§ 28.2-1000. Atlantic States Marine Fisheries Compact.

ARTICLE I The purpose of this compact is to promote the better utilization of the fisheries, marine, shell and anadromous of the Atlantic seaboard by the development of a joint program for the promotion and protection of such fisheries, and by the prevention of the physical waste of the fisheries from any cause. It is not the purpose of this compact to authorize the states joining herein to limit the production of fish or fish products for the purpose of establishing or fixing the price thereof, or creating and perpetuating monopoly. ARTICLE II This agreement shall become operative immediately as to those states executing it whenever any two or more of the states of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida have executed it in the form that is in accordance with the laws of the executing state and the Congress has given its consent. Any state contiguous with any of the aforementioned states and riparian upon waters frequented by anadromous fish, flowing into waters under the jurisdiction of any of the aforementioned states, may become a party hereto as hereinafter provided. ARTICLE III Each state joining herein shall appoint three representatives to a Commission hereby constituted and designated as the Atlantic States Marine Fisheries Commission. One shall be the executive officer of the administrative agency of such state charged with the conservation of the fisheries resources to which this compact pertains or, if there be more than one officer or agency, the official of that state named by the governor thereof. The second shall be a member of the legislature of such state designated by the Commission or Committee on Interstate Cooperation of such state, or if there be none, or if said Commission on Interstate Cooperation cannot constitutionally designate the said member: such legislator shall be designated by the governor thereof; provided, that if it is constitutionally impossible to appoint a legislator as a commissioner from such state, the second member shall be appointed by the governor of said state in his discretion. The third shall be a citizen who shall have a knowledge of and interest in the marine fisheries problem, to be appointed by the governor. The Commission shall be a body corporate with the powers and duties set forth herein. ARTICLE IV The duty of the said Commission shall be to make inquiry and ascertain from time to time such methods, practices, circumstances and conditions as may be disclosed for bringing about the consideration of the prevention of the depletion and physical waste of the fisheries, marine, shell and anadromous, of the Atlantic seaboard. The Commission shall have power to recommend the coordination of the exercise of the police powers of the several states within their respective jurisdictions to promote the preservation of those fisheries and their protection against overfishing, waste, depletion or any abuse whatsoever and to assure a continuing yield from the fisheries resources of the aforementioned states. To that end the Commission shall draft and, after consultation with the Advisory Committee hereinafter authorized, recommend to the governors and legislatures of the various signatory states legislation dealing with the conservation of the marine, shell and anadromous fisheries of the Atlantic seaboard. The Commission shall, more than one month prior to any regular meeting of the legislature in any signatory state, present to the governor of the state its recommendations relating to enactments to be made by the legislature of that state in furthering the intents and purposes of this compact. The Commission shall consult with and advise the pertinent administrative agencies in the states party hereto with regard to problems connected with the fisheries and recommend the adoption of such regulations as it deems advisable. The Commission shall have power to recommend to the states party hereto the stocking of the waters of such states with fish and fish eggs, or joint stocking by some or all of the states party hereto, and when two or more of the states shall jointly stock waters the Commission shall act as the coordinating agency for such stocking. ARTICLE V The Commission shall elect from its number a chairman and a vice-chairman and shall appoint and at its pleasure remove or discharge such officers and employees as may be required to carry the provision of this compact into effect, and shall fix and determine their duties, qualifications and compensation. Said Commission shall adopt rules and regulations for the conduct of its business. It may establish and maintain one or more offices for the transaction of its business and may meet at any time or place but must meet at least once a year. ARTICLE VI No action shall be taken by the Commission in regard to its general affairs except by the affirmative vote of a majority of the whole number of compacting states present at any meeting. No recommendation shall be made by the Commission in regard to any species of fish except by the affirmative vote of a majority of the compacting states which have an interest in such species. The Commission shall define what shall be an interest. ARTICLE VII The Fish and Wildlife Service of the Department of the Interior of the Government of the United States shall act as the primary research agency of the Atlantic States Marine Fisheries Commission, cooperating with the research agencies in each state for that purpose. Representatives of the said Fish and Wildlife Service shall attend the meetings of the