Title of Regulation: 4VAC20-620. Pertaining to Summer Flounder (amending 4VAC20-620-50; repealing 4VAC20-620-75).

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

Effective Date: March 1, 2012.

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) establish the minimum size as 16-1/2 inches for recreational harvest of Summer Flounder and (ii) repeal the research exemptions to possession and size limits.

4VAC20-620-50. Minimum size limits.

A. The minimum size for Summer Flounder harvested by commercial fishing gear shall be 14 inches, total length.

B. The minimum size of Summer Flounder harvested by recreational fishing gear, including but not limited to hook and line, rod and reel, spear and gig, shall be 17-1/2 16-1/2 inches, total length, except that the minimum size of Summer Flounder harvested in the Potomac River tributaries shall be the same as established by the Potomac River Fisheries Commission for the mainstem Potomac River.

C. Length shall be measured in a straight line from tip of nose to tip of tail.

D. It shall be unlawful for any person to possess any Summer Flounder smaller than the designated minimum size limit.

E. Nothing in this chapter shall prohibit the landing of Summer Flounder in Virginia that were legally harvested in the Potomac River.

4VAC20-620-75. Research exemptions to possession and size limits. (Repealed.)

Nothing in this chapter shall preclude any person who is legally eligible to fish from possessing any Summer Flounder tagged by the Virginia Institute of Marine Science (VIMS) with two different types of tags in each of 260 Summer Flounder. One tag is a white data recording tag of 1/2-inch diameter and 1-1/2 inches in length that VIMS affixed to the Summer Flounder. That tag is inscribed with "VIMS $200 reward" and the VIMS telephone contact number. The second tag is a yellow "T-bar" or "spaghetti" type tag that VIMS affixed to the dorsal area of these double-tagged Summer Flounder. The yellow T-bar tag is inscribed with "reward" and the VIMS contact telephone number. Possession of these VIMS-tagged Summer Flounder shall not count towards the personal recreational possession limit of four Summer Flounder, 17-1/2 inches or greater in total length. Possession of any undersized flounder that has any affixed VIMS tag, as described above, shall not constitute a violation of the minimum size limit of 17-1/2 inches in total length. It shall be unlawful for any person to remove either type of tag from any caught or harvested Summer Flounder without having contacted VIMS. It shall be unlawful for any person to retain any of these VIMS-tagged Summer Flounder for a period of time that is longer than necessary to provide the VIMS-tagged Summer Flounder to a VIMS representative. Under no circumstances shall any VIMS-tagged flounder be stored for future use or sale or delivered to any person who is not a VIMS representative.

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

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: February 29, 2012, through March 30, 2012.

Agency Contact: Jane Warren, Agency Regulatory Coordinator, Marine Resources Commission, 2600 Washington Avenue, 3rd Floor, Newport News, VA 23607, telephone (757) 247-2248, FAX (804) 247-2002, or email betty.warren@mrc.virginia.gov.

Preamble:

This emergency amendment clarifies that the commercial fishery possession limit for Summer Flounder is the sum of the Virginia landing limit and the North Carolina landing or trip limit.

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

A. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia's waters to do any of the following, except as described in subsections B, C, and D of this section:

1. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 10% by weight of Atlantic croaker or the combined landings, on board a vessel, of black sea bass, scup, squid, scallops and Atlantic mackerel.

2. Possess aboard any vessel in Virginia waters any amount of Summer Flounder in excess of 1,500 pounds landed in combination with Atlantic croaker.

3. Fail to sell the vessel's entire harvest of all species at the point of landing.

B. From the first Monday in March through the day preceding the second Monday in November, or until it has been projected and announced that 85% of the allowable landings have been taken, 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 any amount of Summer Flounder in excess of 20,000 pounds the combined total of the Virginia landing limit described in subdivision 3 of this subsection and the amount of the legal North Carolina landing or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 15-day period, with the first 15-day period beginning on the first Monday in March.

3. Land in Virginia more than 10,000 pounds of Summer Flounder during each consecutive 15-day period, with the first 15-day period beginning on the first Monday in March.

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

C. From the second Monday in November through December 31 of each year, or until it has been projected and announced that 85% of the allowable landings have been taken, 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 any amount of Summer Flounder in excess of 20,000 pounds the combined total of the Virginia landing limit described in subdivision 3 of this subsection and the amount of the legal North Carolina landing or trip limit.

2. Land Summer Flounder in Virginia for commercial purposes more than twice during each consecutive 15-day period, with the first 15-day period beginning on the second Monday in November.

3. Land in Virginia more than a total of 10,000 pounds of Summer Flounder during each consecutive 15-day period, with the first 15-day period beginning on the second Monday in November.

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

D. From January 1 through December 31 of each year, any boat or vessel issued a valid federal Summer Flounder moratorium permit and owned and operated by a legal Virginia Commercial Hook-and-Line Licensee that possesses a Restricted Summer Flounder Endorsement shall be restricted to a possession and landing limit of 200 pounds of Summer Flounder, except as described in 4VAC20-620-30 F.

E. 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. Any possession limit described in this section shall be determined by the weight in pounds of Summer Flounder as customarily packed, boxed and weighed by the seafood buyer or processor. The weight of any Summer Flounder in pounds found in excess of any possession limit described in 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 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 of this section.

G. 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 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. 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, 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 9 p.m. to 7 a.m.

I. 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. 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.

K. It shall be unlawful for any person harvesting Summer Flounder outside of Virginia waters to possess aboard any vessel, in Virginia, any amount of Summer Flounder, once it has been projected and announced that 100% of the quota described in 4VAC20-620-30 A has been taken.

Title of Regulation: 4VAC20-900. Pertaining to Horseshoe Crab (amending 4VAC20-900-25, 4VAC20-900-36).

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

Effective Date: March 1, 2012.

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 establish the 2012 harvest quota as 152,495 horseshoe crabs and suballocate the annual quota by gear types as follows: (i) 40.348% of annual quota for dredge gears, (ii) 12.488% of annual quota for trawl gears, (iii) 22.095% of annual quota for hand harvester licensees, (iv) 18.142% of annual quota for pound nets, and (v) 6.927% of annual quota for other gears.

4VAC20-900-25. Commercial fisheries management measures.

A. It shall be unlawful for any person to harvest horseshoe crabs from any shore or tidal waters of Virginia within 1,000 feet in any direction of the mean low water line from May 1 through June 7. The harvests of horseshoe crabs for biomedical use shall not be subject to this limitation.

B. From January 1 through June 7 of each year, it shall be unlawful for any person to land, in Virginia, any horseshoe crab harvested from federal waters.

