point; and (iii) the Rappahannock River, from the Norris Bridge upstream to the Rt. 360 Downing Bridge at Tappahannock.² "Chesapeake Bay" means all Virginia tidal waters west of the Colregs Demarcation Line that connect the Cape Henry Lighthouse in Virginia Beach to the Cape Charles Lighthouse on Smith Island.³ "Coastal area" means all Virginia tidal waters east of the Colregs Demarcation Line that connect the Cape Henry Lighthouse in Virginia Beach to the Cape Charles Lighthouse on Smith Island.⁴

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including establishing definitions relevant to these regulations. This broad grant of authority encompasses the regulation as it allows the Commission to define terms that are essential for the effective implementation and understanding of its regulatory framework, thereby facilitating the overall management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to create foundational definitions that support its regulatory objectives, ensuring clarity and consistency in the application of its regulations.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Bycatch area" means those tidal waters of (i) the James River, from the James R..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to define "bycatch areas" as part of its regulatory framework to manage and conserve the fisheries effectively, thereby aligning with the statute's intent to ensure sustainable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement specific regulations that support the overarching goals of resource conservation and industry welfare without requiring further legislative approval for each regulation.

Provision 3

""Chesapeake Bay" means all Virginia tidal waters west of the Colregs Demarcation..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of definitions relevant to those regulations. This broad grant of authority allows the Commission to define terms such as "Chesapeake Bay," which is essential for the effective management and conservation of the resources within that area, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create regulations that are essential for the implementation of its statutory responsibilities without needing further specific legislative approval for each regulation.

Provision 4

""Coastal area" means all Virginia tidal waters east of the Colregs Demarcation L..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants authority to the agency to define certain terms related to tidal waters but does not explicitly authorize the agency to delineate the boundaries of "coastal area" as defined in the regulation. The regulation's definition of "coastal area" extends beyond the scope of the statutory language, which does not provide a clear mandate for such a specific geographic delineation. The legal significance of this relationship is that without explicit statutory authority, the regulation lacks legitimacy and cannot be enforced, as it exceeds the bounds of what the statute permits.

Pertaining to American Shad

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to catch and retain possession of American shad from the Chesapeake Bay, except as described in 4VAC20-530-31 .¹ B. It shall be unlawful for any person to possess aboard a vessel or land in Virginia any American shad harvested from the coastal area.² C. It shall be unlawful for any person to possess any American shad taken from the coastal area or the Chesapeake Bay, except as described in 4VAC20-530-31 .³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to catch and retain possession of America..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and fishery resources. This broad grant of authority encompasses the regulation prohibiting the catch and retention of American shad from the Chesapeake Bay, as it aligns with the Commission's mandate to promote the general welfare of the seafood industry and conserve marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to possess aboard a vessel or land in Vir..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the possession of American shad, as it is aimed at conserving a specific fish species within the coastal area, thereby promoting the overall health of the marine ecosystem. The legal significance of this relationship is that it allows the Commission to implement necessary conservation measures without requiring further specific legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to possess any American shad taken from t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation prohibiting the possession of American shad, as it is a measure aimed at conserving a specific marine resource and ensuring sustainable practices within the coastal area and Chesapeake Bay. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further legislative approval, thereby facilitating timely and responsive governance.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to American Shad

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, possess, or land any American shad in Virginia without first having obtained an American shad bycatch permit from the Marine Resources Commission. Permits shall be issued only to Virginia registered commercial fishermen meeting any of the following criteria: 1. The fisherman shall have held an American shad bycatch permit in at least one of the three previous calendar years and complied with all reporting requirements. In addition, that fisherman shall have submitted an American shad bycatch permit application to the Marine Resources Commission by March 15 for the 2013 fishing season, but no later than February 5 in subsequent years.¹ 2. Any registered commercial fisherman not otherwise qualified under subdivision 1 of this subsection shall be eligible for an American shad bycatch permit if that fisherman submits an American shad bycatch permit application and the number of eligible American shad bycatch permitees as of March 15, 2013, or February 5 in subsequent years, is less than 30.² 3. Should the number of American shad bycatch permit applications not exceed 30 as of March 15, 2013, or February 5 in subsequent years, the available permits not issued per subdivision 1 of this subsection may be issued until a maximum of 30 American shad bycatch permits are issued.³ 4. Should the number of American shad bycatch permit applications exceed 30 as of March 15, 2013, or February 5 in subsequent years, a lottery will be held for available permits not issued per subdivision 1 of this subsection.⁴ B. The permittee shall keep a copy of that permit in his possession while fishing for or selling American shad.⁵ C. It shall be unlawful for any person to possess aboard a vessel more than 10 American shad. When more than one registered and permitted fisherman is fishing on the same vessel, it shall be unlawful to possess more than 10 American shad aboard that vessel.⁶ D. It shall be unlawful for any person to possess aboard a vessel or land any American shad unless that person possesses at least an equal number of fish of only the following food-grade species: spot, croaker, bluefish, catfish, striped bass or white perch.⁷ E. Possession of American shad by any person permitted in accordance with this section shall be lawful only when those American shad were harvested from the bycatch area. Possession of any American shad harvested in Virginia waters that are outside of the bycatch area shall constitute a violation of this regulation.⁸ F. American shad harvested only as bycatch by anchored gill nets and staked gill nets may be possessed or retained for sale in accordance with the provisions of this regulation. It shall be unlawful for any person to harvest, land, or possess any American shad taken by any recreational gear or by any commercial gear, except anchored gill net or staked gill net. G Every fisherman permitted for the American shad bycatch fishery shall contact the commission's interactive voice response system, every Monday, to report the following for the preceding weekly period: name, registration number, number of fishing trips taken, water body fished, number of nets set, number of American shad caught, and number retained.⁹

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, possess, or land any Amer..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring an American shad bycatch permit, as it directly relates to the Commission's responsibility to manage and conserve marine resources while ensuring sustainable practices among commercial fishermen. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to protect the species and manage fisheries effectively, thereby fulfilling its statutory mandate without exceeding its delegated powers.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Any registered commercial fisherman not otherwise qualified under subdivision..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to create regulations such as the American shad bycatch permit, as it falls within the scope of managing fisheries and ensuring sustainable practices in the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures to balance resource conservation with the interests of commercial fishermen, thereby supporting both ecological and economic objectives.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. Should the number of American shad bycatch permit applications not exceed 30 ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention American shad or bycatch permits. The regulation's stipulation regarding the issuance of American shad bycatch permits appears to exceed the Commission's authority as defined in the statute, which does not provide a clear mandate for managing bycatch permits for this species. The legal significance of this relationship is that the regulation may be invalidated if it is determined to exceed the scope of authority granted by the statute, potentially undermining the regulatory framework established for the seafood industry.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"4. Should the number of American shad bycatch permit applications exceed 30 as o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning the lottery for American shad bycatch permits, as it directly relates to managing the allocation of permits to ensure sustainable use of the resource. The legal significance of this authorization relationship is that it allows the Commission the flexibility to implement necessary regulatory measures to address resource management challenges without requiring further legislative approval, thereby facilitating timely and effective conservation efforts.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"B. The permittee shall keep a copy of that permit in his possession while fishin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like American shad. This results in GENERAL_DELEGATION because the regulation requiring permit holders to keep a copy of their permit while fishing or selling American shad directly supports the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement practical measures that ensure compliance and oversight in the fishing industry, thereby promoting the overall welfare of the seafood industry as intended by the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"C. It shall be unlawful for any person to possess aboard a vessel more than 10 A..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the management of specific species. This broad grant of authority encompasses the regulation limiting the possession of American shad aboard a vessel, as it directly relates to the conservation and reasonable use of marine resources, which is a key focus of the statute. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of fish populations, thereby ensuring the long-term health of the seafood industry and marine ecosystems.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"D. It shall be unlawful for any person to possess aboard a vessel or land any Am..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention American shad or impose conditions on possession based on the quantity of other species. The regulation requiring possession of an equal number of food-grade species to American shad appears to exceed the Commission's authority as it imposes an additional condition not supported by the statutory language, which focuses on conservation and management rather than possession requirements tied to other species. The legal significance of this relationship is that the regulation may be deemed invalid if it is found to exceed the scope of the authority granted by the statute, potentially undermining the regulatory framework established for the seafood industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"E. Possession of American shad by any person permitted in accordance with this s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as American shad. The regulation concerning the lawful possession of American shad harvested from designated areas aligns with the statute's broad mandate to promote the general welfare of the seafood industry and ensure sustainable resource management, thereby justifying a GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to implement regulations that are essential for effective resource management without requiring further legislative approval for each specific regulation.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"F. American shad harvested only as bycatch by anchored gill nets and staked gill..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation regarding American shad by allowing the Commission to establish rules that manage the harvesting and possession of seafood species, particularly in the context of bycatch and conservation efforts. The legal significance of this authorization relationship is that it enables the Commission to implement flexible management strategies that align with its overarching mandate to conserve marine resources while supporting the seafood industry.

Requirements Analysis

5 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to American Shad

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries and specific species. This broad grant of authority encompasses the regulation regarding penalties for violations, as it is necessary for enforcing compliance and promoting the general welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms to uphold the regulations, thereby ensuring effective management and conservation of marine resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to prevent the overfishing of the Spanish mackerel and king mackerel stocks found in Virginia waters and along the Atlantic Coast.¹ This chapter supports the goals and objectives of federal and interstate management measures for Spanish and king mackerel.²

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to prevent the overfishing of the Spanish mackere..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans that must align with established standards for fishery conservation and management. This broad grant of authority allows the Commission to create regulations, such as the one aimed at preventing overfishing of specific fish stocks, as it falls within the scope of managing fisheries in accordance with the overarching conservation goals outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to ensure sustainable fishery practices, thereby fulfilling its mandate under the statute without requiring further specific legislative approval for each regulation.

Provision 2

"This chapter supports the goals and objectives of federal and interstate managem..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans that must align with established standards for fishery conservation and management. This broad grant of authority allows the regulation to support federal and interstate management measures, as it falls within the scope of implementing the fishery management plans outlined in the statute. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in aligning state regulations with broader conservation goals, ensuring compliance with both state and federal standards.

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in the chapter, shall have the following meaning unless the context clearly indicates otherwise. "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw. "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body. "Trip" means that period during which the vessel shall have left a dockside landing place, relocated to waters where fishing for Spanish mackerel by the vessel is legally permitted, and returned to a dockside landing place.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in the chapter, shall have the follow..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including defining terms relevant to the regulation of seafood. This broad grant of authority allows the Commission to establish definitions, such as "snout" and "total length," which are essential for the effective management and conservation of fish species, thereby resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulatory frameworks that support the overarching goals of conservation and resource management without requiring further legislative approval for specific definitions.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing with hook-and-line, hand line, rod and reel, spear, gig, or other recreational gear to possess more than 15 Spanish mackerel or more than three king mackerel.¹ B. When fishing from a boat or vessel where the entire catch is held in a common hold or container, the possession limits shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 15 for Spanish mackerel or multiplied by three for king mackerel. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing with hook-and-line, hand line, r..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species. This broad grant of authority encompasses the regulation limiting the possession of Spanish and king mackerel, as it directly relates to the conservation and reasonable use of these fish species, which is aligned with the Commission's mandate. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Provision 2

"B. When fishing from a boat or vessel where the entire catch is held in a common..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden, and emphasizes promoting the general welfare of the seafood industry. The regulation's requirement for possession limits based on the number of persons on board a vessel appears to exceed the statute's authorization because it imposes a specific numerical limit that is not explicitly mentioned or justified within the statutory language, which focuses more broadly on conservation and management rather than detailed possession limits. The legal significance of this relationship is that the regulation could be challenged as exceeding the Commission's authority, as it may not align with the statute's intent to allow for reasonable use and conservation without imposing potentially arbitrary restrictions.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

A. Minimum size limit for Spanish mackerel is established at 14 inches in total length.¹ B. Minimum size limit for king mackerel is established at 27 inches in total length.² C. It shall be unlawful for any person to take, catch, or possess any Spanish mackerel less than 14 inches in total length.³ D. Except as provided in subsection E of this section it shall be unlawful for any person to take, catch, or possess any king mackerel less than 27 inches in total length.⁴ E. Nothing in this section shall prohibit the taking, catching, or possession of any king mackerel less than 27 inches in total length by a licensed pound net.⁵

Provision-Level Authorization Analysis

Provision 1

"A. Minimum size limit for Spanish mackerel is established at 14 inches in total ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the establishment of minimum size limits for species like Spanish mackerel, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating timely management of seafood resources.

Provision 2

"B. Minimum size limit for king mackerel is established at 27 inches in total len..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including establishing regulations for conservation and reasonable use. This broad grant of authority allows the Commission to set specific regulations, such as the minimum size limit for king mackerel, as part of its mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further legislative approval for each specific regulation.

Provision 3

"C. It shall be unlawful for any person to take, catch, or possess any Spanish ma..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not explicitly mention Spanish mackerel. The regulation prohibiting the taking, catching, or possession of Spanish mackerel less than 14 inches in total length may exceed the Commission's authority because the statute does not provide a clear mandate for regulating this species or establishing size limits. The legal significance of this relationship is that regulations must be grounded in the statutory authority provided, and without explicit authorization for Spanish mackerel, the regulation may be deemed invalid due to potential overreach.

Provision 4

"D. Except as provided in subsection E of this section it shall be unlawful for a..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood species. This broad grant of authority encompasses the regulation concerning the minimum size limit for king mackerel, as it aligns with the Commission's responsibility to promote the welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to ensure sustainable fishing practices without requiring further legislative approval, thereby enabling timely and effective resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Nothing in this section shall prohibit the taking, catching, or possession of..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation allowing the taking of king mackerel less than 27 inches in total length by licensed pound nets, as it aligns with the Commission's responsibility to manage marine resources while considering the needs of resource users. The legal significance of this authorization relationship is that it enables the Commission to implement flexible management strategies that can adapt to changing conditions in the seafood industry and marine ecosystems, thereby supporting both conservation efforts and the interests of fishermen.

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to possess or land in Virginia any amount of Spanish mackerel in excess of 3,500 pounds from any vessel in any one day, except as specified in subsection B of this section.¹ B. When a commercial closure in federal waters for the Northern Zone Atlantic Migratory Group Spanish Mackerel is announced by the National Marine Fisheries Service, it shall be unlawful for any person to possess or land Spanish mackerel in Virginia in excess of 500 pounds from any vessel in any one day. This federal closure and state water per trip possession limit will be posted on the Marine Resources Commission website.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to possess or land in Virginia any amount..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans that are consistent with established standards for fishery conservation and management. This broad grant of authority allows the Commission to create regulations, such as the limitation on the possession or landing of Spanish mackerel, to ensure sustainable management of fishery resources. The legal significance of this relationship is that it empowers the Commission to enact necessary regulations to fulfill its mandate under the statute, thereby promoting effective fishery conservation and management practices.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. When a commercial closure in federal waters for the Northern Zone Atlantic Mi..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans that adhere to established standards for fishery conservation and management. This broad grant of authority allows the Commission to regulate possession limits in state waters based on federal closures, resulting in GENERAL_DELEGATION as it enables the agency to take necessary actions to ensure compliance with overarching fishery management objectives. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that directly support the conservation and management of fishery resources, thus ensuring sustainable practices within the state's jurisdiction.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Spanish and King Mackerel

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-203

ANALYSIS

§ 28.2-203 specifically grants the Commission the authority to prepare and implement fishery management plans, ensuring that any regulations promulgated to implement these plans are consistent with established standards for fishery conservation and management. This broad grant of authority allows the Commission to create regulations that address violations related to fishery management, thereby justifying the GENERAL_DELEGATION, as it encompasses enforcement measures necessary for the effective implementation of the management plans. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, ensuring adherence to the regulations designed to protect fishery resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to ensure that gill nets and other nonfixed finfishing gear are properly fished and to establish procedures for the removal of those nets which are abandoned or improperly fished.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to ensure that gill nets and other nonfixed finfi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific fisheries. This broad grant of authority encompasses the regulation concerning gill nets and nonfixed finfishing gear, as it aligns with the Commission's responsibility to ensure proper fishing practices and the conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that address specific practices within the seafood industry while still adhering to the overarching goals of conservation and resource management outlined in the statute.

Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to set any gill net or nonfixed finfishing device and let said net or device remain unfished.¹ B. If, upon visual observation, any Marine Patrol Officer determines on reasonable evidence that any gill net or nonfixed finfishing device has not been fished, he shall notify the licensee as established in subsection C of this section, and if the licensee fails to fish or remove said gill net or nonfixed finfishing device within 24 hours after notification, the licensee shall be guilty of a violation of this chapter and the Marine Patrol Officer is authorized to confiscate said gill net or nonfixed finfishing device.² C. A verbal warning by a Marine Patrol Officer to the licensee by telephone or in person, or the placement of a warning tag on the gill net or nonfixed device adjacent to the license tag shall constitute notification to the licensee of a potential violation. Warning tags shall explain that the gear must be fished or removed from the water within 24 hours or the gear will be confiscated.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to set any gill net or nonfixed finfishin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority allows the Commission to regulate fishing practices, such as the prohibition of setting gill nets or nonfixed finfishing devices, to ensure sustainable use and conservation of marine resources, resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations without needing further legislative approval, thereby facilitating timely and effective management of the seafood industry.

Provision 2

"B. If, upon visual observation, any Marine Patrol Officer determines on reasonab..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad language allows for the establishment of regulations that ensure compliance and enforcement, such as the requirement for Marine Patrol Officers to notify licensees about unutilized fishing gear, thereby supporting the overall management and conservation goals outlined in the statute. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures without needing to seek further legislative approval, thereby facilitating effective resource management and enforcement.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. A verbal warning by a Marine Patrol Officer to the licensee by telephone or i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species and the promotion of the seafood industry. This broad grant of authority encompasses the regulation, as it establishes a mechanism for notifying licensees of potential violations, which is essential for effective management and conservation efforts within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement measures that support the overarching goals of resource conservation and industry welfare without requiring further specific legislative action.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Removal of Gill Nets and Other Nonfixed Finfishing Gear

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the establishment of regulations to promote the general welfare of the seafood industry. This broad grant of authority allows for the regulation of violations related to seafood management, as outlined in the regulation, which addresses penalties for violations of the chapter. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, thereby supporting the overall objectives of resource conservation and management established in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to protect and promote the hard clam resource within the designated areas of the York River, Poquoson River, Back River and James River.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to protect and promote the hard clam resource wit..."

General Delegation

AUTHORIZING STATUTE § 28.2-503

The license for taking clams, by ordinary or patent tongs, shall entitle the holder to take only clams from the public bottoms in the waters of the Commonwealth The Commission may authorize the taking of clams from the public oyster rocks, beds, and shoals of (i) the lower York River below the patent tong line and (ii) that area in the Poquoson River contained within Public Ground Tract No. 1 and Public Ground Tract No. 9 The Commission shall annually review the conditions in the area designated under clause (ii) to determine whether to authorize the taking of clams

ANALYSIS

§ 28.2-503 specifically grants the Commission the authority to authorize the taking of clams from designated public areas and mandates an annual review of conditions in those areas. This broad grant of authority allows the regulation to encompass protective measures for the hard clam resource across multiple designated rivers, thereby justifying the GENERAL_DELEGATION status. The legal significance of this relationship is that it enables the Commission to implement necessary regulations to manage and conserve clam populations effectively within the specified areas, ensuring sustainable resource use.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

A. The Poquoson River Shellfish Management Area shall consist of all public grounds bounded by a line beginning at Hunts Point Survey Taylor and running northwesterly to Survey Station Spit; thence northeasterly to Survey Station Cabin North; thence east to Survey Station Cabin South; thence southeasterly following the general shoreline (not to include any creeks or canals) to the flag pole near Survey Station 80 at York Point; thence 175 degrees to Day Marker No. 14 and returning to Hunts Point Survey Taylor.¹ B. The Back River Shellfish Management Area shall consist of all current public clamming grounds bounded by a line from corner 3 on Shell Plant 115 through corner 17, a daymarker, on Shell Plant 115, 237.42 feet to a point being the point of beginning; thence southeasterly to corner number 1 Public Clamming Ground (PCG#12); thence southeasterly to corner number 3A Public Clamming Ground (PCG#12); thence northeasterly to corner number 3 Public Clamming Ground (PCG#12); thence northwesterly to corner number 2 Public Clamming Ground (PCG#12); thence southwesterly to the POB. Also, for a period of one year, throughout 1994, Shell Plant 115 will also be included in the Back River Shellfish Management Area.² C. The James River Broodstock Management Area is located inside Public Ground No. 1, Warwick County, south of the James River Bridge, further described as follows: Beginning at a corner number 611 (State Plane Coordinates North 249766.12 East 2596017.56); thence Grid Azimuth 308-39-51, 1074.35' to a corner number 613 (State Plane Coordinates North 250437.32 East 2595178.68); thence Grid Azimuth 28-15-00, 366.30' to a corner number 614 (State Plane Coordinates North 250759.99 East 2595352.06); thence Grid Azimuth 132-36-45, 1114.51' to a corner number 612 (State Plane Coordinates North 250005.43 East 2596172.28); thence Grid Azimuth 212-53-03, 284.97' to a corner number 611, being the point of beginning, containing 8.04 acres.³ D. The York River Broodstock Management Area shall consist of the area under any portion of the George P. Coleman Memorial Bridge, in addition to the area within 300 feet of the eastern, or downstream, side of the George P. Coleman Memorial Bridge and the area within 300 feet of the western, or upstream, side of the George P. Coleman Memorial Bridge.⁴ E. The Newport News Shellfish Management Area shall consist of the area bounded by a line beginning at the point of intersection of the downstream side of the James River Bridge (U.S. Route 17 - northbound), east of the draw span and the western boundary of Public Ground No. 1, Warwick County (City of Newport News), said point being at NAD 1983, latitude 37° 00.2694609' N., longitude 76° 27.9896511' W.; thence east southeasterly along the boundary to a corner of Public Ground No. 1, Warwick County, latitude 37° 00.1982568' N., longitude 76° 27.8155397' W.; thence southeasterly along the boundary to a corner, latitude 36° 59.9941747' N., longitude 76° 27.5831952' W.; thence northeasterly along the boundary to the intersection of the Condemned Shellfish Area Line, Area 056-007-A, as established by the Virginia Department of Health effective January 8, 2014, latitude 37° 00.0789081' N., longitude 76° 27.4512191' W.; thence southeasterly following the condemned area boundary to a point near the offshore end of the Newport News Shipbuilding floating dry dock located at latitude 36° 59.2816669' N., longitude 76° 26.7950000' W.; thence to the northwest corner of the Virginia Port Authority container pier, latitude 36° 58.1833333' N., longitude 76° 26.0150000' W.; thence southeasterly to a point near the end of a coal loading pier, latitude 36° 57.9883333' N., longitude 76° 25.8316667' W.; thence southeasterly to a point near the end of a coal loading pier, latitude 36° 57.7483333' N., longitude 76° 25.4416667' W.; thence southeasterly to the northwest corner of the south island of the Monitor Merrimac Memorial Bridge Tunnel, latitude 36° 56.8799995' N, longitude 76° 24.3399996' W.; thence southerly along the upstream side of the Monitor Merrimac Memorial Bridge Tunnel to the first overhead light structure on the bridge tunnel north of the small boat channel hump, latitude 36° 55.6035310' N., longitude 76° 24.5674263' W.; thence northwesterly to the easternmost corner of Oyster Lease, Plat File 10091(Johnson, III or successors), latitude 36° 55.9505383' N., longitude 76° 25.0031248' W.; thence northwesterly to the northernmost corner of said lease, latitude 36° 56.2062064' N., longitude 76° 25.4039147 W.; thence westerly to the easternmost corner of Public Ground No. 2, Nansemond County (City of Suffolk), latitude 36° 56.2025195' N., longitude 76° 25.4339957' W.; thence northwesterly to the southwest corner of Oyster Lease, Plat File 20663 (Melzer/Burton or successors), latitude 36° 56.8957714' N., longitude 76°26.6177905' W.; thence northeasterly to a lease corner, latitude 36° 56.9688138' N., longitude 76° 26.4028827' W.; thence north-northwesterly to a lease corner, latitude 36° 58.2820197' N., longitude 76° 27.2355278' W.; thence northwesterly to a lease corner, latitude 36° 58.4440126' N., longitude 76° 27.3919892' W.; thence northwesterly to a corner on Oyster Lease, Plat File 20662 (Burton/Burton, Jr. or successors), latitude 36° 59.0856691' N., longitude 76° 27.9659794' W., thence northwesterly to a point on the boundary of Oyster Lease, Plat File 20662, latitude 36° 59.3207135' N., longitude 76° 28.4650941' W.; thence northeasterly to the southern corner of Oyster Lease, Plat File 20699 (Green or successors), latitude 36° 59.4032421' N., longitude 76° 28.3778693' W.; thence northeasterly to a lease corner, latitude 36° 59.7192188' N., longitude 76° 28.0438774' W.; thence north-northwesterly to the extending through the northern corner of Oyster Lease, Plat File 20699, to a point on the downstream side of the James River Bridge (U.S. Route 17 - northbound), latitude 37° 00.0685852' N., longitude 76° 28.2312958' W.; thence northeasterly along the downstream side of the bridge to a point east of the draw span and the intersection of the western boundary of Public Ground No. 1, Warwick County (City of Newport News), said point being the point of beginning.⁵ F. The Back River Reef Broodstock Management Area shall consist of the area within a 2000' radius of the center buoy, with a position of 37° 08' 12" north, 76° 13' 54" west.⁶ G. The Middle Ground Light Broodstock Management Area shall consist of the area within a 1000' radius of the navigational light, with a position of 36° 56.7' north, 76° 23.5' west.⁷ H. The York Spit Reef Broodstock Management Area shall consist of the area contained within the defined latitudes and longitudes: northwest corner 37° 14' 75" N—076° 14' 20" W, northeast corner 37° 14' 75" N—076° 13' 30" W, southwest corner 37° 14' 05" N—076° 14' 20" W, southeast corner 37° 14' 05" N—076° 13' 30" W.⁸

Provision-Level Authorization Analysis

Provision 1

"A. The Poquoson River Shellfish Management Area shall consist of all public grou..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of management areas for shellfish. This broad grant of authority allows the Commission to define specific geographic boundaries for the Poquoson River Shellfish Management Area, as it directly relates to the conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that align with its overarching mandate to manage and protect the Commonwealth's seafood resources effectively.

