Title of Regulation: 4VAC20-260. Pertaining to Designation of Seed Areas and Clean Cull Areas (amending 4VAC20-260-10, 4VAC20-260-40, 4VAC20-260-50, 4VAC20-260-60; repealing 4VAC20-260-35).

Statutory Authority: § 28.2-201 of the Code of Virginia.

Effective Date: October 1, 2010.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (757) 247-2002, or email betty.warren@mrc.virginia.gov.

Summary:

This amendment repeals the maximum cull size of 4-1/4 inches for clean cull oysters in the Rappahannock River.

4VAC20-260-10. Purpose.

The purpose of this chapter is to establish clean cull and seed areas, culling requirements, (minimum and maximum size limits) minimum cull size, and inspection procedures that will provide protection for the public oyster beds, rocks, and shoals in Virginia's tidal waters.

4VAC20-260-35. Maximum cull size in the Rappahannock River. (Repealed.)

In order to protect potentially disease tolerant oysters in the Lower Rappahannock River, maximum size limits are hereby established. In the Lower Rappahannock River, Rotation Areas 1 through 3, oysters larger than the maximum size limit shall either be collected by the Marine Resources Commission or returned immediately to the natural beds, rocks, or shoals when taken. Allowance for oversized oysters and shells incidentally retained during culling are described in 4VAC20-260-40.

Oysters taken for direct human consumption from Rotation Areas 1 through 3 in the Lower Rappahannock River shall not have shells greater than 4-1/4 inches in length.

4VAC20-260-40. Culling tolerances or standards.

A. In the clean cull areas, except the Lower Rappahannock River, Rotation Areas 1 through 3, if more than one four-quart measure of undersized oysters or shells is found per bushel inspected, it shall constitute a violation of this chapter.

B. In the Lower Rappahannock River, Rotation Areas 1 through 3, if more than one four-quart measure of undersized or oversized oysters or shells is found per bushel inspected, it shall constitute a violation of this chapter.

C. B. In the James River seed areas, if more than one six-quart measure of shells is found per bushel of seed oysters inspected, it shall constitute a violation of this chapter.

D. C. In the James River seed areas, if more than one four-quart measure of undersized oysters or shells are is found per bushel of clean cull oysters inspected, it shall constitute a violation of this chapter.

E. D. On the seaside of Eastern Shore seed areas, if more than one four-quart measure of undersized (less than three inches) oysters and shell shells is found per bushel of oysters to be marketed for direct consumption, it shall constitute a violation of this chapter.

4VAC20-260-50. Culling and inspection procedures.

A. All oysters taken from natural public beds, rocks, or shoals shall be placed on the culling board and culled by hand to the inside open part of the boat in a loose pile; however, when oysters are taken by hand and held in baskets or other containers they shall be culled as taken and transferred from the container to the inside open part of the boat in a loose pile and subject to inspection by any Marine Resources Commission law-enforcement officer.

B. 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.

C. It shall be unlawful for any harvester to store oysters taken from public grounds on any boat in any type of container, except as described for the James River in 4VAC20-1230-30 L. All oysters taken from said areas shall be sold or purchased only in the regular oyster one-half bushel or one bushel measure as described in § 28.2-526 of the Code of Virginia, except that 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.

D. In the inspection of oysters the law-enforcement officer shall, with a shovel, take at least one bushel of oysters at random, provided that the entire bushel shall be taken at one place in the open pile of oysters.

4VAC20-260-60. Penalty.

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 C shall be guilty of a Class 3 misdemeanor.

B. As set forth in § 28.2-526 of the Code of Virginia, any person violating any provision of 4VAC20-260-50 C of the chapter shall be guilty of a Class 1 misdemeanor.

C. In addition to the penalty set forth by § 28.2-903 of the Code of Virginia, any person violating any provisions of this chapter shall return all oysters in possession to the water and shall cease harvesting on that day. All harvesting apparatus of the person in violation of this chapter shall be subject to seizure, and pursuant to § 28.2-232 of the Code of Virginia, that person shall be subject to the immediate forfeiture of all oyster licenses and permits until appearing before the Marine Resources Commission. C. 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 Marine Resources Commission.