WSR 04-21-072

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed October 19, 2004, 3:19 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-17-029.

Title of Rule and Other Identifying Information: Rules pertaining to the protection of shellfish from disease, pests and predators.

Hearing Location(s): Shilo Inn, Ocean Shores Boulevard N.W., Ocean Shores, WA 98569, on December 3-4, 2004, begins 8:00 a.m., December 3rd.

Date of Intended Adoption: December 3, 2004.

Submit Written Comments to: Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail jacobesj@dfw.wa.gov, fax (360) 902-2155, by December 2, 2004.

Assistance for Persons with Disabilities: Contact Susan Yeager by November 22, 2004, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of the proposal is to provide protection to the shellfish grower industry and wild stock shellfish from new diseases and expanded areas of predatory drills. The anticipated effect is to slow the spread of predator populations and diseases, provide the ability to track associated shellfish transfers and transport should new diseases be discovered and provide movement history to importing jurisdictions should concerns arise. This will change existing rules, which currently allow much of the movement under a pamphlet possession and compliance document, to a transfer permit requirement, which may be valid for a single transfer, an annual transfer, or some degree in between, and which has two exceptions, market ready shellfish and shellfish seed transferred under a shellfish health agreement.

Reasons Supporting Proposal: The current pamphlet/permit process does not provide the ability to track shellfish and associated movements and when new disease outbreaks occur the department is unable to track the movement of diseased stock or contaminated equipment, which obviates the ability to prevent or control the spread of the disease, pest or predator. This fails to prevent the spread of a disease and does not offer any importer of Washington shellfish products an assurance of a disease free origin. These issues and concepts were reviewed and supported by the Shellfish Import Advisory Committee (WAC 220-77-040) which includes shellfish pathologists, academia, tribal, industry, aquariasts and representatives from the Department of Fish and Wildlife and the Department of Agriculture.

Statutory Authority for Adoption: RCW 77.115.010, 77.12.047.

Statute Being Implemented: RCW 77.115.010.

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

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

Name of Agency Personnel Responsible for Drafting: Morris Barker, Natural Resources Building, 1111 Washington Street S.E., Olympia, WA, (360) 902-2826; Implementation: Lew Atkins, Natural Resources Building, 1111 Washington Street S.E., Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, Natural Resources Building, 1111 Washington Street S.E., 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: All transfers and transport of shellfish, shellfish aquaculture products, and aquaculture equipment will require a written permit from the director, except for transfer of market ready shellfish and shellfish seed transfers under a shellfish health agreement. Companies operating under shellfish health agreements are required to submit quarterly or on demand reports of shellfish seed transfers from hatchery to out plant sites. High-risk transfer may require a histological examination of the stock as a condition of granting the permit.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: Businesses that move a large volume of shellfish products may require a professional service to help enumerate and track seed and shell stock transfers that are subject to reporting requirements. Businesses that apply for transfer or import permits may be required to hire the services of a shellfish pathologist for disease health certification.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: There could be increased administrative costs associated with tracking of transfers and out plant sites. We estimate up to a quarter time position of a clerk level position for a large volume dealer, this would equate to $500 to $600 a month for the largest business affected. Most businesses likely perform this function in their current operations.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Compliance with the rules could act to increase markets in importing jurisdictions by creating assurances on the health history of stocks from the export area. High risk transfers may be restricted and this could impact current operations that reduce flexibility thus resulting in: (1) A delayed revenue stream; (2) higher costs for leasing new grounds; and (3) a histology certification exam from a recognized shellfish pathologist when proposing transfers from a disease restricted area to a nondisease restricted area which may cost $500 to $1400 per exam in the case of Denman Island Disease in oysters, for example.

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:

1. Cost per employee;

2. Cost per hour of labor; or

3. Cost per one hundred dollars of sales.

Cost categories require proprietary information from the affected industry and are not available for such calculations.

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 met with the industry and modified some of the proposals to lessen the cost to growers by modifying rules and/or boundary lines where appropriate. The cost of no action could increase the risk of disease, pest or predator transmission, which has a negative economic impact to the industry and to wild shellfish stocks.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The agency has convened a meeting of the Shellfish Import Advisory Committee to discuss the issues and develop rule proposal concepts that will meet disease, pest, and predator protection needs. The agency has held meetings with the grower community to discuss the issues and rule proposals. The agency has modified rule proposals based on input from the industry. The industry will have further opportunities for input during public hearings on the rule proposals under the auspices of the Fish and Wildlife Commission public hearing process.

8. A List of Industries That Will Be Required to Comply with the Rule: Members of the shellfish grower industry and importers of shellfish destined to come into contact with state waters.

