WSR 97-08-078

PERMANENT RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Order 97-56--Filed April 2, 1997, 9:25 a.m.]

Date of Adoption: February 1, 1997.

Purpose: Amend import and aquaculture disease rules.

Citation of Existing Rules Affected by this Order: Repealing WAC 220-72-013, 220-72-016, 220-72-019, 220-72-022, 220-72-025, 220-72-028, 220-72-031, 220-72-034, 220-72-037, 220-72-040, 220-72-043, 220-72-046, 220-72-049, 220-72-052, 220-72-055, 220-72-058, 220-72-061, 220-72-064, 220-72-067, 220-72-082, 220-72-088, 220-72-091 and 220-72-094; and amending WAC 220-20-038, 220-72-002, 220-72-070, 220-72-073, 220-72-076, 220-72-085, 220-77-020 and 220-77-040; and new section WAC 220-77-065.

Statutory Authority for Adoption: RCW 75.08.080.

Adopted under notice filed as WSR 97-01-098 on December 18, 1996; and WSR 97-01-113 on December 19, 1996.

Changes Other than Editing from Proposed to Adopted Version: WAC 220-20-038, delete references to transfer as transfer is covered in chapter 220-72 WAC; WAC 220-72-011, change Dungeness Spit line. Clarify Oakland Bay is included with Hammersly Inlet. Change DuPont wharf to DuPont dock; WAC 220-72-015, include all of Willapa Bay to prevent oyster drill movement; WAC 220-72-076, include prohibition of transfer of any marine organism that adversely affects shellfish; WAC 220-72-085, expand scope of rule to include all shellfish; and WAC 220-77-020, delete "imported" from disease definition. Remove aquaria plants and phytoplankton distinction.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 2, amended 9, repealed 23.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Thirty-one days after filing.

April 1, 1997

Lisa Pelly, Chairperson

Fish and Wildlife Commission

AMENDATORY SECTION (Amending Order 80-123, filed 9/17/80)

WAC 220-20-038 Shellfish--Import ((and transfer)). It shall be unlawful to import, ((transfer,)) ship or otherwise cause live shellfish of any kind or form or associated pest, predators or disease organisms, to be introduced into the ((marine)) waters of the state of Washington without first obtaining written permission from the director ((of fisheries)) or ((his)) the director's authorized agent. The permit shall accompany the shellfish during transit and at the point of introduction. It shall be unlawful for the permit holder to fail to comply with all terms, conditions and provisions of the permit or to perform any act in connection with the permit that is not specifically authorized in the permit. The permit may specify department inspections and transfer conditions for the import.

[Statutory Authority: RCW 75.08.080. 80-13-064 (Order 80-123), 220-20-038, filed 9/17/80.]

AMENDATORY SECTION (Amending Order 847, filed 9/24/69)

WAC 220-72-002 Promulgation. In order to suppress and prevent the spread of infectious, contagious, communicable diseases and pests affecting ((oysters)) shellfish, the following regulations are adopted (([WAC 220-72-013 through 220-72-094])) (WAC 220-72-011 through 220-72-085).

[Order 847, 220-72-002, filed 9/24/69.]

NEW SECTION

WAC 220-72-011 Restricted shellfish areas--Puget Sound. All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands of Puget Sound within the following areas are designated as restricted shellfish areas:

(1) Dungeness Bay--inside and westerly of a line projected from the most southerly tip of Dungeness Spit southerly to the mainland.

(2) Drayton Harbor--inside and southerly of a line projected from the end of Semiahmoo Spit to where the International Boundary line intersects the mainland.

(3) Lummi Bay--inside the Lummi Dike and easterly and inside of a line projected from 4846'32" N. Lat., 12240'00" W. Long. due south to a point 4845'55" N. Lat., 12240'00" W. Long. and then due east to the mainland.

(4) Samish Bay--inside and easterly of a line starting at the most westerly tip of the point at the south entrance of Chuckanut Bay and projected in a southerly direction to William Point on Samish Island.

(5) Padilla Bay--southerly of a line starting at William Point on Samish Island and projected southerly to March Point on Fidalgo Island.

(6) Similk and Skagit Bays--northerly of a line projected across Skagit Bay and following latitude 48 20' N.

(7) Liberty Bay--inside, westerly and northerly of a line projected true south from Tower Point.

(8) Dyes Inlet--inside and northerly of a line projected true east from the most northern tip of Rocky Point to the mainland in the vicinity of southern Tracyton.

(9) Burley Lagoon--inside and northerly of the Purdy bridge.

