S-0840.1 _______________________________________________
SENATE BILL 5561
_______________________________________________
State of Washington 55th Legislature 1997 Regular Session
By Senators Swecker and Snyder
Read first time 01/31/97. Referred to Committee on Natural Resources & Parks.
AN ACT Relating to regulation of geoduck harvesting; amending RCW 75.10.190, 75.24.100, 75.30.050, 75.30.280, 79.96.085, 79.96.130, and 82.27.020; adding a new section to chapter 75.30 RCW; recodifying RCW 79.96.085; repealing RCW 79.96.906 and 79.96.080; and prescribing penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec. 1. RCW 75.10.190 and 1996 c 267 s 17 are each amended to read as follows:
Persons who fish, buy, or sell food fish and shellfish commercially and violate this title or the rules of the department shall be subject to the following penalties:
(1) The following violations are misdemeanors and are punishable under RCW 9.92.030:
(a) The failure to complete a fish ticket with all the required information for a commercial fish or shellfish landing; and
(b) The failure to report a commercial fish catch as required by department rules.
(2) The following violations are gross misdemeanors and are punishable under RCW 9.92.020:
(a) The retention of illegal food fish or shellfish species;
(b) The wasting of commercially caught food fish or shellfish;
(c) Commingling commercial and personal use food fish or shellfish catches;
(d) The failure to comply with department rules on commercial fishing licenses;
(e) The failure to comply with department requirements on fishing gear specifications;
(f) The failure to obtain a delivery license as required by department rules;
(g) Violations of the fisheries statutes or rules by fish buyers or wholesale dealers other than violations for fish tickets under subsection (1)(a) of this section;
(h) Fishing during a closed season;
(i)
Illegal geoduck harvesting off the legal harvesting ((tract)) area;
and
(j) Other unclassified commercial violations of Title 75 RCW.
(3) The following violations are class C felonies and are punishable under RCW 9A.20.021(1)(c):
(a) Intentionally fishing in a closed area using fishing gear not authorized under personal use regulations;
(b) Intentionally netting salmon in the Pacific Ocean;
(c)
Harvesting more than one hundred pounds of geoducks outside of the boundaries
of a harvest ((tract)) area designated by ((a harvest
agreement from)) the department of ((natural resources)) fish and
wildlife if:
(i)
The harvester does not have a valid ((harvesting agreement)) geoduck
dive fishery license from the department of ((natural resources)) fish
and wildlife; or
(ii)
The harvesting is done more than one-half mile from the nearest boundary of any
harvesting ((tract)) area designated by ((a)) the
department of ((natural resources harvesting agreement)) fish and
wildlife;
(d) Unlawful participation by a non-Indian fisher with intent to profit in a treaty Indian fishery;
(e) Intentionally fishing within the closed waters of a fish hatchery;
(f) The sale, barter, or trade of food fish or shellfish with a wholesale value of two hundred fifty dollars or more by a person who does not have a valid commercial fishing license and has caught the food fish or shellfish using fishing gear not authorized under personal use rules, or has received the food fish or shellfish from someone who has caught it with fishing gear not authorized under personal use rules; and
(g) Being in possession of food fish or shellfish with a wholesale value of two hundred fifty dollars or more while using fishing gear not authorized under personal use regulations without a valid commercial fishing license.
Sec. 2. RCW 75.24.100 and 1995 1st sp.s. c 2 s 29 (Referendum Bill No. 45) are each amended to read as follows:
(1)
It is unlawful to take geoduck clams for commercial purposes outside the
harvest area designated in a current department of ((natural resources))
fish and wildlife geoduck harvesting ((agreement issued under RCW
79.96.080)) program. It is unlawful to commercially harvest geoduck
clams from bottoms that are shallower than eighteen feet below mean lower low
water (0.0. ft.)((, or that lie in an area bounded by the line of ordinary
high tide (mean high tide) and a line two hundred yards seaward from and
parallel to the line of ordinary high tide)). This section does not apply
to the harvest of private sector cultured aquatic products as defined in RCW
15.85.020.
(2) Commercial geoduck harvesting shall be done with a hand-held, manually operated water jet or suction device guided and controlled from under water by a diver. Periodically, the commission shall determine the effect of each type or unit of gear upon the geoduck population or the substrate they inhabit. The commission may require modification of the gear or stop its use if it is being operated in a wasteful or destructive manner or if its operation may cause permanent damage to the bottom or adjacent shellfish populations.
