Code of Virginia

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Code of Virginia
Title 28.2. Fisheries and Habitat of the Tidal Waters
Chapter 8. Health and Sanitation Provisions
8/19/2022

Article 2. Control of Crustacea, Finfish and Shellfish; Violations and Penalties.

§ 28.2-803. Examination, analysis and inspection.

A. The State Health Commissioner may in his discretion, or shall at the request of the Governor, the Marine Resources Commission, or the Commissioner of Marine Resources, conduct an examination or analysis of crustacea, finfish and shellfish, whether on the planting grounds, in an establishment, or in any other place in this Commonwealth, from which the products are to be taken or sold for food purposes.

B. The State Health Commissioner in making such examination may analyze the water and bottom sediment in and adjacent to the crustacea, finfish, or shellfish growing areas for evidence of pollution, and he may survey the sanitary conditions and pollution hazards adjacent to shellfish growing areas, both in the water and on shore.

C. The State Health Commissioner in conducting his analysis shall examine the establishments in which crustacea, finfish and shellfish are handled and the sanitary conditions surrounding the establishment. At that time, he may analyze the crustacea, finfish and shellfish in the establishment.

Code 1950, § 28-159; 1962, c. 406, § 28.1-175; 1992, c. 836.

§ 28.2-804. Polluted ground; crustacea, finfish or shellfish.

When the State Health Commissioner determines, as a result of an examination, analysis or inspection, that (i) the crustacea, finfish, or shellfish upon such ground, or in such establishment or other places where they are sold or offered for sale, are or may be unfit for market; or (ii) such growing area is polluted or has a pollution hazard so great as to render it an unfit ground from which to take crustacea, finfish or shellfish for processing or consumption; or (iii) such establishment or other place is so insanitary as to render it an unfit place in which to prepare crustacea, finfish or shellfish for market, he shall notify the Commissioner of Marine Resources and the owner or operator of such grounds, establishment or other place that the crustacea, finfish or shellfish are unfit for market.

Code 1950, § 28-160; 1962, c. 406, § 28.1-176; 1992, c. 836.

§ 28.2-805. Notice to cease activity.

Upon receipt of such notice, the owner or operator of such grounds, establishment, or other place shall cease to take crustacea, finfish, or shellfish from such ground, except as is hereinafter provided, and shall cease to prepare for market, or to sell or offer for sale, or to dispose of crustacea, finfish, or shellfish in such establishments or other places until the cause for such notice has been removed or relieved to the satisfaction of the State Health Commissioner.

Code 1950, § 28-160; 1962, c. 406, § 28.1-176; 1992, c. 836.

§ 28.2-806. State Health Commissioner to establish standards.

The State Health Commissioner may establish and change standards, examinations, analyses and inspections which control the taking and marketing from a health standpoint, of crustacea, finfish or shellfish. He shall be the sole judge of whether or not such crustacea, finfish or shellfish are sanitary and fit for market.

Code 1950, § 28-160; 1962, c. 406, § 28.1-176; 1992, c. 836.

§ 28.2-807. Condemnation of polluted growing area; procedure.

If, after examination of the crustacea, finfish or shellfish in a growing area, or the bottom in or adjacent to such area, or the water over such area, or the sanitary or pollution conditions adjacent to or in near proximity to a growing area, the State Health Commissioner determines that the crustacea, finfish or shellfish are unfit for market, he shall, after notifying the Commissioner of Marine Resources, establish boundaries of the area in which the crustacea, finfish or shellfish are located or planted. This area shall be condemned and remain so until the Health Commissioner finds such crustacea, finfish or shellfish, or area, sanitary and not polluted. The Commissioner of Marine Resources, with instructions from the State Health Commissioner, shall provide to the public identification of designated condemned areas. Public identification of designated condemned areas shall be by the use of markers, signs, downloadable maps, or digital interactive online maps. When used, markers or signs shall be supplied to the Commissioner of Marine Resources by the State Health Commissioner.