(10) Case Inlet--Rocky Bay and North Bay--northerly of a line projected true west from the westerly tip of Windy Bluff across Case Inlet through the northerly tip of Reach Island to the west shore of Case Inlet.

(11) Hammersley Inlet--Oakland Bay--inside, westerly and northerly of a line starting at Munson Point and projected in a southerly direction to Eagle Point.

(12) Totten Inlet--Oyster Bay--Little Skookum Inlet--inside and southerly of a line starting at the most southeasterly point on Windy Point and projected northeasterly to the most southern tip of the Steamboat Island bridge.

(13) Eld Inlet--

(a) Mud Bay--inside, southerly and westerly of a line starting at Flapjack Point and projected true south to the mainland.

(b) Sanderson Harbor--lying inside and westerly of a line starting at the most northern point on Sanderson Spit and projected northeasterly to the mainland.

(14) Nisqually Flats--southerly of a line starting at the end of the DuPont Dock and projected true west to the mainland.

(15) Hood Canal--

(a) Quilcene Bay--northerly and easterly of a line starting at the Port of Port Townsend boat ramp north of Coast Seafoods company shellfish hatchery projected easterly to a point at 4848'10" N. Lat., 12251'30" W. Long. and then projected southeasterly to the most southerly tip of Bolton Peninsula.

(b) Tarboo Bay--northerly and easterly of a line starting at the most northern tip of Long Spit and then projected true west to the mainland.

(c) Rendsland Creek--easterly and inside of lines drawn from:

Point No. 1 at 4723'02.7" N. Lat.

12306'42.8" Long. thence to

Point No. 2 at 4723'02.7" N. Lat.

12306'55" W. Long. thence to

Point No. 3 at 4723'16.6" N. Lat.

12306'55" W. Long., then projected true east to the mainland.

(d) Lynch Cove--easterly of a line starting at Cady Creek on the north shore and projected in a southwesterly direction to a point at 4723'02.4" N. Lat., 12256'12.4" W. Long.

(e) Hamma Hamma Flats--inside and westerly of lines drawn from:

Point No. 1 at 4733'15" N. Lat.

12301'42" W. Long. thence to

Point No. 2 at 4732'54" N. Lat.

12301'06" W. Long. thence to

Point No. 3 at 4732'54" N. Lat.

12301'48" W. Long. thence to

Point No. 4 at 4732'21" N. Lat.

12301'54" W. Long.

(f) Dosewallips Delta--inside and westerly of lines drawn from:

Point No. 1 at 4741'03" N. Lat.

12253'45" W. Long. thence to

Point No. 2 at 4741'03" N. Lat.

12252'24" W. Long. thence to

Point No. 3 at 4742'20.6" N. Lat.

12252'24" W. Long. thence to

Point No. 4 at 4742'20.6" N. Lat.

12252'39" W. Long.

(g) Point Whitney--inside and westerly of lines drawn from:

Point No. 1 at 4745'43.7" N. Lat.

12251'02" W. Long. thence to

Point No. 2 at 4545'56" N. Lat.

12251'02" W. Long. thence to

Point No. 3 at 4545'56" N. Lat.

12251'12" W. Long. thence to

Point No. 4 at 4745'45" N. Lat.

12251'12" W. Long.

(16) Henderson Inlet--South Bay--inside and southerly of a line commencing at a point on the west shore of Henderson Inlet where the south line of Section 17, Twp 19 N R 1 WWM intersects the shoreline, thence projected true east across Henderson Inlet to the east shoreline.

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NEW SECTION

WAC 220-72-015 Restricted shellfish areas--Willapa. All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands of Willapa Bay inside and easterly of a line projected from the most northern tip of Leadbetter Point true north to Cape Shoalwater.

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AMENDATORY SECTION (Amending Order 847, filed 9/24/69)

WAC 220-72-070 Unrestricted shellfish areas. All waters, tidelands and ((oyster)) shellfish handling facilities operated in conjunction with said waters and tidelands of Puget Sound, Grays Harbor and Willapa Bay lying outside the restricted shellfish areas as defined in chapter 220-72 WAC are hereby designated as unrestricted shellfish areas.

[Order 847, 220-72-070, filed 9/24/69.]

