WSR 05-08-056

PERMANENT RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Order 05-53 -- Filed March 30, 2005, 3:08 p.m. , effective April 30, 2005 ]


Purpose: Amend coastal pilchard experimental fishery rules.

Citation of Existing Rules Affected by this Order: Amending WAC 220-20-010, 220-88C-030, 220-88C-040, and 220-88C-050.

Statutory Authority for Adoption: RCW 77.12.047.

Adopted under notice filed as WSR 05-03-117 on January 19, 2005.

Changes Other than Editing from Proposed to Adopted Version: WAC 220-88C-030: Rewrite subsection (3) to read:

(3) For 2005, the director may offer temporary permits valid for the 2005 season only, provided that:

(a) The total number of permits offered by the director, including 2005 temporary permits, shall not exceed twenty-five.

(b) 2005 temporary permits may be issued only to a person who can demonstrate by valid Washington fish receiving tickets that pilchard were landed under the person's emerging commercial fishery license in 2000, 2001, and 2002, the person has not previously held a coastal pilchard experimental fishery permit and the person has submitted a completed 2005 temporary permit application to the department by June 1, 2005.

(c) A vessel must be designated on the 2005 temporary permit application, and only one 2005 temporary permit application per person or vessel will be allowed.

In subsection (4), change "October 31st" to "November 30."

WAC 220-88C-040: Rewrite subsection (6) to read:

(6) It is unlawful to deliver more than ten percent of a pilchard landing for the purposes of conversion into fish flour, fish meal, fish scrap, fertilizer, fish oil, other fishery products or by-products for purposes other than human consumption or fishing bait.

Add new subsections (7) and (8): (7) It is unlawful to deliver more than one pilchard landing per calendar day.

(8) Once a delivery has commenced at a processing plant, all fish onboard the vessel must be offloaded at that plant.

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 4, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.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

Date Adopted: March 22, 2005.

J. P. Koenings

Director

by Larry Peck

OTS-7755.4


AMENDATORY SECTION(Amending Order 04-94, filed 4/29/04, effective 5/30/04)

WAC 220-88C-030   Eligibility to participate in the coastal pilchard fishery.   (1) ((Beginning 2004, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

(a) Held such a permit the previous year;

(b) Has purchased an emerging commercial fisheries license by April 1st; and

(c) As of April 1st has no outstanding observer fees owed to the department.

(2) Beginning 2005,)) A coastal pilchard experimental fishery permit will be issued only to a natural person who:

(a) Held such a permit the previous year;

(b) Can demonstrate by valid Washington fish receiving tickets that at least forty metric tons cumulative weight of pilchard taken from Pacific Ocean waters were landed under the person's emerging commercial fishery license during the previous two calendar years;

(c) Has purchased an emerging commercial fisheries license by April 1st; and

(d) As of December 1st of the previous licensing year has no outstanding observer fees owed to the department.

(((3))) (2) Coastal pilchard experimental fishery permits may be revoked by the director, and future permits denied by the director, for failure to comply with conditions specified in the permits or violation of other commercial fishing rules, and shall be revoked if the emerging commercial fishery license is suspended. A coastal pilchard experimental fishery permit will not be renewed if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(((4) If less than twenty permits are issued to persons who meet the permit renewal requirements specified in subsection (1) of this section)) (3) For 2005, the director may offer ((replacement)) temporary permits valid for the 2005 season only, provided that:

(a) The total number of permits issued by the director, including ((replacement)) 2005 temporary permits, shall not exceed twenty-five.

(b) ((Replacement)) 2005 temporary permits ((shall)) may be issued only to a person((s)) who can demonstrate by valid Washington fish receiving tickets that ((a minimum of forty metric tons (cumulative round weight) of)) pilchard were landed under the person's emerging commercial fishery license in 2000, 2001, and 2002, the person has not previously held a coastal pilchard experimental fishery permit and ((who have)) the person has submitted a completed ((replacement)) 2005 temporary permit application to the department by June 1, ((2004)) 2005.

(c) ((If more than twenty-five persons meet the criteria specified in (b) of this subsection, replacement permits will be issued to persons with the highest cumulative landings during the qualifying period, in descending order, until twenty-five permits are issued)) A vessel must be designated on the 2005 temporary permit application, and only one 2005 temporary permit application per person or vessel will be allowed.

(((5))) (4) Coastal pilchard experimental fishery permits are only valid for the year issued and expire on ((October 31st)) November 30 of the year issued with the expiration of the emerging commercial fishery license.

