WSR 04-05-099

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed February 18, 2004, 8:26 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 04-01-079.

Title of Rule: Predatory birds and possession and release of live wildlife rules.

Purpose: Possession and release of rock doves and housekeeping changes.

Statutory Authority for Adoption: RCW 77.12.047.

Statute Being Implemented: RCW 77.12.047.

Summary: These rule changes are based on a petition to include rock dove (domestic pigeon) as predatory birds and allow use of these birds for bird dog training.

Reasons Supporting Proposal: Rock doves, an introduced species, are currently not classified and fall into protected wildlife status by default. Such protection is not warranted.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Dave Brittell, Natural Resources Building, Olympia, (360) 902-2504; and Enforcement: Bruce Bjork, Natural Resources Building, Olympia, (360) 902-2932.

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

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

Explanation of Rule, its Purpose, and Anticipated Effects: The department received a petition to classify rock doves as predatory birds, and allow use of these birds for bird dog training. In reviewing the rules on predatory birds and the possession and release of live wildlife, it became apparent that housekeeping changes were necessary. Thus, these rules: (1) Classify rock dove as a predatory bird; (2) create a new predatory bird section clarifying hunting requirements; (3) clarify what wildlife may be possessed live (allowing possession of unclassified marine invertebrates and fish, and updating cervid possession rules); and (4) clarify when a permit is needed to release wildlife (exempting release of rock dove and release of fish and shellfish back to the waters of origin).

Proposal Changes the Following Existing Rules: Amend classification, possession and release of wildlife rules.

No small business economic impact statement has been prepared under chapter 19.85 RCW. This rule proposal has no effect on existing small businesses. No one currently captures rock dove for the bird dog training market, and the elk and caribou rule updates do not have any effect on possession of such animals. Other changes, such as possession of live unclassified marine life and release of live fish and shellfish which are wildlife affect only recreational harvesters.

RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Red Lion Hotel, 303 West North River Drive, Spokane, WA, on April 2-3, 2004, begins at 8:00 a.m., April 2, 2004.

Assistance for Persons with Disabilities: Contact Susan Yeager by March 19, 2004, TDD (360) 902-2207 or (360) 902-2267.

Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by March 26, 2004.

Date of Intended Adoption: April 2, 2004.

February 17, 2004

Evan Jacoby

Rules Coordinator

OTS-6948.2


AMENDATORY SECTION(Amending Order 01-69, filed 4/26/01, effective 5/27/01)

WAC 232-12-004   Classification of wild birds.   (1) Game birds include:


Common Name Scientific Name
migratory waterfowl Anatidae
wild turkey Meleagris gallopavo
blue grouse Falcipennis obscurus
spruce grouse Dendragapus canadensis
ruffed grouse Bonasa umbellus
"Forest grouse" means blue, spruce, or ruffed grouse
sharp-tailed grouse Tympanuchus phasianellus
greater sage-grouse Centrocercus urophasianus
white-tailed ptarmigan Lagopus leucurus
California quail Callipepla californica
mountain quail Oreortyx pictus
northern bobwhite Colinus virginianus
scaled quail Callipepla squamata
chukar Alectoris chukar
ring-necked pheasant Phasianus colchicus
Gray (Hungarian) partridge Perdix perdix
"Upland bird" means quail, chukar, pheasant, or partridge
American coot Fulica americana
common snipe Gallinago gallinago
band-tailed pigeon Columba fasciata
mourning dove Zenaida macroura

(2) Predatory birds include:


Common Name Scientific Name
black-billed magpie Pica hudsonia
American crow Corvus brachyrhynchos
European starling Sturnus vulgaris
house (English) sparrow Passer domesticus
rock dove Columba livia

[Statutory Authority: RCW 77.12.040, 77.12.020, 77.32.070, 77.32.530. 01-10-048 (Order 01-69), 232-12-004, filed 4/26/01, effective 5/27/01. Statutory Authority: RCW 77.12.020 and 77.12.040. 91-11-006 (Order 491), 232-12-004, filed 5/2/91, effective 6/2/91. Statutory Authority: RCW 77.12.040. 81-22-002 (Order 174), 232-12-004, filed 10/22/81; 81-12-029 (Order 165), 232-12-004, filed 6/1/81. Formerly WAC 232-12-030.]