Code 1950, § 28-161; 1962, c. 406, § 28.1-177; 1979, c. 714; 1992, c. 836; 2020, c. 292.

§ 28.2-808. Periods of condemnation.

A crustacea, finfish or shellfish growing area and the crustacea, finfish or shellfish, located thereon may be condemned for the following periods:

1. For an indefinite period, based upon water quality and sources of pollution.

2. Seasonally, where recreation or certain other activities in or adjacent to the area may cause pollution of the growing area during certain seasons of the year.

3. Conditionally, for finite periods of time, based on predictable pollution events. Such conditionally condemned areas may be closed by the State Health Commissioner without advance notice or a prior hearing, provided that a hearing is held within thirty days after the area is condemned, unless it is reopened within this period.

Areas not condemned are in effect approved.

Code 1950, § 28-161; 1962, c. 406, § 28.1-177; 1979, c. 714; 1992, c. 836.

§ 28.2-809. Emergency closing of ground.

The State Health Commissioner may close any crustacea, finfish or shellfish growing area without a hearing or an investigation, if he has substantial evidence or information that such area is polluted or likely to be polluted. In such event, the State Health Commissioner shall, within thirty days after such closure or declaration, either reopen the area or make the examination, inspection, and analysis provided for in §§ 28.2-803 through 28.2-808. If such grounds or area is not reopened or declared not polluted within thirty days after closure or declaration of pollution, any leaseholder in the growing area may demand and have a public hearing as to the conditions of the ground or area.

Code 1950, § 28-162; 1962, c. 406, § 28.1-178; 1992, c. 836.

§ 28.2-810. Removal, transportation, etc., from polluted ground; penalty.

A. 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. The permittee shall carry the permit when engaged in such operation.

B. 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.

C. 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. It is unlawful to mix clean shellfish and shellfish from condemned areas in the same cargo.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-811. Permits for transporting, relaying or depurating; revocation.

A. Permits for transporting and relaying shall only be issued to (i) persons that catch shellfish from condemned areas and that want to move such shellfish to an approved area and (ii) those persons who buy shellfish from condemned areas from the catcher and who transport or relay the shellfish to approved grounds. Permits for transporting shellfish for depuration in a facility approved by the State Health Commissioner shall be issued only to persons who purchase from the catcher or catch shellfish taken from certain condemned areas identified by the State Health Commissioner.

B. Upon evidence of a permit holder offering for sale and not planting shellfish from condemned areas, the Commissioner of Marine Resources shall promptly revoke all permits held by such person.

C. The special permit, after having been issued, may be revoked at any time by the Commissioner of Marine Resources, when in his judgment, it is in the best interest of the industry. Any person having his permit revoked may demand a hearing before the Marine Resources Commission at its next scheduled meeting.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-812. Sealing motor vehicles used in transporting.

Permits shall not be issued to any motor vehicle transporting or relaying shellfish from condemned areas unless the motor vehicle has an enclosed body with doors which can be sealed by an officer. An officer may refuse to issue such a permit if he determines the motor vehicle cannot be properly sealed.

If shellfish from condemned areas are to be transported for depuration or relaying by a motor vehicle, an officer shall seal the body of the motor vehicle before departure. It is unlawful for the seal to be broken by anyone except an officer at the location where the cargo is to be discharged for relaying or depuration. After the seal has been broken, an officer shall supervise the relaying of the shellfish from the motor vehicle to the approved area or the unloading of the motor vehicle at the depuration facility.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-813. Maintenance of records.

Any person holding a valid permit to remove, transport, relay, or transport for depuration shellfish from condemned areas shall keep accurate records and submit monthly reports to the Commissioner of Marine Resources. The reports shall include the following information: (i) the areas from which the shellfish were removed; (ii) the areas to which the shellfish were relayed; (iii) the name of the depuration facility to which the shellfish were delivered; (iv) the dates of the removal, delivery to the depuration facility or relaying; (v) the number of bushels or number by count of shellfish removed, delivered for depuration or relayed; (vi) the name of the permit holder; (vii) the name and address of each person employed and engaged in the operation; (viii) the names or numbers of the boats; and (ix) the license numbers of the motor vehicles used in the operation.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-814. Submission of reports.