(((6))) (5) Permit holders must designate a vessel to be used in the coastal pilchard emerging commercial fishery at least forty-eight hours before their first pilchard fishing trip of each season. Once designated, permit holders may not change vessel designation for the remainder of the season, except in an emergency and then only if allowed by the director. The same vessel may not be designated on more than one emerging commercial fishery license and accompanying coastal pilchard experimental fishery permit.

[Statutory Authority: RCW 77.12.047. 04-10-035 (Order 04-94), 220-88C-030, filed 4/29/04, effective 5/30/04; 03-13-002 (Order 03-111), 220-88C-030, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-030, filed 3/13/01, effective 4/13/01.]


AMENDATORY SECTION(Amending Order 04-94, filed 4/29/04, effective 5/30/04)

WAC 220-88C-040   Coastal pilchard fishery -- Seasons and lawful catch.   (1) The coastal pilchard fishery season is open to purse seine fishing May ((15)) 1 through ((October 31)) November 30 only. Fishing under an experimental commercial fishery permit for pilchard is closed within three miles of shore.

(2) It is unlawful to retain any species taken incidental to pilchard in the coastal pilchard fishery except anchovy, mackerel, and market squid (Logligo opalescens). Any salmon encircled in the purse seine must be released prior to completion of the set, and no salmon may be landed on the fishing vessel.

(3) ((The)) It is unlawful to transfer ((of)) pilchard catch from one fishing vessel to another ((is prohibited)).

(4) It is unlawful to fail to have legal purse seine gear ((must be)) aboard the vessel making ((the)) a pilchard landing.

(5) It is unlawful to fail to deliver pilchard landings ((must be delivered)) to a shoreside processing facility.

(6) It is unlawful to deliver more than ten percent of a pilchard landing for the purposes of conversion into fish flour, fish meal, fish scrap, fertilizer, fish oil, other fishery products or by-products for purposes other than human consumption or fishing bait.

(7) It is unlawful to deliver more than one pilchard landing per calendar day.

(8) Once a delivery has commenced at a processing plant, all fish onboard the vessel must be offloaded at that plant.

[Statutory Authority: RCW 77.12.047. 04-10-035 (Order 04-94), 220-88C-040, filed 4/29/04, effective 5/30/04; 03-13-002 (Order 03-111), 220-88C-040, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-040, filed 3/13/01, effective 4/13/01.]


AMENDATORY SECTION(Amending Order 03-111, filed 6/4/03, effective 7/5/03)

WAC 220-88C-050   Coastal pilchard fishery -- Observer and sampler coverage, logbook requirements.   (1) As a condition of the experimental commercial fishery permit, participants in the coastal pilchard fishery are required to have on-board observers for any pilchard fishing effort((, and are required to have observer coverage for one-half of the vessel trips. Fishers may elect to use either department-provided observers, or National Marine Fisheries-certified observers, but must notify the department of their irrevokable decision on which type of observer to use at least 48 hours before their first pilchard fishing trip of the season. NMFS-certified observers must have completed a department training session. Department-provided observer coverage will be made available to fishers who agree to reimburse the department at a rate of $100 per landing, whether or not the vessel trip was observed. Payment for department-provided observer coverage is due by the tenth day of the following month for the previous month's landings, and failure to make timely payment will result in revocation of the experimental commercial fishery permit)) at the request of the department.

(2) ((In order to allow sufficient time for observer coverage and sampling efforts, fishers must notify the department's sardine hotline during normal business hours at least 48 hours before the first vessel trip and at least 24 hours before each subsequent trip. Fishers must provide name and contact phone number, time and location of departure, and estimated time and location of landing.)) Up to 500 sardine per vessel trip may be retained by WDFW samplers for biological information.

(3) All persons who obtain an experimental commercial fishery permit for the coastal pilchard fishery must complete a department-issued logbook, and the logbook is required to be returned to the department by ((November)) January 15th of the following year ((of issuance)). Failure to submit the logbook will cause the person to be ineligible for a permit in the following season.

[Statutory Authority: RCW 77.12.047. 03-13-002 (Order 03-111), 220-88C-050, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-050, filed 3/13/01, effective 4/13/01.]

OTS-7754.1


AMENDATORY SECTION(Amending Order 02-53, filed 3/29/02, effective 5/1/02)

WAC 220-20-010   General provisions -- Lawful and unlawful acts -- Salmon, other food fish and shellfish.   (1) It shall be unlawful to take, fish for, possess or transport for any purpose food fish, shellfish or parts thereof, in or from any of the waters or land over which the state of Washington has jurisdiction, or from the waters of the Pacific Ocean, except at the times, places and in the manners and for the species, quantities, sizes or sexes provided for in the regulations of the department.