C. Harvests for biomedical purposes shall require a special permit issued by the Commissioner of Marine Resources, and all crabs taken pursuant to such permit shall be returned to the same waters from which they were collected.

D. The commercial quota of horseshoe crab for 2011 2012 shall be 130,933 152,495 horseshoe crabs. Additional quantities of horseshoe crab may be transferred to Virginia by other jurisdictions in accordance with the provisions of Addendum I to the Atlantic States Marine Fisheries Commission Fishery Management Plan for Horseshoe Crab, April 2000, provided that the combined total of the commercial quota and transfer from other jurisdictions shall not exceed 355,000 horseshoe crabs. It shall be unlawful for any person to harvest from Virginia waters, or to land in Virginia, any horseshoe crab for commercial purposes after any calendar-year commercial quota of horseshoe crab has been attained and announced as such.

E. During each calendar year no more than 40% of the commercial horseshoe crab quota and any and all transfers of quota from other jurisdictions shall be harvested from waters east of the COLREGS Line. It shall be unlawful for any person to harvest horseshoe crabs from waters east of the COLREGS Line, or to land horseshoe crabs, in Virginia, that are harvested east of the COLREGS Line, after 40% of Virginia's horseshoe crab quota and any and all transfers of quota have been attained for this designated area and announced as such.

F. It shall be unlawful for any person whose harvest of horseshoe crabs is from waters east of the COLREGS Line to possess aboard a vessel or to land in Virginia any quantity of horseshoe crabs that, in aggregate, is not comprised of at least a minimum ratio of two male horseshoe crabs to one female horseshoe crab. For the purposes of this regulation, no horseshoe crab shall be considered a male horseshoe crab unless it possesses at least one modified, hook-like appendage as its first pair of walking legs.

G. Limitations on the daily harvest and possession of horseshoe crabs for any vessel described below are as follows:

1. It shall be unlawful for any person who holds a valid unrestricted horseshoe crab endorsement license, as described in 4VAC20-900-30 D, to possess aboard any vessel or to land any number of horseshoe crabs in excess of 2,500, except that when it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person who meets the requirements of 4VAC20-900-30 D and holds a valid horseshoe crab endorsement license to possess aboard any vessel in Virginia any number of horseshoe crabs in excess of 1,250.

2. It shall be unlawful for any person who holds a valid restricted horseshoe crab endorsement license, as described in 4VAC20-900-30 E, to possess aboard any vessel or to land any number of horseshoe crabs in excess of 1,000, except that when it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person who meets the requirements of 4VAC20-900-30 E and holds a valid horseshoe crab endorsement license to possess aboard any vessel in Virginia any number of horseshoe crabs in excess of 500. The harvest of horseshoe crabs, described in this subdivision, shall be restricted to using only crab dredge.

3. It shall be unlawful for any registered commercial fisherman or seafood landing licensee who does not possess a valid horseshoe crab endorsement license to possess horseshoe crabs, without first obtaining a valid horseshoe crab bycatch permit from the Marine Resources Commission. It shall be unlawful for a horseshoe crab bycatch permittee to possess aboard any vessel more than 500 horseshoe crabs or for any vessel to land any number of horseshoe crabs in excess of 500 per day except as described in subdivision 4 of this subsection. When it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person with a horseshoe crab bycatch permit to possess aboard any vessel more than 250 horseshoe crabs or for any vessel to land any number of horseshoe crabs in excess of 250 per day except as described in subdivision 4 of this subsection.

4. It shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel to possess or land more than 1,000 horseshoe crabs per day. When it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel to possess or land more than 500 horseshoe crabs per day.

5. It shall be unlawful for any registered commercial fisherman or seafood landing licensee who does not possess a horseshoe crab endorsement license or a horseshoe crab bycatch permit to possess any horseshoe crabs.

H. It shall be unlawful for any fisherman issued a horseshoe crab endorsement license to offload any horseshoe crabs between the hours of 10 p.m. and 7 a.m.

I. When it is projected and announced that 32% of the commercial quota, as described in subsection D of this section, has been taken from waters east of the COLREGS line, the limitations on the possession and landing of horseshoe crabs are as follows:

1. It shall be unlawful for any person who possesses a valid unrestricted horseshoe crab endorsement license to possess aboard any vessel in waters east of the COLREGS Line or to land more than 1,250 horseshoe crabs per day.

2. It shall be unlawful for any person who possesses a valid restricted horseshoe crab endorsement license to possess aboard any vessel in waters east of the COLREGS Line or to land more than 500 horseshoe crabs per day.

3. It shall be unlawful for any person who possesses a valid horseshoe crab bycatch permit to possess aboard any vessel east of the COLREGS Line or to land more than 250 horseshoe crabs per day.

4. It shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel, east of the COLREGS Line, to possess or land more than 500 horseshoe crabs per day.

4VAC20-900-36. Quota allocation.

A. When it has been projected and announced that 42% 40.348% of the commercial quota, as described in 4VAC20-900-25 D, has been landed by dredge gears, it shall be unlawful for any person to harvest or land horseshoe crabs caught by dredge gears.

B. When it has been projected and announced that 13% 12.488% of the commercial quota, as described in 4VAC20-900-25 D, has been landed by trawl gears, it shall be unlawful for any person to harvest or land horseshoe crabs caught by trawl gears.

C. When it has been projected and announced that 23% 22.095% of the commercial quota, as described in 4VAC20-900-25 D, has been landed by licensed hand harvesting harvesters, it shall be unlawful for any person to harvest or land horseshoe crabs caught by hand harvesting.

D. When it has been projected and announced that 18.142% of the commercial quota, as described in 4VAC20-900-25 D, has been landed by pound nets, it shall be unlawful for any person to harvest or land horseshoe crabs caught by pound net.

D. E. When it has been projected and announced that 22% 6.927% of the commercial quota, as described in 4VAC20-900-25 D, has been landed by gears not described in subsections A through C D of this section, it shall be unlawful for any person to harvest or land horseshoe crabs by gears not described in subsections A through C D of this section.

Title of Regulation: 4VAC20-900. Pertaining to Horseshoe Crab (amending 4VAC20-900-25).

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

Effective Dates: March 2, 2012, through April 1, 2012.

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.

Preamble:

The amendments set the hours during which gill nets may be used to harvest horseshoe crabs and establish a daily trip limit of 250 horseshoe crabs for the gill net fishery.

4VAC20-900-25. Commercial fisheries management measures.

A. It shall be unlawful for any person to harvest horseshoe crabs from any shore or tidal waters of Virginia within 1,000 feet in any direction of the mean low water line from May 1 through June 7. The harvests of horseshoe crabs for biomedical use shall not be subject to this limitation.