During any month covered by permit in which no removal, relaying or depuration activity occurs, a report shall be submitted to the Commissioner of Marine Resources indicating that no shellfish were removed, relayed or depurated. It shall be the responsibility of the permit holder to keep accurate records and make reports of the removal, relaying or depuration, to the Commissioner of Marine Resources on or before the tenth day of the month following the month of operation. The permit shall set out the expiration date.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-815. Application for special permit.

Application for the special permit provided for in §§ 28.2-810 and 28.2-811 shall be made on forms provided by the Commissioner of Marine Resources before the removal, transportation or relaying of shellfish from condemned areas. This permit shall not be transferable.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-816. Supervision of removal, relaying or depuration; seasons established.

A. Shellfish removal or relaying from condemned areas shall be under the supervision of the Commissioner of Marine Resources and the State Health Commissioner.

B. The season for the removal or relaying of shellfish shall be:

1. April 1 to November 1 from private grounds.

2. May 1 to August 15 from public grounds.

The dates for the opening and closing of seasons may be changed by the Marine Resources Commission, and the Marine Resources Commission may refuse to grant permits for removal of shellfish from condemned areas of the waters of the Commonwealth.

C. 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.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-817. Displaying identification when transporting shellfish.

Any conveyance engaged in transporting shellfish which have been caught within condemned areas for relaying or depuration to another area, or depuration facility where they may be cleansed and made fit for market, shall display a yellow flag of not less than thirty inches in length and eighteen inches in width before any shellfish are placed thereon. The flag shall be displayed during the entire relaying and transporting operation.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-818. Identification of relay areas.

Officers and employees of the Department of Health shall examine the area to which shellfish from condemned areas are relayed and ensure that adequate and proper corner stakes or buoys have been put in place by the lessee before a permit is issued to transport to or plant the area. When shellfish from condemned grounds are relayed onto approved grounds, a twenty-five-foot open area shall be maintained between each bed. Each corner stake or buoy shall be marked by a yellow flag or bunting of not less than fifteen inches by fifteen inches, and the marking shall remain until a special permit to remove the shellfish for sale or shipment has been obtained from the State Health Commissioner.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-819. Movement and unloading of shellfish from condemned area.

A. It shall be unlawful for any person to discharge, or cause to be discharged, any part of the shellfish from any conveyance engaged in transporting shellfish from condemned areas at any place other than to approved areas for cleansing. Shellfish removed from condemned areas shall be taken directly to (i) the approved planting ground, (ii) conveyances holding a proper permit for relaying to cleansing areas designated in the permit or (iii) a depuration facility approved by the State Health Commissioner.

B. The loading and unloading, ashore, of shellfish taken from condemned areas shall only be at locations designated by the Marine Resources Commission. In the instance of an emergency unloading of any conveyance engaged in transporting shellfish from a condemned area, the Marine Resources Commission shall be notified immediately and disposition of the cargo shall be made under the supervision of an officer.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836.

§ 28.2-820. Harvesting, transporting, handling or transplanting of seed-stock shellfish.

The Commission shall promulgate regulations for the harvesting, transporting, handling and transplanting of wild and cultured seed-stock shellfish from condemned areas. The Commission shall consider limitations based on the size of seed-stock shellfish that may be harvested, methods of handling, controls on the methods of transportation, and restrictions on the transplanting process necessary to protect the health of the public. The Commission shall consult with the State Health Commissioner prior to the adoption of any such regulation.

Code 1950, § 28-162.1; 1960, c. 517; 1962, c. 406, § 28.1-179; 1966, c. 684; 1968, c. 745; 1979, c. 274; 1981, c. 52; 1986, c. 184; 1988, c. 600; 1992, c. 836; 2001, c. 103.

§ 28.2-821. Violations; penalty.