Provision 2

"B. The Back River Shellfish Management Area shall consist of all current public ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and managing marine resources, including the conservation and reasonable use of specific species like surf clams. This broad language allows for the establishment of detailed management areas, such as the Back River Shellfish Management Area, as it directly relates to the Commission's responsibility to regulate and conserve seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that align with its overarching mandate to manage and protect marine resources, thereby ensuring the sustainability of the seafood industry within the Commonwealth.

Provision 3

"C. The James River Broodstock Management Area is located inside Public Ground No..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species. This broad grant of authority encompasses the regulation by allowing the Commission to delineate specific management areas, such as the James River Broodstock Management Area, as part of its responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring further legislative approval for each specific regulation.

Provision 4

"D. The York River Broodstock Management Area shall consist of the area under any..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad language encompasses the regulation regarding the York River Broodstock Management Area, as it pertains to the management and conservation of marine resources within a defined geographic area, aligning with the Commission's mandate to promote sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement specific management strategies without requiring further legislative approval, thereby facilitating effective resource management and conservation efforts.

Provision 5

"E. The Newport News Shellfish Management Area shall consist of the area bounded ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and promote the welfare of the seafood industry. The regulation defining the Newport News Shellfish Management Area appears to exceed the Commission's authority because it establishes specific geographic boundaries without clear justification tied to the conservation or management of resources as outlined in the statute. The legal significance of this relationship is that the regulation may be seen as overstepping the Commission's statutory mandate, potentially leading to challenges regarding its validity and enforcement.

Provision 6

"F. The Back River Reef Broodstock Management Area shall consist of the area with..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing management areas. This broad grant of authority allows the Commission to delineate specific areas, such as the Back River Reef Broodstock Management Area, to promote the general welfare of the seafood industry and ensure effective resource management. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for the sustainable management of marine resources, reflecting the intent of the statute to conserve and promote these resources effectively.

Provision 7

"G. The Middle Ground Light Broodstock Management Area shall consist of the area ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like surf clams and Atlantic menhaden, but does not explicitly mention the establishment of specific geographic areas such as the Middle Ground Light Broodstock Management Area. The regulation's specification of a defined area with a precise radius around a navigational light may exceed the Commission's authority as it does not directly relate to the conservation or reasonable use of the species mentioned in the statute, nor does it appear to be necessary for the promotion of the general welfare of the seafood industry. The legal significance of this relationship indicates that the regulation may not align with the statutory intent and scope, potentially undermining the limitations placed on the Commission's regulatory powers.

Provision 8

"H. The York Spit Reef Broodstock Management Area shall consist of the area conta..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation establishing the York Spit Reef Broodstock Management Area may exceed this authority because it delineates a specific geographic area without clear justification that it directly promotes the general welfare of the seafood industry or conserves marine resources as required by the statute. The legal significance of this relationship is that while the Commission has broad regulatory powers, any specific regulation must align closely with the statutory intent to avoid overreach beyond what is explicitly authorized.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

Each boat or vessel engaged in the harvesting of clams by patent tong from the Poquoson River Shellfish Management Area or the Back River Shellfish Management Area shall first obtain a permit specific to the management area to be worked from any marine police officer, and this permit shall be on board the vessel at all times and available for inspection.¹ The permit shall state the name and port of the vessel, the registration or documentation number of the vessel, the name and address of the owner of the vessel and the name of the captain of the vessel.² Any change to any of the above information shall require the vessel owner or captain to obtain a new permit.³ These permits shall be in addition to all other licenses or permits required by law.⁴

Provision-Level Authorization Analysis

Provision 1

"Each boat or vessel engaged in the harvesting of clams by patent tong from the P..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations for taking seafood, manage specific species like surf clams and Atlantic menhaden, and prepare fishery management plans, but it does not explicitly mention the requirement for permits for boats or vessels harvesting clams. The regulation requires each boat or vessel to obtain a specific permit from a marine police officer, which goes beyond the scope of the authority provided in the statute, as it does not address permit requirements or the specific management areas mentioned. The legal significance of this relationship is that the regulation lacks statutory backing, rendering it unauthorized and potentially subject to challenge for exceeding the Commission's defined powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"The permit shall state the name and port of the vessel, the registration or docu..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation requiring specific information about vessels and their operators, as it is essential for effective management and oversight of the seafood industry and ensures compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support its overarching mandate to conserve marine resources and promote the seafood industry, thereby facilitating efficient regulatory management without the need for further legislative approval.

Provision 3

"Any change to any of the above information shall require the vessel owner or cap..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring vessel owners or captains to obtain a new permit for any changes, as it directly relates to the management and oversight of seafood resources, ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to effectively manage and conserve marine resources, thereby supporting the overall objectives outlined in the statute.

Provision 4

"These permits shall be in addition to all other licenses or permits required by ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and managing marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations, such as requiring additional permits, as part of its overarching responsibility to manage and conserve seafood resources effectively. The legal significance of this relationship is that it empowers the Commission to create necessary regulatory frameworks that support sustainable practices within the seafood industry while ensuring compliance with existing laws.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

A. The lawful season for the harvest of clams by patent tong from the Poquoson River Shellfish Management Area shall be March 15 through May 1.¹ B. The lawful season for the harvest of clams by patent tong from the Back River Shellfish Management Area shall be January 1 through March 31.² C. It shall be unlawful for any person to harvest clams by patent tong from either the Poquoson River Shellfish Management Area or Back River Shellfish Management Area except as provided in subsections A and B of this section.³ D. It shall be unlawful for any person to harvest clams by patent tong from the Newport News Shellfish Management Area during any month, except May, June, July, August, and September.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The lawful season for the harvest of clams by patent tong from the Poquoson R..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of surf clams. This broad grant of authority encompasses the regulation regarding the lawful season for clam harvest, as it directly relates to the management and conservation of clam resources within the specified area. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations that align with its overarching mandate to ensure sustainable seafood practices and resource management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The lawful season for the harvest of clams by patent tong from the Back River..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the reasonable use of surf clams. This broad grant of authority encompasses the regulation concerning the lawful season for clam harvest, as it directly relates to the management and conservation of clam resources within the specified area. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that effectively manage and protect marine resources while ensuring the sustainable use of those resources by the industry.

Provision 3

"C. It shall be unlawful for any person to harvest clams by patent tong from eith..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote seafood and marine resources. This broad language encompasses the regulation prohibiting the harvesting of clams by patent tong in specified areas, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, ensuring effective management and conservation of the Commonwealth's seafood resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any person to harvest clams by patent tong from the ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, but it does not explicitly authorize the prohibition of harvesting clams during specific months. The regulation's restriction on harvesting clams by patent tong in the Newport News Shellfish Management Area during all months except May through September appears to exceed the statutory authorization because it imposes a blanket prohibition rather than focusing on conservation or reasonable use as outlined in the statute. The legal significance of this relationship is that the regulation may not align with the intended scope of the statute, potentially undermining the Commission's authority and leading to challenges regarding the validity of the regulation.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to harvest clams by patent tong from the Poquoson River Shellfish Management Area before sunrise or after 2 p.m.¹ B. It shall be unlawful for any person to harvest clams by patent tong from the Back River Shellfish Management Area before sunrise or after 4 p.m.² C. It shall be unlawful for any person to harvest clams by patent tong from either the Poquoson River Shellfish Management Area, Newport News Shellfish Management Area, or Back River Shellfish Management Area on Saturday or Sunday.³ D. It shall be unlawful for any person to harvest any shellfish from the James River Broodstock Management Area, Back River Reef Broodstock Management Area, Middle Ground Light Broodstock Management Area, York Spit Reef Broodstock Management Area, or York River Broodstock Management Area at any time.⁴ E. It shall be unlawful for any person to harvest clams by patent tong from the Newport News Shellfish Management Area before sunrise or after 2 p.m.⁵ F. It shall be unlawful for any person to possess any amount of hard clams from the Newport News Shellfish Management Area that consists of more than 2.0% by number of clams, which can be passed through a 1-3 /8 inch inside diameter culling ring. The 2.0% allowance shall be measured by the marine police officer from each container or pile of clams.⁶

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to harvest clams by patent tong from the ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, but does not mention any specific restrictions on the times for harvesting clams. The regulation that prohibits harvesting clams by patent tong from the Poquoson River Shellfish Management Area before sunrise or after 2 p.m. imposes a time restriction that is not supported by the statutory language, which does not authorize the Commission to set such specific operational limitations. The legal significance of this relationship is that without explicit statutory authority to impose time restrictions, the regulation is deemed unauthorized and therefore invalid.

Provision 2

"B. It shall be unlawful for any person to harvest clams by patent tong from the ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, but does not explicitly authorize restrictions on the times of harvesting. The regulation that makes it unlawful to harvest clams by patent tong from the Back River Shellfish Management Area before sunrise or after 4 p.m. imposes a time restriction that is not mentioned in the statute, which only addresses the conservation and management of the resource without specifying operational hours. The legal significance of this relationship is that the regulation exceeds the scope of the authority granted by the statute, rendering it unauthorized and unenforceable.

Provision 3

"C. It shall be unlawful for any person to harvest clams by patent tong from eith..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to promote the general welfare of the seafood industry, but it does not provide explicit authority to restrict the days on which clams may be harvested. The regulation's prohibition on harvesting clams by patent tong on weekends does not align with the statute's focus on conservation and reasonable use, as it imposes a blanket restriction without a stated justification related to resource management or conservation efforts. The legal significance of this relationship is that regulations must be directly supported by statutory authority; without such authority, the regulation is deemed unauthorized and lacks legal standing.

Provision 4

"D. It shall be unlawful for any person to harvest any shellfish from the James R..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to promote the general welfare of the seafood industry, but it does not explicitly mention authority over shellfish harvesting in the specified broodstock management areas. The regulation prohibiting the harvest of shellfish from these specific areas exceeds the scope of the Commission's authority as outlined in the statute, which does not authorize such broad prohibitions on shellfish harvesting without explicit mention. The legal significance of this relationship is that regulations must be grounded in the specific authority granted by the statute, and without such authorization, the regulation is deemed unauthorized and potentially invalid.

Provision 5

"E. It shall be unlawful for any person to harvest clams by patent tong from the ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams, but it does not provide authority to impose specific time restrictions on harvesting practices. The regulation's prohibition on harvesting clams by patent tong before sunrise or after 2 p.m. exceeds the scope of the Commission's authority as defined in the statute, which focuses on promoting general welfare and conservation without stipulating operational hours. The legal significance of this relationship is that regulations must align with the explicit powers granted by the statute, and any overreach results in an unauthorized regulation that lacks legal standing.

Provision 6

"F. It shall be unlawful for any person to possess any amount of hard clams from ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to promote the general welfare of the seafood industry, but it does not explicitly mention authority to regulate the possession limits of hard clams in specific management areas. The regulation imposes a specific possession limit on hard clams based on a percentage that is not addressed in the statute, which results in unauthorized action as it exceeds the scope of the Commission's regulatory authority as outlined in the statute. The legal significance of this relationship is that regulations must be grounded in specific statutory authority, and without such authority, the regulation cannot be enforced and may be deemed invalid.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

It shall be unlawful for any person to lease any area of the Newport News Shellfish Management Area.¹

Provision-Level Authorization Analysis

Provision 1

"It shall be unlawful for any person to lease any area of the Newport News Shellf..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, but it does not explicitly mention the prohibition of leasing areas within the Newport News Shellfish Management Area. The regulation's blanket prohibition on leasing appears to exceed the Commission's authority as it does not align with the statute's focus on promoting reasonable use and conservation, suggesting an overreach beyond what is necessary for managing resources. The legal significance of this relationship indicates that the regulation may not be valid if it imposes restrictions that are not clearly supported by the statutory language, potentially undermining the intended balance between conservation and reasonable use of marine resources.

Pertaining to Shellfish Management Areas

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. In addition to the penalties prescribed by law, any person violating 4VAC20-560-50 D shall immediately return all harvested shellfish to the Broodstock Management Area, shall cease harvesting on that day, shall be required to appear before the Marine Resources Commission pursuant to any violation, and all harvesting apparatus shall be subject to seizure.² C. The Marine Resources Commission may revoke the permit of any person convicted of a violation of this chapter.³ D. All clams in any container or pile found in violation of 4VAC20-560-50 F shall be returned to the water by the clammer as directed by the marine police officer.⁴

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning penalties for violations, as it is necessary for enforcing compliance and ensuring the sustainability of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement mechanisms to uphold the regulations, thereby supporting the overall objectives of resource management and conservation outlined in the statute.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. In addition to the penalties prescribed by law, any person violating 4VAC20-5..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-903 specifically grants the Marine Resources Commission the authority to impose penalties for violations of laws related to marine resources but does not explicitly authorize the immediate return of harvested shellfish or the requirement to cease harvesting on the same day. The regulation imposes additional requirements that go beyond the penalties outlined in the statute, such as the immediate return of shellfish to the Broodstock Management Area and mandatory appearances, which are not mentioned in the statutory text. The legal significance of this relationship is that the regulation exceeds the scope of the authority granted by the statute, rendering it unauthorized.

CROSS-REFERENCE § 28.2-903

Provision 3

"C. The Marine Resources Commission may revoke the permit of any person convicted..."

Express

General

Overreach

Unauthorized

Requirements

A. The open harvest season for the Hampton Flats Hard Clam Harvest Area, as specified by § 28.2-816 of the Code of Virginia, shall be extended from Thursday, August 16, 2001, through Friday, September 28, 2001. Harvest of hard clams in the Hampton Flats Hard Clam Harvest Area shall only occur on Mondays through Fridays during the 2001 open harvest season. Thereafter, Hampton Flats Hard Clam Harvest Area shall be managed by the authority promulgated in § 28.2-816 of the Code of Virginia.¹ B. It shall be unlawful to harvest hard clams from the Hampton Flats Hard Clam Harvest Area except as provided in subsection A of this section.²

Provision-Level Authorization Analysis

Provision 1

"A. The open harvest season for the Hampton Flats Hard Clam Harvest Area, as spec..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

The Marine Resources Commission, after consultation with the Department of Health, shall establish the season for removal of shellfish for depuration from certain condemned areas designated by the State Health Commissioner.

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish from certain condemned areas, indicating a broad discretion in managing shellfish harvests. This results in GENERAL_DELEGATION because the regulation specifies an open harvest season for a particular area, which falls within the Commission's authority to determine the timing and conditions for shellfish removal as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to adapt harvest regulations to specific circumstances while remaining within the framework established by the statute, ensuring both compliance and effective resource management.

CROSS-REFERENCE § 28.2-816

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-816. Supervision of removal, relaying or depuration; seasons established A. S...

Explicit Statutory Citations

REFERENCE § 28.2-816

Citation text: "§ 28.2-816"

REFERENCE § 28.2-816

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for the management of surf clams. This broad language allows the Commission to establish regulations that ensure the sustainable use of seafood resources, such as the regulation prohibiting possession of hard clams that do not meet size specifications, which directly supports conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that are essential for effective resource management without requiring further legislative approval for each specific regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. For the possession limit described in subsection C of this section, there sha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation regarding a 10% tolerance of hard clams, as it directly relates to the management and reasonable use of seafood resources, ensuring that regulations can be established to support the overall health of the industry. The legal significance of this authorization relationship is that it allows the Commission flexibility in implementing regulations that are essential for effective resource management without needing to seek further legislative approval for each specific regulation.

Provision 5

"E. It shall be unlawful for any person to harvest clams from the Hampton Flats H..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, but it does not explicitly mention restrictions on the times of harvesting clams. The regulation's prohibition on harvesting clams before sunrise or after 5 p.m. may exceed the Commission's authority as it imposes a specific operational limitation that is not directly tied to conservation or the general welfare of the seafood industry as outlined in the statute. The legal significance of this relationship is that regulations must align with the explicit powers granted by the statute, and any overreach could render the regulation invalid or subject to legal challenge.

Pertaining to the Hampton Flats Hard Clam Harvest Area

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this regulation shall be guilty of a Class 3 misdemeanor, and a second, or subsequent violation of any provision of this regulation committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. The Marine Resources Commission may revoke the relay permit of any person convicted of a violation of this regulation.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-903 specifically states that the agency has the authority to enforce provisions related to certain activities but does not grant the agency the power to establish penalties for violations of regulations. The regulation imposes a Class 3 misdemeanor for violations, which exceeds the authority provided by the statute, as it does not explicitly authorize the agency to create or enforce criminal penalties. The legal significance of this relationship is that without explicit statutory authority to impose such penalties, the regulation is considered unauthorized and cannot be enforced.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. The Marine Resources Commission may revoke the relay permit of any person con..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the ability to establish regulations for conservation and reasonable use. This broad language allows the regulation regarding the revocation of relay permits for violations to fall under the Commission's general delegation of authority, as it directly relates to the enforcement of regulations aimed at conserving marine resources and ensuring compliance within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary enforcement measures to uphold the integrity of its regulations, thereby promoting sustainable practices within the seafood industry.

CROSS-REFERENCE § 28.2-903

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Hampton Roads Shellfish Relay Area

Express

General

Overreach

Unauthorized

Requirements

The provisions of this regulation are in response to increased pressure on the hard clam resource by patent tongs in clean clam areas during the month of August.¹

Provision-Level Authorization Analysis

Provision 1

"The provisions of this regulation are in response to increased pressure on the h..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish from designated areas after consulting with the Department of Health. This broad grant of authority allows the Commission to address various factors affecting shellfish resources, such as increased pressure on hard clam resources, thereby justifying the need for regulations that manage harvesting practices in response to changing conditions. The legal significance of this relationship is that it enables the Commission to implement necessary regulations to protect marine resources while remaining within the scope of its statutory authority.

Pertaining to the Hampton Roads Shellfish Relay Area

Express

General

Overreach

Unauthorized

Requirements

The Hampton Roads Shellfish Relay Area shall consist of all condemned clamming grounds bounded by a line beginning at the upstream side of the large fishing pier on the southeast side of Old Point Comfort; thence upstream along the shoreline to Newport News Creek; thence to the southeast corner of the Monitor Merrimac Bridge Tunnel island along the downstream side, thence to Fl R "12"; thence to the northeast corner of the Fan Building on the southern island of the bridge tunnel; thence southerly along the downstream side of the bridge tunnel to the south line of Public Ground Number 1, Nansemond County; then easterly along the Public Ground to Craney Island Disposal Area; thence clockwise around the boundaries of the disposal area to its intersection with the shore; thence along the shore to the northeast corner of Craney Island; thence through navigational aid Fl G "21" to the point where it intersects a line drawn from the shoreward end of pier number 6 at Lamberts Point to the southeast corner of Tanner Point; thence along the shore to the point of intersection with the riprapped shoreline of the Hampton Roads Bridge-Tunnel island at Fort Wool; thence easterly around this island to its easternmost point; thence north northwesterly to the intersection of the shoreline and the upstream side of the large fishing pier on the east side of Old Point Comfort at the point of beginning.¹

Provision-Level Authorization Analysis

Provision 1

"The Hampton Roads Shellfish Relay Area shall consist of all condemned clamming g..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish for depuration from certain condemned areas designated by the State Health Commissioner, indicating a focus on timing rather than the specific geographic boundaries of those areas. The regulation, however, delineates the Hampton Roads Shellfish Relay Area with specific geographic boundaries, which goes beyond the statute's authorization by establishing a defined area rather than merely setting a season for removal. The legal significance of this relationship is that the regulation may exceed the scope of the statutory authority granted, potentially infringing on the jurisdictional limits established by the legislature.

Pertaining to the Hampton Roads Shellfish Relay Area

Express

General

Overreach

Unauthorized

Requirements

A. The open harvest season for the Hampton Roads Shellfish Relay Area, as specified by § 28.2-816 of the Code of Virginia, shall be extended through September 30. Harvest of hard clams in the Hampton Roads Shellfish Relay Area shall only occur on Mondays through Fridays during the open harvest season. Thereafter, the Hampton Roads Shellfish Relay Area shall be managed by the authority promulgated in § 28.2-816 of the Code of Virginia.¹ B. It shall be unlawful to harvest hard clams from the Hampton Roads Shellfish Relay Area, except as provided in subsection A of this section.²

Provision-Level Authorization Analysis

Provision 1

"A. The open harvest season for the Hampton Roads Shellfish Relay Area, as specif..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation concerning the open harvest season and specific harvesting days for hard clams in the Hampton Roads Shellfish Relay Area, as it directly relates to the management and conservation of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that support the overarching goals of resource management and industry welfare without requiring further legislative approval for each specific regulation.

CROSS-REFERENCE § 28.2-816

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-816. Supervision of removal, relaying or depuration; seasons established A. S...

Explicit Statutory Citations

REFERENCE § 28.2-816

Citation text: "§ 28.2-816"

REFERENCE § 28.2-816

Citation text: "§ 28.2-816"

Total: 2 citations to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful to harvest hard clams from the Hampton Roads Shellfish R..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation prohibiting the harvesting of hard clams from the Hampton Roads Shellfish Relay Area, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for resource management without requiring further specific legislative approval, thereby facilitating timely and effective conservation efforts.

CROSS-REFERENCE § 28.2-816

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 8. Health and Sanitation Provisions › Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties › § 28.2-816. Supervision of removal, relaying or depuration; seasons established A. S...

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Hampton Roads Shellfish Relay Area

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to possess any hard clam that can be passed through a 1-3 /8-inch inside diameter culling ring.¹ B. For the possession limit described in subsection A of this section, there shall be a 2.0% tolerance of hard clams, by number, in each bag or container.² C. It shall be unlawful for any person to possess any hard clam that cannot be passed through a 2-7/8-inch inside diameter culling ring.³ D. For the possession limit described in subsection C of this section, there shall be a 10% tolerance of hard clams, by number, in each bag or container.⁴ E. It shall be unlawful for any person to harvest clams from the Hampton Roads Shellfish Relay Area before sunrise or after 5 p.m.⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to possess any hard clam that can be pass..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish regulations regarding the removal of shellfish from designated areas, indicating a broad scope of regulatory power in managing marine resources. This results in GENERAL_DELEGATION because the statute empowers the agency to create rules that ensure the sustainability and health of shellfish populations, which includes setting size limits for possession to prevent overharvesting and protect the resource. The legal significance of this authorization relationship is that it allows the agency to implement necessary measures for conservation and public health without needing further legislative approval for each specific regulation.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. For the possession limit described in subsection A of this section, there sha..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish from designated areas after consulting with the Department of Health. This broad grant of authority allows the Commission to implement regulations, such as the possession limit and tolerance for hard clams, as part of managing shellfish resources and ensuring public health standards are met. The legal significance of this relationship is that it empowers the Commission to create detailed regulations necessary for the effective enforcement of the statutory mandate, thus supporting the overarching goal of resource management and health safety.

Provision 3

"C. It shall be unlawful for any person to possess any hard clam that cannot be p..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish regulations regarding the removal of shellfish from designated areas, indicating a broad scope of power to manage marine resources in consultation with the Department of Health. This results in GENERAL_DELEGATION because the regulation concerning the possession of hard clams establishes specific criteria that support the overall goal of ensuring the health and safety of shellfish harvesting, which aligns with the Commission's authority to regulate shellfish removal. The legal significance of this authorization relationship is that it allows the agency to implement detailed regulations necessary for the effective management and protection of marine resources under its broad statutory mandate.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. For the possession limit described in subsection C of this section, there sha..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish for depuration from designated condemned areas, indicating a broad scope of regulatory power related to marine resources management. This results in GENERAL_DELEGATION because the regulation concerning the possession limit and tolerance for hard clams falls within the Commission's overarching responsibility to manage shellfish resources and ensure compliance with health standards, as it directly relates to the removal and handling of shellfish. The legal significance of this authorization relationship is that it allows the Commission to create detailed regulations necessary for the effective implementation of the statutory mandate, ensuring both resource conservation and public health safety.

