Original Notice.

     Preproposal statement of inquiry was filed as WSR 04-22-091.

     Title of Rule and Other Identifying Information: Commercial fishing rules.

     Hearing Location(s): Natural Resources Building, 1111 Washington Street, Olympia, WA, on February 4-5, 2005, meeting begins at 8:00 a.m. on February 4, 2005.

     Date of Intended Adoption: February 4, 2005.

     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 February 1, 2005.

     Assistance for Persons with Disabilities: Contact Susan Yeager by January 18, 2005, TTY (360) 902-2207 or (360) 902-2267.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Establishes wild shellfish harvest under an emerging commercial fishery license. Allows use of water pumps to take geoduck clams.

     Reasons Supporting Proposal: Allows for commercialization of wild embedded shellfish. Provides for accountability of such harvest.

     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: Department of Fish and Wildlife, governmental.

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

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

     2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: Harvesters of wild shellfish would be required to do a survey of the standing stock prior to harvest. The services of a professional biologist may be needed for this survey.

     3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The cost of an emerging commercial fishery license is $185 per year for residents and $295 for nonresidents. Harvesters would be required to obtain the license if they wanted to harvest wild shellfish prior to commencing aquaculture operations. It is anticipated that some aquaculture farm operators would reduce the standing stock of wild shellfish prior to commencing aquaculture operations, in order to establish a uniform product for aquaculture harvest. Wild shellfish have a tax. This tax is 2.1% for shellfish other than oysters and .08% for oysters. The costs of a survey vary depending on the type of shellfish. An intertidal survey would be approximately $1,500 for a two person team, while a subtidal survey would be approximately $3,000.

     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.

     Using geoduck as an example, Department of Natural Resources has estimated that a natural bed contains 13,000 pounds of geoduck at a wholesale value of $5/pound. Thus, if an acre of geoduck produces $65,000 in revenue, the cost for one year is the license ($185) and the enhanced fish tax ($1,365), and the survey ($3,000), total $4,550 or $7.00 per $100 of sales. Oysters are approximately $.10 each at wholesale, and a medium beach (Triton Cove) produces 105,000 per acre, or roughly $10,500 per acre, with the license ($185), excise tax ($80) and survey ($1,500) totaling $16.80 per $100 in sales. This presumes the harvest tract is one acre in size. Costs are substantially lower for larger tracts.

     6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The licensing requirement and excise tax costs are set by statute, and the fish tickets are free. The department is unable to reduce the costs.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Public hearing.

     8. A List of Industries That Will Be Required to Comply with the Rule: Harvesters of commercial wild shellfish.

     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. Not hydraulics rules; not subject to RCW 34.05.328.

December 22, 2004

Evan Jacoby

Rules Coordinator

OTS-6472.1

AMENDATORY SECTION(Amending Order 94-23, filed 5/19/94, effective 6/19/94)

WAC 220-52-018   Clams -- Gear.   It shall be unlawful to take, dig for or possess clams, geoducks, or mussels taken for commercial purposes from any of the tidelands in the state of Washington except with a pick, mattock, fork or shovel operated by hand, except ((that)):

     (1) Permits for the use of mechanical clam digging devices to take clams other than geoducks may be obtained from the director of fisheries subject to the following conditions:

     (((1))) (a) Any or all types of mechanical devices used in the taking or harvesting of shellfish must be approved by the director of fisheries.

     (((2))) (b) A separate permit shall be required for each and every device and the permit shall be attached to the specific unit at all times.

     (((3))) (c) All types of clams to be taken for commercial use must be of legal size and in season during the proposed operations unless otherwise provided in specially authorized permits for the transplanting of seed to growing areas or for research purposes.

     (((4))) (d) The holder of a permit to take shellfish from tidelands by mechanical means shall limit operations to privately owned or leased land.

     (((5))) (e) The taking of clams from bottoms under navigable water below the level of mean lower low water by any mechanical device shall be prohibited except as authorized by the director of fisheries. Within the enclosed bays and channels of Puget Sound, Strait of Juan de Fuca, Grays Harbor and Willapa Harbor, the operators of all mechanical devices shall confine their operations to bottoms leased from the Washington department of natural resources, subject to the approval of the director of fisheries. The harvesting of shellfish from bottoms of the Pacific Ocean westward from the western shores of the state shall not be carried out in waters less than two fathoms deep at mean lower low water. In said waters more than two fathoms deep the director of fisheries may reserve all or certain areas thereof and prevent the taking of shellfish in any quantity from such reserves established on the ocean bottoms.