(2) It shall be unlawful for any person to have in possession or under control or custody any food fish or shellfish within the land or water boundaries of the state of Washington, except in those areas which are open to commercial fishing or wherein the possession, control or custody of salmon or other food fish or shellfish for commercial purposes is made lawful under a statute of the state of Washington or the rules and regulations of the commission or director, unless otherwise provided.

(3) It shall be lawful to fish for, possess, process and otherwise deal in food fish and fish offal or scrap for any purpose, provided; that it shall be unlawful to use any of the following listed species for purposes other than human consumption or fishing bait:


Pacific halibut (Hippoglossus stenolepis)
Pacific herring

(except as prescribed

in WAC 220-49-020)

(Clupea harengus pallasi)
Salmon
Chinook (Oncorhynchus tshawytscha)
Coho (Oncorhynchus kisutch)
Chum (Oncorhynchus keta)
Pink (Oncorhynchus gorbuscha)
Sockeye (Oncorhynchus nerka)
Masu (Oncorhynchus masu)
Pilchard (Sardinops sagax)
Except as provided for in WAC 220-88C-040

(4) It shall be unlawful for any person to fish for food fish or shellfish while in possession in the field of food fish or shellfish that are in violation of the harvest regulations for the area being fished. This regulation does not apply to vessels in transit.

(5) It shall be unlawful for the owner or operator of any commercial food fish or shellfish gear to leave such gear unattended in waters of the state or offshore waters unless said gear is marked.

(a) Shellfish pot, bottom fish pot, set line and set net gear must be marked with a buoy to which shall be affixed in a visible and legible manner the department approved and registered buoy brand issued to the license, provided that:

(i) Buoys affixed to unattended gear must be visible on the surface of the water except during strong tidal flow or extreme weather conditions.

(ii) When two or more shellfish pots are attached to a common ground line the number of pots so attached must be clearly labeled on the required buoy.

(b) It is unlawful to operate any gill net, attended or unattended, unless there is affixed, within five feet of each end of the net, a buoy, float, or some other form of marker, visible on the corkline of the net, on which shall be marked in a visible, legible and permanent manner the name and gill net license number of the fisher.

(c) It shall be unlawful at any time to leave a gill net unattended in the commercial salmon fishery.

(6) It shall be unlawful to place any commercial food fish or shellfish gear in any waters closed to commercial fishing, provided; that this provision shall not apply to reef nets or brush weirs or to gear being tested under supervision of the department, provided further that it shall be unlawful to take, fish for or possess food fish with any type of commercial fishing gear in the waters of Carr Inlet north of north latitude 47 20' from August 15 through November 30 except as provided in chapter 220-47 WAC.

(7) It shall be unlawful for the owner or operator of any fishing gear to refuse to submit such gear to inspection in any manner specified by authorized representatives of the department.

(8) It shall be unlawful for any person taking or possessing food fish or shellfish taken from any of the waters or beaches of the Columbia River, the state of Washington or the Pacific Ocean for any purpose to fail to submit such food fish or shellfish for inspection by authorized representatives of the department.

(9) It shall be unlawful for any person licensed by the department to fail to make or return any report required by the department relative to the taking, selling, possessing, transporting, processing, freezing and storing of food fish or shellfish whether taken within the jurisdiction of the state of Washington or beyond or on Indian reservations or usual and accustomed Indian fishing grounds.

(10) It shall be unlawful to take, fish for or possess or to injure, kill or molest fish in any fishway, fish ladder, fish screen, holding pond, rearing pond, or other fish protective device, or to interfere in any manner with the proper operation of such fish protective devices.

(11) It shall be unlawful to club, gaff, shoot, snag, snare, dip net, harass, spear, stone or otherwise molest, injure, kill or destroy any food fish or shellfish or parts thereof, or for any person to attempt to commit such acts, or to have any fish, shellfish or parts thereof so taken in possession, except as provided for in this subsection:

(a) It shall be lawful to use a dip net or club in the landing of food fish taken by personal-use angling unless otherwise provided and it shall be lawful to use a gaff in the landing of tuna, halibut and dogfish in all catch record card areas.