Provision 5

"E. It shall be unlawful for any person to harvest clams from the Hampton Roads S..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish from designated areas after consulting with the Department of Health. This broad grant of authority allows the Commission to regulate not only the timing of shellfish harvesting but also the conditions under which such activities occur, leading to the conclusion that the regulation concerning the unlawful harvesting times falls within the scope of the Commission's delegated powers. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to protect public health and manage marine resources effectively, ensuring compliance with health standards.

Pertaining to the Hampton Roads Shellfish Relay Area

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this regulation shall be guilty of a Class 3 misdemeanor, and a second, or subsequent violation of any provision of this regulation committed by the same person within 12 months of a prior violation, is a Class 1 misdemeanor.¹ B. The Marine Resources Commission may revoke the relay permit of any person convicted of a violation of this regulation.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of penalties for violations. This broad grant of authority allows the Commission to implement regulations that include enforcement mechanisms, such as the classification of violations as misdemeanors, thereby justifying a GENERAL_DELEGATION for the regulation. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and enforce compliance within the seafood industry, ensuring the sustainability and welfare of marine resources in the Commonwealth.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. The Marine Resources Commission may revoke the relay permit of any person con..."

General Delegation

AUTHORIZING STATUTE § 28.2-816

ANALYSIS

§ 28.2-816 specifically grants the Marine Resources Commission the authority to establish the season for the removal of shellfish for depuration from designated condemned areas, indicating a broad scope of regulatory power concerning shellfish management. This results in GENERAL_DELEGATION because the regulation empowers the Commission to revoke permits based on violations, which aligns with the Commission's overarching responsibility to ensure the safety and management of shellfish resources as outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to enforce compliance and maintain public health standards within its regulatory framework, thereby fulfilling its statutory mandate.

CROSS-REFERENCE § 28.2-903

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Use of Firearms to Take Fish

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to conserve the stocks of finfish, eliminate a dangerous method of harvest, and confine harvest methods to traditional fishing gears.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to conserve the stocks of finfish, eliminate a da..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation's purpose of conserving finfish stocks and eliminating dangerous harvest methods, as it aligns with the Commission's responsibility to ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for resource conservation and management without needing further specific legislative approval, thereby facilitating effective governance of marine resources.

Pertaining to the Use of Firearms to Take Fish

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to take, catch, or kill any fish with the use of a firearm.¹ B. It shall be unlawful for any person to possess or sell any fish taken or killed by the use of a firearm.² C. Nothing in this section shall prohibit the killing by firearm of a shark which has been brought to boatside by legal fishing methods.³ D. Nothing in this section shall prohibit the use of underwater fishing devices, known as "bang sticks," which are attached to spears or are hand held and discharge a blank charge or projectile.⁴

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to take, catch, or kill any fish with the..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation prohibiting the use of firearms for taking fish, as it directly relates to the conservation and management of fish populations and the overall health of marine ecosystems. The legal significance of this relationship is that it allows the Commission to implement necessary measures to ensure sustainable fishing practices, reflecting the intent of the statute to protect and manage marine resources effectively.

Provision 2

"B. It shall be unlawful for any person to possess or sell any fish taken or kill..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of regulations that address various aspects of fishery management, including the prohibition of certain methods of taking fish, which is reflected in the regulation that makes it unlawful to possess or sell fish taken by firearm. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that ensure the sustainable use and conservation of marine resources, thereby supporting the overarching goals outlined in the statute.

Provision 3

"C. Nothing in this section shall prohibit the killing by firearm of a shark whic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation allowing the killing of sharks brought to boatside by legal fishing methods, as it aligns with the Commission's responsibility to manage marine resources and ensure sustainable practices within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that directly support the conservation and management goals outlined in the statute, thereby facilitating effective oversight of marine resource usage.

Provision 4

"D. Nothing in this section shall prohibit the use of underwater fishing devices,..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to regulate various aspects of seafood management, including the use of specific fishing devices, which aligns with the regulation permitting the use of "bang sticks." The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that support resource conservation and industry welfare without needing to seek further legislative approval for specific measures.

Pertaining to the Use of Firearms to Take Fish

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the establishment of regulations for the management of specific species. This broad grant of authority allows the Commission to implement enforcement measures, such as penalties for violations, as necessary to ensure compliance with its regulations, thus resulting in GENERAL_DELEGATION. The legal significance of this authorization relationship is that it empowers the Commission to effectively manage and regulate the seafood industry while ensuring adherence to its conservation goals through appropriate penalties for non-compliance.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Alteration of Finfish

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to enhance compliance with minimum size limits, catch limits, and quotas.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to enhance compliance with minimum size limits, c..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including regulations for the management of specific species. This broad language encompasses the regulation aimed at enhancing compliance with minimum size limits, catch limits, and quotas, as these measures are essential for the conservation and reasonable use of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures without requiring additional specific legislative approval, thereby facilitating effective management of marine resources.

Pertaining to the Alteration of Finfish

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to alter any finfish, or to possess altered finfish, aboard any boat or vessel, or on a public fishing pier (except at the fish cleaning station of the pier), such that the species of the fish cannot be determined.¹ B. It shall be unlawful for any person to alter any finfish regulated by a minimum or maximum size limit, or to possess such altered finfish, aboard any boat or vessel, or on a public fishing pier (except at the fish cleaning station of the pier), such that its total length cannot be measured.²

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to alter any finfish, or to possess alter..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad grant of authority encompasses the regulation prohibiting the alteration of finfish, as it directly relates to the conservation and management of fish species, ensuring that their identification and regulation can be effectively enforced. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect marine resources without needing to seek further legislative approval, thus facilitating timely and effective regulatory action.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to alter any finfish regulated by a minim..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation prohibiting the alteration of finfish size limits, as it directly relates to the conservation of fish populations and ensures compliance with established size regulations. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to protect marine resources, thereby promoting the general welfare of the seafood industry and ensuring sustainable fishing practices.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Alteration of Finfish

Express

General

Overreach

Unauthorized

Requirements

A. For finfish regulated by a minimum or maximum size limit, filleting at sea will be allowed if the carcass is retained to ensure proper species identification and compliance with size limitations.¹ B. For finfish regulated by a minimum size, cleaning and/or filleting at sea will be allowed if the fillet or cleaned fish exceeds the minimum length for the species and at least one square inch of skin is left intact to assist in identification of the species.² C. For finfish not regulated by a size limit, filleting at sea will be allowed if a minimum of one square inch of skin is left on the fillet to assist in identification of the species.³

Provision-Level Authorization Analysis

Provision 1

"A. For finfish regulated by a minimum or maximum size limit, filleting at sea wi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including provisions for the management of specific species. This broad grant of authority allows the Commission to implement regulations such as permitting filleting at sea while ensuring compliance with size limits and species identification, as it directly relates to the conservation and reasonable use of finfish resources. The legal significance of this authorization relationship is that it empowers the Commission to create flexible regulations that adapt to the needs of the seafood industry while fulfilling its conservation mandate, thereby justifying the GENERAL_DELEGATION status of the regulation.

Provision 2

"B. For finfish regulated by a minimum size, cleaning and/or filleting at sea wil..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including establishing regulations for the management of specific species like surf clams and Atlantic menhaden. The regulation allowing for cleaning and filleting of finfish at sea, contingent on the fish exceeding minimum size and retaining skin for identification, appears to exceed the statutory authorization because it introduces operational procedures that may not directly relate to conservation or reasonable use, as the statute emphasizes the need for regulations that promote the general welfare of the seafood industry and resource conservation. The legal significance of this relationship indicates that while the Commission has broad authority, the specific regulatory actions must align closely with the conservation and management goals outlined in the statute, and any deviation risks undermining the statutory intent.

Provision 3

"C. For finfish not regulated by a size limit, filleting at sea will be allowed i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively, including provisions for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation allowing filleting at sea with a minimum skin requirement, as it supports species identification and management, which aligns with the Commission's responsibility to conserve marine resources. The legal significance of this authorization relationship is that it permits the Commission to implement regulations that facilitate sustainable practices within the seafood industry while ensuring compliance with conservation efforts.

Pertaining to the Alteration of Finfish

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and related activities. This broad grant of authority allows the Commission to establish regulations that include penalties for violations, as outlined in the regulation, thereby supporting the overall goal of promoting the welfare of the seafood industry and conserving resources. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance through penalties, ensuring effective management and protection of marine resources under its jurisdiction.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to the Taking of Hard Clams

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to prohibit clammers who possess permits to harvest relay clams from working in clean waters, without first obtaining authorization from Marine Resources Commission law enforcement.¹ The possibility of mixing relay clams with clean clams will therefore be eliminated.² In addition, a maximum size limit is established for the conservation of brood stock.³

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to prohibit clammers who possess permits to harve..."

General Delegation

AUTHORIZING STATUTE § 28.2-810

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources or his designee the authority to issue special permits for the taking, transporting, and handling of shellfish from condemned areas, indicating a broad scope of regulatory power over shellfish management. This results in GENERAL_DELEGATION because the regulation aligns with the statutory intent to control and monitor shellfish activities, allowing designated personnel to enforce compliance with the requirement for authorization before engaging in specific shellfish harvesting activities. The legal significance of this authorization relationship is that it empowers the agency to implement necessary regulations for public health and resource management while maintaining flexibility in enforcement through delegation.

Provision 2

"The possibility of mixing relay clams with clean clams will therefore be elimina..."

General Delegation

AUTHORIZING STATUTE § 28.2-810

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources or his designee the authority to regulate the taking, transporting, and handling of shellfish from condemned areas, including the issuance of special permits. This broad grant of authority allows for the implementation of regulations aimed at preventing the mixing of relay clams with clean clams, thereby ensuring compliance with health and safety standards. The legal significance of this authorization relationship is that it empowers the agency to establish necessary measures to protect public health while managing shellfish resources effectively.

Provision 3

"In addition, a maximum size limit is established for the conservation of brood s..."

Express Delegation

AUTHORIZING STATUTE § 28.2-810

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources or his designee the authority to issue special permits for the taking, catching, or transporting of shellfish from condemned areas, indicating a clear delegation of regulatory power. This results in EXPRESS DELEGATION because the statute explicitly allows the agency to set additional regulations, such as establishing a maximum size limit for the conservation of brood stock, to ensure the sustainable management of shellfish resources. The legal significance of this authorization relationship is that it empowers the agency to implement specific conservation measures that are necessary for the protection of marine resources, thereby fulfilling the intent of the statute to regulate activities in condemned areas effectively.

Pertaining to the Taking of Hard Clams

Express

General

Overreach

Unauthorized

Requirements

The following words and terms, when used in this chapter, shall have the following meanings unless the context clearly indicates otherwise: "Chowder clam" means any hard clam that cannot pass through a 2-7/8 inch inside diameter culling ring. "Operations Office" means Marine Resources Commission Law Enforcement Operations Office.¹

Provision-Level Authorization Analysis

Provision 1

"The following words and terms, when used in this chapter, shall have the followi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species. This broad grant of authority encompasses the regulation defining terms related to seafood, as it is essential for the effective implementation of conservation measures and management practices within the industry. The legal significance of this authorization relationship is that it allows the Commission to establish necessary definitions that support regulatory clarity and enforcement, thereby promoting the general welfare of the seafood industry as intended by the statute.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to the Taking of Hard Clams

Express

General

Overreach

Unauthorized

Requirements

A. During the relay season, it shall be unlawful for any person possessing a permit for relay clam harvest as required by § 28.2-810 of the Code of Virginia, to harvest clams from clean waters without first obtaining authorization from the Operations Office.¹ B. Any clammer who has been issued a permit for relay clams, shall notify the Operations Office before his boat leaves the dock, either by marine radio (channel 17) or by telephone (1-800-541-4646, (804) 247-2265 or (804) 247-2266), of his intent to patent tong clams in a nonrestricted area on that day. Each permitted clammer shall provide the Operations Office with his name, relay permit number, boat name, present location (for possible verification), departure time, destination and buyer to whom the clams will be sold.² C. Each permitted clammer shall also notify the Operations Office at the time his boat returns to the dock and furnish his catch count.³

Provision-Level Authorization Analysis

Provision 1

"A. During the relay season, it shall be unlawful for any person possessing a per..."

General Delegation

AUTHORIZING STATUTE § 28.2-810

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources or his designee the authority to issue special permits for the taking, transporting, or relaying of shellfish from condemned areas. This broad grant of authority allows for the regulation to require additional authorization from the Operations Office for harvesting clams from clean waters during the relay season, as it falls within the scope of managing shellfish activities and ensuring compliance with established standards. The legal significance of this authorization relationship is that it enables the agency to implement necessary oversight and control measures while maintaining flexibility in the management of shellfish resources, thereby ensuring public health and environmental protection.

Explicit Statutory Citations

RANGE REFERENCE § 28.2-810

Citation text: "§ 28.2-810"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 2

"B. Any clammer who has been issued a permit for relay clams, shall notify the Op..."

General Delegation

AUTHORIZING STATUTE § 28.2-810

Express

General

Overreach

Unauthorized

Requirements

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As set forth in § 28.2-903 of the Code of Virginia, any person violating any pro..."

Express Delegation

AUTHORIZING STATUTE § 28.2-810

ANALYSIS

§ 28.2-810 specifically grants the Commissioner of Marine Resources the authority to issue special permits for the taking, catching, transporting, or selling of shellfish from condemned areas, thereby establishing a clear regulatory framework for managing these activities. This results in EXPRESS DELEGATION because the statute directly empowers the Commissioner or their designee to enforce specific provisions and impose penalties, as reflected in the regulation that classifies violations as misdemeanors. The legal significance of this authorization relationship is that it ensures that the regulatory framework is aligned with the statutory intent to protect shellfish resources and public health while providing the agency with the necessary authority to enforce compliance.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Pertaining to Pound Net License Sales

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to limit the number of pound net licenses to the number of pound net licenses sold on or after January 1, 1994, and through August 5, 1994.¹ This chapter is part of recent restrictions adopted by the Marine Resources Commission in order to reduce the weakfish fishing mortality rate and to be consistent with federal and interstate management measures.²

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to limit the number of pound net licenses to the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and empowers it to promulgate regulations to implement this section. This broad grant of authority allows the Commission to establish specific limitations on pound net licenses, as outlined in the regulation, thereby aligning with the statutory intent to manage fishing licenses effectively. The legal significance of this authorization relationship is that it enables the Commission to exercise discretion in regulating fishing licenses while ensuring compliance with the overarching statutory framework.

Provision 2

"This chapter is part of recent restrictions adopted by the Marine Resources Comm..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and empowers it to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to adopt regulations aimed at managing fish populations, such as reducing the weakfish fishing mortality rate, which aligns with its responsibility to ensure sustainable fishing practices. The legal significance of this authorization relationship is that it enables the Commission to enact necessary regulations without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Pertaining to Pound Net License Sales

Express

General

Overreach

Unauthorized

Requirements

The following word and term, when used in this chapter, shall have the following meaning unless the context clearly indicates otherwise. "Pound net" means a stationary or fixed fishing device consisting of several stakes or poles which have been pushed or pumped into the bottom and attached netting which forms a straight wall or leader which serves to guide fish through a funnel and heart-shaped enclosure into a terminal head or pocket with a netting floor.¹

Provision-Level Authorization Analysis

Provision 1

"The following word and term, when used in this chapter, shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits and to promulgate regulations to implement the provisions of this section. This broad grant of authority encompasses the regulation defining "pound net" as it relates to the Commission's ability to establish specific terms and conditions for fishing practices under its regulatory framework. The legal significance of this authorization relationship is that it allows the Commission to effectively manage and regulate fishing activities, ensuring compliance with the overarching statutory intent while providing clarity on the terminology used in its regulations.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Pound Net License Sales

Express

General

Overreach

Unauthorized

Requirements

A. Except as provided in 4VAC20-600-40 , the total number of pound net licenses issued for any calendar year shall be limited to the number of pound net licenses sold on or before August 5, 1994, for calendar year 1994. No additional pound net licenses shall be sold for any calendar year.¹ B. All eligible license renewals by those licensees who meet the requirements of subsection A of this section, applications for vacant locations, if available, and requests for transfer of license shall be made in accordance with 4VAC20-20-10 et seq.²

Provision-Level Authorization Analysis

Provision 1

"A. Except as provided in 4VAC20-600-40 , the total number of pound net licenses ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and empowers it to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish specific limitations on pound net licenses, as reflected in the regulation, which restricts the total number of licenses based on historical data. The legal significance of this authorization relationship is that it enables the Commission to effectively manage fishery resources while adhering to the intent of the statute, ensuring sustainable practices within the industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. All eligible license renewals by those licensees who meet the requirements of..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and to promulgate regulations necessary to implement this section. This broad grant of authority allows the Commission to establish detailed procedures for license renewals, applications, and transfers, which are essential for managing the licensing process effectively. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that operationalize the statutory provisions, ensuring that the management of fishing licenses is conducted in a structured and efficient manner.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Pound Net License Sales

Express

General

Overreach

Unauthorized

Requirements

In the James River, upstream of a line connecting Scotland Wharf with Jamestown Wharf. 2.¹ In the Mattaponi and Pamunkey Rivers, upstream of the Route 33 bridges at West Point. 3.² In the Rappahannock River, upstream of the Route 360 bridge at Tappahannock. 4.³ In the Virginia Potomac River tributaries, upstream of the Route 301 bridge.⁴

Provision-Level Authorization Analysis

Provision 1

"In the James River, upstream of a line connecting Scotland Wharf with Jamestown ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority allows the Commission to implement regulations like the one concerning the James River, as it falls within the scope of managing and conserving seafood resources in a designated area. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations under a general framework, ensuring effective management and conservation of marine resources while maintaining flexibility to address local conditions.

Provision 2

"In the Mattaponi and Pamunkey Rivers, upstream of the Route 33 bridges at West P..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning the Mattaponi and Pamunkey Rivers, as it aligns with the Commission's responsibility to manage and conserve marine resources within designated areas. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for effective resource management without requiring further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 3

"In the Rappahannock River, upstream of the Route 360 bridge at Tappahannock. 4."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and empowers it to promulgate regulations to implement this section. The broad language of the statute allows the Commission to create regulations that address specific geographic areas, such as the Rappahannock River, thereby encompassing the regulation under GENERAL_DELEGATION. This authorization relationship signifies that the Commission has the discretion to establish detailed rules necessary for effective management of fishing activities within the framework set by the statute.

Provision 4

"In the Virginia Potomac River tributaries, upstream of the Route 301 bridge."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and empowers it to promulgate regulations to implement this section. This broad grant of authority allows the Commission to establish specific regulations, such as those pertaining to fishing in the Virginia Potomac River tributaries, as it falls within the scope of managing fishing licenses and permits. The legal significance of this relationship is that the Commission has the necessary discretion to create regulations that address specific geographic areas and conditions, ensuring effective management of fishery resources under its jurisdiction.

Pertaining to Pound Net License Sales

Express

General

Overreach

Unauthorized

Requirements

As provided in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹

Provision-Level Authorization Analysis

Provision 1

"As provided in § 28.2-903 of the Code of Virginia, any person violating any prov..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to promulgate regulations to implement its provisions and to limit the number of gear licenses or permits for fishing. This broad grant of authority allows the Commission to establish necessary regulations, including those that impose penalties for violations, resulting in GENERAL_DELEGATION as the regulation directly supports the enforcement of the statutory provisions. The legal significance of this authorization relationship is that it empowers the Commission to effectively regulate fishing activities and enforce compliance through established penalties, ensuring the conservation and management of fishery resources.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to establish the procedures for the registration of commercial fishermen and the manner and form of mandatory harvest reports from fishermen and others.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to establish the procedures for the registration ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of procedures related to the registration of commercial fishermen and mandatory harvest reports. This results in GENERAL_DELEGATION because the statute's broad language empowers the Commission to create regulations that facilitate the management and conservation of seafood resources, which directly aligns with the regulation's purpose of establishing procedures for registration and reporting by fishermen. The legal significance of this authorization relationship is that it allows the Commission to effectively implement and enforce regulations that support the sustainable use and management of marine resources, ensuring compliance and accountability within the industry.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:¹ "Agent" means any person who possesses the Commercial Fisherman Registration License, fishing gear license, or fishing permit of a registered commercial fisherman in order to fish that commercial fisherman's gear or sell that commercial fisherman's harvest.² "Blue crab" means any crustacean of the species Callinectes sapidus.³ "Clam aquaculture harvester" means any person who harvests clams from leased, subleased, or fee simple ground or any aquaculture growing area, within or adjacent to Virginia tidal waters.⁴ "Clam aquaculture product owner" means any person or firm that owns clams on leased, subleased, or fee simple ground, or any aquaculture growing area within or adjacent to Virginia tidal waters that are raised by any form of aquaculture. This does not include any riparian shellfish gardeners whose activities are authorized by 4VAC20-336 , General Permit No. 3 Pertaining to Noncommercial Riparian Shellfish Growing Activities.⁵ "Clam aquaculture product owner vessel" means any vessel, legally permitted through a no-cost permit, by a clam aquaculture product owner, used to transport clam aquaculture harvesters who do not possess an individual Clam Aquaculture Harvester Permit.⁶ "Cobia" means any fish of the species Rachycentron canadum.⁷ "Commercial fisherman" means any person who has obtained a Commercial Fisherman Registration License from the commission.⁸ "Commission" means the Marine Resources Commission.⁹ "Continuing business enterprise" means any business that is required to have a Virginia Seafood Buyer's License or is required to have a business license by county, city, or local ordinance.¹⁰ "Mandatory Harvest Reporting Program Web Application" means the online web-based resource provided by the commission to report commercial harvest of seafood at https://webapps.mrc.virginia.gov/harvest/ .¹¹ "Oyster" means any shellfish of the species Crassostrea virginica.¹² "Oyster aquaculture harvester" means any person who harvests oysters from leased, subleased, or fee simple ground or any aquaculture growing area, within or adjacent to Virginia tidal waters.¹³ "Oyster aquaculture product owner" means any person or firm that owns oysters on leased, subleased, or fee simple ground or any aquaculture growing area within or adjacent to Virginia tidal waters that are raised by any form of aquaculture. This does not include any riparian shellfish gardeners whose activities are authorized by 4VAC20-336 , General Permit No. 3 Pertaining to Noncommercial Riparian Shellfish Growing Activities.¹⁴ "Oyster aquaculture product owner vessel" means any vessel, legally permitted through a no-cost permit, by an oyster aquaculture product owner, used to transport oyster aquaculture harvesters who do not possess an individual oyster aquaculture harvester permit.¹⁵ "Seafood landing licensee" means any individual who has obtained a Seafood Landing License from the commission.¹⁶

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the establishment of definitions and terms relevant to these regulations. This broad grant of authority encompasses the regulation as it provides foundational definitions that are essential for the effective implementation and understanding of subsequent regulations, thereby facilitating the Commission's overall mandate. The legal significance of this authorization relationship is that it allows the Commission to exercise flexibility in defining terms, which is crucial for the adaptive management of resources and compliance with regulatory frameworks.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Agent" means any person who possesses the Commercial Fisherman Registration Lic..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood and the establishment of regulations for the seafood industry. This broad grant of authority encompasses the regulation defining "Agent," as it facilitates the management and oversight of commercial fishing activities, ensuring that the Commission can effectively regulate who may operate under a commercial fisherman's license and thereby promote the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations that support the sustainable use of marine resources while ensuring compliance within the commercial fishing sector.

Provision 3

""Blue crab" means any crustacean of the species Callinectes sapidus."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to manage Atlantic menhaden, but it does not mention blue crabs or provide authority for regulations specifically defining them. The regulation defining "blue crab" as any crustacean of the species Callinectes sapidus exceeds the Commission's authority because the statute does not include blue crabs within the scope of species for which the Commission can establish regulations. The legal significance of this relationship is that regulations must be grounded in the specific authority granted by the statute, and without such authority, the regulation is deemed unauthorized and invalid.

Provision 4

""Clam aquaculture harvester" means any person who harvests clams from leased, su..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation defining "clam aquaculture harvester," as it relates to the management and regulation of clam harvesting activities within Virginia's tidal waters, which is essential for the conservation and promotion of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to effectively manage and oversee clam aquaculture, ensuring sustainable practices within the industry.

Provision 5

""Clam aquaculture product owner" means any person or firm that owns clams on lea..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of surf clams. This broad language encompasses the regulation defining "clam aquaculture product owner," as it relates to the management and use of clams within the context of aquaculture, which is integral to the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support the sustainable management of aquaculture practices, thereby fulfilling its statutory mandate to conserve and promote marine resources.

Provision 6

""Clam aquaculture product owner vessel" means any vessel, legally permitted thro..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of surf clams and to promote the general welfare of the seafood industry. The regulation regarding "clam aquaculture product owner vessel" introduces a permitting requirement for vessels used to transport clam aquaculture harvesters, which does not appear to directly relate to the conservation or reasonable use of surf clams as outlined in the statute. The legal significance of this relationship is that the regulation may exceed the Commission's authority by imposing additional requirements that are not explicitly authorized by the statutory language, potentially infringing on the rights of clam aquaculture product owners and harvesters.