Sec. 3. RCW 75.30.050 and 1995 c 269 s 3101 are each amended to read as follows:
(1) The director shall appoint three-member advisory review boards to hear cases as provided in RCW 75.30.060. Members shall be from:
(a) The commercial crab fishing industry in cases involving Dungeness crabCPuget Sound fishery licenses;
(b) The commercial herring fishery in cases involving herring fishery licenses;
(c) The commercial sea urchin and sea cucumber fishery in cases involving sea urchin and sea cucumber dive fishery licenses;
(d)
The commercial ocean pink shrimp industry (Pandalus jordani) in cases involving
ocean pink shrimp delivery licenses; ((and))
(e) The commercial coastal crab fishery in cases involving Dungeness crabCcoastal fishery licenses and Dungeness crabCcoastal class B fishery licenses. The members shall include one person from the commercial crab processors, one Dungeness crabCcoastal fishery license holder, and one citizen representative of a coastal community; and
(f) The commercial geoduck fishing industry in cases involving geoduck fishery licenses.
(2) Members shall serve at the discretion of the director and shall be reimbursed for travel expenses as provided in RCW 43.03.050, 43.03.060, and 43.03.065.
Sec. 4. RCW 75.30.280 and 1993 c 340 s 46 are each amended to read as follows:
(1) It is unlawful to harvest geoduck clams commercially without a geoduck fishery license. This section does not apply to the harvest of private sector cultured aquatic products as defined in RCW 15.85.020.
(2)
((Only a person who has entered into a geoduck harvesting agreement with the
department of natural resources under RCW 79.96.080 may hold a geoduck fishery
license.
(3))) A
geoduck fishery license authorizes no taking of geoducks outside the boundaries
of the ((public lands)) harvest areas designated ((in the
underlying harvesting agreement,)) by the department of fish and
wildlife or beyond the harvest ceiling set in the ((underlying
harvesting agreement)) individual fishing quotas assigned for each area.
(((4)))
(3) A geoduck fishery license expires ((when the underlying geoduck
harvesting agreement terminates)) on December 31st of the year issued.
(((5)
The director shall determine the number of geoduck fishery licenses that may be
issued for each geoduck harvesting agreement, the number of units of gear whose
use the license authorizes, and the type of gear that may be used, subject to
RCW 75.24.100. In making those determinations, the director shall seek to
conserve the geoduck resource and prevent damage to its habitat.
(6)
The holder of a geoduck fishery license and the holder's agents and
representatives shall comply with all applicable commercial diving safety
regulations adopted by the federal occupational safety and health
administration established under the federal occupational safety and health act
of 1970 as such law exists on May 8, 1979, 84 Stat. 1590 et seq.; 29 U.S.C.
Sec. 651 et seq. A violation of those regulations is a violation of this
subsection. For the purposes of this section, persons who dive for geoducks
are "employees" as defined by the federal occupational safety and
health act. A violation of this subsection is grounds for suspension or
revocation of a geoduck fishery license following a hearing under the
procedures of chapter 34.05 RCW. The department shall not suspend or revoke a
geoduck fishery license if the violation has been corrected within ten days of
the date the license holder receives written notice of the violation. If there
is a substantial probability that a violation of the commercial diving
standards could result in death or serious physical harm to a person engaged in
harvesting geoduck clams, the department shall suspend the license immediately
until the violation has been corrected. If the license holder is not the
operator of the harvest vessel and has contracted with another person for the
harvesting of geoducks, the department shall not suspend or revoke the license
if the license holder terminates its business relationship with that person
until compliance with this subsection is secured.)) (4)
After July 1,1997, the director may not issue new geoduck dive fishery
licenses. Only a person who has held the geoduck fishery license sought to be
renewed for at least three of the six years 1991, 1992, 1993, 1994, 1995, and
1996 may renew an existing license.
(5) Geoduck dive fishery licenses are not transferable from one license holder to another except from parent to child, from spouse to spouse during marriage or as a result of marriage dissolution, or upon death of the license holder.
Sec. 5. RCW 79.96.085 and 1990 c 163 s 5 are each amended to read as follows:
(1)
The department of ((natural resources)) fish and wildlife shall establish
a catch limit and designate the areas of aquatic lands ((owned by the
state)) that are available for geoduck harvesting by licensed geoduck
harvesters ((in accordance with chapter 79.90 RCW)).
(2) Once a harvest ceiling is established for each area, the ceiling must be divided equally between the number of geoduck dive fishery license holders to establish individual fishing quotas for each area. License holders will have from January 1st until December 31st of each year, with the exception of emergency closures by the department of fish and wildlife, to harvest their individual fishing quotas from each area made available for harvest.
