WSR 98-17-098

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[Filed August 19, 1998, 10:57 a.m.]

Supplemental Notice to WSR 98-10-100.

Preproposal statement of inquiry was filed as WSR 98-07-091.

Title of Rule: 1998 Salmon license buy back.

Purpose: Hold a second hearing.

Other Identifying Information: See WSR 98-10-100 and 98-14-096.

Statutory Authority for Adoption: RCW 75.08.080.

Statute Being Implemented: RCW 75.08.080.

Summary: See WSR 98-10-100. Additional testimony being taken because of inclusion of salmon charter vessels in program.

Reasons Supporting Proposal: See WSR 98-10-100.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Bruce Crawford, 1111 Washington Street, Olympia, (360) 902-2325; and Enforcement: Ron Swatfigure, 1111 Washington Street, Olympia, (360) 902-2927.

Name of Proponent: Washington State 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: See WSR 98-10-100. Additionally, salmon charter boats are eligible to participate in the program pursuant to a determination by the National Marine Fisheries Service.

Proposal Changes the Following Existing Rules: See WSR 98-10-100.

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

Small Business Economic Impact Statement

See WSR 98-10-100. Additionally, salmon charter boats will be able to submit either trip tickets or a letter of endorsement from a charter house. This will assist salmon charter boats in verifying eligibility.

A copy of the statement may be obtained by writing to See WSR 98-10-100.

Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. Not hydraulics rules.

Hearing Location: Auditorium, Office Building 2, 14th and Jefferson, Olympia, on September 23, 1998, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Robin Ayers by September 9, 1998, TDD (360) 902-2295, or (360) 902-2293.

Submit Written Comments to: Evan Jacoby, 600 North Capitol Way, Olympia, WA 98501-1091, fax (360) 902-2947, by September 22, 1998.

Date of Intended Adoption: September 23, 1998.

August 19, 1998

Evan Jacoby

Rules Coordinator

OTS-2264.5

AMENDATORY SECTION (Amending Order 95-20, filed 3/3/95, effective 4/3/95)

WAC 220-95-013  ((1995)) 1998 Salmon ((disaster relief)) license buy-back program established--Fund allocation--Expiration. (1) The National Marine Fisheries Service (NMFS) has designated the department as the administrating agency for distribution of ((Northwest Emergency Assistance Plan)) Magnuson-Stevens Fisheries Conservation and Management Act (the act) funds to buy back salmon licenses from commercial license holders who ((are)) have been affected by reductions in salmon fishing ((needed to conserve Columbia River threatened and endangered salmon stocks. The state of Washington in consultation with the National Marine Fisheries Service believes the program should be designed to purchase licenses from fisheries that are dependent on chinook and coho salmon and are affected by the Endangered Species Act)) caused by winter flooding in Washington state. The department hereby designates ((this program)) the fund distribution as the ((1995)) 1998 salmon ((disaster relief)) license buy-back program (program). The licenses eligible to participate in the program are salmon charter, salmon delivery, salmon troll, salmon gill net, salmon purse seine and salmon reef net.

(2) The ((rules provided for in this chapter implement the provisions of the Northwest Emergency Assistance Plan as published in the Federal Register, and appeals as to which fishery license holders may apply for relief and the maximum level of monetary relief offered are to be made to the National Marine Fisheries Service)) goal of the program is to provide economic relief to Washington commercial salmon fishers, and to reduce the number of Washington commercial salmon licenses. To accomplish this, the department is proposing a two-step process, first an open purchase of licenses for a fixed sum (Phase One), then, if any funds remain available, an income-based purchase plan (Phase Two).

(3) ((The department allocates the available federal funding for the program to the following categories in the following amounts:)) The department will allocate the $4,670,000 available under Section 312(a) as follows:

(a) Program administration - $123,000.

(b) Salmon charter - $152,000.

(c) Salmon troll and salmon delivery - $750,000.

(d) Willapa-Columbia River and Grays Harbor-Columbia River gill net - $840,000.

(e) Puget Sound salmon gill net - $2,040,000.

(f) Salmon purse seine - $660,000.

(iii) Reef net - $105,000.

Program administration funds that will not be used will be reallocated to license purchases.