Commission. An Advisory Committee to be representative of the commercial fishermen and the salt water anglers and such other interest of each state as the Commission deems advisable shall be established by the Commission as soon as practicable for the purpose of advising the Commission upon such recommendations as it may desire to make. ARTICLE VIII When any state other than those named specifically in Article II of this compact shall become a party thereto for the purpose of conserving its anadromous fish in accordance with the provisions of Article II the participation of such state in the action of the Commission shall be limited to such species of anadromous fish. ARTICLE IX Nothing in this compact shall be construed to limit the powers of any signatory state or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by any signatory state imposing additional conditions and restrictions to conserve its fisheries. ARTICLE X Continued absence of representation or of any representative on the Commission from any state party hereto shall be brought to the attention of the governor thereof. ARTICLE XI The states party hereto agree to make annual appropriations to the support of the Commission in proportion to the primary market value of the products of their fisheries, exclusive of cod and haddock, as recorded in the most recent published reports of the Fish and Wildlife Service of the United States Department of the Interior, provided no state shall contribute less than two hundred dollars per annum and the annual contribution of each state above the minimum shall be figured to the nearest one hundred dollars. The compacting states agree to appropriate initially the annual amounts scheduled below, which amounts are calculated in the manner set forth herein, on the basis of the catch record of 1938. Subsequent budgets shall be recommended by a majority of the Commission and the cost thereof allocated equitably among the states in accordance with their respective interests and submitted to the compacting states. SCHEDULE OF INITIAL STATE CONTRIBUTIONS Maine .............................................................. $ 700 New Hampshire ....................................................... 200 Massachusetts ....................................................... 2,300 Rhode Island ........................................................ 300 Connecticut ......................................................... 400 New York ............................................................ 1,300 New Jersey .......................................................... 800 Delaware ........................................................... $ 200 Maryland ............................................................ 700 Virginia ............................................................ 1,300 North Carolina ...................................................... 600 South Carolina ...................................................... 200 Georgia ............................................................. 200 Florida ............................................................. 1,500 ARTICLE XII Section 1. This compact shall continue in force and remain binding upon each compacting state until renounced by it. Renunciation of this compact must be preceded by sending six months' notice in writing of intention to withdraw from the compact to the other states party hereto. Section 2. Without further submission of said compact, the consent and approval of Congress is hereby given to the states of Connecticut, North Carolina, South Carolina, Georgia, and Florida, and for the purpose of the better utilization of their anadromous fisheries, to the states of Vermont and Pennsylvania, to enter into said compact as signatory states and as parties thereto, in addition to the states which have now ratified the compact. Section 3. The Atlantic States Marine Fisheries Commission constituted by the compact shall make an annual report to Congress not later than sixty days after the beginning of each regular session thereof. Such report shall set forth the activities of the Commission during the calendar year ending immediately prior to the beginning of such session. Section 4. The right to alter, amend, or repeal the provision sections 1, 2 and 3 is hereby expressly reserved, provided that nothing in this compact shall be construed to limit or add to the powers of the proprietary interest of any signatory state or to repeal or prevent the enactment of any legislation or the enforcement of any requirement by a signatory state imposing additional conditions and restrictions to conserve its fisheries. AMENDMENT NUMBER 1 The states consenting to this amendment agree that any two or more of them may designate the Atlantic States Marine Fisheries Commission as joint regulatory agency with such powers as they may jointly confer from time to time for the regulation of the fishing operations of the citizens and vessels of such designating states with respect to specific fisheries in which such states have a common interest. The representatives of such states on the Atlantic States Marine Fisheries Commission shall constitute a separate section of such Commission for the exercise of the additional powers so granted provided that the states so acting shall appropriate additional funds for this purpose. The creation of such section as a joint regulatory agency shall not deprive the states participating therein of any of their privileges or powers or responsibilities in the Atlantic States Marine Fisheries Commission under the general compact.