Sec. 6. RCW 79.96.130 and 1994 c 264 s 73 are each amended to read as follows:
(1) If a person wrongfully takes shellfish or causes shellfish to be wrongfully taken from the public lands and the wrongful taking is intentional and knowing, then the person shall be liable for damages of treble the fair market retail value of the amount of shellfish wrongfully taken. If a person wrongfully takes shellfish from the public lands under other circumstances, then the person shall be liable for damages of double the fair market value of the amount of shellfish wrongfully taken.
(2) For purposes of this section, a person "wrongfully takes" shellfish from public lands if the person takes shellfish: (a) Above the limits of any applicable laws that govern the harvest of shellfish from public lands; (b) without reporting the harvest to the department of fish and wildlife or the department of natural resources where such reporting is required by law or contract; (c) outside the area or above the limits that an agreement or contract from the department of natural resources allows the harvest of shellfish from public lands; or (d) without a lease or purchase of the shellfish where such lease or purchase is required by law prior to harvest of the shellfish.
(3)
The remedies in this section are for civil damages and shall be proved by a
preponderance of the evidence. The department of natural resources may file a
civil action in Thurston county superior court or the county where the
shellfish were taken against any person liable under this section. ((Damages
recovered under this section shall be applied in the same way as received under
geoduck harvesting agreements authorized by RCW 79.96.080.))
(4) For purposes of the remedies created by this section, the amount of shellfish wrongfully taken by a person may be established either:
(a) By surveying the aquatic lands to reasonably establish the amount of shellfish taken from the immediate area where a person is shown to have been wrongfully taking shellfish;
(b) By weighing the shellfish on board any vessel or in possession of a person shown to be wrongfully taking shellfish; or
(c) By any other evidence that reasonably establishes the amount of shellfish wrongfully taken.
The amount of shellfish established by (a) or (b) of this subsection shall be presumed to be the amount wrongfully taken unless the defendant shows by a preponderance of evidence that the shellfish were lawfully taken or that the defendant did not take the shellfish presumed to have been wrongfully taken. Whenever there is reason to believe that shellfish in the possession of any person were wrongfully taken, the department of natural resources or the department of fish and wildlife may require the person to proceed to a designated off-load point and to weigh all shellfish in possession of the person or on board the person's vessel.
(5) This civil remedy is supplemental to the state's power to prosecute any person for theft of shellfish, for other crimes where shellfish are involved, or for violation of regulations of the department of fish and wildlife.
Sec. 7. RCW 82.27.020 and 1993 sp.s. c 17 s 12 are each amended to read as follows:
(1) In addition to all other taxes, licenses, or fees provided by law there is established an excise tax on the commercial possession of enhanced food fish as provided in this chapter. The tax is levied upon and shall be collected from the owner of the enhanced food fish whose possession constitutes the taxable event. The taxable event is the first possession in Washington by an owner. Processing and handling of enhanced food fish by a person who is not the owner is not a taxable event to the processor or handler.
(2) A person in possession of enhanced food fish and liable to this tax may deduct from the price paid to the person from which the enhanced food fish (except oysters) are purchased an amount equal to a tax at one-half the rate levied in this section upon these products.
(3) The measure of the tax is the value of the enhanced food fish at the point of landing.
(4) The tax shall be equal to the measure of the tax multiplied by the rates for enhanced food fish as follows:
(a) Chinook, coho, and chum salmon and anadromous game fish: Five and twenty-five one-hundredths percent.
(b) Pink and sockeye salmon: Three and fifteen one-hundredths percent.
(c) Other food fish and shellfish, except oysters: Two and one-tenth percent.
(d) Oysters: Eight one-hundredths of one percent.
(e) Geoducks: Ten percent gross volume tax dedicated to resource maintenance, enforcement, and enhancement.
(5) An additional tax is imposed equal to the rate specified in RCW 82.02.030 multiplied by the tax payable under subsection (4) of this section.
NEW SECTION. Sec. 8. The following acts or parts of acts are each repealed:
(1) RCW 79.96.906 and 1994 c 264 s 74 & 1984 c 221 s 26; and
(2) RCW 79.96.080 and 1990 c 163 s 4 & 1982 1st ex.s. c 21 s 141.
NEW SECTION. Sec. 9. RCW 79.96.085, as amended by this act, is recodified as a section in chapter 75.30 RCW.
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