Title of Regulation: 4VAC20-720. Pertaining to Restrictions on Oyster Harvest (amending 4VAC20-720-15, 4VAC20-720-40 through 4VAC20-720-80).

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

Effective Date: November 1, 2015.

Agency Contact: Jennifer Farmer, Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248 or email jennifer.farmer@mrc.virginia.gov.

Summary:

This regulatory action (i) amends 4VAC20-720-15 to remove effort control measures, including the 20 days of harvest requirements to purchase the upcoming oyster hand scrape and dredge license; (ii) amends 4VAC20-720-80 to preclude anyone from harvesting oysters for commercial purposes unless that person obtains the required licenses and pays the oyster resource user fee; and (iii) opens the Pocomoke Sound - Public Ground 9 from November 16, 2015, through November 27, 2015, and updates day and time limits, gear restrictions, gear licenses, and quotas and harvest limits to reflect this change.

4VAC20-720-15. Control date, effort control, and agents.

A. The commission hereby establishes July 1, 2014, as the control date for management of all public oyster fisheries in Virginia. Participation by any individual in any public oyster fishery after the control date will not be considered in the calculation or distribution of oyster fishing rights should entry limitations be established. Any individual entering the public oyster fishery after the control date will forfeit any right to future participation in the public oyster fishery should further entry limitations be established by the commission.

B. The sale of oyster hand scrape and oyster dredge licenses to individuals who have not previously held these licenses shall be suspended until the commission reinstates the sale of those licenses. The sale of oyster patent tong licenses to individuals who had not purchased that license during the period from July 1, 2013, through August 25, 2015, shall be suspended until the commission reinstates the sale of those licenses.

C. For any lawful open public oyster harvest season, commercial licenses for oyster hand scrape and oyster dredge shall only be sold to those registered commercial fishermen who have been determined by the commission to be eligible to purchase either of these licenses as of December 1, 2015, for license year 2016, except as described in subsection D of this section.

D. After November 30, 2015, it shall be unlawful for any registered commercial fisherman who paid an oyster resource user fee for using one or more gear types from July 1, 2013, through June 30, 2015, but during that same time period reported less than 20 days of harvest for either the oyster hand scrape or oyster dredge, in one season or averaged over two seasons, to purchase the gear license associated with less than 20 harvest days.

E. Any registered commercial fisherman with an oyster harvest status, as described in subsection D of this section, may appeal his license ineligibility to the commission if that person can document that a medical hardship, active military duty, or a substantial error in his mandatory harvest reporting records prevented him from reporting at least 20 days of oyster harvest from using oyster dredge or oyster hand scrape gear.

F. Beginning January 1, 2016, valid oyster hand scrape and oyster dredge for commercial licenses may be transferred to an immediate family member of the licensee. In cases of death or incapacitation of a licensee, these same licenses may be transferred to a registered commercial fisherman who paid a current oyster resource user fee for one or more gear types. A registered commercial fisherman who holds a current oyster resource user fee for one or more gear types and is a current oyster hand scrape or oyster dredge licensee may transfer that oyster hand scrape or oyster dredge license. All such transfers shall be documented by the commission and shall be subject to the approval of the commission.

G. B. No person shall serve as an agent for any public oyster gear licensee.

4VAC20-720-40. Open oyster harvest season and areas.

A. It shall be unlawful for any person to harvest oysters from public and unassigned grounds outside of the seasons and areas set forth in this section.

B. It shall be unlawful to harvest clean cull oysters from the public oyster grounds and unassigned grounds except during the lawful seasons and from the lawful areas as described in the following subdivisions of this subsection.

1. James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area: October 1, 2015, through April 30, 2016.

2. Milford Haven: December 1, 2015, through February 29, 2016.

3. Rappahannock River Area 9: November 1, 2015, through December 31, 2015.

4. Little Wicomico River: October 1, 2015, through December 31, 2015.

5. Coan River: October 1, 2015, through December 31, 2015.

6. Yeocomico River: October 1, 2015, through December 31, 2015.

7. Nomini Creek: October 1, 2015, through December 31, 2015.

8. Mobjack Bay Area: January 1, 2016, through January 31, 2016.

9. Rappahannock River Rotation Area 5: October 1, 2015, through November 30, 2015.

10. Rappahannock River Rotation Area 3: November 1, 2015, through December 31, 2015.

11. Great Wicomico River Area: December 1, 2015, through January 31, 2016.

12. Upper Chesapeake Bay - Blackberry Hangs Area: December 1, 2015, through January 31, 2016.

13. James River Area and the Thomas Rock Area (James River): November 1 2015, through December 31, 2015, and March 1, 2016, through March 31, 2016.

14. Pocomoke and Tangier Sounds Rotation Area 1: December 1, 2015, through February 29, 2016.

15. Pocomoke Sound Area - Public Ground 10: November 2, 2015, through November 13, 2015.

16. Pocomoke Sound Area - Public Ground 9: November 16, 2015, through November 27, 2015.

16. 17. Deep Rock Area: December 1, 2015, through February 29, 2016.

17. 18. Seaside of the Eastern Shore (for clean cull oysters only): November 1, 2015, through March 31, 2016.