(Code 1950, §§ 28-254, 28-255; 1962, c. 406, § 28.1-202; 1992, c. 836.)

Compact cross references. - As to provisions of other member states, see:

Connecticut: Conn. Gen. Stat. §§ 26-295, 26-296.

Delaware: 7 Del. C. §§ 1501 - 1505.

Florida: Fla. Stat. § 379.2253.

Georgia: O.C.G.A. §§ 27-4-210 - 27-4-216.

Maine: 12 M.R.S. §§ 4601 - 4613, 4651 - 4656.

Maryland: Md. Natural Resources Code Ann. §§ 4-301 - 4-305.

New Hampshire: 18 RSA 213:1, 213:2.

New Jersey: N.J. Stat. §§ 32:21-1 through 32:21-11.

New York: NY CLS ECL § 13-0371.

North Carolina: N.C. Gen. Stat. §§ 113-251 through 113-258.

Pennsylvania: 30 Pa.C.S. §§ 7101 - 7106.

Rhode Island: R.I. Gen. Laws §§ 20-8-1 - 20-8-12.

South Carolina: S.C. Code Ann. § 50-5-2700.

Editor's note. - Acts 1995, c. 293, as amended by Acts 1996, c. 860, which provided for the repeal of the Atlantic States Marine Fisheries Compact, effective July 1, 1997, was itself repealed by Acts 1997, c. 620. Therefore, the compact will remain in effect beyond July 1, 1997.

Research References. - 27 Fla Jur Fish and Game.

Law review. - For article, "Legal Dimensions of Entry Fishery Management," see 17 Wm. & Mary L. Rev. 757 (1976).

Rhode Island: Rhode Island Department of Environmental Management was entitled to summary judgment on the fishermen's argument that the department acted contrary to R.I. Gen. Laws § 20-2.1-9(4)(ii) by adopting a regulatory scheme that used retroactive control dates to determine the allocation of lobster traps; since Rhode Island did not submit an alternative plan and the fishermen had not presented any evidence identifying a particular alternative plan, the fishermen failed to show that the hypothetical plan would have met the same fishing mortality target of Amendment 3 to the Interstate Fishery Management Plan for American Lobster as required as a result of Rhode Island's membership in the In re Crockett, 159 Cal. App. 4th 751, 71 Cal. Rptr. 3d 632, 159 Cal. App. 4th 751, 2008 Cal. App. LEXIS 159 (2008).

For case construing certain Atlantic States Marine Fisheries Commission regulations. Riley v. R.I. Dept. of Envtl. Mgmt., 2005 R.I. Super. C.A. NO. PC 04-0987, LEXIS 62 (R.I. Super. Ct. 2005).

Applied in Campanale & Sons, Inc. v. Evans, 311 F.3d 109, 2002 U.S. App. LEXIS 23950 (1st Cir. 2002); Little Bay Lobster Co. v. Evans, 352 F.3d 462, 2003 U.S. App. LEXIS 25892 (1st Cir. 2003).

OPINIONS OF THE ATTORNEY GENERAL

Menhaden Management Board exceeded its adaptive management authority when it adopted the menhaden cap in Addendum II to Amendment 1 of the Atlantic Menhaden Fishery Management Plan. See opinion of Attorney General to The Honorable John H. Chichester, Member, Senate of Virginia, 06-002 (1/31/06).

§ 28.2-1000.1. Authority of Governor to implement menhaden management measures.

1. The Governor may by proclamation implement any menhaden fisheries management measures, as defined in 16 U.S.C. § 5102(1)(B), whenever the Atlantic States Marine Fisheries Commission requires the Commonwealth to adopt such measures, under the Atlantic Coastal Fisheries Cooperative Management Act (16 U.S.C. § 5101 et seq.), by a date certain and the General Assembly is neither in session nor is scheduled to be in session to adopt such measures by statute on or before such date. However, the Governor shall not issue a proclamation to implement any measure that has been adopted by the Atlantic States Marine Fisheries Commission within 30 days of the start of the menhaden fishing season, as specified in § 28.2-410.
2. Prior to issuing such proclamation, the Governor, in consultation with the Secretary of Natural Resources and the Commissioner, shall, in writing:
   1. Determine whether the measures are necessary for the conservation of the Atlantic menhaden fishery, and if so;
   2. Determine whether the measures are in accordance with scientific, biological, economic, and social data and information.

      If a determination is made that the conditions of subdivisions B 1 and B 2 have not been satisfied, then the Governor shall not issue a proclamation.

3. Except as provided in subsection D, the proclamation shall remain in effect unless and until superseded by subsequent law. Any measures implemented by proclamation pursuant to this section shall be subject to legislative review under § 2.2-4014, as if these measures were final regulations.
4. No management measures implemented by proclamation shall remain in effect beyond the scheduled date of termination of the regular session of the General Assembly following their implementation.