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

A cost-benefit analysis is not required under RCW 34.05.328. The rule is not a hydraulic rule proposal.

October 18, 2004.

Evan Jacoby

Rules Coordinator

OTS-7612.3


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-011   Oyster drill 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 oyster drill restricted shellfish areas:

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

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

(3) Lummi Bay -- inside the Lummi Dike and inside and bounded by a line projected from:

((Point No. 1 at)) 4846'32" N. Lat.

12240'00" W. Long.; thence to
((Point No. 2 at)) 4845'55" N. Lat.

12240'00" W. Long.; thence to
((Point No. 3 at)) 4845'55" N. Lat.

12239'12" W. Long.; then northerly along the beach to the point of origin.
(4) Samish Bay -- inside and easterly of a line starting at the most westerly tip of Governor's Point and projected in a southerly direction to the most westerly tip of William Point on Samish Island.

(5) Padilla Bay -- easterly (including the Swinomish channel) of a line starting at the most westerly tip of William Point on Samish Island and projected southerly to the most northerly tip of March Point on Fidalgo Island.

(6) Similk and Skagit Bays -- northerly of a line projected across Skagit Bay following latitude 4820' N. and easterly of the Deception Pass bridge.

(7) Liberty Bay -- inside and westerly of a line projected true south from the most southerly point at Tower Point.

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

(9) Carr Inlet --

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

(b) Minter Creek -- inside and westerly of a line projected from the east shore at 12241'00" W. Long. true south to 4721'00" N. Lat., then true west to shore.

(10) Case Inlet --

(a) Rocky Bay and North Bay -- northerly of a line projected across Case Inlet following latitude 4720'44" N.

(b) Vaughn Bay -- easterly of a line projected true north from the most northerly point of the southern spit at the mouth of Vaughn Bay to the mainland on the north shore.

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

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

(13) Eld Inlet --

(a) Mud Bay -- inside and westerly of a line projected from the most easterly point of 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 -- inside and southerly of a line starting ((at the end of)) near the DuPont Dock on the east shore at 4707'00" N. Lat. and projected true west to the mainland.

(15) Hood Canal --

(a) Quilcene Bay -- inside, 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 westerly tip of Fisherman's Point.

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

(c) The Great Bend to Lynch Cove -- inside and bounded easterly by a line((s)) projected 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 4721'00" N. Lat.

12306'55" W. Long., then projected true east)) the western most point at Musqueti Point true west to the mainland.
(d) Hamma Hamma Flats and Jorsted Creek -- inside and westerly of a line((s)) projected 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)) 4731'00" N. Lat.

12301'54" W. Long.; then true west to shore.
(e) Dosewallips Delta -- inside and westerly of lines projected 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.
(f) Point Whitney -- inside and westerly of lines projected 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.
(g) Duckabush River Mouth -- inside and westerly of a line projected from:

((Point No. 1 at)) 4738'46" N. Lat.

12254'08" W. Long.; thence to
((Point No. 2 at)) 4737'55" N. Lat.

12256'25" 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.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-011, filed 4/30/03, effective 5/31/03. Statutory Authority: RCW 75.08.080. 97-08-078 (Order 97-56), 220-72-011, filed 4/2/97, effective 5/3/97.]


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-076   Unlawful acts -- Permit required.   (1) It shall be unlawful to transfer shellfish, shellfish aquaculture products (including oyster seed, cultch and shell), aquaculture equipment (including aquaculture vehicles and vessels) or any marine organisms adversely affecting shellfish ((from a oyster drill restricted area into an oyster drill unrestricted area)) without obtaining written permission from the director of fish and wildlife or the director's authorized agent. Such written permit must be affixed to or otherwise accompany the conveyance affecting the physical transfer of such shellfish, shellfish aquaculture products (including oyster seed, cultch and shell), or aquaculture equipment (including aquaculture vehicles and vessels) ((oyster drills, or drill-infested or marine organisms harmful to 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)). Permits will be approved with conditions or denied based on the shellfish disease or pest transfer risk between prohibited, restricted, and unclassified bodies of water. Existing permits may be revoked, suspended or modified upon a finding of an aquatic disease or pest. In the event of revocation, suspension or denial of a 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. Violation of this subsection is punishable under RCW 77.15.350.