B. From January 1 through June 7 of each year, it shall be unlawful for any person to land, in Virginia, any horseshoe crab harvested from federal waters.

C. Harvests for biomedical purposes shall require a special permit issued by the Commissioner of Marine Resources, and all crabs taken pursuant to such permit shall be returned to the same waters from which they were collected.

D. The commercial quota of horseshoe crab for 2012 shall be 152,495 horseshoe crabs. Additional quantities of horseshoe crab may be transferred to Virginia by other jurisdictions in accordance with the provisions of Addendum I to the Atlantic States Marine Fisheries Commission Fishery Management Plan for Horseshoe Crab, April 2000, provided that the combined total of the commercial quota and transfer from other jurisdictions shall not exceed 355,000 horseshoe crabs. It shall be unlawful for any person to harvest from Virginia waters, or to land in Virginia, any horseshoe crab for commercial purposes after any calendar-year commercial quota of horseshoe crab has been attained and announced as such.

E. During each calendar year no more than 40% of the commercial horseshoe crab quota and any and all transfers of quota from other jurisdictions shall be harvested from waters east of the COLREGS Line. It shall be unlawful for any person to harvest horseshoe crabs from waters east of the COLREGS Line, or to land horseshoe crabs, in Virginia, that are harvested east of the COLREGS Line, after 40% of Virginia's horseshoe crab quota and any and all transfers of quota have been attained for this designated area and announced as such.

F. It shall be unlawful for any person whose harvest of horseshoe crabs is from waters east of the COLREGS Line to possess aboard a vessel or to land in Virginia any quantity of horseshoe crabs that, in aggregate, is not comprised of at least a minimum ratio of two male horseshoe crabs to one female horseshoe crab. For the purposes of this regulation, no horseshoe crab shall be considered a male horseshoe crab unless it possesses at least one modified, hook-like appendage as its first pair of walking legs.

G. Limitations on the daily harvest and possession of horseshoe crabs for any vessel described below are as follows:

1. It shall be unlawful for any person who holds a valid unrestricted horseshoe crab endorsement license, as described in 4VAC20-900-30 D, to possess aboard any vessel or to land any number of horseshoe crabs in excess of 2,500, except that when it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person who meets the requirements of 4VAC20-900-30 D and holds a valid horseshoe crab endorsement license to possess aboard any vessel in Virginia any number of horseshoe crabs in excess of 1,250.

2. It shall be unlawful for any person who holds a valid restricted horseshoe crab endorsement license, as described in 4VAC20-900-30 E, to possess aboard any vessel or to land any number of horseshoe crabs in excess of 1,000, except that when it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person who meets the requirements of 4VAC20-900-30 E and holds a valid horseshoe crab endorsement license to possess aboard any vessel in Virginia any number of horseshoe crabs in excess of 500. The harvest of horseshoe crabs, described in this subdivision, shall be restricted to using only crab dredge.

3. It shall be unlawful for any registered commercial fisherman or seafood landing licensee who does not possess a valid horseshoe crab endorsement license to possess horseshoe crabs, without first obtaining a valid horseshoe crab bycatch permit from the Marine Resources Commission. It shall be unlawful for a horseshoe crab bycatch permittee to possess aboard any vessel more than 500 horseshoe crabs or for any vessel to land any number of horseshoe crabs in excess of 500 per day except as described in subdivision 4 of this subsection. When it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any person with a horseshoe crab bycatch permit to possess aboard any vessel more than 250 horseshoe crabs or for any vessel to land any number of horseshoe crabs in excess of 250 per day except as described in subdivision 4 of this subsection.

4. It shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel to possess or land more than 1,000 horseshoe crabs per day. When it is projected and announced that 80% of the commercial quota is taken, it shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel to possess or land more than 500 horseshoe crabs per day.

5. It shall be unlawful for any registered commercial fisherman or seafood landing licensee who does not possess a horseshoe crab endorsement license or a horseshoe crab bycatch permit to possess any horseshoe crabs.

6. It shall be unlawful for any person who possesses a horseshoe crab endorsement license or a horseshoe crab bycatch permit to harvest horseshoe crabs by gill net, except as described in subdivisions a and b of this subdivision.

a. Horseshoe crabs shall only be harvested from a gill net, daily, between the hours of sunrise and sunset.

b. It shall be unlawful for any person to land horseshoe crabs caught by a gill net in excess of 250 horseshoe crabs per day.

H. It shall be unlawful for any fisherman issued a horseshoe crab endorsement license to offload any horseshoe crabs between the hours of 10 p.m. and 7 a.m.

I. When it is projected and announced that 32% of the commercial quota, as described in subsection D of this section, has been taken from waters east of the COLREGS line, the limitations on the possession and landing of horseshoe crabs are as follows:

1. It shall be unlawful for any person who possesses a valid unrestricted horseshoe crab endorsement license to possess aboard any vessel in waters east of the COLREGS Line or to land more than 1,250 horseshoe crabs per day.

2. It shall be unlawful for any person who possesses a valid restricted horseshoe crab endorsement license to possess aboard any vessel in waters east of the COLREGS Line or to land more than 500 horseshoe crabs per day.

3. It shall be unlawful for any person who possesses a valid horseshoe crab bycatch permit to possess aboard any vessel east of the COLREGS Line or to land more than 250 horseshoe crabs per day.

4. It shall be unlawful for any two horseshoe crab bycatch permittees fishing from the same boat or vessel, east of the COLREGS Line, to possess or land more than 500 horseshoe crabs per day.

Title of Regulation: 4VAC20-910. Pertaining to Scup (Porgy) (amending 4VAC20-910-45).

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

Effective Date: March 1, 2012.

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 increase the vessel possession and landing limits to 50,000 pounds of scup (porgy) during the period January 1 through April 30 of each year.

4VAC20-910-45. Possession limits and harvest quotas.

A. During the period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 30,000 50,000 pounds of scup.

2. Land in Virginia more than a total of 30,000 50,000 pounds of scup during each consecutive 7-day landing period, with the first 7-day period beginning on January 1.

B. When it is projected and announced that 80% of the coastwide quota for this period has been attained, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than a total of 1,000 pounds of scup.

C. During the period November 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than 8,000 pounds of scup.

D. During the period May 1 through October 31 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 13,085 pounds.

E. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

F. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

G. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 50 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 50. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

Title of Regulation: 4VAC20-950. Pertaining to Black Sea Bass (amending 4VAC20-950-47).

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

Effective Date: March 1, 2012.

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:

This amendment establishes the 2012 commercial black sea bass directed fishery quota as 302,000 pounds and the bycatch fishery quota as 40,000 pounds, with an overall quota of 342,000 pounds.