(b) It shall be lawful to use a dip net, gaff, or club in the landing of food fish or shellfish taken for commercial purposes, except that it is unlawful to use a fish pew, pitchfork, or any other instrument that will penetrate the body of the food fish or shellfish while sorting commercial catches during the act of discarding those fish that are not going to be retained.

(c) It shall be lawful to use a spear in underwater spear fishing as provided for in WAC 220-56-160.

(d) It shall be lawful to use a spear to take carp as provided for in WAC 220-56-280.

(e) It shall be lawful to snag herring, smelt, anchovies, pilchard, sand lance, and squid when using forage fish jigger gear or squid jigs.

(f) It shall be lawful to shoot halibut when landing them with a dip net or gaff.

(12) It shall be unlawful to take or possess for any purpose any food fish or shellfish smaller than the lawful minimum size limits. Any such fish either snagged, hooked, netted or gilled must be immediately returned to the water with the least possible injury to the fish or shellfish and it shall be unlawful to allow undersized salmon entangled in commercial nets to pass through a power block or onto a power reel or drum.

(13) It shall be unlawful to possess aboard any vessel engaged in commercial fishing or having commercially caught fish aboard, any food fish or shellfish in such condition that its species, length, weight or sex cannot be determined if a species, length, weight, or sex limit is prescribed for said species and it is unlawful to possess food fish or shellfish mutilated in any manner such that the natural length or weight cannot be determined if a length or weight limit is prescribed for said species.

(14) It shall be unlawful in any area to use, operate or carry aboard a commercial fishing vessel a licensed net or combination of such nets, whether fished singly or separately, in excess of the maximum lawful size or length prescribed for a single net in that area, except as otherwise provided for in the rules and regulations of the department.

(15) It shall be unlawful for any permit holder to fail to comply with all provisions of any special permit or letter of approval issued to him under the authority of the director, or to perform any act not specifically authorized in said document or in the regulations of the commission or director.

(16) It shall be unlawful to use, place or cause to be placed in the waters or on the beaches or tidelands of the state any substance or chemical used for control of predators or pests affecting food fish or shellfish or other aquatic marine organisms, without first having obtained a special permit to do so from the director.

(17) It shall be unlawful to test commercial fishing gear except as follows:

(a) Bellingham Bay - inside and northerly of a line from Governor's Point to the south tip of Eliza Island to Point Frances in waters 10 fathoms and deeper.

(b) Boundary Bay - north of a line from Birch Point to Point Roberts and south of the international boundary in waters 10 fathoms and deeper during times not under IPSFC control.

(c) San Juan Channel - within a 1 mile radius of Point Caution during times not under IPSFC control.

(d) Port Angeles - inside and westerly of a line projected from the east tip of Ediz Hook through buoy C "1" to the mainland.

(e) Port Gardner - within a 2 mile radius of the entrance to Everett breakwater in waters 10 fathoms and deeper.

(f) Central Puget Sound - between lines from Meadow Point to Point Monroe and Skiff Point to West Point in waters 50 fathoms and deeper.

(g) East Pass - between lines from Point Robinson true east to the mainland and from Dash Point to Point Piner in waters 50 fathoms and deeper.

(h) Port Townsend - westerly of a line from the Coast Guard station in Port Townsend to Walan Point to Kala Point in waters 10 fathoms and deeper.

(i) All tows or sets are limited to 20 minutes exclusive of setting and retrieving time.

(j) All testing is to be accomplished between 8:00 a.m. and 4:00 p.m.

(k) Codends of trawl nets must be left open, all hooks of set line gear must be unbaited, and no lures or baited hooks shall be used with jig or troll gear.

(l) Any and all incidentally caught fish and shellfish must be returned to the waters immediately, and no fish or shellfish are to be retained aboard the vessel at any time during a gear test operation.

(m) It shall be unlawful for any person conducting such gear testing operations to fail to notify the fish and wildlife enforcement office in Olympia prior to testing.

(18) It is unlawful for any person or corporation either licensed by the department or bringing food fish or shellfish into the state to fail to comply with the directions of authorized department personnel related to the collection of sampling data or material from food fish or shellfish. It is also unlawful for any such person or corporation to fail to relinquish to the department, upon request, any part of a salmon or other food fish containing coded-wire tags, including but not limited to, the snouts of those salmon that are marked by having clipped adipose fins.

(19) It is unlawful for any person to possess live bottom fish taken under a commercial fishery license.

(20) It is unlawful for any person to use chemical irritants to harvest fish, shellfish or unclassified marine invertebrates except as authorized by permit issued by the department.