OTS-6996.1


NEW SECTION
WAC 232-12-005   Predatory birds.   (1) HUNTING PREDATORY BIRDS:

(a) It is unlawful to hunt for or take predatory birds without a hunting license except as allowed under RCW 77.36.030.

(b) Crows and magpies: It is lawful to take crows during established hunting seasons and crows or magpies when found committing or about to commit depredations upon ornamental or shade trees, agricultural crops, livestock, or wildlife, or when concentrated in such numbers and manner as to constitute a health hazard or other nuisance provided that none of the birds, or their plumage, be offered for sale.

(2) SALE OF PREDATORY BIRDS: It is lawful to sell starlings, house sparrows and rock doves for the purposes of falconry and lawful to sell rock doves for the purposes of bird dog training.

(3) POSSESSION OF PREDATORY BIRDS: It is lawful to take from the wild and possess live starlings, house sparrows and rock doves for purposes of falconry and rock doves for purposes of bird dog training.

(4) RELEASE OF LIVE PREDATORY BIRDS: It is lawful, without a permit, to release rock doves for the purposes of bird dog training or falconry.

[]

OTS-6949.2


AMENDATORY SECTION(Amending Order 96-135, filed 8/30/96, effective 9/30/96)

WAC 232-12-064   Live wildlife.   Taking from the wild, importation, possession, transfer, holding in captivity.

(1) It is unlawful to take live wildlife (except unclassified marine invertebrates and fish), wild birds (except starlings ((and)), house sparrows and rock dove by falconers, and rock dove by bird dog trainers), or game fish from the wild without a permit provided for by rule of the commission and issued by the director.

(2) Notwithstanding the provisions of WAC 232-12-027(1), 232-12-067 and subsections (3) and (4) herein, it is unlawful to import into the state, hold, possess, propagate, offer for sale, sell, transfer, or release live specimens of wildlife listed in this subsection, their gametes and/or embryo, except as provided under subsections (7), (8), (9) or (10) below:

In the family Cervidae, all of the following species:


Roosevelt and Rocky Mountain elk Cervus elaphus
Mule deer and Black-tailed deer Odocoileus hemionus
White-tailed deer Odocoileus virginianus
Moose Alces alces
Caribou Rangifer tarandus caribou

(3) It is unlawful to import into the state or to hold live wildlife which were taken, held, possessed or transported contrary to federal or state law, local ordinance or department rule. Live wild animals, wild birds or game fish shall not be imported without first presenting to the department the health certificate required by the Washington State Department of Agriculture under WAC 16-54-030. Notwithstanding the provisions of this subsection, raptors used for falconry or propagation may be imported if the health certificate is in the possession of the importer. Proof of lawful importation must be produced for inspection on request of a department employee.

(4) It is unlawful to possess or hold in captivity live wild animals, wild birds, or game fish unless lawfully acquired and possessed. Proof of lawful acquisition and possession must be produced for inspection on request of a department employee. Such proof shall contain: (1) Species; (2) age and sex of animal; (3) origin of animal; (4) name of receiving party; (5) source-name and address; (6) invoice/statement date; and (7) documentation of prior transfers.

(5) Live wild animals, wild birds or game fish held in captivity or their progeny or parts thereof may not be sold or otherwise commercialized on except as provided by rule of the commission.

(6) No wildlife shall be released from captivity except as provided in WAC 232-12-271, except that it is lawful to return to the waters from which caught, game fish caught and subsequently kept alive on stringers, in live wells or other containers while fishing. The release of fish into any waters of the state, including private, natural or man-made ponds requires a fish planting permit.