4VAC20-950-47. Commercial harvest quotas.

A. The 2011 2012 commercial black sea bass directed fishery quota is 302,216 302,000 pounds. When it has been announced that the directed fishery quota has been projected as reached and the directed fishery has been closed, it shall be unlawful for any directed commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass.

B. The 2011 2012 commercial black sea bass bycatch fishery quota is 40,000 pounds. When it has been announced that the bycatch fishery quota has been projected as reached and the bycatch fishery has been closed, it shall be unlawful for any bycatch commercial black sea bass fishery permittee to possess aboard any vessel or land in Virginia any black sea bass. In the event the bycatch fishery quota is exceeded, the amount the quota overage shall be deducted from the following year's bycatch fishing quota.

Title of Regulation: 4VAC20-1240. Fisherman Identification Program (amending 4VAC20-1240-30).

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

Effective Date: March 1, 2012.

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:

This amendment clarifies that any person attempting to take or catch any marine or anadromous fish species recreationally in any tidal waters of the Commonwealth must annually obtain a Fisherman Identification Program number, except as provided in the regulation.

4VAC20-1240-30. Registration requirement; exception; procedures; confidentiality.

A. It shall be unlawful for any resident or nonresident, 16 years of age or older, to take or catch or attempt to take or catch any marine or anadromous fish species recreationally in any tidal waters of the Commonwealth without first obtaining, annually, a Fisherman Identification Program (FIP) number, except as provided in subsection B of this section.

B. Any person who purchases a Virginia saltwater recreational fishing license under Article 1.1 (§ 28.2-302.1 et seq.) of Chapter 3 of Title 28.2 of the Code of Virginia, or a saltwater recreational fishing license issued by the Potomac River Fisheries Commission, is not required to obtain a FIP number for the term of that license. Any person fishing aboard a charter boat or head boat that is licensed by the Virginia Marine Resources Commission or the Potomac River Fisheries Commission is not required to obtain a FIP number.

C. The FIP number may be obtained by the fisherman at no cost by calling a toll-free number and providing the required FIP information over the telephone or by entering the required information online via an Internet access portal designated by the Marine Resources Commission for that purpose. The required FIP information shall include name, date of birth, address, and telephone number. No person shall be considered as registered under the FIP unless all of that person's FIP-required information is a part of the commission's telephone or Internet database.

D. Any person registered in the Fisherman Identification Program must be able to produce his FIP number upon request by any police officer. Failure to provide a valid FIP number for the current year shall constitute a violation of this regulation.

Title of Regulation: 4VAC20-1260. Pertaining to River Herring (amending 4VAC20-1260-30).

Statutory Authority: §§ 28.2-201 and 28.2-210 of the Code of Virginia.

Effective Dates: February 29, 2012, through March 30, 2012.

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.

Preamble:

The emergency amendments clarify that it is unlawful for any person to (i) catch and retain possession of any river herring from Virginia tidal waters or (ii) possess aboard a vessel on Virginia tidal waters or land in Virginia any river herring. The amendments also require that any imported river herring or byproduct be accompanied by a bill of lading or commercial invoice with the seller's name, date of sale, and pounds of river herring product.

4VAC20-1260-30. Moratorium.

A. It shall be unlawful for any person to possess catch and retain possession of any river herring in the Commonwealth of Virginia from Virginia tidal waters.

B. It shall be unlawful for any person to possess aboard a vessel on Virginia tidal waters or to land in Virginia any river herring.

C. Any river herring or its byproduct imported into Virginia from another state or country shall be accompanied by a bill of lading or commercial invoice that shall include the name of the seller, the date of sale, and the pounds of river herring product.

Title of Regulation: 6VAC20-270. Regulations Relating to Campus Security Officers (adding 6VAC20-270-10 through 6VAC20-270-130).

Statutory Authority: § 9.1-102 of the Code of Virginia.

Expiration Date Extended Through: July 30, 2012.

On February 28, 2012, the Governor approved the Criminal Justice Services Board's request to extend the expiration date of the above-referenced emergency regulation as provided in § 2.2-4011 D of the Code of Virginia. The emergency regulation was published in 27:11 VA.R. 986-991 January 31, 2011 (http://register.dls.virginia.gov/vol27/iss11/v27i11.pdf). The regulation establishes training standards for campus security officers.

Agency Contact: Lisa McGee, Regulatory Manager, Department of Criminal Justice Services, P.O. Box 1300, Richmond, VA 23218, telephone (804) 371-2419, FAX (804) 786-6377, or email lisa.mcgee@dcjs.virginia.gov.

Title of Regulation: 21VAC5-80. Investment Advisors (amending 21VAC5-80-215).

Statutory Authority: §§ 12.1-13, 13.1-523, and 13.1-523.1 of the Code of Virginia.

Public Hearing Information: A public hearing will be scheduled upon request.

Public Comment Deadline: April 12, 2012.

Agency Contact: Timothy O'Brien, Chief Examiner, Division of Securities and Retail Franchising, State Corporation Commission, Tyler Building, 9th Floor, P.O. Box 1197, Richmond, VA 23218, telephone (804) 371-9415, FAX (804) 371-9911, or email timothy.o'brien@scc.virginia.gov.

Summary:

The State Corporation Commission's Division of Securities and Retail Franchising proposes substantial changes to 21VAC5-80-215, which currently exempts investment advisors to certain private funds from registration as an investment advisor under the Virginia Securities Act, § 13.1-501 et seq. of the Code of Virginia. The proposed amendments effectively repeal the stopgap provisions of the current regulation and adopt in substantial part the model regulation developed by members of the North American Securities Administrators Association, Inc. (the trade association of state securities regulators) to comply with the statutory requirements of the Dodd-Frank Wall Street Reform and Consumer Protections Act. Proposed 21VAC5-80-215 would generally exempt an investment advisor from state registration requirements if the advisor (i) is not subject to disqualification for registration based upon the advisor's prior disciplinary history and (ii) solely advises certain types of funds that meet the definition of a qualifying private fund under the provisions of 17 CFR 275.203(m)-1. The exemption covers advisors to venture capital funds and, in specific circumstances, advisors to funds that are eligible for exclusion from the definition of an investment company under section 3(c)(1) of the Investment Company Act of 1940. The proposed amendments to 21VAC5-80-215 also contain a grandfather clause that would allow currently exempt private fund advisors to remain exempt provided the advisor meets certain specified conditions. Private fund advisors that are registered with the Securities and Exchange Commission are not eligible for the proposed exemption. In addition, to qualify for the proposed exemption, advisors must make certain notice filings and pay a notice filing fee.

