WSR 04-13-033

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed June 9, 2004, 1:57 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-09-077.

Title of Rule and Other Identifying Information: Commercial sea urchin and sea cucumber fisheries and catch reporting.

Hearing Location(s): Embassy Suites Hotel, 20610 44th Avenue West, Lynnwood, WA, on August 6-7, 2004, begins at 8:00 a.m., August 6.

Date of Intended Adoption: August 6, 2004.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail jacobesj@dfw.wa.gov, fax (360) 902-2155, by August 4, 2004.

Assistance for Persons with Disabilities: Contact Susan Yeager by July 26, 2004, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: There are two housekeeping changes: A telephone contact number correction and identification of a geographical location by the location longitude. Additionally there is a reporting change to define sea cucumber landings as either whole cucumbers or split cucumbers. This will allow managers to accurately determine the amount of sea cucumbers removed from the resource.

Reasons Supporting Proposal: Clarification and better achievement of management objectives.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Rule is not necessitated by federal law, federal or state court decision.

Name of Proponent: Washington Department of Fish and Wildlife, governmental.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, WA, (360) 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (360) 902-2373.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: Changes the phone number for instances of rapid reporting requirements and requires buyers of sea cucumbers to make additional entries on the fish ticket regarding the whole or split nature of the landing.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None required.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: Some fishers may have to purchase a global position system machine at a minimum cost of approximately $125. This is a very liberal estimate as the fleet is likely already equipped with such navigation equipment.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No.

5. Cost of Compliance for the 10% of Businesses That are the Largest Businesses Required to Comply with the Proposed Rules Using One or More of the Following as a Basis for Comparing Costs:

a. Cost per employee;

b. Cost per hour of labor; or

c. Cost per one hundred dollars of sales.

No costs for compliance are anticipated.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The agency has worked with the industry to develop these rules and the industry is supportive of these proposed actions.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The agency has already worked with the industry on these proposals. In addition, the rules will be considered under the Fish and Wildlife Commission auspices and their public rule adoption process.

8. A List of Industries That Will Be Required to Comply with the Rule: The sea urchin and sea cucumber commercial dive fishers and the wholesale fish buyers who purchase their landings will be required to comply with the rules.

A copy of the statement may be obtained by contacting Evan Jacoby, 600 Capitol Way, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155, e-mail jacobej@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328.

June 9, 2004

Evan Jacoby

Rules Coordinator

OTS-7280.1


AMENDATORY SECTION(Amending Order 02-186, filed 8/9/02, effective 9/9/02)

WAC 220-52-073   Sea urchins.   It is unlawful to take or possess sea urchins taken for commercial purposes except as provided for in this section.

(1) Sea urchin districts:

(a) Sea Urchin District 1 (Northern San Juan Islands) is defined as Marine Fish-Shellfish Management and Catch Reporting Areas 20A, 20B, and those waters of Area 22A north of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island and west of a line projected true north from Limestone Point on San Juan Island.

(b) Sea Urchin District 2 (Southern San Juan Islands and Port Townsend) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 22A south of a line projected east-west one-quarter mile north of Lime Kiln Light on San Juan Island and east of a line projected true north from Limestone Point on San Juan Island and Areas 21A, 21B, 22B, 23A, 23B, 25A and 25B. The following areas within Sea Urchin District 2 are closed to the harvest of sea urchins at all times:

(i) Those waters of Haro Strait north of a line projected due west from the southernmost point of Cattle Point on San Juan Island to the international border and south of a line projected due west from a point one-quarter mile north of Lime Kiln Light on San Juan Island to the international border.

(ii) Those waters of San Juan Channel and Upright Channel within the following lines: South of a line projected from Flat Point on Lopez Island true west to Shaw Island; west of a line from Neck Point on Shaw Island to Steep Point on Orcas Island; south of a line from Steep Point on Orcas Island to Limestone Point on San Juan Island north of a line from Flat Point on Lopez Island to the northernmost point of Turn Island and thence projected true west to San Juan Island.

(c) Sea Urchin District 3 (Port Angeles) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 23C east of a line projected true north from Low Point, along 12349'30" W. longitude, and Area 23D.