Provision 7

""Cobia" means any fish of the species Rachycentron canadum."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations related to the seafood industry, conservation of marine resources, and management of specific species like surf clams and Atlantic menhaden. The regulation defining "Cobia" does not align with the specific authority granted in the statute, as it does not pertain to the conservation, management, or reasonable use of surf clams or Atlantic menhaden, nor is there any mention of Cobia within the statute. The legal significance of this relationship is that without explicit statutory authority for the regulation concerning Cobia, it is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

""Commercial fisherman" means any person who has obtained a Commercial Fisherman ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for licensing. This broad grant of authority encompasses the regulation defining "Commercial fisherman" as it is essential for the implementation of licensing requirements that support the overall management and conservation objectives outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to exercise discretion in regulating commercial fishing activities, ensuring that the seafood industry operates within a framework that promotes sustainability and resource management.

Provision 9

""Commission" means the Marine Resources Commission."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, manage Atlantic menhaden, and prepare fishery management plans, but does not explicitly define or authorize the term "Commission." The regulation defining "Commission" as the Marine Resources Commission does not derive from the statutory text, which does not provide authority for such a definition, resulting in the regulation being unauthorized. The legal significance of this relationship is that without explicit statutory authority to define the agency, the regulation lacks the necessary foundation to be valid, thereby rendering it unenforceable.

Provision 10

""Continuing business enterprise" means any business that is required to have a V..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources effectively. This broad language encompasses the regulation defining "Continuing business enterprise," as it relates to the licensing requirements that support the management and oversight of seafood businesses, thereby promoting the welfare of the industry. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that facilitate the effective management and conservation of seafood resources, ensuring compliance and supporting the overall regulatory framework.

Provision 11

""Mandatory Harvest Reporting Program Web Application" means the online web-based..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation, as the Mandatory Harvest Reporting Program Web Application facilitates the reporting of commercial seafood harvests, which is essential for effective management and conservation efforts outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary tools and systems, like the web application, to ensure compliance with regulatory requirements and promote sustainable practices within the seafood industry.

Provision 12

""Oyster" means any shellfish of the species Crassostrea virginica."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, which includes the management of various seafood species. This broad grant of authority encompasses the regulation defining "oyster" as it relates to the species Crassostrea virginica, as it is essential for the Commission to establish clear definitions for effective management and conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are flexible and responsive to the needs of the seafood industry while ensuring the sustainability of marine resources.

Provision 13

""Oyster aquaculture harvester" means any person who harvests oysters from leased..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation defining "oyster aquaculture harvester," as it relates to the management and regulation of oyster harvesting, which is essential for the conservation and promotion of marine resources in Virginia. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices in the seafood industry, thereby supporting both economic interests and environmental conservation.

Provision 14

""Oyster aquaculture product owner" means any person or firm that owns oysters on..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations for taking seafood, manage specific species like Atlantic menhaden, and prepare fishery management plans, but it does not mention authority over oyster aquaculture or define terms related to oyster ownership. The regulation defining "oyster aquaculture product owner" extends beyond the scope of the Commission's authority as outlined in the statute, which does not include provisions for regulating aquaculture operations or ownership definitions. The legal significance of this relationship is that regulations must be grounded in the specific authority granted by the statute, and since the statute does not provide such authority for this regulation, it is deemed unauthorized.

Provision 15

""Oyster aquaculture product owner vessel" means any vessel, legally permitted th..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, but does not mention authority over oyster aquaculture or the transportation of oyster aquaculture harvesters. The regulation defining "oyster aquaculture product owner vessel" imposes requirements related to oyster aquaculture that are outside the scope of the Commission's explicit statutory authority, which is limited to certain seafood resources and their management. The legal significance of this relationship is that without specific statutory authorization for oyster aquaculture, the regulation is unauthorized and lacks the necessary legal foundation to be enforceable.

Provision 16

""Seafood landing licensee" means any individual who has obtained a Seafood Landi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation defining "Seafood landing licensee," as it is essential for the Commission to regulate who can participate in the seafood industry and ensure proper management of resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations under a GENERAL_DELEGATION, ensuring effective oversight and management of the seafood industry within the framework established by the statute.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. For the purposes of collecting oyster fisheries statistics from the Virginia aquaculture industry, as authorized by § 28.2-204 of the Code of Virginia and in accordance with § 28.2-613 of the Code of Virginia, which describes conditions that determine the duration of a lease, any oyster aquaculture product owner shall obtain an oyster aquaculture product owner's permit and shall report harvest of any oysters from leased, subleased, or fee simple ground or any aquaculture growing area within or adjacent to Virginia tidal waters in accordance with 4VAC20-610-60 .¹ B. It shall be unlawful for any person, except an oyster aquaculture product owner permittee, oyster aquaculture harvester permittee, or a harvester designated for harvest by an oyster aquaculture product owner vessel permit, to harvest oysters from leased, subleased, or fee simple ground or any aquaculture growing area, within or adjacent to Virginia tidal waters, unless that person is authorized to harvest oysters from areas described in this subsection by an oyster aquaculture product owner.² C. It shall be unlawful for any person permitted as an oyster aquaculture harvester to fail to possess that permit on his person while harvesting unless that person is on a permitted oyster aquaculture product owner vessel and is harvesting oysters of that oyster aquaculture product owner.³ D. Minor persons younger than 18 years of age shall be exempt from the requirements to obtain an oyster aquaculture harvester's permit provided that minor person is harvesting oysters under the supervision of a legally permitted oyster aquaculture product owner.⁴

Provision-Level Authorization Analysis

Provision 1

"A. For the purposes of collecting oyster fisheries statistics from the Virginia ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of seafood industries. This results in GENERAL_DELEGATION because the regulation aligns with the Commission's mandate to promote the welfare of the seafood industry and manage resources effectively, as it pertains to collecting statistics vital for the oyster aquaculture sector. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that support the sustainable management of marine resources while ensuring compliance with statutory requirements.

EXCEPTION § 28.2-204

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 2. General Provisions › Article 1. Powers and Duties › § 28.2-204. Authority to collect fisheries statistics A. The Commission may collect from any source any fisheries data and information necessary to de...

CROSS-REFERENCE § 28.2-613

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 6. Planting Grounds › Article 2. General Oyster-Planting Grounds › § 28.2-613. Duration of lease Each assignment of general oyster-planting ground shall continue in force for 10 years from the date of assi...

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-204

Citation text: "§ 28.2-204"

✓ Suggests authorization

MULTIPLE CITATIONS § 28.2-613

Citation text: "§ 28.2-613"

✓ Suggests authorization

Total: 2 citations to 2 unique statutes

Provision 2

"B. It shall be unlawful for any person, except an oyster aquaculture product own..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including the management of specific species like surf clams and Atlantic menhaden, while also promoting the general welfare of the seafood industry. The regulation, which restricts oyster harvesting to specific permit holders, appears to exceed the statute's authorization because it imposes a blanket prohibition on all other individuals from harvesting oysters, potentially limiting access beyond what is necessary for conservation or reasonable use as outlined in the statute. The legal significance of this relationship is that while the Commission has broad regulatory authority, the regulation must align with the statutory intent of promoting reasonable access and conservation, and this restriction may not meet that standard.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person permitted as an oyster aquaculture harves..."

General Delegation

AUTHORIZING STATUTE § 28.2-204

The Commission may collect from any source any fisheries data and information necessary to develop fishery management plans and to evaluate management options The Commission may enter into cooperative agreements with any other entity for the collection of statistics The information collected or reported shall not be disclosed in any manner which would permit identification of any person, firm, corporation or vessel, except when required by court order The Commission may prescribe the form and manner in which this information is reported

ANALYSIS

§ 28.2-204 specifically grants the Commission the authority to collect fisheries data and information necessary for developing fishery management plans and evaluating management options, as well as the ability to prescribe the form and manner of reporting this information. This broad grant of authority encompasses the regulation by allowing the Commission to establish requirements for permits related to oyster aquaculture harvesting, ensuring that proper data collection and management practices are followed. The legal significance of this authorization relationship is that it enables the Commission to enforce compliance with regulations that support effective fishery management while maintaining the integrity of data collection processes.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Minor persons younger than 18 years of age shall be exempt from the requireme..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-204 specifically grants the agency the authority to regulate the licensing and permitting of oyster aquaculture activities, but it does not mention any exemptions for minor persons from the requirement to obtain an oyster aquaculture harvester's permit. The regulation's provision that minors are exempt from this requirement under supervision is not supported by the statutory language, which does not authorize exemptions based on age or supervision. The legal significance of this relationship is that the regulation exceeds the authority granted by the statute, rendering it unauthorized and unenforceable.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. For the purposes of collecting clam fisheries statistics from the Virginia aquaculture industry, as authorized by § 28.2-204 of the Code of Virginia and in accordance with § 28.2-613 of the Code of Virginia, which describes conditions that determine the duration of a lease, any clam aquaculture product owner shall obtain a clam aquaculture product owner's permit and shall report harvest of any clams from leased, subleased, or fee simple ground or any aquaculture growing area, within or adjacent to Virginia tidal waters, in accordance with 4VAC20-610-60 .¹ B. It shall be unlawful for any person, except a clam aquaculture product owner permittee, clam aquaculture harvester permittee, or a harvester designated for harvest by a clam aquaculture product owner vessel permit, to harvest clams from leased, subleased, or fee simple ground or any aquaculture growing area, within or adjacent to Virginia tidal waters, unless that person is authorized to harvest clams from areas described in this subsection by a clam aquaculture product owner.² C. It shall be unlawful for any person permitted as an clam aquaculture harvester to fail to possess that permit on his person while harvesting unless that person is on a permitted clam aquaculture product owner vessel and is harvesting clams of that clam aquaculture product owner.³ D. Minor persons younger than 18 years of age shall be exempt from the requirements to obtain a clam aquaculture harvester's permit provided that minor person is harvesting clams under the supervision of a legally permitted clam aquaculture product owner.⁴

Provision-Level Authorization Analysis

Provision 1

"A. For the purposes of collecting clam fisheries statistics from the Virginia aq..."

General Delegation

AUTHORIZING STATUTE § 28.2-204

ANALYSIS

§ 28.2-204 specifically grants the Commission the authority to collect fisheries data and information necessary for developing fishery management plans and evaluating management options, as well as the ability to enter into cooperative agreements for data collection. This broad grant of authority encompasses the regulation, which focuses on collecting clam fisheries statistics from the aquaculture industry, thereby falling within the scope of the Commission's mandate to gather necessary data for effective management. The legal significance of this authorization relationship is that it allows the Commission to exercise its regulatory powers flexibly and responsively to the needs of fisheries management without requiring specific legislative approval for each data collection initiative.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-204

Citation text: "§ 28.2-204"

✓ Suggests authorization

MULTIPLE CITATIONS § 28.2-613

Citation text: "§ 28.2-613"

✓ Suggests authorization

Total: 2 citations to 2 unique statutes

Provision 2

"B. It shall be unlawful for any person, except a clam aquaculture product owner ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204

ANALYSIS

§ 28.2-204 specifically grants the Commission the authority to collect fisheries data and information necessary for developing management plans and evaluating options, as well as the ability to enter into cooperative agreements for data collection. This broad authority allows the Commission to regulate activities related to fisheries management, including the harvesting of clams, thereby justifying the GENERAL_DELEGATION for the regulation that restricts clam harvesting to specific permit holders. The legal significance of this relationship is that it empowers the Commission to implement regulations that ensure sustainable management of fisheries resources while maintaining compliance with the overarching statutory framework.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person permitted as an clam aquaculture harveste..."

General Delegation

AUTHORIZING STATUTE § 28.2-204

ANALYSIS

§ 28.2-204 specifically grants the Commission the authority to collect fisheries data and information necessary for developing fishery management plans and evaluating management options, as well as the ability to prescribe the form and manner of reporting this information. This broad grant of authority encompasses the regulation by allowing the Commission to establish requirements for permits related to clam aquaculture harvesting, ensuring that proper data collection and management practices are upheld. The legal significance of this authorization relationship is that it enables the Commission to enforce compliance with regulations that support effective fishery management while maintaining the integrity of the data collected.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Minor persons younger than 18 years of age shall be exempt from the requireme..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including provisions for the management of surf clams. This broad grant of authority encompasses the regulation that exempts minor persons from obtaining a clam aquaculture harvester's permit when supervised, as it promotes the general welfare of the seafood industry and facilitates responsible resource use. The legal significance of this authorization relationship is that it allows the Commission to implement flexible regulations that support both the industry and conservation efforts without requiring specific legislative approval for each regulatory detail.

EXCEPTION § 28.2-204

CROSS-REFERENCE § 28.2-613

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. In accordance with § 28.2-241 C of the Code of Virginia, only persons who hold a valid Commercial Fisherman Registration License may sell, trade, or barter their harvest, or give their harvest to another, in order that it may be sold, traded, or bartered. Only these licensees may sell their harvests from Virginia tidal waters, regardless of the method or manner in which caught. Exceptions to the requirement to register as a commercial fisherman for selling harvest are authorized for the following persons or firms only: 1. Persons taking menhaden under the authority of licenses issued pursuant to § 28.2-402 of the Code of Virginia.¹ 2. Persons independently harvesting and selling, trading, or bartering no more than three gallons of minnows per day who are not part of, hired by, or engaged in a continuing business enterprise. a. Only minnow pots, a cast net or a minnow seine less than 25 feet in length may be used by persons independently harvesting minnows. b. All other marine species taken during the process of harvesting minnows shall be returned to the water immediately.² B. Requirements of authorized agents. 1. No person whose Commercial Fisherman Registration License, fishing gear license, or fishing permit is currently revoked or rescinded by the Marine Resources Commission pursuant to § 28.2-232 of the Code of Virginia is authorized to possess the Commercial Fisherman Registration License, fishing gear license, or fishing permit of any other registered commercial fisherman in order to serve as an agent for fishing the commercial fisherman's gear or selling the harvest.³ 2. No registered commercial fisherman shall use more than one person as an agent at any time.⁴ 3. Any person serving as an agent shall possess the Commercial Fisherman Registration License and gear license of the commercial fisherman while fishing.⁵ 4. When transporting or selling a registered commercial fisherman's harvest, the agent shall possess either the Commercial Fisherman Registration License of that commercial fisherman or a bill of lading indicating that fisherman's name, address, Commercial Fisherman Registration License number, date and amount of product to be sold.⁶ C. Requirements of authorized blue crab fishery agents. 1. Any person licensed to harvest blue crabs commercially shall not be eligible to also serve as an agent.⁷ 2. Any person serving as an agent to harvest blue crabs for another licensed fisherman shall be limited to the use of only one registered commercial fisherman's crab license; however, an agent may fish multiple crab traps licensed and owned by the same person.⁸ 3. There shall be no more than one person, per vessel, serving as an agent for a commercial crab licensee.⁹ 4. Prior to using an agent in any crab fishery, the licensee shall submit a crab agent registration application to the commission. Crab agent registration applications shall be approved by the commissioner, or his designee, for a crab fishery licensee according to the following guidelines: a. Only 125 agents may participate annually in the crab fishery, as described in subdivision 4 b of this subsection, unless the commissioner, or his designee, approves a request for agent use because of a non-economic hardship circumstance and b. 125 agents may be utilized by those crab fishery licensees who received approval for agent use in 2012 or who currently are licensed by a transferred crab fishery license from a licensee approved for agent use in 2012, except that should any of these licensees described in this subdivision fail to register for agent use by March 1, applications for agent use by other licensees shall be approved on a first-come, first-served basis, starting with those licensees who have registered prior to March 1.¹⁰ D. Failure to abide by any of the provisions of this section shall constitute a violation of this regulation.¹¹ E. In accordance with § 28.2-241 H of the Code of Virginia, only persons with a valid Commercial Fisherman Registration License may purchase gear licenses. Beginning with licenses for the 1993 calendar year and for all years thereafter, gear licenses will be sold only upon presentation of evidence of a valid Commercial Fisherman Registration License. Exceptions to the prerequisite requirement are authorized for the following gears only and under the conditions described below: 1. Menhaden purse seine licenses issued pursuant to § 28.2-402 of the Code of Virginia may be purchased without holding a Commercial Fisherman Registration License.¹² 2. Commercial gear licenses used for recreational purposes and issued pursuant to § 28.2-226.2 of the Code of Virginia may be purchased without holding a Commercial Fisherman Registration License.¹³ F. On or after January 1, 1993, fishermen not registered as commercial fishermen but who desire to sell their catch shall apply to the commission for a Commercial Fisherman Registration License. The effective date of status as a commercial fisherman shall be two years from the date the application is approved by the commission. A person whose registration as a commercial fisherman is not effective shall not sell, trade, or barter his catch or give his catch to another in order that it may be sold, traded, or bartered.¹⁴ G. Exceptions to the two-year delay described in subsection F of this section may be granted by the commissioner or his designee, if any of the following criteria are met: 1. The applicant is purchasing another fisherman's Commercial Fisherman Registration License, and the seller holds a valid, current Commercial Fisherman Registration License and surrenders that license to the commission at the time the license is sold.¹⁵ 2. An immediate member of the applicant's family who holds a current Commercial Fisherman Registration License has died or is retiring from the commercial fishery and the applicant intends to participate in the fishery.¹⁶ 3. The applicant purchased a valid Commercial Fisherman Registration License during the preceding year, did not transfer that Commercial Fisherman Registration License, and can demonstrate a significant hardship on the basis of health or active military duty as described in subdivision 4 of this subsection.¹⁷ 4. Any exceptions based on a health condition shall only be granted by the commissioner or his designee only after receipt of an attending physician's description of the medical condition. Any exception based on active military duty shall only be granted by the commissioner or his designee after receipt of those military orders.¹⁸

Provision-Level Authorization Analysis

Provision 1

"A. In accordance with § 28.2-241 C of the Code of Virginia, only persons who hol..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to establish specific requirements, such as the necessity for a valid Commercial Fisherman Registration License for selling or trading harvests, which falls within the scope of regulating commercial fishing activities. The legal significance of this relationship is that it enables the Commission to implement necessary regulations to manage and oversee commercial fishing practices effectively, ensuring compliance with the statutory framework.

ADDITIONAL AUTHORITY § 28.2-402

AUTHORIZING CITATION § 28.2-232

Citation text: "§ 28.2-232"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 4

"2. No registered commercial fisherman shall use more than one person as an agent..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to establish regulations that govern the conduct of registered commercial fishermen, including limitations on the use of agents, which is reflected in the regulation's requirement that no registered commercial fisherman shall use more than one person as an agent at any time. The legal significance of this relationship is that it empowers the Commission to create rules that ensure compliance and maintain the integrity of the commercial fishing industry under the umbrella of the statutory authority provided.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 5

"3. Any person serving as an agent shall possess the Commercial Fisherman Registr..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman" The Commission may subsequently revise the cost of licenses in this section pursuant to § 28.2-201

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman" and allows for subsequent revisions of license costs. This broad grant of authority encompasses the regulation requiring that any person serving as an agent must hold the appropriate licenses, as it falls within the Commission's mandate to regulate the licensing framework for commercial fishing activities. The legal significance of this authorization relationship is that it enables the Commission to establish necessary operational requirements that ensure compliance with the overarching statutory framework governing commercial fishing.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 6

"4. When transporting or selling a registered commercial fisherman's harvest, the..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to establish requirements, such as the possession of a Commercial Fisherman Registration License or a bill of lading when transporting or selling a registered commercial fisherman's harvest, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to create detailed regulations that facilitate the implementation of the statutory framework, ensuring compliance and clarity in the commercial fishing industry.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"C. Requirements of authorized blue crab fishery agents. 1. Any person licensed t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the ability to establish regulations for specific fisheries. This broad grant of authority encompasses the regulation regarding blue crab fishery agents, as it is necessary to ensure proper management and conservation of the blue crab fishery by preventing conflicts of interest among those licensed to harvest. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that support sustainable practices within the seafood industry while ensuring effective oversight of resource management.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 8

"2. Any person serving as an agent to harvest blue crabs for another licensed fis..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to create regulations that clarify and define the roles of individuals, such as agents harvesting blue crabs, without needing further legislative approval, resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to regulate specific practices within the fishing industry, ensuring flexibility and responsiveness to the needs of licensed fishermen while maintaining compliance with the overarching statutory framework.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 9

"3. There shall be no more than one person, per vessel, serving as an agent for a..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to create regulations that provide exemptions from the definition of "commercial fisherman." This broad language allows the Commission to establish various criteria and conditions related to commercial fishing practices, including the limitation on the number of agents per vessel for commercial crab licensees, which falls within the scope of managing exemptions. The legal significance of this relationship is that it empowers the Commission to regulate aspects of commercial fishing while ensuring compliance with the overarching statutory framework, thereby facilitating effective management of the fishing industry.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 10

"4. Prior to using an agent in any crab fishery, the licensee shall submit a crab..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman" and allows for the revision of license costs. This broad grant of authority encompasses the regulation regarding crab agent registration, as it falls within the Commission's responsibility to manage and oversee licensing and operational guidelines in the fishery sector. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations that facilitate the effective management of fisheries while ensuring compliance with established definitions and licensing requirements.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Requirements Analysis

5 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"D. Failure to abide by any of the provisions of this section shall constitute a ..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to create regulations that provide exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to establish rules, such as the regulation stating that failure to abide by its provisions constitutes a violation, thereby falling under GENERAL_DELEGATION as it relates to the Commission's mandate to regulate exemptions. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance with its regulations, ensuring that the exemptions it provides are effectively managed and upheld.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Provision 12

"E. In accordance with § 28.2-241 H of the Code of Virginia, only persons with a ..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

ANALYSIS

§ 28.2-241 specifically grants the Commission the authority to provide regulations for exemptions from the definition of "commercial fisherman." This broad grant of authority allows the Commission to establish requirements, such as the stipulation that only individuals with a valid Commercial Fisherman Registration License may purchase gear licenses, thereby resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the Commission to regulate the licensing process and ensure compliance with the statutory framework without needing further specific legislative approval for each regulatory detail.

ADDITIONAL AUTHORITY § 28.2-402

DEFINITION § 28.2-232

DEFINITION § 28.2-241

Explicit Statutory Citations

REFERENCE § 28.2-241

Citation text: "§ 28.2-241"

✓ Suggests authorization

AUTHORIZING CITATION § 28.2-402

Citation text: "§ 28.2-402"

✓ Suggests authorization

Total: 2 citations to 2 unique statutes

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 13

"2. Commercial gear licenses used for recreational purposes and issued pursuant t..."

General Delegation

AUTHORIZING STATUTE § 28.2-241

The Commission shall provide, by regulation, for exemptions from the definition of "commercial fisherman"

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. An applicant may renew his Commercial Fisherman Registration License by registering during the months of December through April as commercial fishermen as follows: 1. The applicant shall complete an application for a Commercial Fisherman Registration License.¹ 2. The applicant shall mail the completed application to the Virginia Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651.² 3. The Commercial Fisherman Registration License will be returned to the applicant by mail upon validation of his application.³ B. Persons desiring to enter the commercial fishery and those fishermen failing to register as provided in subsection A of this section shall apply to the commission for registration as commercial fishermen. All such applications shall be for a delayed registration and shall be made as provided in subdivisions 1, 2, and 3 of this subsection.⁴ 1. The applicant shall complete an application for a Commercial Fisherman Registration License by providing his complete name, mailing address (and 911 address if different than mailing address), valid driver's license number or Virginia Department of Motor Vehicles identification number, birth date, weight, height, eye color, hair color, telephone number of residence, and signature.⁵ 2. The applicant shall mail the completed application to the Virginia Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651.⁶ 3. The Commercial Fisherman Registration License will be returned to the applicant by mail two years after the date of receipt of the application by the commission. Notification of any change in the address of the applicant shall be the responsibility of the applicant.⁷ C. No part of the Commercial Fisherman Registration License fee shall be refundable.⁸ D. The Commercial Fisherman Registration License may be renewed annually during the months of December through April, only when any and all mandatory reporting harvest reports are up to date and there are no outstanding compliance issues. Any person failing to renew his license after April 30 shall be subject to the delay provision of subsection B of this section.⁹

Provision-Level Authorization Analysis

Provision 1

"A. An applicant may renew his Commercial Fisherman Registration License by regis..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of licenses and fees related to the seafood industry. This broad grant of authority encompasses the regulation regarding the renewal of the Commercial Fisherman Registration License, as it directly relates to the management and regulation of commercial fishing activities, which are essential for promoting the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective management of marine resources.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. The applicant shall mail the completed application to the Virginia Marine Res..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. The regulation requiring applicants to mail completed applications to the Commission falls under this broad authority, as it is a necessary procedural step for managing seafood resources and ensuring compliance with the Commission's regulatory framework. The legal significance of this relationship is that it allows the Commission to implement necessary operational procedures while maintaining flexibility in managing the seafood industry effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"3. The Commercial Fisherman Registration License will be returned to the applica..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for licensing. This broad grant of authority encompasses the regulation regarding the Commercial Fisherman Registration License, as it falls within the Commission's mandate to regulate the licensing process to ensure proper management and conservation of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary administrative procedures, such as the validation and return of licenses, under the umbrella of its regulatory powers without requiring further specific legislative approval.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"B. Persons desiring to enter the commercial fishery and those fishermen failing ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the management of fisheries. This broad grant of authority encompasses the regulation requiring commercial fishermen to apply for registration, as it is necessary for the Commission to manage and oversee the commercial fishery effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure sustainable practices and compliance within the seafood industry, thereby fulfilling its statutory mandate.