A. It is unlawful for any person to have in his possession, to store, to sell, or to offer for sale any shellfish which have been removed or taken from a condemned area other than as provided in § 28.2-810. Any person who violates this section or any provision of this chapter is guilty of a Class 1 misdemeanor.

B. Upon conviction of violating any provision of this chapter any boat, vessel, motor vehicle or equipment used in committing the violation may be forfeited as provided by Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2.

Code 1950, § 28-165; 1962, c. 406, § 28.1-181; 1992, c. 836; 2012, cc. 283, 756.

§ 28.2-822. Suspension or revocation of licenses.

The Commissioner of Marine Resources may immediately suspend any licenses of any license holder who has committed more than one violation of this chapter. The suspension shall be effective until the day following the next meeting of the Commission to take place after ten days' notice to such person. The Commissioner, at the request of the person, shall, within forty-eight hours, provide an opportunity for him to show why the suspension is unjust, and for good cause shown the Commissioner shall vacate such suspension. No person whose license is suspended pursuant to this section shall engage in any fishery.

1989, c. 2, § 28.1-36.01; 1992, c. 836.

§ 28.2-823. Certification of shellfish from outside the Commonwealth.

All shellfish in the shell imported or transported into Virginia for processing or consumption within the Commonwealth shall have a certificate from the appropriate agency of the state of origin that the shellfish came from clean, approved areas of water of that state. Shellfish which are not accompanied by such certificate are deemed to have come from polluted waters; shall not be sold or processed for consumption within Virginia; and shall be replanted in compliance with the provisions of this chapter, destroyed or returned to the state of origin.

1962, c. 406, § 28.1-182; 1992, c. 836.

§ 28.2-824. Common carriers.

Common carriers transporting seafoods designated in this chapter shall carry a bill of lading listing the seafood cargo, the shipper and the consignee. If such cargo is in violation of any of the provisions of this chapter or regulations promulgated thereunder, it shall be taken possession of as provided in § 28.2-802, the shipper shall be held liable and the common carrier shall be relieved of the violations and penalties set forth in this chapter.

1962, c. 406, § 28.1-183.1; 1992, c. 836.

§ 28.2-825. Importing fish, shellfish or crustacea for introduction into waters of the Commonwealth; penalty.

A. It shall be unlawful for any person to import any fish, shellfish or crustacea into the Commonwealth with the intent of placing such fish, shellfish or crustacea into the waters of the Commonwealth unless one of the following conditions exists:

1. The fish, shellfish or crustacea are coming from within the continental United States from a state or waters which are on the Marine Resources Commission's list of approved states and waters, and are species which are on the Marine Resources Commission's list of approved species; or

2. The person has notified the Commissioner of Marine Resources of such intent and has received written permission from the Commissioner of Marine Resources.

The list of approved states and waters shall be published by the Commissioner of Marine Resources, and a state or water shall be placed on or removed from such list only with the concurrence of the Director of the Virginia Institute of Marine Science. 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.

The list of approved species shall be published by the Commissioner of Marine Resources, and a species shall be placed on or removed from such list only with the concurrence of the Director of the Virginia Institute of Marine Science. 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.

B. The notification of intent to import shall be in writing and submitted to the Commissioner of Marine Resources at least thirty days prior to the date of importation. The notice shall state: (i) the specific fish, shellfish or crustacea to be imported, (ii) from what waters the fish, shellfish or crustacea are being taken, (iii) the period of time over which importation is to be accomplished, (iv) the quantities involved, and (v) into what waters the fish, shellfish or crustacea are to be placed.

A violation of this section is a Class 1 misdemeanor.

1974, c. 327, § 28.1-183.2; 1992, c. 836.

§ 28.2-826. Crassostrea ariakensis.

A. The Commissioner, after consultation with the Director of the Virginia Institute of Marine Science and the Fisheries Management Division of the Commission, and subject to the provisions of this section, may authorize, in writing, the placement of oysters of the species Crassostrea ariakensis on state-owned bottomlands as described in § 28.2-600 or 28.2-603.