(d) Sea Urchin District 4 (Sekiu) is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 23C west of a line projected true north from Low Point, along 12349'30" W. longitude, and those waters of Area 29 east of a line projected true north from the mouth of Rasmussen Creek (3.1 miles southeast of Sail Rock).

(e) Sea Urchin District 5 is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Area 29 west of a line projected true north from the mouth of Rasmussen Creek (3.1 miles southeast of Sail Rock) and Areas 59A and 59B. Within Sea Urchin District 5, waters within one-quarter mile of Tatoosh Island are closed to the harvest of sea urchins at all times.

(f) Sea Urchin District 6 is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Areas 24A, 24B, 24C, 24D and 26A.

(g) Sea Urchin District 7 is defined as those waters of Marine Fish-Shellfish Management and Catch Reporting Areas 26B, 26C, 26D and 28A. The following areas within Sea Urchin District 7 are closed to the harvest of sea urchins at all times.

(i) Those waters of Eagle Harbor west of a line projected from Wing Point to Eagle Harbor Creosote Light Number 1, then projected due west to the shore on Bainbridge Island.

(ii) The waters of Sinclair Inlet west of a line projected southerly from the easternmost point of Point Turner to landfall directly below the Veteran's Home in Annapolis.

(2) Sea urchin seasons and sizes:

Sea urchin seasons and sizes will be set by emergency rule.

(3) Shellfish diver gear:

(a) It is unlawful to take sea urchins by any means other than shellfish diver gear.

(b) Divers may only use hand-operated equipment that does not penetrate the shell.

(c) Sea urchins may not be taken from water shallower than 10 feet below mean lower low water.

(d) Purple sea urchins may not be taken.

(e) Divers operating from a vessel must have a number assigned by the department, placed on both sides and the top of the vessel in such a manner that the number is clearly visible when the vessel is viewed from either side or from the air and the number must be black on white no less than 18 inches high and of proportionate width.

(f) Divers may not take sea urchins from one-half hour after sunset to one-half hour before sunrise.

(g) No processing of sea urchins is permitted aboard the harvest vessel.

(h) Divers may not take sea urchins for use other than as human food.

(i) Only one diver from each harvesting vessel is allowed in the water at any one time during the sea urchin harvesting operation or when commercial quantities of sea urchins are aboard except that two divers may be in the water if the vessel has been designated on two sea urchin dive fishery licenses.

(j) Variance from any of the provisions of this subsection is only allowed if authorized by a permit issued by the director.

(k) Licensing: A sea urchin dive fishery license is the license required to operate the gear provided for in this section.

[Statutory Authority: RCW 77.12.047. 02-17-016 (Order 02-186), 220-52-073, filed 8/9/02, effective 9/9/02; 01-07-021 (Order 01-40), 220-52-073, filed 3/14/01, effective 4/14/01. Statutory Authority: RCW 75.08.080. 00-03-042 (Order 00-07), 220-52-073, filed 1/13/00, effective 2/13/00; 94-12-009 (Order 94-23), 220-52-073, filed 5/19/94, effective 6/19/94; 91-22-064 (Order 91-132), 220-52-073, filed 11/1/91, effective 12/2/91; 91-10-024 (Order 91-22), 220-52-073, filed 4/23/91, effective 5/24/91; 87-23-006 (Order 87-187), 220-52-073, filed 11/6/87; 87-15-022 (Order 87-69), 220-52-073, filed 7/8/87; 86-20-028 (Order 86-123), 220-52-073, filed 9/23/86; 85-01-010 (Order 84-214), 220-52-073, filed 12/7/84; 83-04-025 (Order 83-04), 220-52-073, filed 1/27/83; 80-13-064 (Order 80-123), 220-52-073, filed 9/17/80; 79-02-053 (Order 79-6), 220-52-073, filed 1/30/79; Order 77-145, 220-52-073, filed 12/13/77; Order 76-152, 220-52-073, filed 12/17/76; Order 1105, 220-52-073, filed 12/28/73; Order 990, 220-52-073, filed 5/11/72.]