(7) Scientific research or display: The director may authorize, by written approval, a person to import into the state, hold, possess and propagate live specimens of wildlife listed in subsection (2) for scientific research or for display by zoos or aquariums who are accredited institutional members of the American Association of Zoological Parks and Aquariums (AAZPA) provided:

(a) The specimens are confined to a secure facility,

(b) The specimens will not be transferred to any other location within the state, except to other AAZPA accredited facilities and transported by AAZPA accredited institutional members or their authorized agents with written approval of the director or as otherwise authorized in writing by the director,

(c) The specimens will not be sold or otherwise disposed of within the state without written approval of the director,

(d) The person will keep such records on the specimens and make such reports as the director may require, and

(e) The person complies with the other requirements of this section.

(8) Retention or disposal of existing specimens lawfully in captivity prior to June 20, 1992: A person holding live ((specimens of wildlife listed in subsection (2) by operation of emergency rule filed June 19, 1992 [in the family Cervidae, all of the following species:)) Roosevelt and Rocky Mountain elk (((Cervus elaphus);)), Mule Deer and Black-tailed deer (((Odocoileus hemionus);)), White-tailed deer (((Odocoileus virginianus);)) and Moose (((Alces alces)])) may retain the specimens of such wildlife such person lawfully possessed prior to June 20, 1992 and the lawful progeny thereof provided such person complies with ((subsections (8))) (a) through (((8)))(f) ((hereunder)) of this subsection and the other requirements of this section.

(a) The person reported to the director in writing the species, number and location of the specimens as required.

(b) The specimens are confined to a secure facility at the location reported,

(c) Live specimens are not propagated except at AAZPA accredited facilities with the written permission of the director or as otherwise authorized in writing by the director;

(d) Live specimens are not released, except with written permission of the director,

(e) Live specimens are not sold or transferred except:

(i) Live specimens in lawful possession prior to June 20, 1992 and lawful progeny may be permanently removed from the state of Washington or transported directly to slaughter where in accordance with other applicable law,

(ii) Federally listed endangered or threatened species may be transferred to AAZPA accredited facilities where in compliance with federal law,

(iii) Live specimens may be moved to the new primary residence of the possessor with the written approval of the director, provided all other requirements of this section are satisfied and the total number of locations where animals are held is not increased;

(iv) AAZPA facilities may sell and/or transfer live specimens within the state with the written permission of the director.

(f) Live specimens shall be neutered, physically separated by sex, and/or rendered infertile by means of contraception, except at AAZPA accredited facilities with the written permission of the director.

(9) Retention or disposal of existing specimens lawfully in captivity prior to February 13, 1993: A person holding live ((specimens of wildlife newly listed in subsection (2) by operation of this rule [)) Caribou (((Rangifer tarandus caribou)])), may retain the ((specimens of such wildlife the)) caribou that the person lawfully possessed prior to February 13, 1993, provided:

(a) The person reports to the director in writing ((by March 31, 1993, and reports)) annually ((thereafter)), or as otherwise required by the director, the species, number, and location of ((such specimens,)) the caribou.

(b) The person complies with subsection((s)) (8)(b) through (((8)))(f) ((herein)) of this section and the other requirements of this section.

(10) The provisions of this section shall not prohibit the importation, possession, propagation, sale, transfer, or release of live specimens of federally listed threatened or endangered species, their gametes and/or embryo, where in compliance with federal law.

(11) Escaped wildlife:

(a) Escaped wildlife will be considered a public nuisance. The department or any peace officer may seize, capture, or destroy wildlife that have escaped the possessor's control. The former possessor shall be responsible for costs incurred by the department in recovering, maintaining, or disposing of such animals, as well as any damage to the state's wildlife or habitat.

(b) Escapes of wildlife must be reported immediately to the department,

(c) The recapture or death of escaped wildlife must be reported immediately to the department.

(12) Secure facility:

(a) All captive wildlife will be held in a secure facility. For the purpose of this rule, a secure facility is an enclosure so constructed as to prevent danger to the environment or wildlife of the state, including escape of live wildlife specimens in captivity or ingress of resident wildlife ungulates (hoofed animals).

(b) For wildlife listed in subsection (2), the secure facility must comply with the fencing requirements in subsection (13) herein.