AT RICHMOND, FEBRUARY 14, 2012

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. SEC-2012-00009

Ex Parte: In the matter of
Adopting a Revision to the Rules
Governing the Virginia Securities Act

ORDER TO TAKE NOTICE

Section 12.1-13 of the Code of Virginia provides that the State Corporation Commission ("Commission") shall have the power to promulgate rules and regulations in the enforcement and administration of all laws within its jurisdiction. Section 13.1-523 of the Virginia Securities Act ("Act"), § 13.1-501 et seq. of the Code of Virginia, provides that the Commission may issue any rules and regulations necessary or appropriate for the administration and enforcement of the Act.

The rules and regulations issued by the Commission pursuant to the Act are set forth in Title 21 of the Virginia Administrative Code. A copy also may be found at the Commission's website: www.scc.virginia.gov/case.

On September 7, 2011, the Commission adopted a new regulation, 21 VAC 5-80-215, to recognize changes in federal laws and regulations governing investment advisors adopted under the Dodd-Frank Wall Street Reform and Consumer Protection Act ("Dodd-Frank Act"). The adopted regulation addressed the regulatory gap created by the Dodd-Frank Act for certain advisors. During the interim, the Division of Securities and Retail Franchising ("Division"), working as a member in conjunction with the other member states of the North American Securities Administrators Association, has developed a regulation to complete the transition from prior law to conform to the Dodd-Frank Act.

Accordingly, the Division has submitted to the Commission proposed revisions to Chapter 80 of Title 21 of the Virginia Administrative Code entitled "Rules and Forms Governing the Virginia Securities Act" ("Rules").

Rule 21 VAC 5-80-215 will be amended to repeal the stopgap provision adopted last year in Case No. SEC-2011-00034 and adopt the new model rule exemption for investment advisors to private funds. The purpose of this proposed regulation is to provide for an exemption for certain types of investment advisors who advise private funds from the requirement to be registered under § 13.1-504 A of the Act. The advisors exempted by this rule will still be subject to the anti-fraud provisions of the Act.

The rule adopted in Case No. SEC-2011-00034 will be extensively revised.

Rule 21 VAC 5-80-215 will be amended to add the new exemption provisions. Section A, subsections 1-5 define key terms specific to this exemption. The definitions are structured such that the types of private funds covered under the rule will include funds excluded from the definition of investment company under Sections 3(c)(1) and 3(c)(7) of the Investment Company Act of 1940, along with other private funds that would satisfy the statutory requirements found in these exclusions.

Section B 1 of the proposed new rule explains that in order to claim the exemption from registration, the advisor and its affiliates must not be subject to a "bad boy" disqualification. A "bad boy" disqualification is defined in Rule 262 of SEC Regulation A, 17 C.F.R. § 230.262. In addition, Section B 2 requires that the private advisor file a report to the Commission as required by the Securities and Exchange Commission ("SEC") for advisors to venture capital funds and private funds with less than $150 million in assets under management. Section B 3 requires that the advisor pay a notice filing fee of $250.

Section C of the proposed new rule and its subsections place additional conditions upon advisors to 3(c)(1) funds. Specifically, in order to qualify for the exemption from investment advisor registration, the 3(c)(1) fund must be comprised entirely of "qualified clients" under SEC Rule 205-3. This means that individual investors must have either $1 million in investments managed by the advisor or at least $2 million in net worth. The rule states that the value of the primary residence is not included in calculating net worth. The value of the primary residence will be an estimate of the fair market value at the time the net worth calculation is conducted. Section C also requires the advisor to deliver annual audited financial statements to investors in the fund, along with specific disclosures to those investors.

Section D of the proposed new rule notes that federal covered advisors who are registered with the SEC are not eligible for this exemption.

Section E of the proposed new rule establishes an exemption from registration for investment advisor representatives who are employed by the exempt investment advisor.

Section F of the proposed new rule requires the reports filed by the advisors to be filed with the Commission through the Investment Advisor Registration Depository ("IARD"). IARD is the registration system operated by the Financial Industry Regulatory Authority that maintains the registration and regulatory records for the state regulatory jurisdictions. The report will be accompanied by the annual $250 filing fee.

Section G of the proposed new rule provides a grace period for exempt advisors to become registered if that advisor no longer qualifies for the exemption.

Section H of the proposed new rule is a grandfather provision that would allow advisors to private funds currently exempt under the Act to remain exempt provided that the advisor files the reports required under the rule, and the advisor no longer accepts new investors that do not meet the financial requirements imposed by the rule, and provides the required disclosures to investors.

The Division has recommended to the Commission that the proposed revisions should be considered for adoption with an effective date of May 1, 2012, in order to allow private fund investment advisors to make the transition or be registered once the stopgap regulation expires. The Division also has recommended to the Commission that a hearing should be held only if requested by those interested parties who specifically indicate that a hearing is necessary and the reasons therefore.

A copy of the proposed revisions may be requested by interested parties from the Division by telephone, mail, or e-mail request and also can be found at the Division's website: www.scc.virginia.gov/srf. Any comments to the proposed rules must be received by April 12, 2012.

Accordingly, IT IS ORDERED that:

(1) The proposed revisions are appended hereto and made a part of the record herein.

(2) Comments or requests for hearing on the proposed revisions must be submitted in writing to Joel H. Peck, Clerk of the Commission, c/o Document Control Center, P. O. Box 2118, Richmond, Virginia 23218, on or before April 12, 2012. A request for hearing shall state why a hearing is necessary and why the issues cannot be adequately addressed in written comments. All correspondence shall contain reference to Case No. SEC-2012-00009. Interested persons desiring to submit comments electronically may do so by following the instructions available at the Commission's website: http://www.scc.virginia.gov/case.

(3) The proposed revisions shall be posted on the Commission's website at http://www.scc.virginia.gov/case and on the Division's website at http://www.scc.virginia.gov/srf. Interested persons may also request a copy of the proposed revisions from the Division by telephone, mail, or e-mail.

AN ATTESTED COPY HEREOF, together with a copy of the proposed revisions, shall be sent to the Registrar of Regulations for publication in the Virginia Register.

AN ATTESTED COPY HEREOF shall be sent by the Clerk of the Commission to the Division's Director, who shall forthwith mail a copy of this Order to any interested persons as he may designate.

21VAC5-80-215. Exemption for certain private advisors.