OTS-7282.1


AMENDATORY SECTION(Amending Order 03-188, filed 8/8/03, effective 9/8/03)

WAC 220-69-240   Duties of commercial purchasers and receivers.   (1) Every person originally receiving or purchasing fresh or iced food fish or shellfish or parts thereof, or frozen food fish or shellfish or parts thereof that have not been previously landed in another state, territory, or country from fishers, firms, or individuals, except purchases or receipts made by individuals or consumers at retail, is required to be a licensed wholesale fish dealer or fish buyer, and must immediately, completely, accurately, and legibly prepare the appropriate state of Washington fish receiving ticket regarding each and every purchase or receipt of such commodities. Except, preparation of a fish receiving ticket is not required for fish or shellfish purchased from a fisher who holds either a wholesale dealer's license or a direct retail endorsement and who has previously completed a fish receiving ticket because product was offered for sale to someone other than a licensed wholesale dealer. Purchases from such persons by wholesale fish dealers must be documented by sales receipts or invoices, and the product received must be maintained separately until the product is resold or processed.

(2) Any employee of a licensed wholesale dealer who has authorization to receive or purchase fish or shellfish for that dealer on the premises of the primary business address or any of its branch plant locations shall be authorized to initiate and sign fish receiving tickets on behalf of his employer. The business or firm shall be responsible for the accuracy and legibility of all such documents initiated in its name. Each delivery must be recorded on a separate state of Washington fish receiving ticket.

(3) State of Washington fish receiving tickets are required for:

(a) Fresh food fish and shellfish landed in the state of Washington including fish or shellfish not purchased, which fish shall be recorded as weigh back or take home fish or shellfish.

(b) Fresh food fish and shellfish previously landed in another state, territory, or country and shipped or transported into the state of Washington to an original receiver.

(c) Frozen food fish or shellfish not previously landed in another state, territory, or country and shipped or transported into the state of Washington to an original receiver.

(4) State of Washington fish receiving tickets are not required for:

(a) Purchases or receipts from any person possessing a valid Washington wholesale dealer's license or direct retail endorsement except that a wholesale dealer purchasing fish from a commercial fisher shall complete the appropriate fish receiving ticket if the fisher has not previously completed a fish receiving ticket. It is the purchaser's responsibility to obtain the name, address, and Washington wholesale dealer's license or direct retail endorsement number, together with such sales receipt documents or information as may be required, to show the deliverer's name, quantity of fish, and date of the transaction and retain these with the food fish or shellfish.

(b) Fresh or frozen food fish or shellfish that are in transit through the state of Washington, if no storage, handling, processing, or repackaging occurs within the state.

(c) Private sector cultured aquatic products.

(d) Processed fish or shellfish.

(5) Fishers, fisher-wholesalers, and wholesalers shall determine the weight of baitfish contained in an average and normal brail and multiply the number of such brailers of baitfish by this weight factor and report such baitfish in both dozens and total weight: Provided, That it is lawful for such fishers, fisher-wholesalers, and wholesalers, when receiving herring, candlefish, anchovy, or pilchards for bait purposes, to delay completing that portion of the fish receiving ticket which indicates number of herring received, only if the herring, candlefish, anchovy, or pilchards are sold individually or counted as dozens. Such counts must be entered on the fish tickets immediately. An estimate of herring, candlefish, anchovy, or pilchards caught but not sold due to mortality must be included on the fish ticket as "loss estimate."

(6) It is lawful for an original receiver, when receiving purse seine-caught herring taken from Areas 20A, 20B, 21A, and 21B during the period April 16 through May 31, to delay completing that portion of the fish receiving ticket which indicates the weight of herring received only until the herring are off-loaded from the original receiver's vessel. The herring must then be weighed and the weight immediately entered in the appropriate space on the ticket. A separate state of Washington fish receiving ticket must be initiated at the time of each individual receipt of herring from the purse seine catching vessel.

(7) The original receiver of herring taken from Puget Sound Marine Fish-Shellfish Catch Areas 20A, 20B, 21A, and 21B, during the period April 16 through May 31 must report each calendar day's receipts by noon of the following day to the Department of Fish and Wildlife, LaConner, Washington; telephone 360-466-4345 ext. 243.