   (2005, c. 123.)

§ 28.2-1000.2. (Expires December 31, 2010) Annual closure of the Chesapeake Bay purse seine fishery for Atlantic menhaden.

1. For the purpose of this section:

   "Chesapeake Bay" means the territorial waters of the Commonwealth lying west of the Chesapeake Bay Bridge-Tunnel.

   "Purse seine fishery for Atlantic menhaden" means those vessels licensed pursuant to § 28.2-402 that harvest menhaden for the purpose of manufacturing them into fertilizer, fish meal, or oil.

2. Upon notification by the National Marine Fisheries Service of the date on which the purse seine fishery for Atlantic menhaden meets the annual menhaden harvest cap in the Chesapeake Bay, the Secretary of Natural Resources shall promptly publish a notice in the Virginia Register announcing the date of closure. The Secretary of Natural Resources shall also notify the operators of the purse seine fishery for Atlantic menhaden by the most convenient and expeditious means available. The date of closure shall be based on mandatory daily catch reports submitted to the National Marine Fisheries Service by the purse seine fishery for Atlantic menhaden.
3. The annual menhaden harvest cap for the purse seine fishery for Atlantic menhaden shall be 109,020 metric tons, subject to annual adjustment for underages or overages as specified in subsection D. In no event, however, shall the harvest of this fishery exceed 122,740 metric tons in any one year.
4. If the harvest of the purse seine fishery for Atlantic menhaden does not exceed 109,020 metric tons in any year to which the harvest cap applies, then the difference between the actual harvest and the harvest cap shall be applied as a credit applicable to the allowable harvest for the purse seine fishery for Atlantic menhaden for the following year. The credit may be used only for the subsequent annual harvest and shall not be spread over multiple years. Any annual harvest in excess of the harvest cap shall be deducted from the harvest cap, as modified pursuant to this subsection and subsection C for the subsequent annual harvest.
5. The 2007 harvest cap for the purse seine fishery for Atlantic menhaden shall be adjusted for any underage or overage, as specified in subsection D, from the actual 2006 harvest of the purse seine fishery for Atlantic menhaden.
6. No person shall take Atlantic menhaden by purse seine for reduction purposes from the Chesapeake Bay after the later of the date of closure implemented pursuant to subsection B or the date that actual notice is provided of such closure pursuant to subsection B. Any person violating this provision shall be guilty of a Class 1 misdemeanor.

   (2007, c. 41.)

Cross references. - As to punishment for Class 1 misdemeanors, see § 18.2-11.

Editor's note. - Acts 2007, c. 41, which enacted this section, in cl. 2 provides: "That the provisions of this act shall expire on December 31, 2010."

§ 28.2-1001. Potomac River Compact.

PREAMBLE

Whereas, Maryland and Virginia are both vitally interested in conserving and improving the valuable fishery resources of the Tidewater portion of the Potomac River, and

Whereas, certain provisions of the Compact of 1785 between Maryland and Virginia having become obsolete, Maryland and Virginia each recognizing that Maryland is the owner of the Potomac River bed and waters to the low-water mark of the southern shore thereof, as laid out on the Mathews-Nelson Survey of 1927, and that Virginia is the owner of the Potomac River bed and waters southerly from said low-water mark as laid out, and that the citizens of Virginia have certain riparian rights along the southern shore of the river, as shown on said Mathews-Nelson Survey, and, in common with the citizens of Maryland, the right of fishing in said river, Maryland and Virginia have agreed that the necessary conservation and improvement of the Tidewater portion of the Potomac fishery resources can be best achieved by a Commission comprised of representatives of both Maryland and Virginia, charged with the establishment and maintenance of a program to conserve and improve these resources, and

Whereas, at a meeting of the Commissioners appointed by the Governors of the State of Maryland and the Commonwealth of Virginia, to wit: Carlyle Barton, M. William Adelson, Stephen R. Collins, Edward S. Delaplaine and William J. McWilliams, Esquires, on the part of the State of Maryland, and Mills E. Godwin, Jr., Howard H. Adams, Robert Y. Button, John Warren Cooke and Edward E. Lane, Esquires, on the part of the Commonwealth of Virginia, at Mount Vernon, Virginia, on the twentieth day of December, in the year one thousand nine hundred and fifty-eight, the following Potomac River Compact of 1958 between the Commonwealth of Virginia and the State of Maryland was mutually agreed to by the said Commissioners:

Now, therefore, be it resolved by the Commissioners appointed by the Governors of the State of Maryland and the Commonwealth of Virginia, meeting in joint session, that they do unanimously recommend to the said respective Governors that there be a new compact, to be designated as the "Potomac River Compact of 1958," and that the said new compact be referred as promptly as possible to the legislatures of the State of Maryland and the Commonwealth of Virginia for appropriate action, and to the end and after ratification and adoption by said legislatures the same be submitted to the Congress of the United States for approval.

