Title of Regulation: 4VAC20-610. Pertaining to Commercial Fishing and Mandatory Harvest Reporting (amending 4VAC20-610-20, 4VAC20-610-25, 4VAC20-610-60; adding 4VAC20-610-26).

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

Effective Date: January 1, 2013.

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:

The amendments reclassify the current requirements for the reporting and permitting of oyster aquaculture product owners and harvesters and clam aquaculture product owners and harvesters.

4VAC20-610-20. Definitions.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"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.

"Clam aquaculture harvester" means any person who harvests clams from leased, subleased, or fee simple ground or any growing area, within or adjacent to Virginia tidal waters.

"Clam aquaculture product owner" means any person or firm that owns clams on leased, subleased, or fee simple ground, or on 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.

"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.

"Commission" means the Marine Resources Commission.

"Commissioner" means the Commissioner of the Marine Resources Commission.

"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.

"Oyster aquaculture harvester" means any person who harvests oysters from leased, subleased, or fee simple ground or any growing area, within or adjacent to Virginia tidal waters.

"Oyster aquaculture product owner" means any person or firm that owns oysters on leased, subleased, or fee simple ground, or on 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.

"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.

"Sale" means sale, trade, or barter.

"Sell" means sell, trade, or barter.

"Selling" means selling, trading, or bartering.

"Sold" means sold, traded, or bartered.

4VAC20-610-25. Oyster and clam aquaculture permit 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 on any aquaculture growing area within or adjacent to Virginia tidal waters in accordance with 4VAC20-610-60.

B. 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 on any growing area within or adjacent to Virginia tidal waters in accordance with 4VAC20-610-60.

C. Any person, who is not a permitted oyster aquaculture product owner, who harvests oysters from leased, subleased or fee simple ground or on any growing area within or adjacent to Virginia tidal waters, shall obtain an oyster aquaculture harvester's permit for the purposes of providing fisheries effort statistics to the commission as authorized by § 28.2-204 of the Code of Virginia.

D. Any person who is not a permitted clam aquaculture product owner who harvests clams from leased, subleased or fee simple ground or on any growing area within or adjacent to Virginia tidal waters shall obtain a clam aquaculture harvester's permit for the purposes of providing fisheries effort statistics to the commission as authorized by § 28.2-204 of the Code of Virginia.

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.

E. 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 permit is in the possession of a legally permitted oyster aquaculture product owner, and the permitted harvester is harvesting oysters of that oyster aquaculture product owner person is on a permitted oyster aquaculture product owner vessel and is harvesting oysters of that oyster aquaculture product owner.

F. It shall be unlawful for any person permitted as a clam aquaculture harvester to fail to possess that permit on his person while harvesting unless that permit is in the possession of a legally permitted clam aquaculture product owner, and the permitted harvester is harvesting clams of that clam aquaculture product owner.

G. 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.

H. 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.

4VAC20-610-26. Clam aquaculture permit 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.

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.

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.

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.

4VAC20-610-60. Mandatory harvest reporting.

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.

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.

C. All registered commercial fishermen and any valid seafood landing licensee, oyster aquaculture product owner permittee, and clam aquaculture product owner permittee 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 approved by the commission. Registered commercial fishermen and seafood landing licensees may use more than one form when selling to more than one buyer.

D. Any oyster aquaculture product owner permittee or clam aquaculture product owner permittee shall complete a monthly form accurately quantifying and legibly describing that month's harvest from Virginia tidal waters. The forms used to record monthly harvest shall be those provided by the commission or another form approved by the commission.

D. 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. This report shall be accompanied by the daily harvest records described in subsection E F of this section. Completed forms shall be mailed or delivered to the commission or other designated locations.

E. F. The monthly harvest report requirements shall be as follows:

1. Registered commercial fishermen shall be responsible for providing monthly harvest report and daily harvest records that include the name and signature of the registered commercial fisherman and his 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 helpers 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.

2. The monthly harvest report and daily harvest records from oyster aquaculture product owner permittees and clam aquaculture product owner permittees shall include the name, signature, permit number, lease number, date of harvest 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.

3. The monthly harvest report and daily harvest records from seafood landing licensees shall include the name and signature of the seafood landing licensee and his 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; nonfederally 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).

F. G. 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.

G. H. 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.

H. I. Registered commercial fishermen, seafood landing licensees, oyster aquaculture product owner permittees and clam aquaculture product owner permittees shall maintain their daily harvest records for one year and shall make them available upon request to those authorized by the commission.

I. J. 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.

J. K. The reporting of oyster harvest and transactions by licensed seafood buyers, oyster aquaculture product owner permittees, clam aquaculture product owner permittees, and any registered commercial fisherman who self-markets his oyster harvest shall be made in accordance with 4VAC20-200 and Article 3 (§ 28.2-538 et seq.) of Chapter 5 of Title 28.2 of the Code of Virginia.

K. L. 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.

L. M. 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.

FORMS (4VAC20-610)

Captain's Daily Fishing Report (eff. 8/02).

Monthly Harvest Reporting Form, MR027540 (rev. 2/10).