Title of Regulation: 4VAC20-620. Pertaining to Summer Flounder (amending 4VAC20-620-20, 4VAC20-620-30, 4VAC20-620-40).

Statutory Authority: §§28.2-201 and 28.2-204 of the Code of Virginia.

Effective Date: October 1, 2008.

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 (i) delay opening of the fall-directed commercial flounder fishery until the first Monday in December; (ii) delay opening the winter-directed commercial flounder fishery until the last Monday in February; (iii) extend the 10-day landing period to a 12-day landing period in the winter directed commercial flounder fishery; (iv) redefine “land” or “landing” as to offload; (v) establish the quota as a total of allowable landings; (vi) modify the possession limit from 12,500 pounds to 25,000 pounds for the last Monday in February through the day preceding the first Monday in December; (vii) modify the possession limit from 10,000 pounds to 20,000 pounds from the first Monday in December through December 31 of each year; (viii) establish that upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all Summer Flounder aboard any vessel landing Summer Flounder in Virginia; and (ix) establish that when contacting the VMRC operations station the buyer shall provide an estimate of the landings weight.

These amendments make it unlawful to (i) land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period and (ii) possess aboard any vessel in Virginia any amount of Summer Founder in excess of 10% by weight of all other landed species on board the vessel once it has been projected and announced that 85% of the allowable landings has been taken. The Marine Resources Commission will give timely notice of any changes in possession limits.

4VAC20-620-20. Definitions.

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

"Chesapeake Bay and its tributaries" means all tidal waters of Virginia, including the Potomac River tributaries but excluding the coastal area as defined in this section.

"Coastal area" means the area that includes Virginia's portion of the Territorial Sea and all of the creeks, bays, inlets, and tributaries on the seaside of Accomack County, Northampton County, including areas east of the causeway from Fisherman Island to the mainland and the City of Virginia Beach, including federal areas and state parks fronting on the Atlantic Ocean and east and south of the point where the shoreward boundary of the Territorial Sea joins the mainland at Cape Henry.

"Land" or "landing" means to enter port with finfish, shellfish, crustaceans or other marine seafood on board any boat or vessel, to begin offloading offload or attempt to offload finfish, shellfish, crustaceans or other marine seafood, or to offload finfish, shellfish, crustaceans, or other marine seafood.

"Potomac River tributaries" means all the tributaries of the Potomac River that are within Virginia's jurisdiction beginning with, and including, Flag Pond, thence upstream to the District of Columbia boundary.

"Safe harbor" means that a vessel has been authorized by the commissioner to enter Virginia waters from federal waters solely to either dock temporarily at a Virginia seafood buyer's place of business or traverse the Intracoastal Waterway from Virginia to North Carolina.

4VAC20-620-30. Commercial harvest quotas quota and allowable landings.

A. During each calendar year, allowable commercial landings of Summer Flounder shall be limited to the a quota in total pounds calculated pursuant to the joint Mid-Atlantic Fishery Management Council/Atlantic States Marine Fisheries Commission Summer Flounder Fishery Management Plan, as approved by the National Marine Fisheries Service on August 6, 1992 (50 CFR Part 625); and shall be distributed as described in subsections B through G of this section.

B. The commercial harvest of Summer Flounder from Virginia tidal waters for each calendar year shall be limited to 300,000 pounds of the annual quota described in subsection A of this section. Out of Of this amount, 142,114 pounds shall be set aside for a Chesapeake Bay-wide harvest quota.

C. From the first Monday in January through the day preceding the last first Monday in October of each calendar year, December allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 70.7% of the total quota described in subsection A of this section after deducting the amount specified in subsection B of this section.

D. From the last first Monday in October December through December 31 of each calendar year, allowable landings of Summer Flounder harvested outside of Virginia shall be limited to an amount of pounds equal to 29.3% of the total quota, as described in subsection A of this section, after deducting the amount specified in subsection B of this section, and as may be further modified by subsection E.

E. During the period set forth in subsection C of this section, should Should landings from the first Monday in January through the day preceding the first Monday in December exceed or fall short of the quota specified for that period 70.7% of the quota described in subsection A of this section, any such excess shall be deducted from allowable landings described in subsection D of this section, and any such shortage shall be added to, the quota for the period set forth the allowable landings as described in subsection D of this section. Should landings the commercial harvest specified in subsection B of this section be projected to fall short of the quota specified for that period as less than 300,000 pounds, any such shortage shall be added to the quota for the period set forth allowable landings described in subsection D of this section.

F. For each of the time periods and quotas set forth in subsections C and D of this section, the The Marine Resources Commission will give timely notice to the industry of the calculated poundages and any adjustments thereto to any allowable landings described in subsections C and D of this section. It shall be unlawful for any person to harvest or to land Summer Flounder for commercial purposes after the commercial harvest or landing quota any allowable landings as described in this section has have been attained and announced as such. If a any person lands Summer Flounder after the commercial harvest or landing quota has any allowable landing have been attained and announced as such, the entire amount of Summer Flounder in that person's possession shall be confiscated.

G. It shall be unlawful for any buyer of seafood to receive any Summer Flounder after any commercial harvest or landing quota as described in this section has been attained and announced as such.

4VAC20-620-40. Commercial vessel possession and landing limitations.

A. From January 1 through the day preceding the first last Monday in February, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to possess aboard any vessel in Virginia any amount of Summer Flounder in excess of 10% by weight of all other landed species on board the vessel.