Registration under the Act shall not be required of any investment advisor or its investment advisor representative whose only client is or clients are a corporation, general partnership, limited partnership, limited liability company, trust, or other legal organization that:

1. Has assets of not less than $5,000,000 and

2. Receives investment advice based on its investment objectives rather than the individual investment objectives of its shareholders, partners, limited partners, members, or beneficiaries, provided the investment advisor was exempt from registration pursuant to § 203(b)(3) of the Investment Advisors Act of 1940 immediately prior to July 21, 2011, and the investment advisor is subject to SEC Rule 203-1(e) granting an extension to investment advisors formerly exempt from registration under § 203(b)(3) of the Investment Advisers Act of 1940 until March 30, 2012, who would otherwise have been required to register with the SEC by July 21, 2011.

A. For purposes of this section, the following definitions shall apply:

1. "Value of primary residence" means the fair market value of a person's primary residence, subtracted by the amount of debt secured by the property up to its fair market value.

2. "Private fund advisor" means an investment advisor who provides advice solely to one or more qualifying private funds.

3. "Qualifying private fund" means a private fund that meets the definition of a qualifying private fund in SEC Rule 203(m)-1, 17 CFR 275.203(m)-1.

4. "3(c)(1) fund" means a qualifying private fund that is eligible for the exclusion from the definition of an investment company under § 3(c)(1) of the Investment Company Act of 1940, 15 USC § 80a-3(c)(1).

5. "Venture capital fund" means a private fund that meets the definition of a venture capital fund in SEC Rule 203(l)-1, 17 CFR 275.203(l)-1.

B. Subject to the additional requirements of subsection C of this section, a private fund advisor shall be exempt from the registration requirements of § 13.1-504 of the Act if the private fund advisor satisfies each of the following conditions:

1. Neither the private fund advisor nor any of its advisory affiliates are subject to a disqualification as described in Rule 262 of SEC Regulation A, 17 CFR 230.262;

2. The private fund advisor files with the commission each report and amendment thereto that an exempt reporting advisor is required to file with the Securities and Exchange Commission pursuant to SEC Rule 204-4, 17 CFR 275.204-4; and

3. The private fund advisor pays a notice fee in the amount of $250.

C. In order to qualify for the exemption described in subsection B of this section, a private fund advisor who advises at least one (3)(c)(1) fund that is not a venture capital fund shall, in addition to satisfying each of the conditions specified in subsection B of this section, comply with the following requirements:

1. The private fund advisor shall advise only those 3(c)(1) funds (other than venture capital funds) whose outstanding securities (other than short-term paper) are beneficially owned entirely by persons who, after deducting the value of the primary residence from the person's net worth, would each meet the definition of a qualified client in SEC Rule 205-3, 17 CFR 275.205-3, at the time the securities are purchased from the issuer;

2. At the time of purchase, the private fund advisor shall disclose the following in writing to each beneficial owner of a 3(c)(1) fund that is not a venture capital fund:

a. All services, if any, to be provided to individual beneficial owners;

b. All duties, if any, the investment advisor owes to the beneficial owners; and

c. Any other material information affecting the rights or responsibilities of the beneficial owners; and

3. The private fund advisor shall obtain on an annual basis audited financial statements of each 3(c)(1) fund that is not a venture capital fund, and shall deliver a copy of such audited financial statements to each beneficial owner of the fund.

D. If a private fund advisor is registered with the Securities and Exchange Commission, the advisor shall not be eligible for this exemption and shall comply with the notice filing requirements applicable to federal covered investment advisors in § 13.1-504 of the Act.

E. A person is exempt from the registration requirements of § 13.1-504 of the Act if he is employed by or associated with an investment advisor that is exempt from registration in this Commonwealth pursuant to this section and does not otherwise act as an investment advisor representative.

F. The report filings described in subdivision B 2 of this section shall be made electronically through the IARD system. A report shall be deemed filed when the report and the notice fee required by subdivision B 3 of this section are filed and accepted by the IARD system on the commission's behalf.

G. An investment advisor who becomes ineligible for the exemption provided by this section must comply with all applicable laws and regulations requiring registration or notice filing within 90 days from the date the investment advisor's eligibility for this exemption ceases.

H. An investment advisor to a 3(c)(1) fund (other than a venture capital fund) that has one or more beneficial owners who are not qualified clients as described in subdivision C 1 of this section is eligible for the exemption contained in subsection B of this section if the following conditions are satisfied:

1. The subject fund existed prior to May 1, 2012;

2. As of May 1, 2012, the subject fund ceases to accept beneficial owners who are not qualified clients, as described in subdivision C 1 of this section;

3. The investment advisor discloses in writing the information described in subdivision C 2 of this section to all beneficial owners of the fund; and

4. As of May 1, 2012, the investment advisor delivers audited financial statements as required by subdivision C 3 of this section.

Title of Regulation: 22VAC40-60. Standards and Regulations for Licensed Adult Day Care Centers (amending 22VAC40-60-10, 22VAC40-60-20, 22VAC40-60-30, 22VAC40-60-60, 22VAC40-60-130, 22VAC40-60-200, 22VAC40-60-280, 22VAC40-60-320).

Statutory Authority: §§ 63.2-217 and 63.2-1733 of the Code of Virginia.

Effective Date: April 1, 2012.

Agency Contact: Annette Kelley, Adult Programs Consultant, Department of Social Services, 801 East Main Street, Richmond, VA 23219, telephone (804) 726-7632, FAX (804) 726-7132, or email annette.kelley@dss.virginia.gov.

Summary:

The amendments conform definitions and agency names to the Code of Virginia and update statutory and administrative code citations and regulation titles.

Part I
General Provisions

22VAC40-60-10. Definitions.

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

"Administer medication" means to open a container of medicine or to remove the prescribed dosage and to give it to the participant for whom it is prescribed.

Section 54.1-3408 of the Code of Virginia states that only persons authorized by state law may administer drugs. People authorized to administer medication include licensed physicians, registered nurses, licensed practical nurses, physician assistants, and other individuals who meet the requirements of the law. In addition to these persons designated by law, a person may administer medications who has satisfactorily completed a training program for this purpose approved by the Board of Nursing and who administers such drugs in accordance with a physician's instructions pertaining to dosage, frequency, and manner of administration, and in accordance with regulations promulgated by the Board of Pharmacy relating to security and recordkeeping, when the drugs administered would be normally self-administered by a program participant in an adult day care center licensed by the Department of Social Services.

"Adult" means any person 18 years of age or older.

"Adult day care center" means "a any facility, which that is either operated for profit or which that desires licensure and which that provides supplementary care and protection during only a part of the day only to four or more aged, infirm or disabled adults who reside elsewhere except (i) a facility or portion of a facility licensed by the State Board of Health or the State Board Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services and (ii) the home or residence of an individual who cares for only persons related to him by blood or marriage." (§ 63.1-194.1 63.2-100 of the Code of Virginia)

"Advance directive" means (i) a witnessed written document, voluntarily executed by the declarant in accordance with the requirements of § 54.2983 54.1-2983 of the Code of Virginia, or (ii) a witnessed oral statement, made by the declarant subsequent to the time he is diagnosed as suffering from a terminal condition and in accordance with the provisions of § 54.1-2983 of the Code of Virginia.