     (((6))) (f) Noncompliance with any part of these regulations or with special requirements of individual permits will result in immediate cancellation of and/or subsequent nonrenewal of all permits held by the operator.

     (((7))) (g) Applications must be made on the forms provided by the department of fisheries and permits must be in the possession of the operator before digging commences.

     (((8))) (h) All permits to take or harvest shellfish by mechanical means shall expire on December 31 of the year of issue.

     (((9))) (i) All mechanical clam harvesting machines must have approved instrumentation that will provide deck readout of water pressure.

     (((10))) (j) All clam harvest machines operating on intertidal grounds where less than ten percent of the substrate material is above 500 microns in size must be equipped with a propeller guard suitable for reducing the average propeller wash velocity at the end of the guard to approximately twenty-five percent of the average propeller wash velocity at the propeller. The propeller guard must also be positioned to provide an upward deflection to propeller wash.

     (((11))) (k) Clam harvest machines operating in fine substrate material where less than ten percent of the substrate material is above 500 microns in size, shall have a maximum harvest head width of 3 feet (overall) and the maximum pump volume as specified by the department of fisheries commensurate with the basic hydraulic relationship of 828 gpm at 30 pounds per square inch, pressure to be measured at the pump discharge.

     (((12))) (l) Clam harvest machines operating in coarser substrate material where more than ten percent of the substrate material is above 500 microns in size, shall have a maximum harvest head width of 4 feet (overall) and a maximum pump volume as specified by the department of fisheries commensurate with a basic hydraulic relationship of 1,252 gpm at 45 pounds per square inch, pressure to be measured at the pump discharge.

     (((13))) (m) All clam harvest machine operators must submit accurate performance data showing revolutions per minute, gallons per minute, and output pressure for the water pump on their machine. In addition, they shall furnish the number and sizes of the hydraulic jets on the machines. If needed, the operator shall thereafter modify the machine (install a sealed pressure relief valve) as specified by the department of fisheries to conform with values set forth in either WAC 220-52-018 (11) or (12) of this section. Thereafter, it shall be illegal to make unauthorized changes to the clam harvester water pump or the hydraulic jets. Exact description of the pump volume, maximum pressure and number and size of the hydraulic jet for each harvester machine shall be included in the department of fisheries' clam harvest permit.

     (((14))) (n) All clam harvest machines shall be equipped with a 3/4-inch pipe thread tap and valve that will allow rapid coupling of a pressure gauge for periodic testing by enforcement personnel.

     (((15))) (o) Each mechanical clam harvester must have controls so arranged and situated near the operator which will allow the operator to immediately cut off the flow of water to the jet manifold without affecting the capability of the vessel to maneuver.

     (((16))) (p) Licensing: A hardshell clam mechanical harvester fishery license is the license required to operate the mechanical harvester gear provided for in this section.

     (2) Aquatic farmers may harvest geoducks that are private sector cultured aquatic product by means of water pumps and nozzles.

     (3) Persons may harvest nonstate tideland wild geoducks under a nonstate lands commercial wild clam, mussel and oyster trial fishery permit by means of water pumps and nozzles.

[Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-018, filed 5/19/94, effective 6/19/94; 84-08-014 (Order 84-24), § 220-52-018, filed 3/27/84; 79-02-053 (Order 79-6), § 220-52-018, filed 1/30/79; Order 76-152, § 220-52-018, filed 12/17/76; Order 1258, § 220-52-018, filed 8/25/75; Order 807, § 220-52-018, filed 1/2/69, effective 2/1/69. Formerly WAC 220-52-010(2).]

OTS-6473.1

AMENDATORY SECTION(Amending Order 00-264 [03-176], filed 12/29/00 [8/6/03], effective 1/29/01 [9/6/03])

WAC 220-52-020   Clams -- Commercial harvest.   It shall be unlawful to take, dig for or possess clams except razor clams, cockles, borers or mussels taken for commercial purposes from the tidelands of the state of Washington except from registered aquaculture farms or from nonstate tidelands under a nonstate lands commercial wild clam, mussel and oyster trial fishery permit.