(13) Fencing requirements

(a) Perimeter fences must be, at a minimum, eight feet above ground level for their entire length. The bottom six feet must be mesh of sufficient size to prevent resident wildlife ungulates (hoofed animals) from entering and captive wildlife from escaping. Supplemental wire required to attain a height of eight feet may be smooth, barbed, or woven wire (at least 12-1/2 gauge) with strands spaced not more than six inches apart.

(b) Perimeter fences constructed of high tensile wire must be supported by a post or stay at minimum intervals of eight feet.

(c) Perimeter fences must be at least 12-1/2 gauge woven wire, 14-1/2 gauge high-tensile woven wire, chain link, non-climbable woven fence, or other fence approved by the director.

(((i))) If the wire used is not a full eight feet in height, it must be overlapped one row and securely fastened at every other vertical row or woven together with cable.

(d) Electric fencing materials may be used on perimeter fences only as a supplement to conventional fencing materials.

(e) All gates in the perimeter fences must be self-closing, equipped with two locking devices, and installed only in locations that have been approved by the director. Double gates may be required at points in the perimeter fences subject to frequent vehicle traffic that is not related to activities involving the holding of captive wildlife.

(f) Posts used in the perimeter fences must be:

(i) Wood (pressure treated), five-inch minimum diameter or an equivalent as approved by the director;

(ii) Spaced no more than twenty-four feet apart with stays or supports at eight foot intervals between the posts;

(iii) Extended at least eight feet above ground level;

(iv) Corners braced with wood or with an equivalent material as approved by the director.

(g) Fences must be maintained at all times to prevent captive wildlife from escaping or resident wildlife ungulates (hoofed animals) from entering the enclosure. If such animals do pass through, under, or over the fence because of any topographic feature or other conditions, the person possessing wildlife must immediately supplement the fence to prevent continued passage.

(h) For any fence existing prior to February 13, 1993, a person may petition the director in writing for a variance from the above fencing requirements. Any such petition must be filed no later than May 31, 1993 and must identify all aspects in which the existing fence does not meet the fencing requirements contained herein. On approval of the director, such person may maintain such existing fence with normal repair. However, any extension or relocation of existing fence must meet the fencing requirements contained herein.

(14) Marking requirements

(a) All live specimens of wildlife identified in subsection (2) must be individually identified by the methods specified below:

(i) All live specimens of such wildlife shall be marked with USDA official ear tags or with ear tags supplied or approved by the department. Tags shall be applied in sequential order, and

(ii) All live specimens of such wildlife shall be marked with a tattoo with an identifying number that has been recorded with the director. The tattoo must be placed on the left ear of the animal.

(b) Identification assigned to an individual animal may not be transferred to any other animal.

(c) Where allowed, all lawful progeny of wildlife identified in subsection (2) must be tagged and tattooed by December 31 of the year of birth or upon leaving the holding facility, whichever is earlier.

(d) Where allowed, if wildlife identified in subsection (2) is sold or transferred within the state, the tag and tattoo must accompany the animal. The new owner or possessor shall not renumber the animal.

(e) Where allowed, live specimens of wildlife identified in subsection (2) shall be marked prior to importation.

(f) No unmarked wildlife identified in subsection (2) may be sold or otherwise transferred from the holding facility.

(15) Testing of specimens.

(a) Where allowed, prior to entry into the state of Washington, persons importing any member of the Genus Cervus which is identified in subsection (2) herein, must submit records of genetic tests, conducted by a professionally recognized laboratory to identify red deer genetic influence (genetic material from any member of any subspecies, race, or species of the elk-red deer-wapiti complex Cervus elaphus not indigenous to the state of Washington. Such testing shall be at the possessor's expense. Animals which are deemed by department of wildlife biologists upon examination to exhibit either: Behavioral (vocalization), morphological (size, rump patch, color) or biochemical indications of such influence (hemoglobin, superoxide dismutase, transferrin and post-transferrin, or others to be developed) may not be imported.