(8) It is unlawful for any person receiving or purchasing geoducks from fishers, firms, or individuals, regardless of whether or not the purchaser or receiver holds a license as required under Title 77 RCW, to fail to accurately and legibly complete the fish receiving ticket initiated on the harvest tract immediately upon the actual landing of geoducks from the harvesting vessel onto the shore. This fish receiving ticket shall accompany the harvested geoducks from the department of natural resources harvest tract to the point of landing.

(9) It is unlawful for the original receiver of Pacific whiting to fail to enter an estimated weight of Pacific whiting on the fish receiving ticket immediately upon completion of the landing. The exact weights of whiting, by grade, and all incidental species in the landing must be entered on the fish receiving ticket within twenty-four hours of the landing.

(10) It is unlawful for the original receiver of shrimp other than ghost shrimp taken from Puget Sound by pot gear to fail to report to the department the previous week's purchases by 10:00 a.m. the following Monday. For harvest in Crustacean Management Regions 1 or 2, reports must be made to the La Conner district office by voice 360-466-4345 extension 245, or facsimile 360-466-0515. For harvest in Crustacean Management Regions 3, 4, or 6, reports must be made to the Point Whitney Shellfish Laboratory by voice 1-866-859-8439, extension 600, or facsimile 360-586-8408. All reports must specify the serial numbers of the fish receiving tickets on which the previous week's shrimp were sold, and the total number of pounds caught by gear type, Marine Fish-Shellfish Management and Catch Reporting Area (Catch Area), and species listed on each ticket. The fish receiving ticket reporting requirement of WAC 220-69-240 remains in effect.

(a) Every person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 23A, shall record either 23A-E, 23A-W or 23A-S on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051.

(b) Every person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 26A, shall record either 26A-E or 26A-W on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051.

(c) Every person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 26B, shall record either 26B-1 or 26B-2 on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051.

(d) Every person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Areas 20B, 21A, and 22A, shall record either 1A-20B, 1A-22A, 1B-20B, 1B-21A, 1B-22A, or 1C-21A on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051.

(11) It is unlawful for the original receiver of shrimp other than ghost shrimp taken from Puget Sound by trawl gear to fail to report to the department the previous day's purchases by 10:00 a.m. the following morning. For harvest in Crustacean Management Region 1, reports must be made to the La Conner district office by voice 360-466-4345 extension 245, or facsimile 360-466-0515. For harvest in Crustacean Management Region 3, reports must be made to the Point Whitney Shellfish Laboratory by voice 1-866-859-8439, extension 600, or facsimile 360-586-8408. All reports must specify the serial numbers of the fish receiving tickets on which the previous day's shrimp were sold, and the total number of pounds caught by gear type, Marine Fish-Shellfish Management and Catch Reporting Area, and species listed on each ticket. The fish receiving ticket reporting requirement of WAC 220-69-240 remains in effect.

(12) It is unlawful for any wholesale dealer acting in the capacity of an original receiver of Dungeness crab taken by nontreaty fishers from Puget Sound to fail to report to the department the previous day's purchases by 10:00 a.m. the following morning. Reports must be made to the Point Whitney Shellfish Laboratory by facsimile 360-586-8408 or by telephone number 1-866-859-8439 extension 500 and must specify the dealer name, dealer phone number, and total number of pounds of crab caught by nontreaty fishers by Crustacean Management Region. The fish receiving ticket reporting requirement of WAC 220-69-240 remains in effect.

(13) It is unlawful for the original receiver to fail to initiate the completion of the fish receiving ticket immediately upon receipt of any portion of a commercial catch. Should the unloading of a catch take more than one day, the date that the unloading is completed shall be entered on the fish receiving ticket as the date of landing. If, for any purpose, the vessel leaves the unloading site, the original receiver must immediately enter the current date on the fish receiving ticket.