B. From the first last Monday in February through the day preceding the last first Monday in October December, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters an any amount of Summer Flounder in excess of 12,500 25,000 pounds.

2. Land Summer Flounder in Virginia for commercial purposes more than twice within during each consecutive 10-day 12-day period, with the first 10-day 12-day period beginning on the the first last Monday in February.

3. Land in Virginia more than a total of 12,500 pounds of Summer Flounder during each consecutive 10-day 12-day period, with the first 10-day 12-day period beginning on the first last Monday in February.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

5. Possess aboard any vessel in Virginia any amount of Summer Flounder in excess of 10% by weight of all other landed species on board the vessel once it has been projected and announced that 85% of the allowable landings have been taken. The Marine Resources Commission will give timely notice of any changes in possession limits.

C. When it is projected and announced that 85% of the quota, for the period from the first Monday in January through the day preceding the last Monday in October has been taken, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to possess aboard any vessel, in Virginia, any amount of Summer Flounder, in excess of 10%, by weight, of all other landed species on board the vessel.

D. C. From the last first Monday in October December through December 31 of each year, it shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to do any of the following:

1. Possess aboard any vessel in Virginia waters an any amount of Summer Flounder in excess of 10,000 20,000 pounds.

2. Land Summer Flounder in Virginia for commercial purposes more than twice within during each consecutive 10-day 12-day period, with the first 10-day 12-day period beginning on the last first Monday in October December.

3. Land in Virginia more than a total of 10,000 pounds of Summer Flounder during each consecutive 10-day 12-day period, with the first 10-day 12-day period beginning on the last first Monday in October December.

4. Land in Virginia any amount of Summer Flounder more than once in any consecutive five-day period.

4. 5. Possess aboard any vessel in Virginia any amount of Summer Flounder in excess of 10% by weight of all other landed species on board the vessel once it has been projected and announced that 85% of the quota has allowable landings described in 4VAC20-620-30 D have been taken, except as described in subdivision 5 6 of this subsection. The Marine Resources Commission will give timely notice of any changes in possession limits.

5. 6. Possess aboard any vessel in Virginia any amount of Summer Flounder once it has projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.

E. For each of the time periods set forth in subsections A, B, C and D of this section, the Marine Resources Commission will give timely notice of any changes in possession limits.

D. Upon request by a marine police officer, the seafood buyer or processor shall offload and accurately determine the total weight of all Summer Flounder aboard any vessel landing Summer Flounder in Virginia.

F. Each E. Any possession limit described in subsections A, B, C and D of this section shall be determined by the net weight in pounds of Summer Flounder as customarily packed, boxed and weighed by the seafood buyer or processor. The net weight of any Summer Flounder in pounds found in excess of this any possession limit described in subsections A, B, C and D of this section shall be prima facie evidence of violation of this chapter. Persons in possession of Summer Flounder, aboard any vessel, in excess of the possession limit shall be in violation of this chapter, unless that vessel has requested and been granted safe harbor. Any buyer or processor offloading or accepting any quantity of Summer Flounder from any vessel in excess of the possession limit shall be in violation of this chapter, except as described by subsection I H of this section. A buyer or processor may accept or buy Summer Flounder from a vessel that has secured safe harbor, provided that vessel has satisfied the requirements described in subsection I H of this section.

G. F. If a person violates the possession limits described in this section, the entire amount of Summer Flounder in that person's possession shall be confiscated. Any confiscated Summer Flounder shall be considered as a removal from the appropriate commercial harvest or landings quota. Upon confiscation, the marine patrol police officer shall inventory the confiscated Summer Flounder and, at a minimum, secure two bids for purchase of the confiscated Summer Flounder from approved and licensed seafood buyers. The confiscated fish will be sold to the highest bidder and all funds derived from such sale shall be deposited for the Commonwealth pending court resolution of the charge of violating the possession limits established by this chapter. All of the collected funds will be returned to the accused upon a finding of innocence or forfeited to the Commonwealth upon a finding of guilty.

H.. G. It shall be unlawful for a licensed seafood buyer or federally permitted seafood buyer to fail to contact the Marine Resources Commission Operation Station prior to a vessel offloading Summer Flounder harvested outside of Virginia. The buyer shall provide to the Marine Resources Commission the name of the vessel, and its captain, an estimate of the amount in pounds of Summer Flounder on board that vessel, and the anticipated or approximate offloading time. Once offloading of any vessel is complete and the weight of the landed Summer Flounder has been determined, the buyer shall contact the Marine Resources Commission Operations Station and report the vessel name and corresponding weight of Summer Flounder landed. It shall be unlawful for any person to offload from a boat or vessel for commercial purposes any Summer Flounder during the period of 10 6 p.m. to 7 a.m.

I. H. Any boat or vessel that has entered Virginia waters for safe harbor shall only offload Summer Flounder when the state that licenses that vessel requests to transfer quota to Virginia, in the amount that corresponds to that vessel's possession limit, and the commissioner agrees to accept that transfer of quota.

J. I. After any commercial harvest or landing quota as described in 4VAC20-620-30 has been attained and announced as such, any boat or vessel possessing Summer Flounder on board may enter Virginia waters for safe harbor but shall contact the Marine Resources Commission Operation Center in advance of such entry into Virginia waters.