(b) A person currently holding any member of the genus Cervus elaphus identified in subsection (2) herein must submit records of genetic tests, conducted by a professionally recognized laboratory to identify red deer genetic influence (genetic material from any member of any subspecies, race, or species of the elk-red deer-wapiti complex Cervus elaphus not indigenous to the state of Washington), for each individual cervid to the director within 90 days of passage of this rule. Such testing shall be at the possessor's expense. Any animals identified as red deer or having nonindigenous genetic influence must be destroyed, removed from the state, or neutered within 180 days of passage of this rule.

(c) The director may require that specimens listed in subsection (2) lawfully in captivity be tested for brucellosis (brucella abortus), tuberculosis (mycobacterium bovis and mycobacterium tuberculosis), meningeal worm (Paralophostrongylus tenuis), and muscle worm (Elaphostrongylus cervis) in accordance with the procedures specified in department of agriculture WAC 16-54-035 as now or hereafter amended, and/or for other diseases or parasites determined to pose a risk to wildlife. The results of such tests shall be filed with the director as required.

(16) Reporting

(a) A person holding wildlife listed in subsection (2) in captivity shall submit a completed report no later than March 30, 1993 and then no later than January 31 of each year, or as otherwise required by the director, on a form provided by the department.

(b) Persons possessing wildlife listed in subsection (2) must notify the director within ten days of any change of such persons' address and/or location of the holding facility.

(17) Inspection

(a) All holding facilities for captive wildlife located in the state are subject to inspection for compliance with the provisions of this section.

(b) Such inspections may take place without warrant or prior notice but shall be conducted at reasonable times and locations.

(18) Notification and disposition of diseased animals.

(a) Any person who has reason to believe that wildlife being held pursuant to this rule have or have been exposed to a dangerous or communicable disease or parasite shall notify the department immediately.

(b) Upon having reason to believe that wildlife held pursuant to this rule have been exposed to or contracted a dangerous or contagious disease or parasite, the director may order inspection of such animals by a licensed, accredited veterinarian, certified fish pathologist, or inspection agent. Inspection shall be at the expense of the possessor.

(c) The director shall determine when destruction of wildlife, quarantine, disinfection, or sterilization of facilities is required at any facility holding wildlife pursuant to this rule. If the director determines that destruction of wildlife, quarantine, disinfection, or sterilization of facilities is required, a written order shall be issued to the possessor describing the procedure to be followed and the time period for carrying out such actions. Such activities shall be at the expense of the possessor.

(19) Quarantine area

(a) Any facility holding wildlife listed in subsection (2) must have an approved quarantine facility within its exterior boundary or submit an action plan to the director that guarantees access to an approved quarantine facility within the state of Washington.

(i) An approved quarantine facility is one that meets criteria set by the Washington state department of agriculture.

(ii) The quarantine area must meet the tests of isolation, separate feed and water, escape security, and allowances for the humane holding and care of its occupants for extended periods of time.

(b) Should the imposition of a quarantine become necessary, the possessor of any wildlife must provide an on-site quarantine facility or make arrangements at such possessor's expense to transport such wildlife to an approved quarantine facility.

(20) Seizure

(a) The department of wildlife may seize any unlawfully possessed wildlife.

(b) The cost of any seizure and/or holding of wildlife may be charged to the possessor of such animals.

[Statutory Authority: RCW 77.12.040 and 77.12.010. 96-18-059 (Order 96-135), 232-12-064, filed 8/30/96, effective 9/30/96. Statutory Authority: RCW 77.12.030. 93-04-038 (Order 581), 232-12-064, filed 1/27/93, effective 2/13/93. Statutory Authority: RCW 77.16.040. 85-09-008 (Order 243), 232-12-064, filed 4/5/85; 84-09-052 (Order 224), 232-12-064, filed 4/16/84. Statutory Authority: RCW 77.12.040. 82-04-034 (Order 177), 232-12-064, filed 1/28/82; 81-12-029 (Order 165), 232-12-064, filed 6/1/81. Formerly WAC 232-12-173.]

