CHAPTER: PERTAINING TO THE LICENSING OF FIXED FISHING DEVICES

VIRGINIA MARINE RESOURCES COMMISSION
"PERTAINING TO THE LICENSING OF FIXED FISHING DEVICES"
CHAPTER 4 VAC 20-20-10 ET SEQ.

PREAMBLE

This chapter establishes the procedures associated with licensing fixed fishing devices.  This chapter also establishes the procedures used to determine priority rights of fixed fishing device licensees, establishes safety measures for those persons fishing near pound nets and staked gill nets, and establishes measures designed to reduce entanglements of certain protected marine resources.

This chapter is promulgated pursuant to authority contained in §28.2-201 of the Code of Virginia.  This chapter amends and re-adopts, as amended, previous Chapter 4VAC20-20-10 et seq., which was promulgated by the Marine Resources Commission on December 15, 2009 and made effective December 18, 2009.  The effective date of this chapter, as amended, is July 16, 2010.

4VAC20-20-10. Purpose.

The purposes of this chapter are to set forth the procedures pertaining to the licensing of fixed fishing devices and the priority rights of holders of fixed fishing device licenses, ensure the safety of persons fishing near pound nets and staked gill nets, and reduce entanglements with sea turtles and bottlenose dolphin. 

4VAC20-20-20. Definitions.

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

"Fixed fishing device" means any fishing device used for the purpose of catching fish and requiring the use of more than two poles or stakes which have been pushed or pumped into the bottom. 

"Fyke net" means a round stationary net distended by a series of hoops or frames, covered by web netting or wire mesh and having one or more internal funnel-shaped throats whose tapered ends are directed away from the mouth of the net.  The net, leader or runner is held in place by stakes or poles which have been pushed or pumped into the bottom and has one or two wings and a leader or runner to help guide the fish into the net. 

“Inshore Pound Net” means a pound net which has a leader or runner that originates within 10 horizontal feet from the mean low water line. 

“Modified leader” means a fixed fishing device leader that is affixed to or resting on the sea floor and made of a lower portion of mesh and an upper portion of only vertical lines such that (i) the mesh size is equal to or less than 8 inches stretched mesh; (ii) at any particular point along the leader, the height of the mesh, from seafloor to the top of the mesh, is no more than one-third the depth of the water at mean low water directly above that particular point; (iii) the mesh is held in place by vertical lines that extend from the top of the mesh up to the top of the line, which is a line that forms the uppermost part of the fixed fishing device leader; (iv) the vertical lines are equal to or greater than 5/16 inch in diameter and strung vertically at least every two feet; and (v) the vertical lines are hard lay lines with a vertical stiffness equivalent to the stiffness of a 5/16 diameter line composed of polyester wrapped around a blend of polypropylene and polyethylene and containing approximately 42 visible twists of strands per foot of line.

"Officer" means the marine police officer in charge of the district within which the fixed fishing device is located. 

“Pound net” means a stationary fishing device supported by stakes or poles that have been pushed or pumped into the bottom consisting of an enclosure identified as the head or pocket with a netting floor, a heart, and a straight wall, leader or runner to help guide the fish into the net. 

“Pound Net Regulated Area I” means Virginia waters of the mainstem Chesapeake Bay, south of 37°19.0′ north latitude, and west of 76°13.0′ west longitude, and all waters south of 37°13.0′ north latitude to the Chesapeake Bay Bridge Tunnel (extending from approximately 37°05′ north latitude, 75°59′ west longitude to 36°55′ north latitude, 76°08′ west longitude) at the mouth of the Chesapeake Bay, and the portion of the James River downstream of the Hampton Roads Bridge Tunnel (I–64; approximately 36°59.55′ north latitude, 76°18.64′ west longitude) and the York River downstream of the Coleman Memorial Bridge (Route 17; approximately 37°14.55′ north latitude 76°30.40′ west longitude).

“Staked gill net” means a fixed fishing device consisting of an upright fence of netting fastened to poles or stakes that have been pushed or pumped into the bottom.

4VAC20-20-30. Location, measurements and modified pound net leader requirements. 

A.  A fixed fishing device shall be perpendicular to the shoreline insofar as possible.

B.  In determining compliance with the requirements prescribing minimum distances between fixed fishing devices, measurement shall be made from the center line of each device. 

C.  An applicant shall state the desired length of the fixed fishing device, which shall not exceed the maximum limit prescribed by law.  Such length shall be stated on any license issued by the officer.  A licensee may apply for a new license to include a greater length provided such additional length does not make the device exceed the maximum legal length or the legal requirement of a minimum distance between successive fishing structures in the same row.  In the event a licensee fishes a length less than that stated on the license, the unfished length shall be subject to the provisions of 4VAC20-20-50 B. 

D.  Any fixed fishing device, including but not limited to pound net and fyke net gear, licensed and fished in Virginia tidal waters located east of the Chesapeake Bay Bridge and Tunnel, shall be equipped with a modified leader as defined in 4VAC20-20-20. In addition, it shall be the responsibility of the licensee of any fixed fishing device licensed in Virginia tidal waters located east of the Chesapeake Bay Bridge and Tunnel to contact the Virginia Marine Police and the National Marine Fisheries Service at least 72 hours before any modified leader is to be deployed for an inspection of the fixed fishing device’s leader design, prior to any initial or subsequent deployment of that fixed fishing device within any year.