B. The Commissioner's authorization for placement of C. ariakensis on state-owned bottomlands pursuant to this section shall be conditioned upon, and subject to, compliance with the following requirements:

1. All nonnative oysters placed on state-owned bottomlands pursuant to this section shall be placed within the bounds of sites established by survey and specifically designated and approved by the Commissioner for the placement of C. ariakensis. Before approving any site for the placement of C. ariakensis, the Commissioner shall determine that such use of the site shall not conflict with Virginia's native oyster restoration program. The Commissioner shall not approve any submerged aquatic vegetation site designated pursuant to § 28.2-1204.1 for the placement of C. ariakensis. Sites designated and approved for the placement of C. ariakensis shall be marked as provided in § 28.2-517 or as otherwise specified by the Commissioner in granting the authorization.

2. C. ariakensis oysters placed on state-owned bottomlands pursuant to this section shall not be relayed or transferred to other state-owned bottomlands except in compliance with this section.

3. C. ariakensis oysters placed on state-owned bottomlands pursuant to this section shall originate at a hatchery located in the Chesapeake Bay region and be certified by the Virginia Institute of Marine Science to be currently in compliance with applicable protocols established by the International Council for the Exploration of the Sea. Documentation of compliance with this requirement shall be submitted to the Commissioner prior to the placement of such oysters on state-owned bottomlands pursuant to this section.

4. C. ariakensis oysters placed in state-owned bottomlands pursuant to this section prior to July 1, 2007, or the completion of the Environmental Impact Statement under preparation by the U.S. Army Corps of Engineers and sponsored by Maryland and Virginia concerning the introduction of nonnative oysters, whichever is sooner, shall be rendered incapable of reproduction by a method that has been determined by the Virginia Institute of Marine Science as reliably producing not more than one diploid oyster per 1,000 of triploid oysters produced, and shall be deployed in a manner determined by the Virginia Institute of Marine Science to protect against inadvertent fertilization. On and after July 1, 2007, or the completion of the Environmental Impact Statement under preparation by the U.S. Army Corps of Engineers and sponsored by Maryland and Virginia concerning the introduction of nonnative oysters, whichever is sooner, the Commissioner, with the concurrence of the Director of the Virginia Institute of Marine Science, may authorize the placement of diploid or fertile C. ariakensis oysters on state-owned bottomlands.

C. At the request of any person authorized by the Commissioner to place C. ariakensis oysters on state-owned bottomlands, the Commissioner may direct that placement of the oysters be undertaken by or under the direction of the Commission provided that the requestor agrees to reimburse the Commission for all direct costs of such placement and provides a bond, escrow, or other financial assurance for payment of such costs in a form and amount satisfactory to the Commissioner.

D. Requests for approval and accompanying certifications required by this section shall be submitted in such form as prescribed by the Commissioner. The Commissioner may, by regulation, establish a reasonable fee sufficient to defray the costs of processing requests for approval. Approvals granted pursuant to this section shall not be transferred without the written authorization of the Commissioner.

E. C. ariakensis oysters that are placed on state-owned bottomlands in violation of this section shall, upon written order of the Commissioner, be removed immediately by the person responsible for their placement. Should such person be unwilling or unable to remove them, the Commissioner shall have the oysters removed and may recover the costs thereof from the person responsible for their placement.

F. The provisions of Title 28.2 shall apply to C. ariakensis oysters grown on state-owned bottomlands except as otherwise provided in this section.

G. Not more than 60 and not less than 30 days before the Commissioner commences the exercise of his authority to allow placement of C. ariakensis on state-owned bottomland, the Commission shall hold at least one public hearing for the purpose of receiving data, views and argument concerning the placement of C. ariakensis in state waters. Not more than 60 and not less than 30 days before the Commissioner commences the exercise of his authority to allow placement of diploid or fertile C. ariakensis on state-owned bottomland, the Commission shall hold at least one public hearing for the purpose of receiving data, views and argument concerning the placement of diploid or fertile C. ariakensis in state waters.

2005, c. 551.