(2) ((To control the spread of European green crabs, it is unlawful to transfer shellfish aquaculture products (including all oysters and clams, oyster seed, cultch, and shell), and aquaculture equipment (including aquaculture vehicles and vessels) from a European green crab restricted area into a European green crab unrestricted area without obtaining written permission from the director of fish and wildlife or the director's authorized agent. Transfers to the 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 are exempted from this written permission requirement. Such written permit must be affixed to or otherwise accompany the conveyance affecting the physical transfer of such shellfish, shellfish aquaculture products (including oyster seed, cultch, and shell), or aquaculture equipment (including aquaculture vehicles and vessels).

(3) To control the spread of Denman Island Disease, it is unlawful to transfer shellfish aquaculture products (including all oysters and clams, oyster seed, cultch, and shell), and aquaculture equipment (including aquaculture vehicles and vessels) from or between a Denman Island Disease prohibited or surveillance area to a Denman Island Disease unrestricted area without obtaining written permission from the director of fish and wildlife or the director's authorized agent.)) Shellfish which are market ready and intended for immediate human consumption, and which will not be placed into or come in contact with state waters, can be transferred without a WDFW permit.

(3) When shellfish health agreements between WDFW and companies which operate shellfish hatcheries have been made, the company may be authorized to issue shellfish transfer authorization forms for shellfish seed to seed buyers without a transfer permit. Shellfish transfer authorization forms may be revoked for cause. Shellfish health agreements will require sending reports of shellfish seed transfers from a hatchery and outplant sites to WDFW on a quarterly basis and when requested by authorized department personnel.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-076, filed 4/30/03, effective 5/31/03. Statutory Authority: RCW 75.08.080. 99-10-061 (Order 99-60), 220-72-076, filed 5/3/99, effective 6/3/99; 97-08-078 (Order 97-56), 220-72-076, filed 4/2/97, effective 5/3/97; Order 847, 220-72-076, filed 9/24/69.]


AMENDATORY SECTION(Amending Order 03-86, filed 4/30/03, effective 5/31/03)

WAC 220-72-089   Denman Island Disease prohibited area.   An area where Mikrocytos mackini, the causative agent of Denman Island Disease, has been confirmed with department approved histological methods by a department approved shellfish pathologist or reported in peer-reviewed scientific journal and accepted by the department. All waters, tidelands, shellfish handling facilities and equipment (including aquaculture vehicles and vessels) operated in conjunction with said waters and tidelands within the following areas are designated as Denman Island Disease prohibited areas:

(1) Strait of Juan de Fuca, Dungeness Bay -- inside and westerly of a line projected from the tip of Dungeness Spit due south to the mainland.

(2) Orcas Island --

(a) Deer Harbor -- inside and northerly of a line projected between Pole Pass Point and Steep Point.

(b) West Sound -- inside and northerly of a line projected between Caldwell Point and the most southerly point of land west of the community of Orcas.

(c) East Sound -- inside and northerly of a line projected between Diamond Point and the most southwesterly point on Orcas Island at Obstruction Pass.

(3) Westcott Bay -- inside and westerly of a line projected between the most southerly point of White Point and the most northerly point of Delacombe Point.

(4) Bellingham and Samish Bays -- southerly and inside of a line projected between Lummi Point and Gooseberry Point and easterly and inside of a line projected between Carter Point and William Point.

(5) Minter Creek -- inside and westerly of a line projected from:

The mainland at 12241'00" W. Long. due south to 4721'00" N. Lat., 12241'00" W. Long.; thence to 4721'00" N. Lat. where it intersects the mainland.

(6) McMicken Island -- inside and westerly of a line projected between the following two points on the east shore of Hartstene Island:

4714.84' N. Lat, 12251.316' W. Long and 4716.224' N. Lat., 12251.746' W. Long.

(7) Oakland Bay -- inside and northerly of a line projected across Oakland Bay at 4714'30" N. Lat. and inside and southerly of a line projected from:

The mainland on the west side of Oakland Bay at 4715'00" due east to 4715'00" N. Lat., 12304'00" W. Long.; thence to 12304'00" N. Lat. where it intersects the mainland.

[Statutory Authority: RCW 77.12.047. 03-10-041 (Order 03-86), 220-72-089, filed 4/30/03, effective 5/31/03.]


REPEALER

     The following sections of the Washington Administrative Code are repealed:
WAC 220-72-002 Promulgation.
WAC 220-72-070 Oyster drill unrestricted shellfish areas.
WAC 220-72-073 Unlawful acts -- Shellfish transfer.
WAC 220-72-079 Unlawful acts -- Compliance.
WAC 220-72-085 Imports -- Written permission.
WAC 220-72-087 European green crab unrestricted area.
WAC 220-72-090 Denman Island Disease surveillance area.
WAC 220-72-092 Denman Island Disease unrestricted area.

Legislature Code Reviser 

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Washington State Code Reviser's Office