(4) The program expires ((March 31, 1996, or)) upon the distribution of all available funds((, whichever occurs first)).

[Statutory Authority: RCW 75.08.080. 95-07-012 (Order 95-20), § 220-95-013, filed 3/3/95, effective 4/3/95.]

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

AMENDATORY SECTION (Amending Order 95-20, filed 3/3/95, effective 4/3/95)

WAC 220-95-018  Program eligibility. Only persons meeting the following criteria are eligible to participate in the program.

(1) ((The person participated in the coastal, Columbia River, Grays Harbor or Willapa Bay commercial salmon fisheries and had income derived from one of those fisheries in at least one year during the period 1986 through 1991 and has not participated nor will participate in a Northwest Emergency Assistance Plan jobs program; and

(2))) For phase one applicants, the person possessed or was eligible to possess in 1997 one of the ((following)) Washington state salmon ((fishery licenses in 1994:

(a) Salmon troll license (RCW 75.28.110 (1)(f));

(b) Salmon delivery license (RCW 75.28.113);

(c) Salmon gill net--Grays Harbor-Columbia River (RCW 75.28.110 (1)(a));

(d) Salmon gill net--Willapa Bay-Columbia River (RCW 75.28.110 (1)(c));

(e) Salmon charter (RCW 75.28.095 (1)(b)); and

(3) The person incurred an uninsured loss computed under the federal plan requirements as follows: The maximum amount of uninsured loss under the program is the difference between the highest gross income derived from designated salmon fishing activity (including incidental catch provided that some salmon are included within the catch) during any calendar year 1986 through 1991 (the base year), less the sum of the least amount of gross income derived from salmon fishing activities during any calendar year from 1992 through 1994, plus any federal unemployment compensation received during that year, plus any federally funded training received during that year (the comparison year). The maximum amount payable under the program is 2.25 times the uninsured loss, but not to exceed $100,000.00 to any individual for all payments received from the program. For purposes of calculating income, the license holder must and may only use income from salmon fisheries in the coastal waters of Washington, Oregon, and California, the waters of Grays Harbor and Willapa Bay, and the waters of the Columbia River)) fishing licenses issued pursuant to RCW 75.28.110 or 75.28.113 or a salmon charter license issued pursuant to RCW 75.28.095, and is eligible to possess the same license in 1998.

(2) For phase two applicants:

(a) The person possessed or was eligible to possess in 1997 one of the Washington state salmon fishing licenses issued pursuant to RCW 75.28.110 or 75.28.113 or a salmon charter license issued pursuant to RCW 75.28.095 and is eligible to possess the same license in 1998, and had income derived under the license from 1986 through 1991;

(b) The person had a salmon income loss greater than $0, computed as follows:

The salmon income loss under the program is the difference between the highest gross income derived from Washington state and offshore salmon fishing activity (including incidental catch provided that some salmon are shown on the fish receiving ticket documenting the catch) during any calendar year 1986 through 1991 (the base year), less the sum of the least amount of gross income derived from the same salmon fishing activity during any calendar year from 1992 through 1997 (the comparison year), multiplied by 2.5. For purposes of calculating income, the license holder must and may only use income from salmon fisheries in the coastal waters of Washington, the waters of Grays Harbor, Willapa Bay, and the Columbia River, and waters of Puget Sound easterly of the Bonilla-Tatoosh Line. Income that was used in calculating uninsured loss in the 1995 salmon disaster relief license buy-back program or salmon decline impact in the 1996 Washington salmon license buy-out program may not be used to calculate salmon income loss in the 1998 program if the license offered in either the 1995 or 1996 program was purchased and retired.

[Statutory Authority: RCW 75.08.080. 95-07-012 (Order 95-20), § 220-95-018, filed 3/3/95, effective 4/3/95.]

AMENDATORY SECTION (Amending Order 95-20, filed 3/3/95, effective 4/3/95)

WAC 220-95-022  Program application. (1) A ((license holder)) person may make only one offer per license ((during an offer period)) per phase under the program.

(2) ((An offer to sell a license must be made on department forms and must be received by the department's licensing division during the period 8:30 a.m., March 29 through 4:30 p.m., May 12, 1995.