(14) During any fishery opening designated by rule as "quick reporting required," it is unlawful for any wholesale dealer acting in the capacity of an original receiver to fail to report a summary of all purchases of salmon and sturgeon made on the previous calendar day, or for a direct retail endorsement holder to fail to report a summary of all salmon offered for retail sale on the previous calendar day. The summary must include dealer name and purchasing location, date of purchase, list of fish ticket numbers used on the purchasing date, and the following summary catch data for each species purchased: Gear, catch area, species, number and total weight of fish. When quick reporting is required, it is unlawful to fail to comply with the following reporting requirements:

(a) Puget Sound summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

(i) Fax transmission to 360-902-2949

(ii) E-mail to psfishtickets@dfw.wa.gov or

(iii) Telephone to 1-866-791-1279

(b) Coastal troll summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

(i) Fax transmission to 360-902-2949

(ii) E-mail to trollfishtickets@dfw.wa.gov or

(iii) Telephone to 1-866-791-1279

(c) Grays Harbor and Willapa Bay summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

(i) Fax transmission to 360-664-0689

(ii) E-mail to harborfishtickets@dfw.wa.gov or

(iii) Telephone to 1-866-791-1280

(d) Columbia River summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

(i) Fax transmission to 360-906-6776 or 360-906-6777

(ii) E-mail to crfishtickets@dfw.wa.gov or

(iii) Telephone to 1-866-791-1281

(15) It is unlawful for any wholesale dealer acting in the capacity of an original receiver and receiving sea urchins or sea cucumbers from nontreaty fishers to fail to report to the department each day's purchases by 10:00 a.m. the following day. For red sea urchins the report must specify the number of pounds received from each sea urchin district. For green sea urchins and sea cucumbers the report must specify the number of pounds received from each Marine Fish-Shellfish Management and Catch Reporting Area. For sea cucumbers the report must specify whether the landings were "whole-live" or "split-drained." The report must be made by facsimile (fax) transmission to 360-902-2943 or by toll-free telephone to 866-207-8223((, extension 866)). Additionally, it is unlawful for the original receiver of red sea urchins to fail to record on the fish receiving ticket the sea urchin district where the red sea urchins were taken, and it is unlawful for the original receiver of any sea urchins to fail to record on the fish receiving ticket the name of the port of landing where the sea urchins were landed ashore. Additionally, it is unlawful for the original receiver of sea cucumbers to fail to record on the fish receiving ticket whether the sea cucumbers were delivered "whole-live" or "split-drained."

(16) It is unlawful for any original receiver of crab to fail to record all crab aboard the vessel making the delivery to the original receiver. The poundage of any crab deemed to be unmarketable, discards, or weigh backs must be shown on the fish receiving ticket, but a zero dollar value may be entered for such crab.

(17) It is unlawful for any original receiver of spot shrimp taken from Marine Fish Management and Catch Reporting Area 60A-1 to fail to record separately on the fish receiving ticket spot shrimp taken north or south of 4704.00' north latitude.

[Statutory Authority: RCW 77.12.047. 03-17-008 (Order 03-188), 220-69-240, filed 8/8/03, effective 9/8/03; 03-05-064 (Order 03-28), 220-69-240, filed 2/18/03, effective 3/21/03; 03-05-059 (Order 03-32), 220-69-240, filed 2/18/03, effective 3/21/03; 01-07-015 (Order 01-32), 220-69-240, filed 3/13/01, effective 4/13/01. Statutory Authority: RCW 75.08.080. 00-01-145 (Order 99-221), 220-69-240, filed 12/20/99, effective 1/20/00; 97-08-052 (Order 97-55), 220-69-240, filed 3/31/97, effective 5/1/97. Statutory Authority: RCW 75.08.080 and 75.58.040. 86-19-043 (Order 86-102), 220-69-240, filed 9/12/86. Statutory Authority: RCW 75.08.080. 85-11-020 (Order 85-43), 220-69-240, filed 5/10/85; 83-24-049 (Order 83-203), 220-69-240, filed 12/2/83; 82-17-040 (Order 82-105), 220-69-240, filed 8/13/82; 81-11-006 (Order 81-31), 220-69-240, filed 5/11/81; Order 77-14, 220-69-240, filed 4/15/77; Order 76-153, 220-69-240, filed 12/17/76.]

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