AMENDATORY SECTION (Amending Order 847, filed 9/24/69)

WAC 220-72-073 Unlawful acts--((Oyster)) Shellfish transfer. It shall be unlawful ((without first obtaining written permission from the director of fisheries or his authorized agent)) to move or transfer any ((oysters,)) shellfish, shellfish aquaculture products (including oyster seed, ((oyster)) cultch, ((oyster)) and shell), ((oystering)) aquaculture equipment, ((boats, scows, other material)) (including aquaculture vehicles and vessels) or any marine organisms adversely affecting ((oysters)) shellfish between unrestricted shellfish areas, between restricted shellfish areas, ((from a restricted shellfish area into an unrestricted area)) and from an unrestricted shellfish area into a restricted shellfish area((. The director of fisheries or his authorized agent may require such written permit be obtained by any person, firm or corporation to move or transfer oysters, oyster seed, oyster cultch, oyster shell, oystering equipment, boats, scows, other material or any marine organisms adversely affecting oysters within an unrestricted shellfish area or within a restricted shellfish area.)) without first obtaining and having in possession for each shellfish transfer a current copy of the Washington department of fish and wildlife pamphlet "Guidelines and requirements for the import and transfer of shellfish including oysters, clams, and other aquatic invertebrates in Washington state."

[Order 847, 220-72-073, filed 9/24/69.]

AMENDATORY SECTION (Amending Order 847, filed 9/24/69)

WAC 220-72-076 Unlawful acts--Permit ((display)) required. It shall be unlawful to ((execute any)) transfer ((of oysters, oyster seed, oyster cultch, oyster shell,)) shellfish, shellfish aquaculture products (including oyster seed, cultch and shell), aquaculture equipment (including aquaculture vehicles and vessels) or any marine organisms adversely affecting ((oysters under a permit required by this Order unless such)) shellfish from a restricted area into an unrestricted area without obtaining written permission from the director of fish and wildlife or the director's authorized agent. Such written permit ((is)) must be affixed to or otherwise ((accompanies)) accompany the conveyance affecting the physical transfer of such ((oysters, oyster shell)) shellfish, shellfish aquaculture products (including oyster seed, cultch and shell), aquaculture equipment (including aquaculture vehicles and vessels) oyster drills, or drill-infested or marine organisms harmful to ((oysters)) shellfish. Areas found to have aquatic diseases or pests (including the oyster drill Ceratostoma inornatum) will be immediately considered restricted by the department of fish and wildlife. The department will immediately notify property owners of the restricted status.

[Order 847, 220-72-076, filed 9/24/69.]

AMENDATORY SECTION (Amending Order 1045, filed 3/8/73)

WAC 220-72-085 Imports--Written permission. It shall be unlawful to import into the state of Washington any ((oysters, oyster shell or oyster seed)) shellfish, shellfish shell or shellfish seed for the purpose of ((planting)) placing into state waters without written permission from the department of ((fisheries. This permission must be applied for at least 30 days prior to the start of any seed oyster packing. The application shall state the maximum quantity to be imported, the general area where they can be inspected, the name of the exporter, and the approximate time the shipment will be made)) fish and wildlife.

[Order 1045, 220-72-085, filed 3/8/73; Order 847, 220-72-085, filed 9/24/69.]

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 220-72-013 Restricted shellfish areas--Drayton Harbor.

WAC 220-72-016 Restricted shellfish areas--Samish Bay.

WAC 220-72-019 Restricted shellfish areas--Padilla Bay.

WAC 220-72-022 Restricted shellfish areas--Similk Bay.

WAC 220-72-025 Restricted shellfish areas--Liberty Bay.

WAC 220-72-028 Restricted shellfish areas--Dyes Inlet.

WAC 220-72-031 Restricted shellfish areas--Case Inlet--Rocky Bay and North Bay.

WAC 220-72-034 Restricted shellfish areas--Hammersley Inlet--Oakland Bay.

WAC 220-72-037 Restricted shellfish areas--Totten Inlet--Oyster Bay.

WAC 220-72-040 Restricted shellfish areas--Eld Inlet--Mud Bay.

WAC 220-72-043 Restricted shellfish areas--Nisqually Flats.

WAC 220-72-046 Restricted shellfish areas--Hood Canal--Quilcene Bay.

WAC 220-72-049 Restricted shellfish areas--Hood Canal--Lynch Cove.

WAC 220-72-052 Restricted shellfish areas--Hood Canal--Hamma Hamma Flats.

WAC 220-72-055 Restricted shellfish areas--Henderson Inlet--South Bay.

WAC 220-72-058 Restricted shellfish areas--Willapa Bay--Middle Sands.

WAC 220-72-061 Restricted shellfish areas--Willapa Bay--Nemah.

WAC 220-72-064 Restricted shellfish areas--Willapa Bay--Bay Center.

WAC 220-72-067 Restricted shellfish areas--Willapa Bay--Cedar River.

WAC 220-72-082 Imports--Inspection.

WAC 220-72-088 Imports--Certification.

