WSR 05-21-140

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed October 19, 2005, 10:47 a.m. ]

Supplemental Notice to WSR 05-20-062.

Preproposal statement of inquiry was filed as WSR 05-10-006.

Title of Rule and Other Identifying Information: Scientific collection permits.

Hearing Location(s): Natural Resources Building, 1111 Washington Street S.E., Olympia, WA 98504, on December 2-3, 2005, begins at 8:00 a.m. on December 2, 2005.

Date of Intended Adoption: December 2, 2005.

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 November 23, 2005.

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

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Consolidate WAC 220-20-045 and 232-12-276, and establish a single rule for issuing scientific collection permits. Provide definitions for clarity.

Reasons Supporting Proposal: The department currently has two different rules for the same activity. An automated issuance system has been established, and standardized practices are needed.

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 and Implementation: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Lew Atkins, (360) 902-2651 and Dave Brittell, (360) 902-2504, 1111 Washington Street, Olympia; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2370.

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: A final report will be required from each person obtaining a scientific collection permit (SCP). Zoos and aquariums that sell progeny of specimens taken under an SCP will be required to keep a record of such sales.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: None. The report required of SCP holders is a list of species collected. Researchers are scientists and contract stream surveyors who know what species they are collecting.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The cost of the permit is $12, set by statute. There are no costs associated with exercising the permit.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? There is no revenue from these permits, as the specimens may not be sold. There is no loss of sales of the progeny.

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.

Researchers are not businesses. Environmental consultants who do stream surveys will need to pay $12 per project, which could encompass multiple stream surveys. If the consultant is a sole proprietorship, the cost is $12 per employee.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The permit cost is set by statute. The department has preprinted the application form for ease of application, and will accept electronic filing.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department is having a copy of the proposal, together with the application form, permit form, and final report form, mailed to all person who held a permit in 2004.

8. A List of Industries That Will Be Required to Comply with the Rule: Any small business that does scientific collection.

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. These rule proposals do not affect hydraulics.

October 19, 2005

Evan Jacoby

Rules Coordinator

OTS-8128.8


AMENDATORY SECTION(Amending Order 76-96, filed 9/23/76)

WAC 220-20-045   Scientific collection permits.   (1) The following definitions apply to this section:

(a) "Collect" means to take control or to attempt to take control of fish, shellfish, wildlife, or the nests of birds. Collect does not include transitory holding of reptiles, amphibians and invertebrates solely for identification purposes.

(b) "Display" means to place or locate fish, shellfish, wildlife, or the nests of birds, so that public viewing is allowed.

(c) "Encountered" means targeted or nontargeted specimens captured, handled or physically affected by the collecting activity.

(d) "Project" means a planned undertaking of common temporal or geographical activities to reach a common objective.

(e) "Research" means scientific investigation, and includes education. Electrofishing is a form of scientific investigation.

(2) It ((shall be)) is unlawful for any person((, group, corporation, association, or governmental entity)) to ((conduct any scientific study involving the handling, collection, or release of food)) collect fish ((or)), shellfish, wildlife, or the nests of birds for research or display purposes on the ((beaches)) lands or in the waters of the state of Washington for species, by means, in amounts, or in such condition not authorized under personal use or commercial rules, or in violation of any rule prohibiting possession of unclassified wildlife, without first obtaining a permit from the department ((of fisheries, and)). It ((shall be)) is unlawful to fail to comply with any of the provisions of the permit and it is unlawful to buy or sell fish, shellfish, wildlife, or the nests of birds taken under the permit, and it is unlawful to consume or offer for human consumption any fish, shellfish, or wildlife taken under the permit.

(3) Application procedure:

(a) ((A request for such a permit must be received 30 days prior to the date such study, collection, release, or research is started.)) All applications for scientific collection must be submitted on a department application form and delivered to the department office in Olympia. Approval or denial of a scientific collection permit will be given within sixty days after receipt of a complete application.

(b) A separate permit application must be submitted for each project.

(c) Each request for a permit to collect for research purposes must be accompanied by the following information:

(i) A study title.

(ii) ((An introduction describing the management problems to be addressed and why resolution is necessary.)) A statement of the applicant's qualifications for conducting the project. A statement of the qualifications of anyone conducting activities under the permit, including experience with the methodology of the proposed collection, and the applicant's access to facilities and competence to care for the specimens to be collected, if the collected specimens will be retained in live form by the applicant.

(iii) ((An)) A study plan which includes: Specific objective(s) for the proposed project including defining an identifiable end point or conclusion toward which efforts are to be directed; the justification for the project; methodology of collection; project start and end dates; project location including county name; names of participants in the collection; names and numbers of species expected to be collected or encountered; and proposed final disposition of specimens collected.

(((iv) A justification which identifies the user(s) of the information and indicates how the findings will be used.

(v) A procedure which explains the approach or plan of action and which provides the organizational framework and logical sequence of events that will lead to the attainment of the study objectives.

(vi) A location of the study area.

(vii) An identification of supervisory and technical personnel responsible for the study.

