Vol. 29 Iss. 17 - April 22, 2013

Chapter 1270
Final Regulation

REGISTRAR'S NOTICE: The Marine Resources Commission is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

Title of Regulation: 4VAC20-1270. Pertaining to Atlantic Menhaden (adding 4VAC20-1270-10 through 4VAC20-1270-70).

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

Effective Date: April 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


This regulation implements specific emergency legislative requirements enacted by the 2013 Acts of Assembly to comply with requirements established by Amendment 2 to the Atlantic States Marine Fisheries Commission (ASMFC) Interstate Fishery Management Plan for Atlantic Menhaden for 2013 through 2014. Virginia law has been amended to respond to an ASMFC-mandated 20% reduction of the 2013 and 2014 total allowable landings of menhaden. The commission is required to establish regulations pertaining to menhaden to comply with these amendments.


4VAC20-1270-10. Purpose.

The purpose of this chapter is to comply with the Interstate Fishery Management Plan for Atlantic menhaden, including the mandated 20% reduction in total allowable commercial landings of Atlantic menhaden from the average of the 2009 through 2011 landings.

4VAC20-1270-20. Definitions.

"Nonpurse seine menhaden bait sector" means those vessels that do not utilize a purse seine net to harvest menhaden and land menhaden only for use as bait in other fisheries.

"Purse seine menhaden bait sector" means those vessels that utilize a purse seine net to land menhaden only for use as bait in other fisheries.

"Purse seine menhaden reduction sector" means those vessels that utilize a purse seine net to land menhaden only at a qualified menhaden processing factory as described by § 28.2-400.3 of the Code of Virginia.

4VAC20-1270-30. Total allowable landings for menhaden; allocation, accountability, and overages.

A. Section 28.2-400.2 of the Code of Virginia establishes the total allowable commercial landings for menhaden in 2013 and 2014 in metric tons equivalent to 318,067,167 pounds, and that total amount of allowable landings shall be allocated as quotas among three sectors of the menhaden fishery, as described below, pursuant to § 28.2-400.3 of the Code of Virginia. The purse seine menhaden reduction sector is allocated a quota of 286,396,768 pounds of allowable menhaden landings; the purse seine menhaden bait sector a 26,648,870 pound quota of allowable menhaden landings; and the nonpurse seine menhaden bait sector a 5,021,529 pound quota of allowable menhaden landings.

B. Any menhaden landings on and after January 1, 2013, count towards that particular sector's 2013 commercial quota.

C. Any overages of a sector's commercial quota shall be deducted from the following year's quota for that sector.

4VAC20-1270-40. Purse seine menhaden bait sector; limited entry criteria; individual transferable quota system.

A. To qualify for limited entry to the purse seine menhaden bait sector, the applicant must:

1. Have held a purse seine license in 2011 and landed menhaden in Virginia in 2009, 2010, and 2011, while using purse seine gear to harvest menhaden in one of those three years; and

2. Provide the commission receipts and landings reports or other requested reports as proof of landings and gear usage to demonstrate that the criteria described in subdivision 1 of this subsection have been met.

B. The commission shall establish an individual transferable quota (ITQ) system for each purse seine menhaden bait licensee that meets the limited entry requirements in subsection A of this section. The quota for this sector will be allocated according to each qualified licensee's rounded percentage share of the average of the 2007 through 2011 menhaden landings.

C. Each licensee qualified under the ITQ system may transfer quota to another licensee's ITQ upon approval of the commissioner.

4VAC20-1270-50. Nonpurse seine menhaden bait sector quota; allocation and bycatch provisions.

A. For 2013 and 2014, the nonpurse seine commercial bait sector's allocation shall be by gear type as follows:

1. Cast net:

1,930 pounds.

2. Dredge:

3,069 pounds.

3. Fyke net:

2,115 pounds.

4. Gill net:

1,521,108 pounds.

5. Hook and line:

234 pounds.

6. Pot:

2,064 pounds.

7. Pound net:

3,412,020 pounds.

8. Seine:

20,103 pounds.

9. Trawl:

58,847 pounds.

10. Trot line:

39 pounds.

B. Pursuant to § 28.2-400.4 of the Code of Virginia, once the commissioner announces the date of closure for the nonpurse seine bait fishery, any person licensed in the nonpurse seine menhaden bait sector may possess and land up to 6,000 pounds of menhaden per day.

4VAC20-1270-60. Reporting requirements by menhaden fishery sector.

A. Each licensee of any purse seine vessel that harvests menhaden must submit a Captain's Daily Fishing Report to the commission on each nonweekend or nonholiday day that either purse seine sector is open for harvest. The Captain's Daily Fishing Report is produced by the National Marine Fisheries Service and provides preliminary estimates of harvest. Pursuant to § 28.2-204 of the Code of Virginia, those same licensees must submit to the commission actual weekly harvest reports that include vessel name and exact weight of menhaden landed, in pounds, by Wednesday of the following week. Once 97% of either purse seine sector's quota is projected and announced to have been met, each licensee of that purse seine sector must provide daily harvest totals to the commission's Interactive Voice Recording System.

B. The nonpurse seine menhaden commercial bait sector shall submit daily reports according to the schedule and reporting requirements established by 4VAC20-610-10, Pertaining to Commercial Fishing and Mandatory Harvest Reporting.

C. When the commissioner announces that 90% of the nonpurse seine menhaden bait quota has been reached, each harvester of this sector is required to report his previous 10 days of landings to the commission's Interactive Voice Recording System and must continue to report his additional landings every 10 days until it is announced that the nonpurse seine bait quota has been attained. More frequent reporting is permissible. The commission may also implement other harvest conservation measures such as trip limits.

4VAC20-1270-70. Penalty.

As set forth in § 28.2-903 of the Code of Virginia, any person violating any provision of this chapter shall be guilty of a Class 3 misdemeanor. A second and each subsequent violation of any provision of this chapter committed by the same person within 12 months of a prior violation is a Class 1 misdemeanor.

NOTICE: The following form used in administering the regulation was filed by the agency. The form is not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name to access the form. The form is also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

FORMS (4VAC20-1270)

Captain's Daily Fishing Report (rev. 2010).

VA.R. Doc. No. R13-3649; Filed March 29, 2013, 3:30 p.m.