WAC 220-72-091 Imports--Importation period.

WAC 220-72-094 Imports--Shipping season.

AMENDATORY SECTION (Amending Order 87-20, filed 3/27/87)

WAC 220-77-020 Definitions--Aquaculture disease control. For purposes of this chapter, the following definitions apply:

(1) "Aquaculture products" are defined as private sector cultured aquatic products propagated, farmed, or cultivated on aquatic farms under the supervision and management of an aquatic farmer, or such products naturally set on lands under the active supervision and management of an aquatic farmer.

(2) "Disease" is defined as infection, contagious disease, parasite, or pest, occurring on or within the aquaculture product, or other shellfish or finfish, or on or within the water ((and)) or substrate associated with the aquaculture product, shellfish, or finfish, or an occurrence of significant mortality suspected of being of an infectious or contagious nature.

(3) "Finfish" is defined as live fish, fish eggs, or fish gametes, but not to include aquaria species commonly sold in the pet store trade when raised in indoor containers, indigenous marine baitfish, or mosquito fish.

(4) "Shellfish" is defined as all ((members of the phyla mollusca, arthropoda, and echinodermata)) aquatic invertebrates except insects.

(5) "Epizootic" is defined as the occurrence of a specific disease which can be detected in fifty percent of the mortality or moribund individual fish in an affected container or shellfish on an affected bed or within an affected population, and which results in an average daily mortality of at least one-half of one percent of the affected individual fish for five or more days in any thirty-day period.

(6) "Marine plant" is defined as nonvascular plants belonging to the phlya Chlorophyta, Phaeophyta, or Rhodophyta and vascular plants belonging to the family Zosteraceae when growing in marine or estuarine waters, and includes the seeds, spores, or any life-history phase of the plants. (("Marine plants" do not include aquaria plants or phytoplankton.))

(7) "Working day" is defined as any day other than Saturday, Sunday, or a Washington state holiday.

(8) "Department" is defined as the department of ((fisheries)) fish and wildlife.

(9) "Quarantine" is defined as isolation of the organism in a department approved facility.

(10) "Pest" is defined as parasite, parasitoid, predator, or fouling agent.

(11) "Established species" is defined as a species that has been propagated through aquaculture for at least ten years in Washington, or a species naturally reproducing within Washington.

(12) "West coast commerce region" is defined as the states of Alaska, California, Oregon, and Washington and the province of British Columbia.

(13) "Kelp" is defined as any species of brown algae of the order Laminariales.

(14) "Class A shellfish disease" is defined as an infectious disease which can cause significant mortality or loss of condition or quality in affected shellfish.

(15) "Class B shellfish disease" is defined as an infectious disease which is not known to cause significant mortality or loss of condition or quality in affected shellfish.

(16) "Market ready shellfish" are defined as aquatic invertebrate species which are intended for immediate human consumption and will not be placed into or come in contact with state waters.

[Statutory Authority: RCW 75.58.010. 87-08-033 (Order 87-20), 220-77-020, filed 3/27/87.]

AMENDATORY SECTION (Amending Order 87-20, filed 3/27/87)

WAC 220-77-040 Shellfish aquaculture disease control. (1) It is unlawful for any person to import into Washington or ((transport within the state of Washington shellfish aquaculture products for planting in Washington waters)) possess live imported aquatic invertebrates, except market ready shellfish, without first ((having obtained a)) obtaining an aquatic invertebrate import permit ((to do so)) issued by the department. A copy of the permit shall accompany the ((shellfish aquaculture products)) aquatic invertebrates at all times within the state of Washington, and must be presented upon request to department employees. ((Possession of an oyster transfer permit issued under RCW 74.24.110 will meet the requirements of this subsection.))

(2) ((The director may impose permit conditions as necessary to ensure the protection of aquaculture products and native shellfish from disease when the director concludes that there is a reasonable risk of disease transmission associated with the shellfish aquaculture products)) The director shall appoint a seven-member advisory committee consisting of one representative each from the department, the department of agriculture, the aquatic farmers of Washington, the federally recognized treaty tribes, private displayers of aquatic invertebrates, aquatic invertebrate ecologists, and aquatic invertebrate disease control specialists. The committee will advise the department on importation of aquatic invertebrates, make recommendations on classification of shellfish diseases, and review department policy. Recommendations of the committee are not binding on the commission or director.

(3) ((For)) Established species ((and established routes of commerce, the department will issue import and transfer permits if the following criteria are met:

(a) A regular pattern of importation with no more than a one-year time lapse between importations.

(b) Documentation of recent mortality and disease history of the shellfish aquaculture product in the area of origin showing a lack of significant mortality.