Provision 5

"1. The applicant shall complete an application for a Commercial Fisherman Regist..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for licensing. This broad grant of authority encompasses the regulation requiring applicants to provide personal information for a Commercial Fisherman Registration License, as it directly supports the Commission's mandate to regulate and manage the seafood industry effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary procedures for licensing, which is essential for the oversight and conservation of marine resources, thereby justifying the GENERAL_DELEGATION level.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"2. The applicant shall mail the completed application to the Virginia Marine Res..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the seafood industry and conserving marine resources. This broad grant of authority encompasses the regulation requiring applicants to mail completed applications to the Commission, as it is a procedural step necessary for the effective management and oversight of seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary administrative processes that support its overarching regulatory responsibilities without requiring specific legislative approval for each procedural detail.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"3. The Commercial Fisherman Registration License will be returned to the applica..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the Commercial Fisherman Registration License, as it pertains to the management and administrative processes necessary for the effective regulation of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary administrative procedures under a GENERAL_DELEGATION framework, ensuring efficient management of licenses while supporting the overarching goals of resource conservation and industry welfare.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"C. No part of the Commercial Fisherman Registration License fee shall be refunda..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of fees related to licensing. This broad grant of authority encompasses the regulation regarding the non-refundability of the Commercial Fisherman Registration License fee, as it aligns with the Commission's responsibility to manage resources and ensure equitable distribution of costs among users. The legal significance of this authorization relationship is that it allows the Commission to implement necessary financial measures to support the sustainability and management of the seafood industry without requiring further legislative approval for such regulatory decisions.

Provision 9

"D. The Commercial Fisherman Registration License may be renewed annually during ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and reasonable use of marine resources. This broad grant of authority allows the Commission to implement regulations, such as the requirement for up-to-date harvest reports and compliance issues for license renewal, as these measures are essential for effective management and oversight of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to establish necessary regulatory frameworks that ensure sustainable practices and compliance within the industry, aligning with the overarching goals set forth in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any valid commercial fisherman registration licensee, seafood landing licensee, oyster aquaculture product owner permittee, or clam aquaculture product owner permittee to fail to fully report harvests and related information as set forth in this chapter.¹ B. It shall be unlawful for any recreational fisherman, charter boat captain, head boat captain, commercial fishing pier operator, or owner of a private boat licensed pursuant to §§ 28.2-302.7 through 28.2-302.9 of the Code of Virginia, to fail to report recreational harvests, upon request, to those authorized by the commission.² C. All registered commercial fishermen and any valid seafood landing licensee shall complete a daily form accurately quantifying and legibly describing that day's harvest from Virginia tidal waters and federal waters. The forms used to record daily harvest shall be those provided by the commission or another form or method approved by the commission. Registered commercial fishermen and seafood landing licensees may use more than one form when selling to more than one buyer.³ D. Any oyster aquaculture product owner permittee or clam aquaculture product owner permittee shall provide monthly harvest records accurately quantifying and legibly describing that month's harvest from Virginia tidal waters as described in subsection H of this section. All records shall only be submitted through the Online Mandatory Harvest Reporting Program Web Application.⁴ E. Registered commercial fishermen, seafood landing licensees, valid oyster aquaculture product owner permittees, and valid clam aquaculture product owner permittees shall submit a monthly harvest report to the commission no later than the fifth day of the following month, except as described in subsection F of this section. This report shall be accompanied by the daily harvest records described in subsection H of this section. Completed forms shall be mailed or delivered to the Virginia Marine Resources Commission, 380 Fenwick Road, Building 96, Fort Monroe, VA 23651, or be submitted through the Online Mandatory Harvest Reporting Program Web Application.⁵ F. All reports of the commercial harvest of cobia shall only be submitted through the Mandatory Harvest Reporting Program Web Application. This report shall provide daily harvest records from Sunday through Saturday as described in subsection H of this section and be submitted on a weekly basis no later than Wednesday of the following week.⁶ G. All reports of the commercial harvest of oysters or blue crabs shall only be submitted through the Online Mandatory Harvest Reporting Program Web Application. This report shall provide daily harvest records of oysters or blue crabs as described in subsection H of this section and be submitted no later than the fifth day of the following month.⁷ H. The harvest report requirements shall be as follows: 1. Registered commercial fishermen shall be responsible for providing a harvest report and daily harvest records that include the name and signature of the registered commercial fisherman and the commercial fisherman's registration license number; the name and license registration number of any agent, if used; the license registration number of no more than five additional harvesters who were not serving as agents; any buyer or private sale information; the date of any harvest; the city or county of landing that harvest; the water body fished, gear type, and amount of gear used for that harvest; the number of hours any gear was fished and the number of hours the registered commercial fisherman fished; the number of crew on board, including captain; species harvested; market category; live weight or processed weight of species harvested; and vessel identification (Coast Guard documentation number, Virginia license number, or hull/VIN number). Any information on the price paid for the harvest may be provided voluntarily.⁸ 2. The harvest report from oyster aquaculture product owner permittees and clam aquaculture product owner permittees shall include the name, signature, permit number, lease number, date of the last day of the reporting month, city or county of landing, gear (growing technique) used, weight or amount of species harvested by market category, total number of individual crew members for the month, and buyer or private sale information.⁹ 3. The harvest report and daily harvest records from seafood landing licensees shall include the name and signature of the seafood landing licensee and the licensee's seafood landing license number; buyer or private sale information; date of harvest; city or county of landing; water body fished; gear type and amount used; number of hours gear fished; number of hours the seafood landing licensee fished; number of crew on board, including captain; non-federally permitted species harvested; market category; live weight or processed weight of species harvested; and vessel identification (Coast Guard documentation number, Virginia license number, or hull/VIN number).¹⁰ I. Registered commercial fishermen, oyster aquaculture product owner permittees and clam aquaculture product owner permittees not fishing during a month, or seafood landing licensees not landing in Virginia during a month shall so notify the commission no later than the fifth of the following month by postage paid postal card provided by the commission or by calling the commission's toll free telephone line or through the Online Mandatory Harvest Reporting Program Web Application.¹¹ J. Any person licensed as a commercial seafood buyer pursuant to § 28.2-228 of the Code of Virginia shall maintain for a period of one year a copy of each fisherman's daily harvest record form for each purchase made. Such records shall be made available upon request to those authorized by the commission.¹² K. The reporting of the harvest of federally permitted species from beyond Virginia's tidal waters that are sold to a federally permitted dealer shall be exempt from the procedures described in this section.¹³ L. The owner of any purse seine vessel or bait seine vessel (snapper rig) licensed under the provisions of § 28.2-402 of the Code of Virginia shall submit the Captain's Daily Fishing Reports to the National Marine Fisheries Service, in accordance with provisions of Amendment 1 to the Interstate Fishery Management Plan of the Atlantic States Marine Fisheries Commission for Atlantic Menhaden, which became effective July 2001.¹⁴ M. Registered commercial fishermen, seafood landing licensees, and licensed seafood buyers shall allow those authorized by the commission to sample harvest and seafood products to obtain biological information for scientific and management purposes only. Such sampling shall be conducted in a manner that does not hinder normal business operations.¹⁵ N. Registered commercial fishermen, seafood landing licensees, oyster aquaculture product owner permittees, and clam aquaculture product owner permittees shall maintain their harvest records for one year and shall make them available upon request to those authorized by the commission.¹⁶

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any valid commercial fisherman registration licensee..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the management of specific species and the establishment of regulations for resource use. This broad grant of authority encompasses the regulation requiring valid commercial fishermen and aquaculture permit holders to report harvests, as it is essential for effective management and conservation of seafood resources, aligning with the Commission's mandate to ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to fulfill its statutory obligations without needing further specific legislative approval, thereby facilitating timely and effective resource management.

ADDITIONAL AUTHORITY § 28.2-302.7

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 3. Finfish › Article 1.1. Saltwater Recreational Fishing › § 28.2-302.7. Recreational boat; reporting of catch A. The owner or operator of a recreational boat used for saltwater recreational fishing shall ...

DEFINITION § 28.2-302.9

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 3. Finfish › Article 1.1. Saltwater Recreational Fishing › § 28.2-302.9. Commercial fishing pier A. The owner of a commercial fishing pier, as defined in § 28.2-302, shall have the option of purchasing a s...

Provision 2

"B. It shall be unlawful for any recreational fisherman, charter boat captain, he..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

The owner of a commercial fishing pier, as defined in § 28.2-302, shall have the option of purchasing a saltwater recreational fishing license, covering his customers, in order to meet the licensing requirements set forth in § 28.2-302.1. The Commission may subsequently revise the cost of licenses in this section pursuant to § 28.2-201.

ANALYSIS

§ 28.2-302.9 specifically grants the owner of a commercial fishing pier the option to purchase a saltwater recreational fishing license for their customers, and it allows the Commission to revise the cost of licenses. This broad authority to regulate licensing and the associated responsibilities of various fishing entities, including the requirement to report recreational harvests, aligns with the need for effective management of fishing resources, justifying the regulation under GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agency to implement necessary regulations to ensure compliance and sustainability in recreational fishing practices, reflecting the statute's intent to manage fishing activities comprehensively.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 3

"C. All registered commercial fishermen and any valid seafood landing licensee sh..."

Express Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses related to commercial fishing piers and their customers. This results in EXPRESS DELEGATION because the statute explicitly empowers the Commission to implement regulations that facilitate the licensing process, which includes the requirement for registered commercial fishermen and seafood landing licensees to document their daily harvest. The legal significance of this authorization relationship is that it allows the Commission to create detailed regulations necessary for the enforcement and management of the fishing industry, ensuring compliance with the licensing requirements established in the statute.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any oyster aquaculture product owner permittee or clam aquaculture product ow..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like surf clams and oysters. This results in GENERAL_DELEGATION because the regulation requiring monthly harvest records from aquaculture permit holders directly supports the Commission's mandate to manage and conserve seafood resources by ensuring accurate data collection for effective regulatory oversight. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures for resource management and sustainability, thereby fulfilling its statutory obligations without needing further specific legislative approval for each regulation.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. Registered commercial fishermen, seafood landing licensees, valid oyster aqua..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses related to commercial fishing piers and establishes the option for owners to purchase licenses for their customers. This broad grant of authority allows the Commission to implement regulations, such as requiring monthly harvest reports from various fishing and aquaculture licensees, as it falls within the scope of managing and overseeing commercial fishing activities. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that ensure compliance and facilitate the effective management of fisheries, thereby supporting the overall regulatory framework established by the statute.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 6

"F. All reports of the commercial harvest of cobia shall only be submitted throug..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.7

Holders of licenses issued pursuant to subsection A shall report catch and other data as are deemed necessary by the Commission for effective fisheries management. All funds collected pursuant to this section shall be paid into the state treasury to the credit of the Virginia Saltwater Recreational Fishing Development Fund, as established by § 28.2-302.3.

ANALYSIS

§ 28.2-302.7 specifically grants the Commission the authority to require holders of licenses to report catch and other data necessary for effective fisheries management. This broad language allows the Commission to establish specific reporting mechanisms, such as the Mandatory Harvest Reporting Program Web Application, to fulfill its mandate for effective management, resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agency to implement detailed regulations that operationalize the statutory requirement for data reporting without needing further legislative approval.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 7

"G. All reports of the commercial harvest of oysters or blue crabs shall only be ..."

Express Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses related to commercial fishing piers and outlines the licensing requirements for owners of such piers. This results in EXPRESS_DELEGATION because the statute provides a clear mandate for the Commission to implement regulations regarding the management and reporting of commercial harvests, which includes the requirement for reports to be submitted through a designated online platform. The legal significance of this authorization relationship is that it empowers the Commission to establish specific reporting procedures that are necessary for effective oversight and regulation of commercial fishing activities, ensuring compliance with the licensing framework established by the statute.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"H. The harvest report requirements shall be as follows: 1. Registered commercial..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring registered commercial fishermen to provide harvest reports, as it is essential for the effective management and conservation of seafood resources, aligning with the Commission's mandate to ensure sustainable practices within the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to monitor and regulate fishing activities, thereby supporting the overarching goals of resource conservation and industry welfare without requiring further legislative approval for such detailed regulatory actions.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"2. The harvest report from oyster aquaculture product owner permittees and clam ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically states that the owner of a commercial fishing pier has the option to purchase a saltwater recreational fishing license for their customers and allows the Commission to revise the cost of these licenses. The regulation, however, imposes detailed reporting requirements on oyster and clam aquaculture product owners that are not mentioned or authorized by the statute, which only addresses licensing options for commercial fishing pier owners. This discrepancy indicates that the regulation may exceed the authority granted by the statute, as it introduces additional obligations that are not supported by the statutory language.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 10

"3. The harvest report and daily harvest records from seafood landing licensees s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation requiring detailed harvest reports from seafood landing licensees, as it directly supports the management and conservation objectives outlined in the statute by ensuring accurate tracking of seafood harvests. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for effective resource management without needing further specific legislative approval, thereby facilitating timely and responsive regulatory actions.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 11

"I. Registered commercial fishermen, oyster aquaculture product owner permittees ..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses related to commercial fishing piers and their customers. This broad grant of authority encompasses the regulation by allowing the Commission to establish requirements for notification related to licensing activities, which aligns with the overarching goal of managing and overseeing commercial fishing operations. The legal significance of this authorization relationship is that it enables the Commission to implement necessary regulations to ensure compliance and effective management of fishing licenses, reflecting the statutory intent to regulate the fishing industry comprehensively.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 12

"J. Any person licensed as a commercial seafood buyer pursuant to § 28.2-228 of t..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses and requires owners of commercial piers to report catch and other data necessary for effective fisheries management. This broad grant of authority encompasses the regulation's requirement for commercial seafood buyers to maintain daily harvest records, as it aligns with the Commission's responsibility for managing fisheries and ensuring compliance with licensing requirements. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to gather data and enforce compliance, thereby supporting effective fisheries management under the statutory framework.

CROSS-REFERENCE § 28.2-228

Referenced in regulation context: pursuant to § 28.2-228

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-228

Citation text: "§ 28.2-228"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 13

"K. The reporting of the harvest of federally permitted species from beyond Virgi..."

Express Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically states that the owner of a commercial fishing pier has the option to purchase a saltwater recreational fishing license for their customers and allows the Commission to revise the cost of licenses. This results in EXPRESS DELEGATION because the statute explicitly grants the Commission the authority to implement regulations regarding licensing requirements and associated procedures, which includes exemptions for specific reporting requirements as outlined in the regulation. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that streamline compliance for commercial fishing pier owners while ensuring adherence to broader licensing and reporting obligations.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 14

"L. The owner of any purse seine vessel or bait seine vessel (snapper rig) licens..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

The owner of a commercial fishing pier, as defined in § 28.2-302, shall have the option of purchasing a saltwater recreational fishing license, covering his customers, in order to meet the licensing requirements set forth in § 28.2-302.1 The Commission may subsequently revise the cost of licenses in this section pursuant to § 28.2-201

ANALYSIS

§ 28.2-302.9 specifically grants the owner of a commercial fishing pier the option to purchase a saltwater recreational fishing license for their customers, indicating the Commission's authority to set licensing requirements and revise costs. This broad grant of authority allows for the establishment of regulations that ensure compliance with federal reporting requirements, such as the submission of Captain's Daily Fishing Reports by licensed vessel owners, thereby falling under the same general framework of managing commercial fishing activities. The legal significance of this authorization relationship is that it enables the Commission to implement necessary regulations that support the overarching statutory objectives of sustainable fishing practices and compliance with federal standards.

CROSS-REFERENCE § 28.2-402

Referenced in regulation context: § 28.2-402 of the Code of Virginia

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-402

Citation text: "§ 28.2-402"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 15

"M. Registered commercial fishermen, seafood landing licensees, and licensed seaf..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the regulation requiring registered commercial fishermen and seafood buyers to allow sampling for biological information directly supports the Commission's mandate to manage and conserve seafood resources, aligning with the broad authority to implement necessary regulations for effective resource management. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that facilitate data collection essential for informed decision-making and sustainable management of marine resources, without requiring further legislative approval.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Provision 16

"N. Registered commercial fishermen, seafood landing licensees, oyster aquacultur..."

General Delegation

AUTHORIZING STATUTE § 28.2-302.9

ANALYSIS

§ 28.2-302.9 specifically grants the Commission the authority to revise the cost of licenses and outlines the licensing options available to commercial fishing pier owners. This broad grant of authority allows the Commission to establish regulations, such as the requirement for registered commercial fishermen and aquaculture product owner permittees to maintain and provide access to harvest records, which are essential for effective management and oversight of the fishing industry. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulations to ensure compliance and sustainability within the commercial fishing sector, reflecting the intent of the statute to regulate fishing activities comprehensively.

ADDITIONAL AUTHORITY § 28.2-302.7

DEFINITION § 28.2-302.9

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

A. Any initial violation of 4VAC20-610-60 by any registered commercial fisherman, oyster aquaculture product owner permittee, clam aquaculture product owner permittee, or seafood landing licensee shall be subject to penalties as described in subdivisions 1 through 4 of this subsection.¹ 1. Any failure to report harvest or no harvest activity or no landing in Virginia within one to three months after that report was due shall result in a minimum of one year of probation.² 2. Any failure to report harvest or no harvest activity or no landing in Virginia within four to six months after that report was due shall result in a minimum of two years of probation.³ 3. Any failure to report harvest or no harvest activity or no landing in Virginia within seven to 12 months after that report was due shall result in a minimum of six months of suspension of all commercial licenses and permits.⁴ 4. Any failure to report harvest or no harvest activity or no landing in Virginia more than 12 months after that report was due shall result in a minimum of one year of suspension of all commercial licenses and permits.⁵ B. Any second or subsequent violation of 4VAC20-610-60 by any registered commercial fisherman, oyster aquaculture product owner permittee, clam aquaculture product owner permittee, or seafood landing licensee may be subject to having his commercial licenses and permits suspended by the commission.⁶

Provision-Level Authorization Analysis

Provision 1

"A. Any initial violation of 4VAC20-610-60 by any registered commercial fisherman..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including establishing penalties for violations related to seafood management. This broad grant of authority encompasses the regulation regarding penalties for violations by commercial fishermen and seafood licensees, as it aligns with the Commission's responsibility to promote the general welfare of the seafood industry and manage marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement measures to ensure compliance with regulations aimed at conserving and promoting seafood resources.

Provision 2

"1. Any failure to report harvest or no harvest activity or no landing in Virgini..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources, including the establishment of regulations for the reasonable use of those resources. This broad grant of authority encompasses the regulation regarding reporting harvest activities, as it is necessary to ensure compliance and accountability within the seafood industry, thereby supporting conservation efforts and resource management. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to uphold the integrity of resource management, ensuring that regulations align with the overarching goals of conservation and sustainable use as outlined in the statute.

Provision 3

"2. Any failure to report harvest or no harvest activity or no landing in Virgini..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, but it does not explicitly mention penalties or probationary measures for reporting failures. The regulation's imposition of a minimum two-year probation for failure to report harvest activities appears to exceed the statute's authorization, as it introduces a punitive measure not outlined in the statutory text. The legal significance of this relationship is that the regulation may be seen as overstepping the bounds of the Commission's authority, potentially undermining the statutory framework intended for the management of seafood resources.

Provision 4

"3. Any failure to report harvest or no harvest activity or no landing in Virgini..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the general welfare of the seafood industry and for the conservation and management of marine resources. This broad language allows the Commission to implement regulations, such as the requirement for timely reporting of harvest activities, to ensure effective management and accountability within the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to enforce compliance measures, like license suspensions for reporting failures, which are essential for the sustainable management of marine resources.

Provision 5

"4. Any failure to report harvest or no harvest activity or no landing in Virgini..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the establishment of regulations for the reasonable use of resources. This broad grant of authority encompasses the regulation regarding the reporting of harvest activities, as it is necessary for effective management and conservation of seafood resources, ensuring compliance and accountability within the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulatory measures to uphold the sustainability and management of marine resources without requiring further legislative approval, thereby facilitating timely and effective governance.

Provision 6

"B. Any second or subsequent violation of 4VAC20-610-60 by any registered commerc..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation concerning the suspension of licenses and permits for repeated violations, as it directly relates to the Commission's responsibility to ensure sustainable practices and compliance within the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary enforcement measures to uphold regulatory standards, thereby supporting the overarching goals of conservation and resource management as outlined in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Commercial Fishing and Mandatory Harvest Reporting

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

General Delegation

AUTHORIZING STATUTE § 28.2-243

The Commission shall promulgate regulations governing the registration of commercial fishermen.

ANALYSIS

§ 28.2-243 specifically grants the Commission the authority to promulgate regulations governing the registration of commercial fishermen, indicating a broad scope of regulatory power. This broad grant of authority encompasses the regulation, as it establishes penalties for violations related to the registration process, thereby supporting the enforcement of the regulations set forth by the Commission. The legal significance of this authorization relationship is that it allows the Commission to effectively regulate and enforce compliance within the commercial fishing industry, ensuring adherence to established standards.

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. In addition to the penalties described by law, any person violating any provi..."

General Delegation

AUTHORIZING STATUTE § 28.2-242

All harvests shall be reported by either commercial fishermen, licensed buyers, or self marketers in the manner and form prescribed by the Commission.

ANALYSIS

§ 28.2-242 specifically grants the Commission the authority to prescribe the manner and form in which harvests must be reported by commercial fishermen, licensed buyers, or self-marketers. This broad grant of authority allows the Commission to establish enforcement mechanisms, such as penalties for violations, which is reflected in the regulation regarding license suspension or revocation. The legal significance of this authorization relationship is that it enables the Commission to implement necessary regulatory measures to ensure compliance with reporting requirements, thereby promoting effective management of fisheries.

CROSS-REFERENCE § 28.2-903

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to manage commercial and recreational fishing mortality in order to maintain healthy stocks of summer flounder and to establish a license for commercial fishing vessels to land summer flounder in Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to manage commercial and recreational fishing mo..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of specific seafood resources, such as surf clams and Atlantic menhaden, while promoting the general welfare of the seafood industry. The regulation's focus on managing commercial and recreational fishing mortality for summer flounder appears to exceed the statute's authorization, as it does not explicitly mention summer flounder as a resource the Commission is authorized to regulate, nor does it align with the statute's emphasis on conservation and management of specified species. The legal significance of this relationship is that the regulation may lack the necessary statutory foundation, potentially undermining its validity and enforceability due to the absence of explicit authorization for the management of summer flounder within the statute.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

The following words and terms when used in this chapter shall have the following meanings unless the context indicates otherwise:¹ "Chesapeake Bay and its tributaries" means all tidal waters of Virginia, excluding the Potomac River tributaries and the coastal area as defined in this section.² "Coastal area" means the area that includes Virginia's portion of the Territorial Sea and all of the creeks, bays, inlets, and tributaries on the seaside of Accomack County, Northampton County, including areas east of the causeway from Fisherman Island to the mainland and the City of Virginia Beach, including federal areas and state parks fronting on the Atlantic Ocean and east and south of the point where the shoreward boundary of the Territorial Sea joins the mainland at Cape Henry.³ "Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans, or other marine seafood on board any boat or vessel; (ii) begin offloading finfish, shellfish, crustaceans, or other marine seafood; or (iii) offload finfish, shellfish, crustaceans, or other marine seafood.⁴ "Potomac River tributaries" means all the tributaries of the Potomac River that are within Virginia's jurisdiction beginning with, and including, Flag Pond, thence upstream to the District of Columbia boundary.⁵ "Safe harbor" means that a vessel has been authorized by the commissioner to enter Virginia waters from federal waters solely to either dock temporarily at a Virginia seafood buyer's place of business or traverse the Intracoastal Waterway from Virginia to North Carolina.⁶ "Snout" means the most forward projection from a fish's head that includes the upper and lower jaw.⁷ "Total length" means the length of a fish measured from the most forward projection of the snout, with the mouth closed, to the tip of the longer lobe of the tail (caudal) fin, measured with the tail compressed along the midline, using a straight-line measure, not measured over the curve of the body.⁸

Provision-Level Authorization Analysis

Provision 1

"The following words and terms when used in this chapter shall have the following..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing definitions relevant to these regulations. This broad grant of authority encompasses the regulation that defines terms, as it is essential for the effective implementation and understanding of the Commission's regulatory framework, thereby justifying GENERAL_DELEGATION. The legal significance of this authorization relationship is that it allows the Commission flexibility in defining terms critical to the regulation of the seafood industry, ensuring clarity and consistency in enforcement and compliance.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

""Chesapeake Bay and its tributaries" means all tidal waters of Virginia, excludi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, including the management of specific species and the establishment of fishery management plans. This broad grant of authority encompasses the regulation defining "Chesapeake Bay and its tributaries," as it is essential for the Commission to delineate the waters under its jurisdiction to effectively manage and regulate seafood resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are crucial for the sustainable management of marine resources, ensuring that the regulatory framework aligns with the overarching goals of conservation and industry welfare.