E.  Any pound net licensed and fished in Virginia tidal waters located in Pound Net Regulated Area I, except inshore pound nets, shall be equipped with a modified leader, from May 6 through July 31.  In addition, it shall be the responsibility of the licensee of any pound net, except inshore pound nets, licensed in Virginia tidal waters located in Pound Net Regulated Area I to contact the Virginia Marine Police and the National Marine Fisheries Service at least 72 hours before any modified leader is to be deployed for an inspection of the pound nets leader design, prior to any initial or subsequent deployment of that pound net, within any year.

4VAC20-20-35. No-fishing zone.

A.  The prohibited fishing zone around any pound net shall consist of that area bounded by two straight lines, 125 feet from the left and right sides of the centerline of the pound net, which extend parallel with the longest axis of the net from the channelward end of the head of the net to the shoreward end of the leader of the net. 

B.  It shall be unlawful for any person fishing from a boat or vessel to anchor, drift, troll, or otherwise fish within, or to cast into the prohibited fishing zone of any pound net which is marked according to the provisions of subsection C of this section.  Further, it shall be unlawful for any person to take or harvest crabs from any part of a pound net which is marked according to the provisions of subsection C of this section unless such person has the written permission of the owner of the pound net. 

C.  If the owner of a pound net intends that the prohibited fishing zone be enforced around his pound net, that owner shall mark his net with flags placed at each end of the net, one at the channelward end of the head of the net and one at the shoreward end of the leader of the net.  Each flag shall be of blaze-orange color, 12 inches high and 12 inches wide, and shall be supported by a mast of sufficient size to maintain the bottom of the flag at least four feet above the surface of the water. 

D.  It shall be unlawful for any person to tamper with any flag marking the prohibited fishing zone of any pound net.

E.  It shall be unlawful for any person to tie, fasten or secure any boat or vessel to any pole, stake, netting or any other part of a pound net or staked gill net, except during the normal lawful fishing of such nets by the licensee, his crew or agent. 

4VAC20-20-40. Priority rights; general.

Except as may be otherwise provided herein, chronological order of receipt of applications shall be used to establish priority rights of any applicant to any fixed fishing device location.  In those instances of simultaneous receipt, priority shall be determined by lottery. 

4VAC20-20-50. Priority rights; renewal by current licensee.

A.  Applications for renewal of license for existing fixed fishing devices may be accepted by the officer beginning at 9 a.m. on December 1 of the current license year through noon on January 10 of the next license year providing the applicant has met all requirements of law and this chapter.  Any location not relicensed during the above period of time shall be considered vacant and available to any qualified applicant after noon on January 10. 

B.  Except as provided in subsections C and D of this section, a currently licensed fixed fishing device must have been fished during the current license year in order for the licensee to maintain his priority right to such location.  It shall be mandatory for the licensee to notify the officer, on forms provided by the commission, when the fixed fishing device is ready to be fished in the location applied for, by a complete system of nets and poles, except as provided in subsection D of this section, for the purpose of visual inspection by the officer.  Either the failure of the licensee to notify the officer when the fixed fishing device is ready to be fished or the failure by the licensee actually to fish the licensed device, by use of a complete system of nets and poles, except as provided in subsection D of this section, shall terminate his right or privilege to renew the license during the period set forth in subsection A of this section of this chapter, and he shall not become a qualified applicant for such location until 9 a.m. on February 1.  Any application received from an unqualified applicant under this subsection shall be considered as received at 9 a.m. on February 1; however, in the event of the death of a current license holder, the priority right to renew the currently held locations of the deceased licensee shall not expire by reason of failure to fish said locations during the year for which they were licensed, but one additional year shall be and is hereby granted to the personal representative or lawful beneficiary of the deceased licensee to license the location in the name of the estate of the deceased licensee for purposes of fishing said location or making valid assignment thereof. 

C.  During the effective period of 4VAC20-530, which establishes a moratorium on the taking and possession of American shad in the Chesapeake Bay and its tributaries, any person licensed during 1993 to set a staked gill net who chooses not to set that net during the period of the moratorium may maintain his priority right to the stake net's 1993 location by completing an application for a fixed fishing device and submitting it to the officer.  No license fee shall be charged for the application. 

D.  In order to maintain priority rights and renew a license to a specific pound net location, a pound net licensee shall be required to set and fish that pound net at least once during two consecutive calendar years starting with calendar year 2009. 

4VAC20-20-60. Priority rights; licensed location, request by other than current licensee.

Applications for license for currently licensed fixed fishing device locations by persons other than the current licensee shall not be accepted by the officer during the year any current license is valid. 

4VAC20-20-70. Priority rights; vacant location.

Application from any qualified applicant for any fixed fishing device at a vacant and unlicensed location may be accepted by the officer at any time during the year for which the license is intended, and only for the year during which the license is intended, except that any application received prior to noon on January 10 for any location believed to be vacant and unlicensed pursuant to 4VAC20-20-50 B shall be considered as received at noon on January 10, and in chronological order of receipt. 

4VAC20-20-80. Transfer and vested rights.

A.  A current fixed fishing device license, and the rights to renew same, may be transferred by the present licensee provided all parties comply with the existing statutes and regulations.  Any transferee takes the license subject to all of the duties of the transferor. 

B.  Any rights a licensee may have, upon his death, shall be vested in his personal representative or lawful beneficiary. 

4VAC20-20-90. 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, and a second or subsequent violation of any provision of this chapter committed by the same person with 12 months of a prior violation is a Class 1 misdemeanor. 

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