(c) Verification that there has been no introduction of diseased stocks into the area of origin.

(d) Documentation that the shellfish aquaculture product proposed for import is from the approved area)) from existing import areas with current disease free tissue certification from areas of origin free of Class A shellfish diseases are eligible for continued importation.

(a) An additional disease free tissue certification must be submitted every three years. The department will waive the certification requirement if there is sufficient information that the source area is free of Class A shellfish diseases.

(b) Additional disease free certification may be required upon discovery or reports of disease at the geographic source.

(4) ((For)) Established species ((not from established routes of commerce, the department will additionally require the following before deciding whether to issue an import or transfer permit:

(a) Documentation of mortality and disease of the shellfish aquaculture product for the past ten years from the area of origin, together with similar information for closely related species, if deemed necessary.

(b) A history of those diseases in the area of origin that may affect aquaculture products or native fauna and flora.

(c) When applicable, documentation of an agreement with the appropriate governmental agency with management responsibility in the area of origin)) from new areas of origin are eligible for import if health history documentation and disease free tissue certification are provided to the department. Import into quarantine is required for imports originating from outside the west coast commerce region.

(a) Conditional importation approval will be initiated by permit application.

(b) Presence of any Class A shellfish disease in the area of origin will result in denial of conditional approval.

(c) At least one additional disease free certification will be required during the first year of importation. In the absence of disease during the first year of importation, established species will be eligible for continued importation, and the provisions of subsection (3) of this section will apply.

(5) ((For)) Nonestablished species((, the department will additionally consider the following criteria, which will require the importer to provide a detailed life history and comply with the requirements of SEPA:

(a) The capability of the receiving facility to hold the shellfish aquaculture product in)) for which a health history documentation and disease free tissue certification have been initiated by permit application are eligible for importation only into quarantine.

(((b) The ability of the shellfish aquaculture product to naturally reproduce or interbreed with endemic species in state waters.

(c) The ability of the shellfish aquaculture product to compete with or prey upon endemic species.)) A SEPA check list is required for any importation of a new species.

(6) ((For purposes of verification of the disease-free status of shellfish aquaculture products in subsections (3), (4), and (5) of this section, the department may require sufficient samples for histological evaluation either prior to or after subjecting the shellfish aquaculture products to stress tests to detect latent disease conditions. In the event of failure to obtain permit approval, consideration will be given to introduction after hatchery production of a second generation stock.)) Health history documentation will be based on available documentation over the five years prior to application for an import permit, unless a longer documentation is required for cause, and is required to be provided by the applicant. Disease free tissue certification is required from representative invertebrates proposed for import, and must be certified by a department-approved invertebrate health care professional.

(7) Department employees may inspect quarantine facilities used for permitted shellfish imports at reasonable times without prior notification.

(8) Importers are required to immediately report to the department any epizootic, significant mortality potentially attributable to an infectious disease or discovery of a Class A shellfish disease in an approved source area. The report is required to be made within 24 hours of the event or discovery. Annual reporting of the presence or absence of Class A or Class B shellfish diseases may be a condition of any permit.

(9) Violation of these rules or the conditions of the permit, confirmation of a Class A shellfish disease at the geographic source, or verification of a substantial shellfish mortality at the geographic source may result in the suspension or revocation of the import permit.

(((8))) In the event of denial, suspension, or revocation of an ((importation or transfer)) import permit, the affected ((person)) party may appeal ((the decision to the director. Additional appeals may be made)) through the Administrative Procedure Act (((chapter 34.04 RCW))). A suspended or revoked permit will remain suspended or revoked during the ((appellate)) appeal process.

[Statutory Authority: RCW 75.58.010. 87-08-033 (Order 87-20), 220-77-040, filed 3/27/87.]

NEW SECTION

WAC 220-77-065 Kelp importation--Permit required. (1) It is unlawful for any person to import kelp into the state of Washington for use in the herring spawn on kelp fishery without first having obtained a permit to do so issued by the department. A copy of the permit must accompany the imported kelp at all times until the kelp is placed into the marine environment and must be presented upon request to department employees.

(2) The director may impose permit conditions as necessary to ensure protection of aquaculture products and native species from disease when the director concludes that there is a risk of disease transmission associated with the imported kelp.

(3) A kelp import permit is not transferrable.

(4) Violation of these rules or the conditions of a permit may result in suspension or revocation of the kelp import permit. In the event of denial, suspension or revocation of a kelp import permit, the affected party may appeal through the Administrative Procedure Act. A suspended or revoked permit will remain suspended or revoked during the appeal process.

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