"Ambulatory" means the condition of a participant who is physically and mentally capable of self-preservation by evacuating in response to an emergency to a refuge area as defined by the Uniform Statewide Building Code without the assistance of another person, or from the structure itself without the assistance of another person if there is no such refuge area within the structure, even if such participant may require the assistance of a wheelchair, walker, cane, prosthetic device, or a single verbal command to evacuate.

"Care" means assistance with the activities and tasks of daily living provided to participants.

"Character and reputation" means findings have established that knowledgeable and objective people agree that the subject maintains business and professional, family, and community relationships which are characterized by honesty, fairness, truthfulness, and a concern for the well-being of others to the extent that the subject is considered suitable to be entrusted with the health, safety, and welfare of aged, infirm, or disabled adults.

"Commissioner" means the Commissioner of Social Services, also known as the Director of the Virginia Department of Social Services.

"Communicable disease" means a disease that may be transmitted directly or indirectly from one individual to another.

"Contrast" means a significant difference in diversity of adjacent parts by color, tone, or light.

"Department" means the Virginia Department of Social Services.

"Department's representative" means an employee or designee of the Virginia Department of Social Services who is acting as the authorized agent of the commissioner in carrying out the responsibilities and duties specified in Chapter 9, Title 63.1 of the Code of Virginia Commissioner of Social Services.

"Direct care staff" means the staff in an adult day care center who are actively providing care, guidance, and interaction with participants.

"Director" means the person who has been delegated responsibility for the programmatic and administrative functions of the adult day care program.

"Disabled" means the inability to perform some or all of the activities and tasks of daily living due to physical or mental impairments or injuries.

"Infirm" means the inability to perform some or all of the activities and tasks of daily living because of weakness or illness.

"Legal guardian" means an individual who has legal control and management of the person, or the property, or of both the person and the property of the participant. A legal guardian is appointed by a court. A legal guardian of the person is appointed to see that the participant has proper care and supervision in keeping with his needs. A legal guardian of the property is appointed to manage the financial affairs in the best interest of the participant.

"Licensee" means any person, association, partnership, corporation or governmental unit to whom the license is issued.

"Licensed health care professional" means any health care professional currently licensed by the Commonwealth of Virginia to practice within the scope of his profession, such as a clinical social worker, dentist, licensed practical nurse, nurse practitioner, pharmacist, physical therapist, physician, physician assistant, psychologist, registered nurse, and speech-language pathologist.

"Licensed practical nurse" means any individual who holds a current, valid, license from the Commonwealth of Virginia as an L.P.N.

"Nonambulatory" means the condition of a participant of an adult day care center who by reason of physical or mental impairment is not capable of self-preservation by evacuating in response to an emergency to a refuge area as defined by the Uniform Statewide Building Code without the assistance of another person, or from the structure itself without the assistance of another person if there is no such safe refuge area within the structure.

"Nurse" means any individual who holds a current, valid license from the Commonwealth of Virginia as a licensed practical nurse or as a registered nurse.

"Participant" means an aged, infirm or disabled adult who takes part in the program of care and receives services from the center.

"Personal representative" means the person representing or standing in the place of the resident for the conduct of his affairs. This may include a guardian, committee, attorney-in-fact under the durable power of attorney, next of kin, descendant, trustee, or other person expressly named by the participant as his agent.

"Physician" means any individual licensed to practice medicine in any of the 50 states or the District of Columbia.

"Program director" means the person responsible for programmatic functions and supervision of all staff who work directly with participants.

"Protection" means the intent to prevent harm and to provide oversight of the participant.

"Registered nurse" means any individual who holds a current, valid license from the Commonwealth of Virginia as an R.N.

"Respite care" means temporary care given to a person to relieve family members or other caregivers. These standards apply only if respite care is provided during part of the day. If 24-hour respite care is planned or provided for four or more people, the Standards and Regulations for Licensed Adult Care Residences Assisted Living Facilities (22VAC40-71-10 et seq. (22VAC40-72) shall apply.

"Snack" means a light meal or nutritious meal supplement.

"Sponsor" means an individual, partnership, association, or corporation responsible for the operation of an adult day care center subject to licensure.

"Staff or staff person" means compensated administrative, program, and service personnel including the licensee when the licensee is an individual.

"Standard precautions" means an approach to infection control. According to the concept of standard precautions, all human blood and certain human body fluids are treated as if known to be infectious for human immunodeficiency virus (HIV), hepatitis B virus, and other blood borne pathogens.

"Supplementary care" means a part of the total care that is required by participants. Supplementary care augments the care that the family or other persons provide. Care provided by an adult day care center is supplementary care.

"Supervision" means the general oversight of the physical and mental well-being of participants.

"These standards" means the requirements in this chapter, 22VAC40-60-10 et seq. 22VAC40-60, Standards and Regulations for Licensed Adult Day Care Centers.

"Volunteer" means a person who works at the center and:

1. Is not compensated; and

2. Is supervised by a staff member when working with participants.

22VAC40-60-20. Legal base.

Article 3 (§ 63.1-194.1 et seq.) of Chapter 9 17 of Title 63.1 63.2 of the Code of Virginia describes the responsibility of the Department of Social Services for the regulation of adult day care centers.

22VAC40-60-30. Board authority.

Section 63.1-194.2 63.2-1733 of the Code of Virginia requires the State Board of Social Services to prescribe standards for certain activities, services, and facilities for adult day care centers.

22VAC40-60-60. Facilities not covered.

The following types of facilities are not subject to licensure as an adult day care center:

1. A facility or portion of a facility licensed by the State Board of Health;

2. A facility or portion of a facility licensed by the State Board of Mental Health and Mental Retardation Behavioral Health and Developmental Services;

3. A home or residence of an individual who provides care only for persons related to him by blood or marriage;

4. A facility or a portion of a facility that is licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services, and that conducts a mental health program where treatment is provided for adults who are experiencing varying degrees of mental health related problems;

5. A facility or a portion of a facility licensed by the Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services that conducts a mental retardation program where treatment is provided for mentally retarded or developmentally disabled adults;

6. A facility or a portion of a facility that conducts programs whose primary purpose is training or employment for physically or mentally impaired adults (e.g., sheltered workshops, etc.); and

7. A facility or a portion of a facility that conducts a socialization or recreation activity program for adults who do not receive assistance with the activities or tasks of daily living or protective oversight and supervision (e.g., senior centers, etc.).