[Statutory Authority: RCW 77.12.047. 02-08-048 (Order 02-53), 220-20-010, filed 3/29/02, effective 5/1/02. Statutory Authority: RCW 75.08.080, 77.12.040. 00-08-038 (Order 00-29), 220-20-010, filed 3/29/00, effective 5/1/00. Statutory Authority: RCW 75.08.080. 00-01-096 (Order 99-214), 220-20-010, filed 12/15/99, effective 1/15/00. Statutory Authority: RCW 75.08.080, 77.12.040. 98-15-081 (Order 98-122), 220-20-010, filed 7/15/98, effective 8/15/98. Statutory Authority: RCW 75.08.080. 98-15-031 (Order 98-120), 220-20-010, filed 7/7/98, effective 8/7/98. Statutory Authority: RCW 77.12.040 and 75.08.080. 98-06-031, 220-20-010, filed 2/26/98, effective 5/1/98. Statutory Authority: RCW 75.08.080. 93-15-051, 220-20-010, filed 7/14/93, effective 8/14/93; 91-08-054 (Order 91-13), 220-20-010, filed 4/2/91, effective 5/3/91; 91-01-023, 220-20-010, filed 12/10/90, effective 1/10/91; 89-02-022 (Order 88-186), 220-20-010, filed 12/29/88; 88-10-013 (Order 88-15), 220-20-010, filed 4/26/88; 85-09-017 (Order 85-20), 220-20-010, filed 4/9/85; 85-08-023 (Order 85-24), 220-20-010, filed 4/1/85; 84-08-014 (Order 84-24), 220-20-010, filed 3/27/84; 82-15-040 (Order 82-83), 220-20-010, filed 7/15/82; 82-07-047 (Order 82-19), 220-20-010, filed 3/18/82; 81-02-053 (Order 81-3), 220-20-010, filed 1/7/81; 80-10-058 (Order 80-83), 220-20-010, filed 8/6/80; 80-07-017 (Order 80-45), 220-20-010, filed 6/11/80; 79-10-013 (Order 79-75), 220-20-010, filed 9/7/79; Order 77-14, 220-20-010, filed 4/15/77; Order 76-148, 220-20-010, filed 12/2/76; Order 1193, 220-20-010, filed 3/4/75; Order 1179, 220-20-010, filed 11/19/74; Order 1106, 220-20-010, filed 1/10/74; Order 1057, 220-20-010, filed 5/22/73; Order 945, 220-20-010, filed 8/16/71; Order 920, 220-20-010, filed 5/13/71; Order 817, 220-20-010, filed 5/29/69; Order 810, 220-20-010, filed 4/17/69; Order 771-A, 220-20-010, filed 3/29/68; Order 767, 1, filed 12/22/67; Order 758, 3, filed 10/16/67; Order 726, 2, 3, filed 4/24/67; Order 721, 1, filed 3/9/67; Subsections 1, 2 from Orders 405 and 256, filed 3/1/60; Subsection 3 from Order 677, filed 3/31/66; Subsection 16 from Order 525, filed 5/3/61; Orders 355 and 256, filed 3/1/60; Subsection 4 from Order 591, filed 10/28/63; Orders 479 and 256, filed 3/1/60; Subsection 5 from Orders 383 and 256, filed 3/1/60; Subsections 6, 26, 35 from Order 568, filed 3/26/63; Order 543, filed 3/20/62; Order 507, filed 4/13/60; Order 256, filed 3/1/60; Subsections 7-11, 13-15, 17, 18, 22 from Orders 355 and 256, filed 3/1/60; Subsection 12 from Orders 407 and 256, filed 3/1/60; Subsections 19, 27 from Orders 480 and 256, filed 3/1/60; Subsection 20 from Order 677, filed 3/31/66; Orders 483 and 256, filed 3/1/60; Subsection 23 from Order 677, filed 3/31/66; Order 605, filed 4/21/64; Order 568, filed 3/26/63; Order 543, filed 3/20/62; Order 507, filed 4/13/60; Order 256, filed 3/1/60; Subsection 24 from Order 605, filed 4/21/64; Orders 407 and 256, filed 3/1/60; Subsection 25 from Orders 449 and 256, filed 3/1/60; Subsections 28-33 from Orders 456 and 256, filed 3/1/60; Subsection 34 from Orders 486 and 256, filed 3/1/60; Subsection 36 from Order 591, filed 10/28/63; Subsections 37 and 38 from Order 677, filed 3/31/66; Subsection 39 from Order 672, filed 12/28/65.]

Washington State Code Reviser's Office