OTS-7000.1


AMENDATORY SECTION(Amending Order 01-69, filed 4/26/01, effective 5/27/01)

WAC 232-12-271   Criteria for planting aquatic plants and releasing wildlife.   (1) Release by persons other than the director. It is unlawful for persons other than the director to plant aquatic plants or release any species, subspecies, or hybrids of animals which do not already exist in the wild in Washington. If such species, subspecies, or hybrid does already exist in the wild in Washington, it may be released within its established range by persons other than the director, but only after obtaining a permit from the director.

(a) Application for a permit must be made on a form provided by the department. It must be submitted at least thirty days prior to acquisition of the wildlife or aquatic plants intended for release or planting, and must provide all information indicated.

(b) Permits will only be issued if the director determines there will be no adverse impact on the wildlife or wildlife habitat of the state.

(c) Each permit shall require that at least thirty days prior to planting or release of wildlife or aquatic plants they must be made available for inspection by the director. It shall be the responsibility of the applicant to show that the wildlife will not pose a disease threat. If the director is not satisfied that the wildlife or aquatic plants do not pose a disease threat, they shall not be released or planted in the state. Director approval for release or planting may be withdrawn for cause.

(d) Each permit shall require that an applicant intending to release wildlife in the state shall report immediately to the director the outbreak of any disease among the wildlife intended to be released. If the director determines that such outbreak presents a threat to the wildlife of the state, the director may immediately order such action as necessary including quarantine or destruction of stock, sterilization of enclosures and facilities, cessation of activities, and disposal of wildlife in a manner satisfactory to the director.

(e) Each permit shall require that wildlife to be released shall not be branded, tattooed, tagged, fin clipped or otherwise marked for identification without approval of the director or as required in WAC 232-12-044.

(f) Legally acquired pheasant of the genus Phasianus; gray partridge of the genus Perdix; chukar of the genus Alectoris; quail of the genus Callipepla and Colinus; and mallards (Anas platyrhynchos) may be released without a permit for purposes of dog training, and hunting pursuant to WAC 232-12-044. Game birds of these species released for these purposes must be purchased from facilities that have been inspected by a certified veterinarian within the past twelve months. Rock dove may be released without permit for purposes of bird dog training.

(2) Release by the director. The director may plant aquatic plants or release animal species, subspecies, or hybrids which have been planted or released previously in Washington if they do not pose a disease threat and if planting or release will not cause adverse impact on the wildlife or wildlife habitat of the state. Before releasing any species, subspecies, or hybrid of animal not already existing in the wild in Washington, the director shall report to the commission on the planned release, stating the basis for determining that the planned release fulfills the criteria set forth herein. The director may release nonnative species, subspecies, or hybrids not previously released in Washington only if the director in his or her sole discretion has determined that:

(a) There is no reasonable expectation of adverse impact on the wildlife or wildlife habitat of the state and there is an adequate plan for evaluating such impact following the release;

(b) The commission has classified the species, subspecies, or hybrids to be released pursuant to RCW 77.12.020;

(c) Suitable habitat is available;

(d) The nonnative species, subspecies, or hybrids to be released are free of exotic pathogens;

(e) The release serves the public interest.

(3) This section does not apply to release of classified or unclassified fish or shellfish by persons who have caught or taken the fish or shellfish, provided the fish or shellfish are released into the water or on the tidelands at the approximate location where taken, except that fishing contest participants may release fish at a contest-designated location in the same body of water from which the fish were taken.

[Statutory Authority: RCW 77.12.040, 77.12.020, 77.32.070, 77.32.530. 01-10-048 (Order 01-69), 232-12-271, filed 4/26/01, effective 5/27/01. Statutory Authority: RCW 77.04.055, 77.12.040 and 77.16.150. 91-24-015 (Order 521), 232-12-271, filed 11/22/91, effective 12/23/91. Statutory Authority: RCW 77.12.020, 77.12.040 and 77.16.150. 89-12-044 (Order 397), 232-12-271, filed 6/2/89. Statutory Authority: RCW 77.12.040. 82-04-034 (Order 177), 232-12-271, filed 1/28/82; 81-12-029 (Order 165), 232-12-271, filed 6/1/81. Formerly WAC 232-12-675.]

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