22VAC40-60-130. Financial responsibilities.

With an initial application for licensure, the applicant shall provide the department with the following evidence of financial responsibility:

1. A projected budget detailing income and expenses of the proposed center for the first year of operation;

2. A complete balance sheet showing separately the current assets committed to and current liabilities charged against the proposed center; and

3. Documentation of funds or credit available for the first 90 days of operation.

NOTE: Financial records may be requested pursuant to § 63.1-194.7 63.2-1706 of the Code of Virginia.

Part III
Personnel

22VAC40-60-200. General qualifications.

A. All staff members, including the administrator, shall:

1. Be of good character and reputation;

2. Be competent, qualified and capable of carrying out assigned responsibilities;

3. Be willing and able to accept training and supervision;

4. Be considerate, understanding and respectful of aged and disabled persons;

5. Be clean and well groomed; and

6. Meet the requirements specified in the Regulation for Criminal Record Checks for Homes for Adults Background Checks for Assisted Living Facilities and Adult Day Care Centers (22VAC40-90-10 et seq.) (22VAC40-90).

B. All staff members shall be able to communicate in English effectively both orally and in writing as applicable to their job responsibilities.

C. All staff members shall be able to understand and apply these standards as they relate to their respective responsibilities.

D. All staff persons who work directly with participants and who are counted in the staff-to-participant ratio shall be at least 18 years of age.

22VAC40-60-280. Orientation and staff training.

A. Prior to working directly with participants, all staff shall receive training in:

1. Their individual responsibilities in the event of fire, including the location and operation of any fire extinguishers and fire alarm boxes and approved exits;

2. Their individual responsibilities in the event of illness or injuries, including the location and use of the first aid and emergency supplies;

3. Their individual responsibilities in the event of emergencies, such as a lost or missing participant, severe weather, and loss of utilities;

4. Standard precautions; and

5. Participant rights.

B. Staff who work with participants shall receive at least 24 hours of training no later than three weeks after starting employment; part-time staff shall receive the training no later than six weeks after employment.

C. A supervisor or designated trained staff shall closely oversee the individual's work with participants until training is complete.

D. The following areas or topics shall be covered in the staff training:

1. The purpose and goals of the adult day care center;

2. The policies of the center as they relate to the staff member's responsibilities and to the responsibilities of other staff members;

3. Procedures for detecting and reporting suspected abuse, neglect, or exploitation of participants to the appropriate local department of social services (§ 63.1-55.3 63.2-1606 of the Code of Virginia);

4. Confidential treatment of personal information about participants and their families;

5. This chapter as it relates to the employee's responsibilities;

6. Needs of the center's target population (for example, those with dementia, developmental disability, depression);

7. Individual capabilities and special needs of the elderly, the cognitively impaired adult, or the handicapped;

8. The specific needs of participants in care, including diagnoses, plans of care, and adjustment issues;

9. The schedule of activities;

10. Behavioral interventions, behavior acceptance and accommodation, and behavior management techniques;

11. Interdisciplinary team approach;

12. Communication skills;

13. Review of basic terminology;

14. Advance directive policies;

15. How to safely and appropriately help participants perform activities of daily living (ADLs), including good body mechanics;

16. Risk management; and

17. The needs of participants' family members or care givers.

E. The required 24 hours of training can be accomplished through a variety of methods including, but not limited to, formal lecture, observation, self-study of material provided by the center, supervised practice, and audio-visual training.

22VAC40-60-320. Director.

A. There shall be one person responsible for the center's program who is present at least 51% of the center's weekly hours of operation and whose responsibilities shall include, but not be limited to, the following areas:

1. The content of the program offered to the participants in care;

2. Programmatic functions, including orientation, training, and scheduling of all staff who directly supervise participants, whether or not the director personally performs these functions;

3. Management of the supervision provided to all staff who directly supervise participants, whether or not the director individually supervises such staff;

4. Assignment of a sufficient number of qualified staff to meet the participants' needs for:

a. Adequate nutrition;

b. Health supervision and maintenance;

c. Personal care;

d. Socialization, recreation, activities and stimulation;

e. Supervision and protection;

f. Safety; and

5. The duties and responsibilities required by this chapter.

B. The director shall meet the following qualifications.

1. The director shall be at least 21 years of age.

2. The director shall have completed at least a bachelor's degree from an accredited college or university and two years of experience working with older adults or persons with disabilities. This may be paid full-time employment or its equivalent in part-time employment, volunteer work, or internship. The following qualifications may be substituted for a bachelor's degree:

a. Current licensure as a nursing home administrator from the Board of Nursing Home Long-Term Care Administrators; or

b. Current licensure in Virginia as a registered nurse who meets the experience requirements in subdivision 2 of this subsection.

EXCEPTION: Any person employed in an adult day care center licensed prior to July 1, 2000, as either a director or assistant director shall have completed at least 48 semester hours or 72 quarter hours of post-secondary education from an accredited college or institution and shall have completed at least two years experience working with older adults or persons with disabilities. This may be paid full-time employment or its equivalent in part-time employment or in volunteer work.

3. The director shall demonstrate knowledge, skills and abilities in the administration and management of the adult day care program including: (i) knowledge and understanding of impaired elderly or disabled individuals, (ii) supervisory and interpersonal skills, (iii) ability to plan and implement the program, and (iv) knowledge of financial management sufficient to ensure program development and continuity.

4. The director shall demonstrate knowledge of supervisory and motivational techniques sufficient to: (i) accomplish day-to-day work; (ii) train, support and develop staff; (iii) plan responsibilities for auxiliary staff to ensure that services are provided to participants.

5. The director shall complete 24 hours of continuing education annually to maintain and develop skills. This training shall be in addition to first aid, CPR, or orientation training.

FORMS (22VAC40-60)

Initial Application for a State License to Operate an Adult Day Care Center, 032-05-316/4 (rev. 8/02).

Renewal Application for a State License to Operate an Adult Day Care Center, 032-05-317/3 (rev. 8/02).

Report of Tuberculosis Screening Evaluation (eff. 7/00).

Meal Pattern for Adults (eff. 7/00).

Initial Application for a State License to Operate an Adult Day Care Center, 032-05-0316-05-eng (rev. 8/07).

Renewal Application for a State License to Operate an Adult Day Care Center, 032-05-0317-04-eng (rev. 8/07).

Report of Tuberculosis Screening, 032-05-0420-00-eng (rev. 02/12).

Report of TB Screening, 032-05-0077-01-eng (rev. 02/12).