§ 28.2-1002. Cooperation of agencies of Commonwealth.

All governmental agencies of the Commonwealth of Virginia are authorized to cooperate with the Potomac River Fisheries Commission created by the Potomac River Compact approved by this article, it being the policy of this Commonwealth to perform and carry out the compact and accomplish its purposes.

(Code 1950, §§ 28-218.2, 28-218.3; 1959, Ex. Sess., cc. 5, 28; 1962, c. 406, § 28.1-203.1; 1992, c. 836.)

Law review. - For article, "Legal Dimensions of Entry Fishery Management," see 17 Wm. & Mary L. Rev. 757 (1976).

§ 28.2-1003. Authority to regulate dredging of soft shell clams.

The Potomac River Fisheries Commission shall have the power to make, adopt and publish such rules and regulations as may be necessary or desirable for authorizing and regulating the dredging of soft shell clams in areas within its geographical jurisdiction and may levy license fees for such dredging in amounts to be set in its discretion.

(1964, Ex. Sess., c. 24, § 28.1-227; 1992, c. 836.)

§ 28.2-1004. Authority to authorize and regulate experimental oyster hatchery program.

The Potomac River Fisheries Commission shall have the power to make, adopt and permit such rules and regulations and to take such action as may be necessary or advisable for authorizing and regulating a pilot program for experimental oyster hatchery seed planting, growing, and harvesting with private planters and public and private scientific agencies engaged in similar work in its jurisdiction, and may set aside available barren natural oyster rocks for this purpose and to allow dredging of same for inspection, sampling and harvesting under the supervision and control of the Potomac River Fisheries Commission and in cooperation with the Maryland or Virginia public scientific agencies, Chesapeake Biological Laboratory and Virginia Institute of Marine Science.

The provisions of this section shall not take effect until a similar act becomes effective in the State of Maryland, whereupon the Governor of Virginia shall issue a proclamation declaring the provisions of this section to be effective.

(1974, c. 89, § 28.1-228; 1992, c. 836.)

§ 28.2-1005. Authority to regulate dredging of oysters.

The Potomac River Fisheries Commission shall have the power to make, adopt and publish such rules and regulations as may be necessary or desirable for authorizing and regulating the dredging of oysters in areas of the Potomac River within its geographical jurisdiction and may levy license and repletion fees for same.

(1974, c. 89, § 28.1-229; 1982, c. 116; 1992, c. 836.)

§ 28.2-1006. Lawfully harvested finfish and shellfish; possession, storage, marketing and disposal.

Notwithstanding any provision of law to the contrary, finfish, crabs, oysters, clams, and other shellfish caught in the waters within the jurisdiction of the Potomac River Fisheries Commission, in compliance with the regulations prescribed by the Commission pursuant to the Potomac River Compact of 1958, may be possessed, stored, marketed, and otherwise disposed of elsewhere in the Commonwealth.

(2001, c. 233.)

§ 28.2-1007. (Contingent effective date - see Editor's note) Authority to regulate leasing.

The Potomac River Fisheries Commission shall have the power to make, adopt, and publish such rules and regulations as may be necessary or desirable for authorizing and regulating the leasing of the river bottom or the water column in areas of the Potomac River within its geographical jurisdiction and may levy license, leasing, and repletion fees for same.

(2007, c. 885.)

Editor's note. - Acts 2007, c. 885, cl. 2, provides: "That the provisions of this act shall not become effective until (i) the State of Maryland enacts similar acts, (ii) the Governor of Maryland issues a proclamation declaring the provisions of the Maryland acts to be effective, and (iii) the Governor of Virginia issues a proclamation declaring the provisions of this act to be effective." As of May 2009, the provisions of this act have not yet become effective.