Provision 3

""Coastal area" means the area that includes Virginia's portion of the Territoria..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage specific marine resources, such as surf clams and Atlantic menhaden, while ensuring reasonable use and conservation. The regulation defining "coastal area" extends the Commission's jurisdiction to a broad geographic area, which may not be explicitly supported by the statute's focus on specific resources and user groups, leading to concerns that it exceeds the intended scope of authority. The legal significance of this relationship is that while the Commission has the power to regulate for conservation and management, the broad definition in the regulation could infringe upon the limits set by the statute, potentially undermining the balance between resource management and user rights.

Provision 4

""Land" or "landing" means to (i) enter port with finfish, shellfish, crustaceans..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific seafood species. This broad language encompasses the regulation defining "land" or "landing," as it is essential for the effective management and conservation of seafood resources by establishing clear operational definitions for activities related to the harvesting and offloading of marine seafood. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are flexible and responsive to the needs of the seafood industry while ensuring the sustainable use of marine resources.

Provision 5

""Potomac River tributaries" means all the tributaries of the Potomac River that ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language encompasses the regulation defining "Potomac River tributaries" as it establishes the jurisdictional boundaries relevant to the management and conservation of marine resources within Virginia, thereby facilitating effective regulatory oversight. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for managing and conserving marine resources, ensuring that they align with the overarching goals set forth in the statute.

Provision 6

""Safe harbor" means that a vessel has been authorized by the commissioner to ent..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood resources. This broad grant of authority encompasses the regulation regarding "safe harbor" as it pertains to the management of vessels entering Virginia waters, which is essential for facilitating the seafood industry's operations and ensuring compliance with conservation efforts. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that directly support the sustainable management of marine resources while promoting the economic interests of the seafood industry.

Provision 7

""Snout" means the most forward projection from a fish's head that includes the u..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources. This broad language allows for the establishment of definitions, such as the term "snout," which is essential for the effective management and regulation of fish species within the industry. The legal significance of this authorization relationship is that it empowers the Commission to create detailed regulations that support the overarching goals of resource conservation and industry welfare without requiring explicit legislative approval for each specific regulation.

Provision 8

""Total length" means the length of a fish measured from the most forward project..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad language allows for the establishment of detailed definitions and measurements, such as the regulation defining "total length" of fish, which is essential for effective management and conservation efforts. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that support the overarching goals of resource management and industry welfare, ensuring that the regulations align with the statutory intent to conserve marine resources.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. During each calendar year, allowable commercial landings of summer flounder shall be limited to a quota in total pounds calculated pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Summer Flounder Fishery Management Plan.¹ B. The commercial harvest of summer flounder from Virginia tidal waters for each calendar year shall be limited to 100,000 pounds of the annual quota described in subsection A of this section.² C. It shall be unlawful for any person to harvest or to land summer flounder for commercial purposes after the commercial harvest limit or any allowable commercial landings as described in this section have been attained and announced as such. If any person lands summer flounder after the commercial harvest limit or any allowable commercial landing have been attained and announced as such, the entire amount of summer flounder in that person's possession shall be confiscated.³ D. It shall be unlawful for any buyer of seafood to receive any summer flounder after any commercial harvest limit or allowable commercial landings as described in this section has been attained and announced as such.⁴

Provision-Level Authorization Analysis

Provision 1

"A. During each calendar year, allowable commercial landings of summer flounder s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like summer flounder. This results in GENERAL_DELEGATION because the broad language of the statute empowers the Commission to establish regulations that align with the overarching goals of promoting the welfare of the seafood industry and managing fishery resources, which includes setting quotas for commercial landings. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory measures, such as the quota for summer flounder, without needing further specific legislative approval, thereby facilitating effective resource management.

Provision 2

"B. The commercial harvest of summer flounder from Virginia tidal waters for each..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad language encompasses the regulation limiting the commercial harvest of summer flounder, as it directly relates to the conservation and management of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for sustainable resource management without requiring further specific legislative approval, thereby facilitating timely and effective regulatory action.

Provision 3

"C. It shall be unlawful for any person to harvest or to land summer flounder for..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific seafood species. This broad grant of authority allows the Commission to implement regulations, such as the prohibition on harvesting summer flounder after established limits, to ensure the sustainability and management of the seafood industry. The legal significance of this authorization relationship is that it empowers the Commission to create necessary regulations for resource conservation without requiring further legislative approval, thereby facilitating timely and effective management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. It shall be unlawful for any buyer of seafood to receive any summer flounder ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including establishing regulations for taking seafood and managing specific species like Atlantic menhaden. The regulation that prohibits buyers from receiving summer flounder after commercial harvest limits have been reached may exceed the statutory authority because the statute does not explicitly grant the Commission the power to regulate the actions of seafood buyers in this manner; it focuses on the management of resources and licenses rather than direct restrictions on market transactions. The legal significance of this relationship is that the regulation could be challenged as exceeding the scope of the Commission's authority, potentially undermining the legitimacy of the regulation if it is found to impose restrictions not clearly authorized by the statute.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person harvesting summer flounder outside of Virginia's waters to do any of the following, except as described in subsections B, C, and D of this section: 1. Possess aboard any vessel in Virginia waters any amount of summer flounder in excess of 10% by weight of Atlantic croaker or the combined landings, on board a vessel, of black sea bass, scup, squid, scallops, and Atlantic mackerel.¹ 2. Possess aboard any vessel in Virginia waters any amount of summer flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.² 3. Fail to sell the vessel's entire harvest of all species at the point of landing.³ B. Nothing in this chapter shall preclude a vessel from possessing any North Carolina or New Jersey vessel possession limit of summer flounder in Virginia; however, no vessel that possesses the North Carolina or New Jersey vessel possession limit of summer flounder shall offload any amount of that possession limit, except as described in subsection I of this section.⁴ C. It shall be unlawful for any person to land summer flounder in Virginia that was harvested outside of Virginia waters, except as in accordance with the established seasons and landing limits announced by the Marine Resources Commission (commission). Season opening dates, closing dates, and landing limits shall be set based on market conditions and quota monitoring and announced on the commission website. Within each season announced by the commission, it shall be unlawful to do any of the following: 1. Possess aboard any vessel in Virginia waters any amount of summer flounder in excess of the combined total of the Virginia landing limit described in subdivision 2 of this subsection and the amount of the legal North Carolina or New Jersey landing limit or trip limit.⁵ 2. Land any summer flounder more than the landing limit announced by the commission.⁶ 3. Land in Virginia any amount of summer flounder more than once in any consecutive five-day period.⁷ D. From January 1 through December 31, any boat or vessel issued a valid federal summer flounder moratorium permit and owned and operated by a legal Virginia Commercial Hook-and-Line Licensee that possesses a Restricted Summer Flounder Endorsement shall be restricted to a possession and landing limit of 200 pounds of summer flounder, except as described in 4VAC20-620-30 C.⁸ E. Upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all summer flounder aboard any vessel landing summer flounder in Virginia.⁹ F. Any possession limit described in this section shall be determined by the weight in pounds of summer flounder as customarily packed, boxed, and weighed by the seafood buyer or processor. The weight of any summer flounder in pounds found in excess of any possession limit described in this section shall be prima facie evidence of violation of this chapter. Persons in possession of summer flounder aboard any vessel in excess of the possession limit shall be in violation of this chapter unless that vessel has requested and been granted safe harbor. Any buyer or processor offloading or accepting any quantity of summer flounder from any vessel in excess of the possession limit shall be in violation of this chapter, except as described by subsection I of this section. A buyer or processor may accept or buy summer flounder from a vessel that has secured safe harbor, provided that vessel has satisfied the requirements described in subsection I of this section.¹⁰ G. If a person violates the possession limits described in this section, the entire amount of summer flounder in that person's possession shall be confiscated. Any confiscated summer flounder shall be considered as a removal from the appropriate commercial harvest or landings quota. Upon confiscation, the marine police officer shall inventory the confiscated summer flounder and, at a minimum, secure two bids for purchase of the confiscated summer flounder from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder, and all funds derived from such sale shall be deposited for the Commonwealth pending court resolution of the charge of violating the possession limits established by this chapter. All of the collected funds will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilty.¹¹ H. It shall be unlawful for a licensed seafood buyer or federally permitted seafood buyer to fail to contact the Marine Resources Commission Operations Station prior to a vessel offloading summer flounder harvested outside of Virginia. The buyer shall provide to the Marine Resources Commission the name of the vessel, its captain, an estimate of the amount in pounds of summer flounder on board that vessel, and the anticipated or approximate offloading time. Once offloading of any vessel is complete and the weight of the landed summer flounder has been determined, the buyer shall contact the Marine Resources Commission Operations Station and report the vessel name and corresponding weight of summer flounder landed. It shall be unlawful for any person to offload from a boat or vessel for commercial purposes any summer flounder during the period of 9 p.m. to 7 a.m.¹² I. It shall be unlawful for any boat or vessel possessing summer flounder on board to enter Virginia waters for safe harbor unless they have contacted the Marine Resources Commission Operations Station in advance of such entry into Virginia waters. Any boat or vessel that has entered Virginia waters for safe harbor shall only offload summer flounder when the state that licenses that vessel requests to transfer quota to Virginia, in the amount that corresponds to that vessel's possession limit, and the commissioner agrees to accept that transfer of quota.¹³ J. It shall be unlawful for any person to possess aboard any vessel, in Virginia, any amount of summer flounder, once it has been projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.¹⁴ K. It shall be unlawful to transfer or offload summer flounder from one vessel to another vessel at sea.¹⁵

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person harvesting summer flounder outside of Vir..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention summer flounder or the regulation of possession limits for fish harvested outside of Virginia's waters. The regulation's prohibition on possessing summer flounder in excess of 10% by weight appears to exceed the Commission's authority as it imposes restrictions on activities occurring outside of Virginia's jurisdiction, which is not supported by the statutory language that focuses on conservation and management within the Commonwealth's waters. The legal significance of this relationship is that the regulation may be invalidated if it is determined to exceed the scope of the authority granted by the statute, potentially undermining the Commission's regulatory framework.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"2. Possess aboard any vessel in Virginia waters any amount of summer flounder in..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and Atlantic menhaden, but does not explicitly mention summer flounder or establish a specific possession limit for it. The regulation imposing a limit of 1,500 pounds of summer flounder appears to exceed the Commission's authority as outlined in the statute, as it does not align with the conservation and management directives provided for in the statutory text, which focuses on specific species and broader management plans. The legal significance of this relationship is that the regulation may be deemed invalid if it is found to exceed the scope of the authority granted by the statute, potentially undermining the regulatory framework intended to manage seafood resources effectively.

Provision 3

"3. Fail to sell the vessel's entire harvest of all species at the point of landi..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage specific species like Atlantic menhaden, and promote the welfare of the seafood industry. The regulation requiring vessels to sell their entire harvest at the point of landing appears to exceed the statute's authorization because it imposes a mandatory selling requirement rather than focusing on conservation or reasonable use, which the statute emphasizes. The legal significance of this relationship is that the regulation may not align with the statute's intent, potentially infringing on the rights of resource users and exceeding the Commission's designated authority.

Provision 4

"B. Nothing in this chapter shall preclude a vessel from possessing any North Car..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like surf clams and Atlantic menhaden. The regulation allows vessels to possess summer flounder under the possession limits of other states, which aligns with the Commission's broad mandate to manage seafood resources and ensure reasonable use while promoting the industry. This authorization relationship is significant because it empowers the Commission to create flexible regulations that accommodate inter-state fishing practices while still adhering to the overarching goals of resource conservation and industry welfare.

Provision 5

"C. It shall be unlawful for any person to land summer flounder in Virginia that ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad language encompasses the regulation prohibiting the landing of summer flounder harvested outside Virginia waters, as it aligns with the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for resource management without requiring specific legislative approval for each regulation, thereby facilitating timely and responsive governance.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 6

"2. Land any summer flounder more than the landing limit announced by the commiss..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad grant of authority encompasses the regulation regarding the landing limit for summer flounder, as it aligns with the Commission's responsibility to manage fishery resources effectively and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the conservation and management of seafood resources without requiring further legislative approval, thereby facilitating timely and responsive regulatory actions.

Provision 7

"3. Land in Virginia any amount of summer flounder more than once in any consecut..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to conserve marine resources, including the management of specific species such as surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations like the one concerning the landing of summer flounder, as it falls within the scope of managing seafood resources and ensuring their conservation and reasonable use. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that directly address the sustainable management of marine resources, reflecting the legislative intent to support both the industry and ecological balance.

Provision 8

"D. From January 1 through December 31, any boat or vessel issued a valid federal..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific fisheries such as Atlantic menhaden. This broad grant of authority encompasses the regulation concerning summer flounder because it pertains to the management and conservation of a specific fishery, aligning with the Commission's mandate to promote the welfare of the seafood industry and ensure sustainable practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations that are essential for effective resource management while remaining within the scope of its statutory powers.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"E. Upon request by a marine police officer, the seafood buyer or processor shall..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use of seafood. This broad grant of authority encompasses the regulation requiring seafood buyers or processors to offload and accurately determine the total weight of summer flounder, as it directly relates to the management and conservation of seafood resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to ensure compliance with conservation efforts and resource management, thereby supporting the overall objectives outlined in the statute.

Provision 10

"F. Any possession limit described in this section shall be determined by the wei..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes the need to promote the general welfare of the seafood industry. This results in GENERAL_DELEGATION because the regulation concerning possession limits for summer flounder directly aligns with the Commission's mandate to manage seafood resources effectively and ensures that such management is based on practical measures relevant to industry practices. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for the sustainable management of marine resources, thereby supporting both conservation efforts and the economic interests of the seafood industry.

Requirements Analysis

4 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 11

"G. If a person violates the possession limits described in this section, the ent..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to manage specific species such as summer flounder. This broad grant of authority allows the Commission to establish regulations that enforce possession limits and manage the consequences of violations, thereby promoting the general welfare of the seafood industry and ensuring resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary measures to regulate and manage marine resources effectively, ensuring compliance and sustainability within the industry.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 12

"H. It shall be unlawful for a licensed seafood buyer or federally permitted seaf..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring licensed seafood buyers to contact the Marine Resources Commission before offloading summer flounder, as it is necessary for effective management and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that ensure the sustainable use of seafood resources, thereby fulfilling its mandate to promote the welfare of the seafood industry and manage marine resources effectively.

Provision 13

"I. It shall be unlawful for any boat or vessel possessing summer flounder on boa..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species like summer flounder. The regulation requiring boats or vessels possessing summer flounder to contact the Marine Resources Commission Operations Station before entering Virginia waters aligns with the Commission's broad mandate to manage and conserve marine resources, thereby justifying a GENERAL_DELEGATION of authority. This authorization relationship signifies that the Commission has the discretion to implement regulations that ensure the sustainable management of seafood resources, reflecting the statute's intent to promote both conservation and the welfare of the industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 14

"J. It shall be unlawful for any person to possess aboard any vessel, in Virginia..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species such as summer flounder. The regulation prohibiting possession of summer flounder aboard vessels once the quota is met directly aligns with the Commission's mandate to manage and conserve seafood resources, thereby falling under the broad grant of authority provided by the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to ensure sustainable fishing practices and resource conservation without requiring specific legislative approval for each regulation.

Provision 15

"K. It shall be unlawful to transfer or offload summer flounder from one vessel t..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the management of specific species. This broad grant of authority encompasses the regulation prohibiting the transfer or offloading of summer flounder at sea, as it directly relates to the conservation and management of seafood resources, ensuring sustainable practices within the industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby facilitating effective resource management.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any boat or vessel to land summer flounder in Virginia, for commercial purposes, without first obtaining a Seafood Landing License as described in 4VAC20-920-30 and a Summer Flounder Endorsement License or possessing a Restricted Summer Flounder Endorsement License. The Summer Flounder Endorsement License shall be required of each boat or vessel used to land summer flounder for commercial purposes. Possession of any quantity of summer flounder that exceeds the possession limit, described in 4VAC20-620-60 , shall be presumed to be for commercial purposes. Any boat or vessel so licensed shall display a Summer Flounder Endorsement License decal, provided by the Virginia Marine Resources Commission. The decals shall be displayed on both the port and starboard sides of the pilot house.¹ B. It shall be unlawful for any buyer of seafood to receive any summer flounder from any boat or vessel that is not licensed for the landing of summer flounder unless that boat or vessel is exempt from the requirement to obtain a Seafood Landing License and a Summer Flounder Endorsement License as described in 4VAC20-920-30 and this section.² C. Any boat or vessel that is both owned and operated by a person who holds a valid Virginia Commercial Fisherman Registration License and is used solely for fishing for summer flounder only in Virginia waters shall be exempt from the requirement to obtain a Summer Flounder Endorsement License.³ D. Any boat or vessel operated by a person harvesting and landing marine seafood from the Potomac River who holds a valid Potomac River Fisheries Commission commercial license shall be exempt from the requirement to obtain a Summer Flounder Endorsement License.⁴ E. Any boat or vessel operated by a person harvesting and landing marine seafood from leased ground or reharvesting marine seafood as part of the relay process shall be exempt from the requirements to obtain a Summer Flounder Endorsement License.⁵ F. To be eligible for a Summer Flounder Endorsement License the boat or vessel shall have landed and sold at least 500 pounds of summer flounder in Virginia in at least one year during the period of 1993 through 1995.⁶ 1. The owner shall complete an application for each boat or vessel by providing to the commission a notarized and signed statement of applicant's name, address, telephone number, boat or vessel name, and registration or documentation number and a copy of the vessel's federal summer flounder moratorium permit.⁷ 2. The owner shall complete a notarized authorization to allow the commission to obtain copies of landings data from the National Marine Fisheries Service.⁸ G. To be eligible for a Restricted Summer Flounder Endorsement License (RSFEL), a person must be a legal Virginia commercial hook-and-line licensee and own a vessel issued a valid federal summer flounder moratorium permit. The person shall complete an application for the RSFEL by providing to the commission a notarized and signed statement of the person's name, address, telephone number, boat or vessel name, the boat or vessel's registration or documentation number, and a copy of that vessel's federal summer flounder moratorium permit.⁹ H. Effective February 24, 2004, any vessel eligible for a Summer Flounder Endorsement License shall be considered a baseline vessel, and that vessel's total length shall be used to determine eligibility for all future transfers of that Summer Flounder Endorsement License. A Summer Flounder Endorsement License may be transferred from one vessel to another vessel that is entering the summer flounder fishery, provided the vessel receiving the Summer Flounder Endorsement License does not exceed by more than 10% the total length of the baseline vessel that held that Summer Flounder Endorsement License on February 24, 2004.¹⁰

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any boat or vessel to land summer flounder in Virgin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the establishment of regulations for the conservation and reasonable use of specific species such as summer flounder. This broad grant of authority encompasses the regulation requiring a Seafood Landing License and endorsements for landing summer flounder, as it directly relates to the management and conservation of marine resources, ensuring that the fishery is regulated in a way that supports the industry and resource sustainability. The legal significance of this authorization relationship is that it empowers the Commission to implement necessary regulatory measures without requiring specific legislative approval for each regulation, thereby facilitating effective management of the seafood resources within the Commonwealth.

Provision 2

"B. It shall be unlawful for any buyer of seafood to receive any summer flounder ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry, conserving marine resources, and managing specific species like Atlantic menhaden, while also allowing for the establishment of regulations for the reasonable use of surf clams. The regulation that prohibits buyers from receiving summer flounder from unlicensed vessels may exceed the statute's authorization because it imposes restrictions on buyers rather than focusing on the management and conservation of marine resources, which is the primary intent of the statute. The legal significance of this relationship is that regulations must align with the specific authority granted by the statute, and any overreach could undermine the legislative intent and limit the rights of individuals or entities not explicitly addressed in the statute.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Any boat or vessel that is both owned and operated by a person who holds a va..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including specific provisions for conservation and reasonable use. This broad grant of authority allows the Commission to establish exemptions, such as the one in the regulation for vessels owned and operated by licensed fishermen, as it aligns with the goal of promoting reasonable use and management of seafood resources. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that facilitate fishing activities while ensuring the sustainability of marine resources, thus falling within the scope of GENERAL_DELEGATION.

Provision 4

"D. Any boat or vessel operated by a person harvesting and landing marine seafood..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden, but does not explicitly mention the authority to exempt vessels from licensing requirements related to other species such as summer flounder. The regulation's exemption for vessels operating under a Potomac River Fisheries Commission commercial license may exceed the Commission's authority as it appears to create a licensing exception that is not supported by the statutory text, which emphasizes conservation and management rather than exemptions. The legal significance of this relationship is that the regulation could undermine the statutory intent to manage marine resources effectively by allowing certain vessels to bypass necessary licensing, potentially leading to overfishing or mismanagement of the species in question.

Provision 5

"E. Any boat or vessel operated by a person harvesting and landing marine seafood..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and managing marine resources, including the establishment of regulations for the conservation and reasonable use of specific seafood species. This broad grant of authority encompasses the regulation by allowing the Commission to determine exemptions from licensing requirements for certain activities related to the harvesting and landing of marine seafood, thus aligning with its mandate to manage resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to make regulatory decisions that facilitate the efficient use of marine resources while ensuring conservation efforts, reflecting the intent of the statute to support the seafood industry and its sustainability.

Provision 6

"F. To be eligible for a Summer Flounder Endorsement License the boat or vessel s..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation regarding the Summer Flounder Endorsement License, as it relates to the management and promotion of the seafood industry by setting criteria for participation in the fishery. The legal significance of this relationship is that it allows the Commission to implement regulations that ensure sustainable practices and resource management without needing to seek further legislative approval, thereby facilitating effective oversight of the seafood industry.

Provision 7

"1. The owner shall complete an application for each boat or vessel by providing ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry, conserve marine resources, and manage specific fisheries. This broad grant of authority encompasses the regulation requiring vessel owners to complete an application with specific identifying information, as it is necessary for the effective management and oversight of the seafood industry and its resources. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulatory requirements that support its overarching goals of conservation and resource management without needing further legislative approval.

Provision 8

"2. The owner shall complete a notarized authorization to allow the commission to..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring owners to complete a notarized authorization for the Commission to obtain landings data, as it directly supports the Commission's responsibility to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures to gather data essential for informed regulatory decisions, thereby fulfilling its mandate under the statute.

Provision 9

"G. To be eligible for a Restricted Summer Flounder Endorsement License (RSFEL), ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like surf clams and Atlantic menhaden. The regulation requiring a person to be a legal Virginia commercial hook-and-line licensee and to own a vessel with a federal summer flounder moratorium permit may exceed the statutory authority because it imposes additional eligibility criteria not explicitly mentioned in the statute, which only emphasizes the need for regulations that promote general welfare and conservation. The legal significance of this relationship is that the regulation may not align with the statute's intent, potentially infringing on the rights of individuals who may wish to participate in the seafood industry without meeting these extra requirements.

Provision 10

"H. Effective February 24, 2004, any vessel eligible for a Summer Flounder Endors..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including establishing regulations for the conservation and reasonable use of specific species like surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to implement regulations, such as the one regarding the Summer Flounder Endorsement License, as it pertains to the management and eligibility criteria for licenses, which directly supports the overall goals of resource conservation and industry welfare. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations under a general framework, ensuring effective management and sustainable practices within the seafood industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

Any licensed fisherman who provides to the commissioner an opinion and supporting documentation from an attending physician of an existing medical condition, proof of active military service, documentation that indicates substantial vessel damage, or other significant extenuating circumstances that prevented that licensed fisherman from satisfying the eligibility criteria described in 4VAC 20-620-41 F and can provide documentation of having landed at least 500 pounds of summer flounder during any one year of the 1990 through 1992 period may be authorized for an exception to the requirements to be eligible for a Summer Flounder Endorsement License as described in 4VAC 20-620-41 F.¹

Provision-Level Authorization Analysis

Provision 1

"Any licensed fisherman who provides to the commissioner an opinion and supportin..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for conservation and reasonable use. This broad grant of authority encompasses the regulation, as it allows the Commission to create provisions that accommodate individual circumstances affecting licensed fishermen, thereby promoting the general welfare of the industry and ensuring effective resource management. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible regulations that address specific needs while still aligning with the overarching goals of conservation and resource management as outlined in the statute.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. The minimum size for summer flounder harvested by commercial fishing gear shall be 14 inches in total length.¹ B. The minimum size of summer flounder harvested by recreational fishing gear, including hook and line, rod and reel, spear, and gig, shall be 16 inches in total length January 1 through May 31 and 17.5 inches in total length June 1 through December 31, except that the minimum size of summer flounder harvested in the Potomac River tributaries shall be the same as established by the Potomac River Fisheries Commission for the mainstem Potomac River.² C. It shall be unlawful for any person to possess any summer flounder smaller than the designated minimum size limit.³ D. Nothing in this chapter shall prohibit the landing of summer flounder in Virginia that were legally harvested in the Potomac River.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The minimum size for summer flounder harvested by commercial fishing gear sha..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation setting a minimum size for summer flounder, as it directly relates to the conservation and reasonable use of seafood resources, which is a core responsibility of the Commission. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further specific legislative approval, thereby facilitating effective management of marine resources.