C. It shall be unlawful to harvest seed oysters from the public oyster grounds or unassigned grounds, except during the lawful seasons. The harvest of seed oysters from the lawful areas is described in the following subdivisions of this subsection.

1. James River Seed Area: October 1, 2015, through May 31, 2016.

2. Deep Water Shoal State Replenishment Seed Area: October 1, 2015, through May 31, 2016.

4VAC20-720-60. Day and time limit.

A. It shall be unlawful to take, catch, or possess oysters on Saturday and Sunday from the public oyster grounds or unassigned grounds in the waters of the Commonwealth of Virginia, for commercial purposes, except that this provision shall not apply to any person harvesting no more than one bushel per day by hand or ordinary tong for household use only during the season when the public oyster grounds or unassigned grounds are legally open for harvest.

B. From October 1, 2015, through December 31, 2015, it shall be unlawful to take, catch, or possess oysters on any Friday from the public oyster grounds or unassigned grounds described in 4VAC20-720-40 B 9 through B 15 16.

C. It shall be unlawful for any person to harvest or attempt to harvest oysters prior to sunrise or after 2 p.m. from the areas described in 4VAC20-720-40 B 1 through B 16 17 and 4VAC20-720-40 C. In addition, it shall be unlawful for any boat with an oyster dredge aboard to leave the dock until one hour before sunrise or return to the dock after sunset, and it shall be unlawful for any boat with a hand scrape aboard to leave the dock until one-half hour before sunrise or return to the dock after sunset.

4VAC20-720-70. Gear restrictions.

A. It shall be unlawful for any person to harvest oysters in the James River Seed Area, including the Deep Water Shoal State Replenishment Seed Area, the Rappahannock River Area 9, Milford Haven, Little Wicomico River, Coan River, Nomini Creek and Yeocomico River, except by hand tong. It shall be unlawful for any person to have a hand scrape on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand tong.

B. It shall be unlawful to harvest oysters from the seaside of the Eastern Shore area by any gear, except by hand.

C. It shall be unlawful to harvest oysters in the Rappahannock River Rotation Areas 3 and 5, James River Area, Thomas Rock Area, Upper Chesapeake Bay Blackberry Hangs Area, Mobjack Bay Area, Great Wicomico River Area, and Pocomoke Sound Area - Public Ground 9 and 10, by any gear except by hand scrape.

D. It shall be unlawful for any person to have more than one hand scrape on board any boat that is harvesting oysters or attempting to harvest oysters from public grounds. It shall be unlawful for any person to have a hand tong on board a boat that is harvesting or attempting to harvest oysters from public grounds by hand scrape.

E. It shall be unlawful to harvest oysters from the Pocomoke and Tangier Sounds Rotation Area 1, except by an oyster dredge.

F. It shall be unlawful to harvest oysters from the Deep Rock Area, except by an oyster patent tong.

4VAC20-720-75. Gear license.

A. It shall be unlawful for any person to harvest shellfish, from the hand scrape areas in the Rappahannock River, James River, Upper Chesapeake Bay, Mobjack Bay Area, Great Wicomico River, and Pocomoke Sound Area - Public Ground 9 and 10, unless that person has first obtained a valid hand scrape license.

B. It shall be unlawful for any person to harvest shellfish with an oyster dredge from the public oyster grounds in the Pocomoke and Tangier Sounds Rotation Area 1, unless that person has first obtained a valid oyster dredge license.

C. It shall be unlawful for any person to harvest shellfish with a patent tong from the public oyster grounds in the Deep Rock Area, unless that person has first obtained a valid oyster patent tong license.

D. It shall be unlawful for any person to harvest shellfish with a hand tong from the public oyster grounds, as described in 4VAC20-720-70 A, unless that person has first obtained a valid hand tong license.

E. It shall be unlawful for any person to harvest shellfish by hand from the public oyster grounds on the Seaside of the Eastern Shore, as described in 4VAC20-720-40 B 17 18, unless that person has first obtained a valid oyster by hand license.

4VAC20-720-80. Quotas and harvest limits.

A. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess more than eight bushels per day any oysters for commercial purposes. Any individual who possesses the valid licenses and paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit of 24 bushels clean cull oysters harvested from the areas described in 4VAC20-720-40 B 8 through 15 16.

B. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess more than eight bushels per day any oysters for commercial purposes. Any individual who possesses the valid licenses and paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of eight bushels per day. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 2 through 7 and 16 17, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by eight.

C. It shall be unlawful for any vessel to exceed a daily vessel limit for clean cull oysters harvested from the areas described in 4VAC20-720-40 B 1, whereby that vessel limit shall equal the number of registered commercial fisherman licensees on board the vessel who hold a valid gear license and who have paid the oyster resource user fee multiplied by 12. It shall be unlawful for any person who does not possess a valid commercial fisherman's registration license and hold a valid gear license required by harvest area, as described in 4VAC20-720-75, and has not paid the current year's oyster resource user fee to harvest or possess more than 12 bushels per day any oysters for commercial purposes. Any individual who possesses the valid licenses and paid the oyster resource user fee as described in this subsection shall be limited to a maximum harvest of 12 bushels per day.

D. In the Pocomoke and Tangier Sounds Rotation Area 1, no blue crab bycatch is allowed. It shall be unlawful to possess on board any vessel more than 250 hard clams.