Opinion Number

Dear Representative Marionneaux:

This office is in receipt of your letter requesting an Attorney General's Opinion regarding whether the Wildlife and Fisheries Commission has the authority to promulgate rules necessary to implement the provisions of Acts 1997, No. 449. Act 449 provides in pertinent part:

. . . the commission may adopt rules in accordance with the Administrative Procedure Act to establish special permits authorizing large tournament participants to possess live black bass, Micropterus spp., or its hybrids, that would otherwise fall outside of legal limits. (Emphasis added)

Act 449 continues by providing guidelines for permit fees and transferability, necessary information which must be provided on applications, including name, location of the tournament, and number of expected participants, and finally, a definition of "large tournament."

The legislature has given the Wildlife and Fisheries Commission the power, under the specific guidelines provided in Act 449, to issue regulations allowing issuance of permits to large tournaments participants to possess fish that would otherwise be illegal. We can find nothing in the Constitution or laws of Louisiana which prohibits granting the Wildlife and Fisheries Commission such powers.

We note that Act 449 is permissive and not mandatory. When interpreting a statute we are guided by R.S. 1:3 which states that the word "shall" is mandatory and the word "may" is permissive. See also La. Code of Civil Procedure Article 5053. This is also apparent when comparing Act 449 to other acts of 1997 which use the word "shall" in directing agencies to promulgate regulations. See Acts 1997, No. 169 ("The secretary of the [Department of Health and Hospitals] shall promulgate rules and regulations [for licensure of basic care facilities]"); Acts 1997, No. 210 ("The secretary [of the Department of Transportation and Development] shall promulgate rules and regulations to [issue to issue prestige license plates]"), and; Acts 1997, No. 527 ("The secretary of the Department of Wildlife and Fisheries shall promulgate rules and regulations for the issuance of [a commercial fisherman's sales card"). Had the legislature desired to require the Wildlife and Fisheries Commission to promulgate regulations under Act 449, they clearly could have done so.

It is the opinion of this office that Act 449 authorizes, but does not require, the Wildlife and Fisheries Commission to promulgate such regulations.

We trust the foregoing has been helpful. Should you have any further questions, please contact this office.

Very truly yours,

RICHARD P. IEYOUB ATTORNEY GENERAL

BY: FREDERICK C. WHITROCK Assistant Attorney General

RPI/FCW/tp