Provision 2

"B. The minimum size of summer flounder harvested by recreational fishing gear, i..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the conservation and reasonable use of specific species. This broad language encompasses the regulation regarding the minimum size of summer flounder, as it directly relates to the conservation and management of marine resources, ensuring sustainable recreational fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement specific measures, like size limits, under a general framework aimed at resource conservation and industry welfare, thereby facilitating effective management of the fishery.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to possess any summer flounder smaller th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses regulations like the prohibition on possessing undersized summer flounder, as such measures directly contribute to the conservation and sustainable management of fishery resources. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing further specific legislative approval, thereby enabling effective and timely management of marine resources.

Provision 4

"D. Nothing in this chapter shall prohibit the landing of summer flounder in Virg..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for regulations that facilitate the legal landing of seafood, such as summer flounder harvested in specific areas, thereby supporting the sustainable use of marine resources while ensuring compliance with broader conservation goals. The legal significance of this relationship is that it empowers the Commission to implement regulations that align with its overarching mandate to manage and conserve seafood resources effectively, without the need for a more restrictive authorization level.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person fishing in any tidal waters of Virginia, except the Potomac River tributaries, with recreational hook and line, rod and reel, spear, gig or other recreational gear to possess more than four summer flounder. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by four. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any summer flounder taken after the possession limit has been reached shall be returned to the water immediately.¹ B. It shall be unlawful for any person fishing in the Potomac River tributaries with recreational hook and line, rod and reel, spear, gig or other recreational gear to possess more summer flounder than the possession limit established by the Potomac River Fisheries Commission for the mainstem Potomac River. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by the possession limit established by the Potomac River Fisheries Commission for the mainstem Potomac River. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any summer flounder taken after the possession limit has been reached shall be returned to the water immediately.² C. Possession of any quantity of summer flounder that exceeds the possession limit described in subsections A and B of this section shall be presumed to be for commercial purposes.³

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person fishing in any tidal waters of Virginia, ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits for fishing and to promulgate regulations to implement the provisions of the section. This broad grant of authority allows the Commission to establish specific regulations, such as possession limits for certain fish species, under the general framework of managing fishing activities and resources. The legal significance of this relationship is that it empowers the Commission to create detailed rules necessary for effective resource management while ensuring compliance with the overarching statutory provisions.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person fishing in the Potomac River tributaries ..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and empowers it to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations regarding possession limits for summer flounder, as it falls within the scope of managing fishing practices and ensuring sustainable fisheries. The legal significance of this authorization relationship is that it enables the Commission to create necessary regulations without needing further specific legislative approval, thereby facilitating effective fisheries management.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. Possession of any quantity of summer flounder that exceeds the possession li..."

General Delegation

AUTHORIZING STATUTE § 28.2-204.1

The Commission may limit the number of gear licenses or permits to fish The Commission is authorized to promulgate regulations to carry out the provisions of this section

ANALYSIS

§ 28.2-204.1 specifically grants the Commission the authority to limit the number of gear licenses or permits to fish and to promulgate regulations to implement the provisions of this section. This broad grant of authority allows the Commission to establish regulations that address possession limits and the presumption of commercial intent, as these are necessary to effectively manage fishery resources and enforce compliance with the licensing framework. The legal significance of this authorization relationship is that it empowers the Commission to create regulations that are essential for the regulation and conservation of fish populations, ensuring that the management of these resources aligns with the statutory intent.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

A. The recreational fishing season for any tidal waters of Virginia, except the Potomac River tributaries, shall be open year-round.¹ B. The recreational fishing season for the Potomac River tributaries shall be the same as established by the Potomac River Fisheries Commission for the mainstem Potomac River.² C. It shall be unlawful for any person fishing recreationally to take, catch, or possess any summer flounder during any closed recreational fishing season.³ D. Nothing in this chapter shall prohibit the landing of summer flounder in Virginia that were legally harvested in the Potomac River.⁴

Provision-Level Authorization Analysis

Provision 1

"A. The recreational fishing season for any tidal waters of Virginia, except the ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote marine resources. This broad language allows for the regulation of recreational fishing seasons, as it falls within the Commission's mandate to manage and conserve seafood resources effectively. The legal significance of this relationship is that it empowers the Commission to implement regulations that support sustainable fishing practices and resource management without the need for more specific legislative direction.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. The recreational fishing season for the Potomac River tributaries shall be th..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows the regulation to align with the Commission's responsibility to manage fisheries effectively, as it ensures consistency in fishing seasons across jurisdictions, which is essential for resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are responsive to the needs of the seafood industry while ensuring sustainable management practices, thereby fulfilling its statutory mandate.

Provision 3

"C. It shall be unlawful for any person fishing recreationally to take, catch, or..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement regulations, such as prohibiting the taking of summer flounder during closed seasons, as a means to manage and conserve fish populations effectively. The legal significance of this authorization relationship is that it empowers the Commission to enact necessary measures for resource conservation without requiring further specific legislative approval, thereby ensuring responsive management of marine resources.

Provision 4

"D. Nothing in this chapter shall prohibit the landing of summer flounder in Vir..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including provisions for the conservation and reasonable use of specific species. This broad grant of authority allows the regulation regarding the landing of summer flounder legally harvested in the Potomac River to fall under GENERAL_DELEGATION, as it supports the overall management and reasonable use of seafood resources within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that facilitate the sustainable use of marine resources while ensuring compliance with broader conservation goals.

Pertaining to Summer Flounder

Express

General

Overreach

Unauthorized

Requirements

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

Express Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges and licenses, assess civil penalties, and enforce regulations related to fishing within the Commonwealth's tidal waters. This results in EXPRESS_DELEGATION because the statute explicitly empowers the Commission to impose penalties and enforce compliance, which directly supports the regulation that establishes criminal penalties for violations of fishing provisions. The legal significance of this authorization relationship is that it provides a clear framework for the Commission to enforce fishing laws, ensuring that violations are met with appropriate legal consequences as outlined in both the statute and the regulation.

CROSS-REFERENCE § 28.2-903

DEFINITION § 28.2-232

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. Any person found guilty of violating any of the seafood laws or regulations o..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation of specific species. This broad grant of authority encompasses the regulation regarding the revocation of the Summer Flounder Endorsement License for violations, as it is a necessary measure to enforce compliance with seafood laws and ensure the sustainable management of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the effective enforcement of seafood laws, thereby promoting the overall health and sustainability of the seafood industry in the Commonwealth.

CROSS-REFERENCE § 28.2-903

DEFINITION § 28.2-232

Explicit Statutory Citations

REFERENCE § 28.2-232

Citation text: "§ 28.2-232"

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Establishment of Oyster Sanctuary Areas

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to protect and promote the oyster resources within the designated sanctuary areas and to protect oyster replenishment efforts.¹

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to protect and promote the oyster resources withi..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including specific provisions for managing surf clams and Atlantic menhaden. This broad grant of authority encompasses the regulation aimed at protecting and promoting oyster resources within designated sanctuary areas, as it aligns with the overarching goals of conservation and resource management outlined in the statute. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby enabling timely and effective management of marine resources.

Establishment of Oyster Sanctuary Areas

Express

General

Overreach

Unauthorized

Requirements

The Wreck Shoals-James River Oyster Sanctuary Area consisting of all public oyster grounds, with a boundary defined as: beginning at James River Channel Marker 6; thence westerly to James River Channel Marker 10A; thence northeasterly to a point at Lat. 37° 04' 24" N.¹ Long. 76° 34' 39" W; thence southeasterly to a point at Lat. 37° 04' 02" N.² Long. 76° 34' 06" W; thence southeasterly to James River Channel Marker 6, the point of beginning. 2.³ Smith Island Sanctuary - Beginning at a point in Smith Island Bay near the western shore of Smith Island, said point being approximately 9,900 feet north-northwest of the Cape Charles Light House and the northern most point on Ballard Fish and Oyster Co., Inc. oyster lease, plat 16613, said point being corner 85, having NAD 83 Geographic Coordinates of 37° 08.3987390' N, 75° 54.0094551'W; thence in a northeasterly direction along the inshore oyster lease line of Thomas J.⁴ O'Conner, III, plat 17720, to corner 106, 37° 08.5079488'N, 75° 53.9121013'W; thence northeasterly to corner 107, 37° 08.5406502'N, 75° 53.8494541'W; thence east-northeasterly to corner 207, 37° 08.5420829'N, 75° 53.8281776'W; thence east-northeasterly along the inshore oyster lease line of Mark R.⁵ Heath, plat 17721, to corner 108, 37° 08.5446005' N, 75° 53.7907806'W; thence north-northeasterly to corner 109, 37° 08.5895883'N, 75° 53.7864524'W; thence northeasterly to corner 110, 37° 08.6921483'N, 75° 53.6226465'W; thence northeasterly to corner 111, 37° 08.7546771'N, 75° 53.4568175'W; thence northeasterly to corner 112, 37° 08.7754748'N, 75° 53.3619827'W; thence southeasterly along the inshore oyster lease line of H. M.⁶ Terry Co., Inc. to corner 18, 37° 08.7544364'N, 75° 53.3207742'W; thence southeasterly to corner 17, 37° 08.7306590'N, 75° 53.2980718'W; thence southeasterly to corner 16, 37° 08.6251318'N, 75° 53.1579039'W; thence easterly to corner 15, 37° 08.6225028' N, 75° 53.1025432'W; thence north-northeasterly to corner 14, 37° 08.6626612'N, 75° 53.0854858'W; thence northwesterly to corner 153, 37° 08.6768312'N, 75° 53.1394736'W; thence along the inshore oyster lease line of Daniel Scott Long, plat 16802, northeasterly to corner 152, 37° 08.7156785'N, 75° 53.0819599'W; thence northeasterly to corner 151, 37° 08.8330482'N, 75° 52.7283538'W; thence, south-southeasterly onto Smith Island to corner 1, 37° 08.4630004'N, 75° 52.6679990'W; thence, southwesterly to corner 2, 37° 07.9690002'N, 75° 53.0919992'W; thence southwesterly to corner 3, 37° 07.9080005'N, 75° 53.4390002'W; thence southwesterly to corner 4, 37° 07.7800009'N, 75° 53.6839996'W; thence southwesterly to corner 5, 37° 07.6540002'N, 75° 54.3200009'W; thence southwesterly to corner 6, 37° 07.3169996'N, 75° 54.6700007' W.; thence northwesterly, off shore, to corner 170 of Mark R.⁷ Heath's oyster lease, plat 17456, 37° 07.3524313'N, 75° 54.6976587'W; thence along the inshore line of said parcel, northwesterly to corner 169, 37° 07.3528695'N, 75° 54.7176135'W; thence north-northeasterly to corner 168, 37° 07.4495084'N, 75° 54.7100342'W; thence northeasterly to corner 92, 37° 07.5477653'N, 75° 54.5615711'W; thence northeasterly along the inshore oyster lease line of Ballard Fish and Oyster Co., Inc., plat 16613, to corner 91, 37° 07.6416382'N, 75° 54.4402745'W; thence northeasterly to corner 90, 37° 07.6890220'N, 75° 54.3527929'W; thence northeasterly to corner 89, 37° 07.7661702'N, 75° 54.0839677'W; thence northeasterly along the inshore oyster lease line of Henry S.⁸ Jones, Jr., plat 19450, to corner 254, 37° 07.7879690'N, 75° 53.9324560'W; thence northerly to corner 253, 37° 07.8109207'N, 75° 53.9343385'W; thence westerly to corner 252, 37° 07.8094111'N, 75° 53.9916726'W; thence north-northwesterly to corner 251, 37° 07.8582020'N, 75° 53.9962243'W; thence west-southwesterly to corner 250, 37° 07.8535649'N, 75° 54.0512576'W; thence northwesterly to corner 249, 37° 07.9116397'N, 75° 54.0935389'W; thence westerly to corner 248, 37° 07.9113922'N, 75° 54.0976427'W; thence north-northwesterly along the inshore oyster lease line of Ballard Fish and Oyster Co., Inc., plat 16613, to corner 88, 37° 08.0660474'N, 75° 54.1122194'W; thence northeasterly to corner 87, 37° 08.1821017'N, 75° 54.0516546'W; thence north-northeasterly to corner 86, 37° 08.2555945'N, 75° 54.0483544'W; thence north-northeasterly to corner 85, 37° 08.3987390'N, 75° 54.0094551'W, said point being the point of beginning. 3.⁹ Cobb Island Oyster Sanctuary - Beginning at a point in Cobb Bay, near the western shore of Cobb Island and being the southern most point of the oyster lease of John R.¹⁰ Mariner, plat 16866, corner 355, said corner having NAD 83 Geographic Coordinates of 37° 19.3528688'N, 75° 45.9182774'W; thence northeasterly along the inshore line of said oyster lease to corner 354, 37° 19.4051876'N, 75° 45.8386060'W; thence northeasterly to corner 353, 37° 19.5182900'N, 75° 45.6662561'W; thence northeasterly to corner 352, 37° 19.6443229'N, 75° 45.5201098'W; thence southeasterly to a point on Cobb Island, corner 5, 37° 19.2960000'N, 75° 45.3319992'W; thence southwesterly to corner 6, 37° 19.2109998'N, 75° 45.4150006'W; thence southwesterly to a point west of Cobb Island, corner 7, 37° 18.9289998'N, 75° 45.5570001'W; thence southwesterly to corner 8, 37° 18.8050003'N, 75° 45.7710008'W; thence southwesterly to corner 9, 37° 18.2650004'N, 75° 46.3249991'W; thence southwesterly to corner 10, 37° 18.1689997'N, 75° 46.6559996'W; thence northerly to corner 11, 37° 18.6160000'N, 75° 46.6279994'W; thence northeasterly to corner 12, 37° 18.7500009'N, 75° 46.5019997'W; thence northeasterly to the western most point of the oyster lease of J.¹¹ Steve McCready, plat 16371, corner 90, 37° 18.8870550'N, 75° 46.1567968'W; thence southeasterly along the lease line to corner 89, 37° 18.8653681'N, 75° 46.1241425'W; thence southeasterly along the oyster lease line of R&C Seafood, plat 16986 to corner 374, 37° 18.7448511'N, 75° 46.0512077'W; thence northeasterly to corner 373, 37° 18.9339657'N, 75° 45.7191531'W; thence northeasterly to corner 372, 37° 18.9858220'N, 75° 45.6864128'W; thence northwesterly to corner 355, 37° 19.3528688'N, 75° 45.9182774'W, said point being the point of beginning. 4.¹² Boxtree Oyster Sanctuary - Beginning at a point in Boxtree Creek, said point being the eastern most point on the oyster lease of Edwin E.¹³ Brady and Marion Brady, Jr., plat 16344, corner 7, said corner having NAD 83 Geographic Coordinates of 37° 23.7990757'N, 75° 51.5561984'W; thence southeasterly to corner 2, 37° 23.6849997'N, 75° 51.4280006'W; thence southerly to a point in Ramshorn Bay, corner 3, 37° 23.5570008'N, 75° 51.4309991'W; thence southeasterly to corner 4, 37° 23.5009994'N, 75° 51.3100008'W; thence southeasterly to corner 5, 37° 23.4050000'N, 75° 51.2529994'W; thence southwesterly to corner 6, 37° 22.8749994'N, 75° 51.5500012'W; thence westerly to a point on shore, corner 8, 37° 22.9039994'N, 75° 52.3000000'W; thence northeasterly to corner 7, 37° 23.7990757'N, 75° 51.5561984'W, said point being the point of beginning. 5.¹⁴ Parramore Island Sanctuary - Beginning at a point, corner 1, in Swash Bay, near the western shore of Parramore Island, being approximately 1,550 feet northeast of the northern most point of the oyster lease of John Barr, plat 19331, said corner having NAD 83 Geographic Coordinates of 37° 32.7759991'N, 75° 39.1639995'W; thence in a east-southeasterly direction, onto Parramore Island, to corner 2, 37° 32.7529993'N, 75° 39.0129998'W; thence south-southeasterly to, a point on shore, corner 3, 37° 32.2970002'N, 75° 39.0090007'W; thence northwesterly, off shore, to corner 4, 37° 32.3579996'N, 75° 39.1610007'W; thence north-northwesterly to corner 1, 37° 32.7759991'N, 75° 39.1639995'W, said point being the point of beginning. 6.¹⁵ Hillcrest Oyster Sanctuary - Beginning at a point in Brockenberry Bay, on the south side of the entrance channel to Oyster Slip and approximately 139 feet south-southwest of Day Marker 14, said point being corner 1, having NAD 83 Geographic Coordinates of 37° 17.3320003'N, 75° 55.1269999'W; thence southeasterly to corner 2, 37° 17.2680001'N, 75° 54.8050006'W; thence east-northeasterly to corner 3, 37° 17.3050000'N, 75° 54.5899996'W; thence northeasterly to corner 4, 37° 17.4090006'N, 75° 54.5039998'W; thence northeasterly to corner 5, 37° 17.5909997'N, 75° 54.4389995'W; thence northeasterly to corner 6, 37° 17.7330004'N, 75° 54.2999997'W; thence south-southeasterly to corner 7, 37° 17.5039998'N, 75° 54.0680001'W; thence south-southeasterly to corner 8, 37° 17.3660002'N, 75° 53.9980006'W; thence south-southeasterly to corner 9, 37° 16.8299992'N, 75° 53.9940006'W; thence south-southwesterly to corner 10, 37° 16.4400007'N, 75° 54.0729995'W; thence northwesterly to corner 11, 37° 16.6400008'N, 75° 54.3490009'W; thence west-northwesterly to corner 12, 37° 16.7200007'N, 75° 54.5290004'W; thence west-southwesterly to corner 13, 37° 16.7550008'N, 75° 55.1040003' W; thence west-southwesterly to corner 14, 37° 16.7039996'N, 75° 55.6450007'W; thence northeasterly to corner 15, 37° 17.0609995'N, 75° 55.0360003'W; thence northeasterly to corner 16, 37° 17.1370004'N, 75° 54.9509998'W; thence northwesterly to corner 17, 37° 17.2660006' N, 75° 55.0820004'W; thence west-southwesterly to corner 18, 37° 17.2610009'N, 75° 55.2330009'W; thence northerly to corner 19, 37° 17.2979996'N, 75° 55.2310007'W; thence northeasterly to corner 1, 37° 17.3320003'N, 75° 55.1269999'W, said point being the point of beginning. 7.¹⁶ All constructed oyster reef sanctuary areas marked by a "no harvesting" sign provided by the Conservation and Replenishment Department.¹⁷

Provision-Level Authorization Analysis

Provision 1

"The Wreck Shoals-James River Oyster Sanctuary Area consisting of all public oyst..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, including specific provisions for surf clams and the exclusive management of Atlantic menhaden. The regulation establishing the Wreck Shoals-James River Oyster Sanctuary Area may exceed the Commission's authority as it defines a specific geographical area for oyster conservation without clear statutory backing for such a sanctuary, which is not explicitly mentioned in the statute. The legal significance of this relationship indicates that while the Commission has broad regulatory powers, the specific nature of the regulation could be challenged as lacking direct authorization from the statute, potentially undermining its validity.

Provision 2

"Long. 76° 34' 39" W; thence southeasterly to a point at Lat. 37° 04' 02" N."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows for the establishment of specific regulatory measures, such as the geographic coordinates provided in the regulation, which are essential for managing and conserving marine resources effectively. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulations that align with its overarching mandate to ensure sustainable use and management of the Commonwealth's seafood resources.

Provision 3

"Long. 76° 34' 06" W; thence southeasterly to James River Channel Marker 6, the p..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and prepare fishery management plans, but does not explicitly authorize the establishment of geographic boundaries or specific coordinates for fishing areas. The regulation's specific delineation of coordinates for fishing areas may exceed the statutory authority since it does not directly relate to the conservation or management of seafood resources as outlined in the statute. The legal significance of this relationship is that regulations must align with the explicit powers granted by the statute, and any deviation into areas not authorized by the statute may render the regulation invalid due to potential overreach.

Provision 4

"Smith Island Sanctuary - Beginning at a point in Smith Island Bay near the weste..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad grant encompasses the regulation regarding the Smith Island Sanctuary, as it is necessary for the conservation and management of marine resources within the specified area. The legal significance of this authorization relationship is that it allows the Commission to implement specific measures, such as designating sanctuaries, to fulfill its mandate of resource conservation and management without requiring further legislative approval.

Provision 5

"O'Conner, III, plat 17720, to corner 106, 37° 08.5079488'N, 75° 53.9121013'W; th..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry, conserving marine resources, and managing specific species like Atlantic menhaden, while also emphasizing the need for reasonable use and conservation of resources. The regulation, which details specific geographic coordinates related to an oyster lease, appears to exceed the statutory authority because it focuses on a particular property and lease line rather than addressing broader management or conservation goals outlined in the statute. The legal significance of this relationship indicates that the regulation may not align with the general welfare and conservation objectives intended by the statute, suggesting it could be an overreach of the Commission's regulatory powers.

Provision 6

"Heath, plat 17721, to corner 108, 37° 08.5446005' N, 75° 53.7907806'W; thence no..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority allows for the regulation of specific geographic areas and coordinates, as outlined in the regulation, to effectively manage and conserve marine resources within the Commonwealth. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulatory measures that align with its overarching mandate to ensure the sustainable use and conservation of seafood resources.

Provision 7

"Terry Co., Inc. to corner 18, 37° 08.7544364'N, 75° 53.3207742'W; thence southea..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and manage marine resources, including specific provisions for surf clams and Atlantic menhaden. This broad grant of authority allows the Commission to establish detailed regulations, such as those defining specific geographic boundaries for seafood management, which fall under the general mandate to ensure conservation and reasonable use of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to implement regulations that are essential for effective resource management without requiring further legislative approval, thereby facilitating timely and responsive governance in the seafood industry.

Provision 8

"Heath's oyster lease, plat 17456, 37° 07.3524313'N, 75° 54.6976587'W; thence alo..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood industries and establishing regulations for individual leases. This broad grant of authority encompasses the regulation by allowing the Commission to delineate specific lease boundaries and management practices that support the overall goals of resource conservation and industry welfare. The legal significance of this authorization relationship is that it empowers the Commission to implement detailed regulatory measures, such as the specific oyster lease described, under the general framework established by the statute, ensuring effective management of marine resources.

Provision 9

"Jones, Jr., plat 19450, to corner 254, 37° 07.7879690'N, 75° 53.9324560'W; thenc..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage Atlantic menhaden, and prepare fishery management plans, but does not provide authority for specific geographic delineations or property descriptions. The regulation in question provides detailed geographic coordinates and boundaries, which are not mentioned or authorized by the statute, leading to the conclusion that it exceeds the Commission's regulatory scope. The legal significance of this relationship is that regulations must be grounded in statutory authority, and without explicit authorization for such specific delineations, the regulation is deemed unauthorized.

Provision 10

"Cobb Island Oyster Sanctuary - Beginning at a point in Cobb Bay, near the wester..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate the taking of oysters and the management of oyster resources, but it does not explicitly provide the agency with the power to establish specific sanctuaries or delineate geographic boundaries for such areas. The regulation concerning the Cobb Island Oyster Sanctuary attempts to create a specific sanctuary and define its boundaries, which exceeds the scope of authority granted by the statute. The legal significance of this authorization relationship is that without explicit statutory authority to create such a sanctuary, the regulation is deemed unauthorized and cannot be enforced.

Provision 11

"Mariner, plat 16866, corner 355, said corner having NAD 83 Geographic Coordinate..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including specific provisions for managing seafood and establishing fishery management plans. The regulation, which details precise geographic coordinates and boundaries related to an oyster lease, appears to exceed the Commission's authority as it does not directly relate to the conservation or management of seafood but rather specifies property lines, which may not fall within the scope of promoting the general welfare of the seafood industry or conserving marine resources. The legal significance of this relationship is that the regulation may be challenged for not aligning with the statutory intent, potentially undermining the Commission's authority and leading to questions about the validity of its regulatory actions.

Provision 12

"Steve McCready, plat 16371, corner 90, 37° 18.8870550'N, 75° 46.1567968'W; thenc..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically states that the agency has the authority to regulate the management and conservation of marine resources, but it does not grant the agency the power to delineate specific geographic coordinates or details of individual oyster leases. The regulation provides precise coordinates and descriptions of a specific oyster lease, which goes beyond the general authority outlined in the statute, resulting in UNAUTHORIZED status. The legal significance of this relationship is that regulations must be grounded in the specific authority granted by the statute, and without such authority, the regulation lacks legal validity.

Provision 13

"Boxtree Oyster Sanctuary - Beginning at a point in Boxtree Creek, said point bei..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve and promote the seafood and marine resources of the Commonwealth. This broad language encompasses the regulation concerning the Boxtree Oyster Sanctuary, as it directly relates to the conservation and management of marine resources, specifically oysters, within the designated area. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of marine resources without requiring further specific legislative approval, thereby facilitating effective resource conservation efforts.