(c))) (d) Each request for a permit to collect for display purposes must be accompanied by the following information:

(i) A statement of the qualifications of the applicant and all other persons conducting activities under the permit, including experience with the methodology of the proposed collection, and, if live fish, shellfish or wildlife are to be displayed, the name of the publically owned facility where the display will occur and the competence of the facility operators to care for the specimens.

(ii) A project description, which includes: Reason for display; project location including county name; methodology of collection; names of participants in the collection; names and numbers of species expected to be collected or encountered; display site; length of display; and proposed final disposition of specimens collected.

(e) Any application for a scientific collection permit using firearms must contain a statement that all persons who will use firearms are legally capable of possessing firearms.

(4) Permit periods: Permits are valid for the project period, but not to exceed one year from the date of issuance, except multiyear permits, at the discretion of the department, may be issued for public health purposes.

(5) Reporting: A final report as specified in the permit conditions must be submitted to the department upon completion of the ((study,)) research((, collection,)) or ((release)) display project, and must be received by the department no later than 60 days after the expiration of the permit. Renewable annual permit holders must submit a report each year, and the report must be received by the department within 60 days of the anniversary date of the initial issuance date of the permit. In addition to the final or annual report, interim reports ((will)) may be required. Issuance of additional permits or permit renewals are subject to prior submission of a project report.

(((d))) (6) Permit granting and denial: Permits will normally be granted for requests which ((increase the data base)) contribute to the body of fish, shellfish, or wildlife knowledge, increase or maximize the ((fishery)) fish, shellfish, and wildlife resource, avoid damage to the various resources, and do not unnecessarily duplicate previous research. Permits will not be granted if the project conflicts with existing activities or conservation goals. Permits will not be granted if the applicant was a prior permit holder and failed to submit required reports. Permits may be denied if the applicant or any other person involved in the collection has a history of fish or wildlife violations.

(((e) Continuing studies or research or other scientific projects may be extended annually by concurrence of the director.

(f) An advisory committee of potentially affected groups will be established to provide technical input.)) (7) Miscellaneous permit provisions:

(a) A copy of the scientific collection permit must be in the physical possession of any person exercising the privileges authorized by the permit. Only collection participants named under subsection (3)(c)(iii) or (d)(iii) of this section may collect under the permit.

(b) A scientific collection permit does not authorize the release of specimens collected under the permit except for an immediate release to the exact site where the collection occurred unless release is specifically allowed as a condition of the permit. Release at any other site requires a transport, release, or planting permit. The conditions of the permit may specify that no release of certain specimens will be allowed.

(c) If the scientific collection allows retention of specimens, an interim, final, or annual report for the period documenting when the specimen was collected must be retained for the period of retention of the specimen.

(d) As a condition of receiving a scientific collection permit, the applicant agrees that fish and wildlife officers may, at reasonable times and in a reasonable manner, inspect the specimens collected, as well as the permits, records and facilities of a permit holder.

(e) A scientific collection permit may be revoked for violating the conditions of the permit.

(8) Appeal procedure: A person who is denied a scientific collection permit, who disputes the conditions of a permit, or who has a permit revoked may appeal the department action. Appeals must be filed in writing, and delivered to Legal Services, Department of Fish and Wildlife, 600 Capitol Way N., Olympia, WA 98501-1091. Specific grounds for contesting the revocation, denial, or permit conditions must be stated in the appeal. An appeal will be held under the provisions of chapter 34.05 RCW, the Administrative Procedure Act.

[Order 76-96, 220-20-045, filed 9/23/76.]

OTS-8251.1


AMENDATORY SECTION(Amending Order 296, filed 8/24/87)

WAC 232-12-067   Sale of fish and wildlife by zoos and aquariums.   (1) It is unlawful for publicly owned zoos or aquariums who lawfully acquired fish, shellfish, wildlife or the nests of birds under WAC 220-20-045 or 232-12-064 to offer for sale or sell ((that wildlife)) such animals or nests or the progeny of ((that wildlife)) such animals except outside the state or except within the state to other publicly owned zoos or aquariums or accredited institutional members of the American Zoo and Aquarium Association ((of Zoological Parks and Aquariums (AAZPA))) (AZA).

(2) ((It is unlawful for publicly owned zoos or aquariums who lawfully acquired wildlife under WAC 232-12-274 to offer for sale or sell that wildlife or the progeny of that wildlife except the progeny may be sold to other publicly owned zoos or aquariums or accredited institutional members of the American Association of Zoological Parks and Aquariums (AAZPA).

(3))) Publicly owned zoos and aquariums will keep accurate and current records of the sale of fish, shellfish and wildlife progeny as required by the director. These records will be maintained on a calendar year basis and retained for a period of 5 years.

(((4))) (3) It is unlawful for any publicly owned zoo or aquarium to fail to complete and submit to the department by January 31 of each year a report containing information required by the director.

(((5))) (4) Fish and wildlife ((agents)) officers may inspect at reasonable times and in a reasonable manner the fish, shellfish, wildlife, nests of birds, permits, records, and facilities of any publicly owned zoo or aquarium offering for sale or selling ((wildlife)) such animals or nests.

[Statutory Authority: RCW 77.12.030. 87-18-017 (Order 296), 232-12-067, filed 8/24/87.]

OTS-8127.1


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 232-12-276 Scientific permits.

Washington State Code Reviser's Office