[Statutory Authority: RCW 77.12.047. 01-02-059 (Order 00-264), § 220-52-020, filed 12/29/00, effective 1/29/01. Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-020, filed 5/19/94, effective 6/19/94; 91-10-024 (Order 91-22), § 220-52-020, filed 4/23/91, effective 5/24/91; 84-08-014 (Order 84-24), § 220-52-020, filed 3/27/84; Order 807, § 220-52-020, filed 1/2/69, effective 2/1/69; subsections 1 and 2 from Order 679, filed 4/20/66; subsections 1, 1a, 2 from Orders 351 and 256, filed 3/1/60; subsection 1b from Order 605, filed 4/21/64; Orders 443 and 256, filed 3/1/60.]

     Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

     Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

OTS-6397.2

NEW SECTION
WAC 220-88D-010   Emerging commercial fishery -- Commercial wild clams, mussels, and oyster shellfish fishery on nonstate tidelands and bedlands.   The purpose of this chapter is to establish the commercial harvest of wild clams, mussels, and oysters on nonstate lands as an emerging commercial fishery.

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     (2) "Commercial harvest" of wild clams, mussels, and oysters includes both harvest for sale or barter and harvest of the presumptive commercial quantities defined in RCW 69.30.010.

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     (a) Documentation of ownership interest in or contractual right to harvest from the lands from which the wild clams, mussels, or oysters are to be harvested.

     (b) A shellfish growing area certificate of approval issued by the state department of health for the lands from which the wild clams, mussels, or oysters are to be harvested.

     (c) It is unlawful to commercially harvest wild clams, mussels, or oysters without a valid emerging commercial fishery license and a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit.

     (2) Prior to conducting harvest activities under a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit, the permit holder must complete the following:

     (a) Conduct a biomass survey for each species to be harvested according to standard survey methods provided by state-tribal fishery managers. At least thirty days in advance of any planned survey, notification of the intent to survey must be made to the department and all treaty tribes having usual and accustomed fishing rights, as defined in U.S. v. Washington, so they may exercise the right to participate in the survey.

     (b) At least sixty days in advance of any harvest, provide a copy of the survey results to the department and evidence of sending the survey results to all treaty Indian tribes having usual and accustomed fishing rights, as defined in U.S. v. Washington, for the lands from which the wild clams, mussels, or oysters are to be harvested.

     (c) Clearly and visibly mark with stakes and/or buoys the property boundaries of the nonstate tidelands to be harvested, using standard methods provided by state and tribal fishery managers.

     (d) At least two weeks prior to commencement of actual harvest, notify the department of dates when commercial harvest activity will be conducted.

     (e) Failure to comply with the requirements of this subsection invalidates the emerging commercial fishery license issued for the harvest of wild clams, mussels, and oysters.

     (3) A nonstate lands commercial wild clam, mussel, and oyster trial fishery permit does not allow the harvest of any shellfish other than clams, mussels, or oysters, and does not allow the harvest of fin fish.

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     (2) It is unlawful to fail to report the sale of wild stocks of clams, mussels, and oysters on shellfish receiving tickets. Any person selling wild stocks of clams, mussels, and oysters must sell the harvest to a licensed Washington wholesale fish dealer, or, if selling at retail or having the harvest transported out-of-state, must be a licensed wholesale dealer and complete a fish receiving ticket for each day's sales or for each shipment. Wild stock sales may not be reported on aquatic farm quarterly production reports. Only private sector cultured aquatic products may be reported on quarterly production reports.

     (3) If a person registers nonstate tidelands as an aquatic farm, all clams except geoduck clams, mussels, and oysters commercially harvested from the tidelands for the first twenty-four months after aquatic farm registration must be reported as wild stock harvest. Geoduck clams commercially harvested from the tidelands for the first sixty months after aquatic farm registration must be reported as wild stock harvest. After twenty-four or sixty months, respectively, all shellfish produced from a registered aquatic farm will be presumed to be private sector cultured aquatic products, and must be reported on quarterly reports.

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