Provision 14

"Brady and Marion Brady, Jr., plat 16344, corner 7, said corner having NAD 83 Geo..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate activities related to the management of tidal and non-tidal wetlands, but does not mention the authority to create detailed geographic coordinates or specific property descriptions for individual parcels. The regulation provides precise geographic coordinates and detailed descriptions of a specific property, which exceeds the scope of authority outlined in the statute, as it does not pertain to the management of wetlands or related activities. The legal significance of this authorization relationship is that regulations must be directly supported by the statutory language, and since the statute does not grant authority for the specific actions described in the regulation, it is deemed unauthorized.

Provision 15

"Parramore Island Sanctuary - Beginning at a point, corner 1, in Swash Bay, near ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific species like Atlantic menhaden and surf clams, but does not explicitly mention the establishment of sanctuaries or specific geographic boundaries for areas like Parramore Island. The regulation establishing the Parramore Island Sanctuary appears to exceed this authority because it imposes restrictions and designates a specific area without clear statutory backing for such a regulatory action, which is not directly tied to the conservation or reasonable use of the resources as outlined in the statute. The legal significance of this relationship indicates that the regulation may not be valid if it goes beyond the scope of the authority provided in the statute, potentially undermining the regulatory framework intended by the legislature.

Provision 16

"Hillcrest Oyster Sanctuary - Beginning at a point in Brockenberry Bay, on the so..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation concerning the Hillcrest Oyster Sanctuary, as it directly relates to the conservation and management of marine resources within the Commonwealth. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the sustainable management of marine environments, thereby supporting the overall objectives outlined in the statute.

Provision 17

"All constructed oyster reef sanctuary areas marked by a "no harvesting" sign pro..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language encompasses the regulation regarding constructed oyster reef sanctuary areas, as it aligns with the Commission's mandate to manage and conserve seafood resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that are essential for the protection and sustainability of marine ecosystems, thereby ensuring the long-term viability of the seafood industry.

Establishment of Oyster Sanctuary Areas

Express

General

Overreach

Unauthorized

Requirements

A. All Oyster Sanctuary Areas shall be closed to the harvest of oysters, except that Seaside of the Eastern Shore Oyster Sanctuary Areas shall be closed to the harvest of all shellfish. Any person harvesting oysters or shellfish from the specified areas shall be guilty of a violation of this chapter.¹ B. It shall be unlawful for any person to possess any hand scrape, dredge, or patent tong gear that could be used to harvest shellfish on public or unassigned oyster grounds within 100 feet of any oyster sanctuary area, and such possession shall be considered as prima facie evidence of a violation of this chapter.²

Provision-Level Authorization Analysis

Provision 1

"A. All Oyster Sanctuary Areas shall be closed to the harvest of oysters, except ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species like oysters and shellfish. This broad grant of authority encompasses the regulation, as it establishes closed areas for oyster harvesting to ensure conservation and sustainable use of marine resources, aligning with the Commission's mandate to promote the welfare of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring further legislative approval, thereby facilitating effective management and conservation efforts.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to possess any hand scrape, dredge, or pa..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources. This broad language allows the Commission to implement regulations, such as the prohibition on possessing certain gear near oyster sanctuaries, as it directly relates to the conservation and reasonable use of shellfish resources. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that protect marine environments while ensuring sustainable practices within the seafood industry.

Establishment of Oyster Sanctuary Areas

Express

General

Overreach

Unauthorized

Requirements

A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor, and a second or subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.¹ B. In addition to the penalty prescribed by law, any person violating any provision of this chapter shall destroy, in the presence of a marine police officer, all shellfish in his possession, or, at the direction of the marine police officer, shall place the shellfish overboard on the nearest oyster sanctuary or closed shellfish area, and shall cease harvesting on that day. All harvesting apparatus may be subject to seizure, and, pursuant to § 28.2-232 of the Code of Virginia, all licenses and permits may be subject to revocation following a hearing before the Virginia Marine Resources Commission.²

Provision-Level Authorization Analysis

Provision 1

"A. As set forth in § 28.2-903 of the Code of Virginia, any person violating any ..."

Express Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges, revoke or prohibit the issuance of licenses, and assess civil penalties for violations related to fishing within the Commonwealth's tidal waters. This results in EXPRESS_DELEGATION because the statute explicitly empowers the Commission to enforce regulations concerning fishing violations, thereby allowing the regulation to establish penalties for such violations, including the classification of misdemeanors. The legal significance of this authorization relationship is that it ensures the Commission has the necessary authority to implement and enforce specific regulations that align with the statutory framework, thereby promoting compliance and protecting fishery resources.

DEFINITION § 28.2-232

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

REFERENCE § 28.2-903

Citation text: "§ 28.2-903"

Total: 1 citation to 1 unique statute

Provision 2

"B. In addition to the penalty prescribed by law, any person violating any provi..."

General Delegation

AUTHORIZING STATUTE § 28.2-232

The Commission may revoke the fishing privileges within the Commonwealth's tidal waters and revoke or prohibit the issuance, reissuance, or renewal of any licenses The Commission may revoke licenses other than the applicable license upon a second or subsequent violation within five years The Commission may assess a civil penalty of up to $10,000 against a person if it finds, after a hearing held after 10 days' notice, that the person has engaged in fishing... while the person's applicable licenses or fishing privileges have been revoked The Commissioner may transmit a true copy of the order assessing such civil penalty to the clerk of the court... and the clerk shall record it, as a judgment is required by law to be recorded

ANALYSIS

§ 28.2-232 specifically grants the Commission the authority to revoke fishing privileges, revoke or prohibit licenses, and assess civil penalties for violations related to fishing activities. This broad grant of authority allows for the regulation to impose additional penalties, such as the destruction of shellfish in possession, as it falls within the Commission's mandate to enforce fishing laws and ensure compliance. The legal significance of this authorization relationship is that it empowers the Commission to take necessary actions to uphold the integrity of fishing regulations, thereby supporting the overall regulatory framework established by the statute.

DEFINITION § 28.2-232

CROSS-REFERENCE § 28.2-903

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-232

Citation text: "§ 28.2-232"

✓ Suggests authorization

⚠ Contains limitations

Total: 1 citation to 1 unique statute

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

The purpose of this chapter is to establish licenses for the recreational and personal use of certain fishing and crabbing gear.¹ Limits are established on the amount of gear which may be used and the amount of catch which may be taken.² Gear identification requirements and harvest reporting requirements are established to reduce the possibilities of gear conflicts and to assess the levels of harvest made by recreational users of commercial gear.³

Provision-Level Authorization Analysis

Provision 1

"The purpose of this chapter is to establish licenses for the recreational and pe..."

Express Delegation

AUTHORIZING STATUTE § 28.2-226.2

The Commission is authorized to establish the type and amount of commercial gear that can be used for taking finfish and shellfish for recreational purposes. The Commission shall not issue to any licensee a recreational gear license that exceeds the following limitations:

ANALYSIS

§ 28.2-226.2 specifically grants the Commission the authority to establish the type and amount of commercial gear for taking finfish and shellfish for recreational purposes and sets limitations on the issuance of recreational gear licenses. This results in EXPRESS DELEGATION because the statute explicitly empowers the Commission to create regulations that define the licenses and the gear allowed for recreational fishing and crabbing, directly aligning with the regulatory purpose stated. The legal significance of this authorization relationship is that it provides the Commission with the necessary authority to implement detailed regulations that ensure compliance with the statutory framework while managing recreational fishing activities effectively.

Provision 2

"Limits are established on the amount of gear which may be used and the amount of..."

Express Delegation

AUTHORIZING STATUTE § 28.2-226.2

ANALYSIS

§ 28.2-226.2 specifically states that the Commission is authorized to establish the type and amount of commercial gear that can be used for taking finfish and shellfish for recreational purposes, and it sets limitations on the issuance of recreational gear licenses. This results in EXPRESS_DELEGATION because the regulation directly implements the authority granted by the statute by establishing limits on the amount of gear and catch, thereby operationalizing the Commission's mandate. The legal significance of this authorization relationship is that it empowers the Commission to create specific regulations that ensure compliance with the statutory framework while managing recreational fishing effectively.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"Gear identification requirements and harvest reporting requirements are establis..."

Express Delegation

AUTHORIZING STATUTE § 28.2-226.2

The Commission is authorized to establish the type and amount of commercial gear that can be used for taking finfish and shellfish for recreational purposes The Commission shall not issue to any licensee a recreational gear license that exceeds the following limitations

ANALYSIS

§ 28.2-226.2 specifically authorizes the Commission to establish the type and amount of commercial gear for taking finfish and shellfish for recreational purposes, while also imposing limitations on the issuance of recreational gear licenses. This results in EXPRESS DELEGATION because the regulation directly implements the Commission's authority to manage gear identification and harvest reporting, which are necessary for reducing gear conflicts and assessing harvest levels as outlined in the statute. The legal significance of this authorization relationship is that it grants the Commission the explicit power to create detailed regulations that operationalize the statutory mandate, ensuring effective management of recreational fishing activities.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

For the James River and its tributaries: a line connecting Hog Point and the downstream point of the mouth of College Creek; 2.¹ For the York River and its tributaries: the Route 33 bridges; and 3.² For the Rappahannock River and its tributaries: the Route 360 Bridge.³

Provision-Level Authorization Analysis

Provision 1

"For the James River and its tributaries: a line connecting Hog Point and the dow..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency authority to regulate certain activities related to the management of marine resources and does not explicitly mention the establishment of specific lines or boundaries for the James River or its tributaries. The regulation's requirement for a specific line connecting Hog Point and the mouth of College Creek exceeds the scope of the authority provided in the statute, which does not empower the agency to delineate such geographic boundaries. The legal significance of this relationship is that without explicit statutory authority, the regulation cannot be enforced, rendering it unauthorized and potentially invalid.

Provision 2

"For the York River and its tributaries: the Route 33 bridges; and 3."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources, while also emphasizing the need for reasonable use and management of specific species like surf clams and Atlantic menhaden. The regulation's specific geographic restrictions for the York River and its tributaries may exceed the Commission's authority, as the statute does not explicitly empower the Commission to impose such localized regulations without a clear connection to conservation or management objectives outlined in the statute. The legal significance of this relationship is that any regulation that extends beyond the explicit powers granted by the statute may be deemed invalid or subject to challenge, as it could infringe upon the statutory limits of the Commission's authority.

Provision 3

"For the Rappahannock River and its tributaries: the Route 360 Bridge."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood and marine resources, as well as to manage specific species like Atlantic menhaden, but does not mention any authority over specific geographic locations such as the Rappahannock River or its tributaries. The regulation concerning the Route 360 Bridge does not align with the statutory language, as it does not pertain to the conservation or management of seafood resources, nor does it relate to the species specifically mentioned in the statute. The legal significance of this relationship is that without explicit statutory authority to regulate a specific geographic area, the regulation is deemed unauthorized and lacks the necessary legal foundation to be enforceable.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

A. Any person desiring to take or catch finfish or shellfish for recreational purposes in the tidal waters of Virginia using commercial gear authorized under § 28.2-226.1 of the Code of Virginia shall first obtain the license for the appropriate gear.¹ B. Any license to use fishing gear for recreational purposes shall be issued to an individual for his exclusive use and shall not be transferable.² C. No person shall be issued more than one recreational gill net license, more than one recreational crab pot license, more than one crab trap license, nor more than one recreational eel pot license.³ D. No license shall be required of any person taking minnows, menhaden, or mullet with a cast net for personal use as bait which is not to be sold, traded, or bartered.⁴

Provision-Level Authorization Analysis

Provision 1

"A. Any person desiring to take or catch finfish or shellfish for recreational pu..."

General Delegation

AUTHORIZING STATUTE § 28.2-226.1

Any person desiring to take or catch finfish or shellfish for recreational purposes in the tidal waters of the Commonwealth using commercial gear authorized under § 28.2-226.2 shall first obtain the appropriate commercial gear license for recreational purposes Holders of licenses under this section shall report catch and other data as is deemed necessary by the Commission for effective fisheries management

ANALYSIS

§ 28.2-226.1 specifically grants the agency the authority to require individuals to obtain a commercial gear license for recreational purposes and mandates the reporting of catch and other data necessary for effective fisheries management. This broad grant of authority allows the agency to establish regulations that detail the licensing process and requirements for using commercial gear in recreational fishing, resulting in GENERAL_DELEGATION. The legal significance of this relationship is that it enables the agency to implement necessary regulations to manage fisheries effectively while remaining within the scope of the authority provided by the statute.

DEFINITION § 28.2-226.1

Title 28.2. Fisheries and Habitat of the Tidal Waters › Subtitle II. Tidal Fisheries › Chapter 2. General Provisions › Article 5. Licensing Generally › § 28.2-226.1. Recreational gear license required A. Any person desiring to take or catch finfish or shellfish for recreational purposes in the tidal...

Explicit Statutory Citations

AUTHORIZING CITATION § 28.2-226.1

Citation text: "§ 28.2-226.1"

✓ Suggests authorization

Total: 1 citation to 1 unique statute

Provision 2

"B. Any license to use fishing gear for recreational purposes shall be issued to ..."

General Delegation

AUTHORIZING STATUTE § 28.2-226.1

ANALYSIS

§ 28.2-226.1 specifically grants the agency the authority to establish requirements for individuals seeking to take or catch finfish or shellfish for recreational purposes, including the issuance of licenses and the collection of necessary data for fisheries management. This broad grant of authority allows the agency to implement regulations, such as the stipulation that licenses for recreational fishing gear are non-transferable and issued for exclusive use, thereby ensuring effective management of the resource. The legal significance of this relationship is that it enables the agency to exercise discretion in regulating recreational fishing practices while remaining within the framework established by the statute, thus ensuring compliance with the overarching goals of fisheries management.

DEFINITION § 28.2-226.1

Provision 3

"C. No person shall be issued more than one recreational gill net license, more t..."

General Delegation

AUTHORIZING STATUTE § 28.2-226.1

ANALYSIS

§ 28.2-226.1 specifically grants the Commission the authority to require individuals to obtain licenses for recreational fishing using commercial gear and to mandate reporting of catch data for effective fisheries management. This broad grant of authority allows the Commission to establish regulations that limit the number of licenses issued to ensure sustainable management of fishery resources, thereby justifying the GENERAL_DELEGATION. The legal significance of this relationship is that it empowers the agency to implement necessary regulations to manage fisheries effectively while remaining within the scope of the authority provided by the statute.

DEFINITION § 28.2-226.1

Provision 4

"D. No license shall be required of any person taking minnows, menhaden, or mulle..."

General Delegation

AUTHORIZING STATUTE § 28.2-226.1

ANALYSIS

§ 28.2-226.1 specifically grants the agency the authority to require licenses for individuals taking finfish or shellfish for recreational purposes using commercial gear, as well as the ability to mandate reporting of catch data for effective fisheries management. This broad grant of authority allows the agency to establish regulations that clarify exceptions, such as the provision in the regulation that exempts certain activities from licensing requirements, thereby supporting the overall management of fisheries resources. The legal significance of this relationship is that it enables the agency to exercise discretion in regulating fishing practices while ensuring that the management of fisheries remains effective and responsive to the needs of recreational users.

DEFINITION § 28.2-226.1

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

Code of Virginia.¹

Provision-Level Authorization Analysis

Provision 1

"Code of Virginia."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, including the management of specific species like surf clams and Atlantic menhaden. This results in GENERAL_DELEGATION because the statute's language allows the Commission to create regulations that address a wide range of issues related to seafood management and conservation, which encompasses the regulatory requirements outlined in the regulation. The legal significance of this authorization relationship is that it empowers the Commission to implement flexible and responsive regulations that can adapt to the evolving needs of the seafood industry and resource conservation efforts.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

A. It shall be unlawful for any person to use any gill net greater than 300 feet in length when licensed for recreational purposes under this chapter except as described in subsection B of this section. Any person licensed to use a recreational gill net up to 300 feet in length shall stay within 100 yards of such net when it is overboard. Failure to attend such net in this fashion is a violation of this chapter.¹ B. It shall be unlawful for any person to use any anchored gill net when licensed for recreational purposes under this chapter that is greater than 110 feet in length in any of the tidal waters upriver of the saltwater-freshwater boundaries. Any anchored gill net set or placed in areas upriver of the saltwater-freshwater boundaries shall be retrieved within one hour of setting or placing that gill net. Any person licensed to use a recreational anchored gill net shall stay within 100 yards of such net when it is overboard. Failure to attend such net in this fashion is a violation of this chapter, and any unattended anchored gill net shall be confiscated by the marine police officer.² C. It shall be unlawful for any person to use more than five crab pots or more than two eel pots when licensed for recreational purposes under this chapter.³ D. Any law or chapter applying to the setting or fishing of commercial gill nets, cast nets, dip nets, crab pots, crab traps, or crab trot lines shall also apply to the gear licensed under this chapter when set or fished for recreational purposes, except that (i) certain commercial gear used for recreational purposes shall be marked in accordance with the provisions described in 4VAC20-670-40 , and (ii) the daily time limits for commercial crab potting and peeler potting established in 4VAC20-270-30 shall not apply to the setting and fishing of recreational crab pots licensed under this chapter.⁴ E. It shall be unlawful for any person to use any recreational gill net to catch and possess any species of fish whose commercial fishery is regulated by an annual harvest quota.⁵ F. It shall be unlawful for any person using a recreational gill net, fish cast net, or fish dip net to take and possess more than the recreational possession limit for any species regulated by such a limit. When fishing from any boat, using gear licensed under this chapter, the total possession limit shall be equal to the number of persons on board legally eligible to fish multiplied by the individual possession limit for the regulated species, and the captain or operator of the boat shall be responsible for adherence to the possession limit.⁶ G. It shall be unlawful for any person using a recreational gill net, fish cast net, or fish dip net to take and possess any fish that is less than the lawful minimum size established for that species. When the taking of any fish is regulated by different size limits for commercial and recreational fishermen, that size limit applicable to recreational fishermen or to hook-and-line fishermen shall apply to the taking of that species by persons licensed under this chapter.⁷ H. It shall be unlawful for any person to use any ordinary crab trot line greater than 300 feet in length when licensed for recreational purposes under this chapter.⁸ I. It shall be unlawful for any person licensed to use five crab pots under this chapter to fish those pots on Sunday or to fish those pots from September 16 through May 31.⁹

Provision-Level Authorization Analysis

Provision 1

"A. It shall be unlawful for any person to use any gill net greater than 300 feet..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and to promote the general welfare of the seafood industry. This broad grant of authority encompasses the regulation concerning the use of gill nets, as it directly relates to managing fishing practices to ensure sustainable use and conservation of marine resources. The legal significance of this authorization relationship is that it allows the Commission to implement specific regulations under a general framework, thereby enabling effective management of fisheries while adhering to the overarching goals of resource conservation and industry welfare.

Requirements Analysis

3 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 2

"B. It shall be unlawful for any person to use any anchored gill net when license..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the management of specific fisheries and the promotion of the seafood industry. This broad grant of authority allows the Commission to implement regulations, such as the prohibition on the use of anchored gill nets exceeding a specified length in certain tidal waters, as it directly relates to the conservation and management of marine resources. The legal significance of this authorization relationship is that it empowers the Commission to enact regulations that are essential for the sustainable management of the seafood industry, ensuring that resource use aligns with conservation efforts.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 3

"C. It shall be unlawful for any person to use more than five crab pots or more t..."

Unauthorized

AUTHORIZATION ANALYSIS

§ 28.2-201 specifically grants the agency the authority to regulate the licensing of recreational crab and eel pot usage but does not explicitly mention limitations on the number of pots that can be used. The regulation imposes a specific restriction on the number of crab and eel pots, which goes beyond the general licensing authority provided in the statute, resulting in it being unauthorized. The legal significance of this relationship is that regulations must align with the authority granted by the statute, and any overreach, such as imposing additional restrictions, renders the regulation invalid.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 4

"D. Any law or chapter applying to the setting or fishing of commercial gill nets..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the promotion of the seafood industry and the conservation of marine resources, allowing for broad regulatory actions related to various fishing practices. This results in GENERAL_DELEGATION because the regulation aligns with the statute's intent to manage and conserve marine resources by applying commercial fishing regulations to recreational fishing gear, thereby ensuring consistent management across different user groups. The legal significance of this authorization relationship is that it empowers the Commission to implement comprehensive regulations that address both commercial and recreational fishing, promoting sustainable practices within the seafood industry.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 5

"E. It shall be unlawful for any person to use any recreational gill net to catch..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the welfare of the seafood industry and to manage marine resources, including the establishment of regulations for the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation prohibiting the use of recreational gill nets for species regulated by harvest quotas, as it aligns with the Commission's responsibility to conserve marine resources and ensure sustainable fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations to manage and protect fish populations effectively, thereby supporting the overall health of the seafood industry.

Provision 6

"F. It shall be unlawful for any person using a recreational gill net, fish cast ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including establishing regulations for the reasonable use of seafood. This broad grant of authority encompasses the regulation prohibiting the possession of more than the recreational limit for certain species, as it aligns with the Commission's responsibility to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without needing specific legislative approval for each rule, thereby facilitating efficient management of the seafood industry and its resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 7

"G. It shall be unlawful for any person using a recreational gill net, fish cast ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including the establishment of size limits for taking seafood. This broad grant of authority encompasses the regulation prohibiting the taking and possession of fish below the lawful minimum size, as it directly relates to the conservation of fish populations and the sustainable management of the seafood industry. The legal significance of this authorization relationship is that it allows the Commission to implement necessary regulations without requiring specific legislative approval for each individual rule, thereby facilitating effective management of marine resources.

Requirements Analysis

2 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 8

"H. It shall be unlawful for any person to use any ordinary crab trot line greate..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to conserve marine resources, including the management of specific species. This broad grant of authority allows the Commission to implement regulations, such as the prohibition on using crab trot lines greater than 300 feet for recreational purposes, as a means to ensure sustainable practices and resource conservation. The legal significance of this authorization relationship is that it empowers the Commission to establish necessary regulations without requiring further legislative approval, thereby facilitating effective management of the seafood resources in the Commonwealth.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Provision 9

"I. It shall be unlawful for any person licensed to use five crab pots under this..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of marine resources, including seafood, and emphasizes promoting the general welfare of the seafood industry. This broad grant of authority encompasses the regulation prohibiting the use of crab pots on Sundays and during specific months, as it aligns with the Commission's mandate to manage and conserve marine resources effectively. The legal significance of this authorization relationship is that it allows the Commission to implement regulations that directly support resource conservation and industry welfare without requiring further legislative approval, thereby facilitating timely and responsive management of marine resources.

Requirements Analysis

1 Discretionary Requirements

Detailed discretionary requirements analysis not available for this provision.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements

A. Buoys of any crab pot, eel pot, gill net or ordinary crab trot line used for recreational purposes shall be marked with the licensee's last four numbers of his social security number or driver's license number, preceded by the letter "R."¹ B. An offshore stake of any crab trap used for recreational purposes shall be marked with the licensee's last four numbers of his social security number or driver's license number, preceded by the letter "R."² C. In accordance with subsections A and B of this section, licensees shall mark their gear in a legible and visible manner and in figures of not less than one inch in height.³

Provision-Level Authorization Analysis

Provision 1

"A. Buoys of any crab pot, eel pot, gill net or ordinary crab trot line used for ..."

Potential Overreach

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary for the conservation and reasonable use of seafood resources, manage specific species like Atlantic menhaden, and promote the welfare of the seafood industry. The regulation requiring recreational crab pots and other gear to be marked with personal identification numbers does not directly relate to the conservation or reasonable use of marine resources as outlined in the statute, which raises concerns about its relevance and necessity. The legal significance of this relationship is that the regulation may exceed the Commission's authority by imposing requirements that are not explicitly supported by the statutory language, potentially infringing on the rights of individuals without a clear connection to the conservation goals established by the statute.

Provision 2

"B. An offshore stake of any crab trap used for recreational purposes shall be ma..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission broad authority to adopt regulations necessary for promoting the welfare of the seafood industry and conserving marine resources. This broad grant of authority encompasses the regulation requiring that recreational crab traps be marked with identifying information, as it directly relates to the management and conservation of marine resources by ensuring accountability and traceability in recreational fishing practices. The legal significance of this authorization relationship is that it allows the Commission to implement detailed regulations under a general framework, ensuring effective management of the seafood industry while adhering to the overarching goals set forth in the statute.

Provision 3

"C. In accordance with subsections A and B of this section, licensees shall mark ..."

General Delegation

AUTHORIZING STATUTE § 28.2-201

ANALYSIS

§ 28.2-201 specifically grants the Commission the authority to adopt regulations necessary to promote the general welfare of the seafood industry and to manage marine resources, including the conservation and reasonable use of specific species. This broad grant of authority encompasses the regulation requiring licensees to mark their gear in a legible and visible manner, as it directly relates to the management and conservation of seafood resources by ensuring compliance and accountability among users. The legal significance of this authorization relationship is that it allows the Commission to implement necessary measures for effective resource management under a GENERAL_DELEGATION, ensuring that regulations can be established to address practical aspects of seafood industry operations.

Pertaining to Recreational Gear Licenses

Express

General

Overreach

Unauthorized

Requirements