(3))) Income used in the calculation of offers that are accepted may not be used in the calculation of any other offer.

(((4) The license holder may offer the license for any amount up to the maximum allowable under the program.

(5))) (3) Phase one applications:

(a) Phase one applications must be submitted to the department's licensing division on a department offer form. A completed offer form must contain the following information:

The applicant's name, Social Security number, mailing address during the offer period, telephone number (if applicable), and the license type and license number being offered;

(b) The offer amounts for phase one are:

(i) Salmon troll and salmon delivery: $7,500.

(ii) Grays Harbor-Columbia and Willapa Bay-Columbia gill net: $10,000.

(iii) Puget Sound gill net: $12,000.

(iv) Reef net: $15,000.

(v) Salmon purse seine: $30,000.

(vi) Salmon charter: $1,000 per angler permit not to exceed $10,000, and including only angler permits that were on the license as of August 1, 1998.

(c) Phase one applications will be accepted October 26, 1998, through 4:30 p.m., October 30, 1998. Any application received before October 26, 1998, will be treated as being received on October 26, 1998, for purposes of prioritizing the applications. Any amounts remaining in the area and gear category from phase one will be used in phase two, unless the department deems that there are insufficient funds remaining to conduct a phase two plan.

(4) Phase two applications:

(a) Phase two applications must be made on department forms and must be received by the department's licensing division between November 16, 1998, and 4:30 p.m., November 30, 1998.

(b) The licensee may offer the license for any amount up to the salmon income loss incurred under the license or $75,000, whichever is the lesser amount.

(c) An offer is not made unless a complete offer is received by the department. In order for an offer to be complete, the following must be received:

(((a))) (i) A complete offer sheet, showing:

(((i))) (A) The applicant's name, Social Security number, mailing address during the offer period and telephone number (if applicable);

(((ii))) (B) The license type and license number that is being offered;

(((iii))) (C) The offer amount;

(((iv))) (D) The base year income (1986-1991);

(((v))) (E) The comparison year income (1992-((1994, including federal unemployment funds and the amount of any federally funded training received)) 1997); and

(((vi) The amount of uninsured loss.)) (F) The offer ratio, defined as the offer amount divided by the salmon income loss.

(((b))) (ii) Salmon income supporting documents((.

(i) For salmon troll, salmon delivery and gill net license fishing activity, the only acceptable supporting documents)) other than salmon charter are defined as official state fish receiving tickets documenting landings under a Washington license, ((official state fish landing receipts,)) or computer generated landing lists that have been certified by ((a state agency)) the department or the Pacific States Marine Fisheries Commission to be true and correct copies of Washington or Columbia River landings. All landings count in calculation of base and comparison year incomes.

(((ii))) (iii) For salmon charter license fishing activity, acceptable supporting documents are trip tickets identifying the species targeted, the number of anglers, and the date of the trip or, if such tickets are unavailable, the department will accept a letter of endorsement from a charterboat association or charterboat booking office indicating salmon fishing was a major component of earnings, and, if such a letter is provided, will review the total income of the applicant for the base and comparison years.

(((c))) NOTE: Commercial salmon licensee applicants who submitted complete offers in the 1996 Washington salmon license buy-out program need not resubmit supporting documents for offers based on the same base and comparison years if all landings are from Washington state. Such persons must submit a new offer sheet to participate in the 1998 program, but the offer amount may differ from the 1996 offer amount, provided it does not exceed the 1998 program limits.

(iv) Records disclosure authorization that allows the department to receive copies of the applicant's Internal Revenue Service returns for the base and comparison years ((are required from salmon charter license applicants who use income other than that shown on trip tickets and may be required for salmon troll, salmon delivery, and gill net license applicants claiming a percentage of income shown on fish tickets.

(d) A signed permission form that allows the department to receive copies of the applicant's Internal Revenue Service returns for the base and comparison years,)) and to receive landing information from the Pacific States Marine Fisheries Commission((, and the states of Oregon and California)).

(((e))) (v) A signed statement certifying that all information provided is true and correct.

(vi) A completed 1998 license application if the person has not already renewed for 1998 the license offered for sale. If the applicant is not reached on the ranked offers, the 1998 license fee will be required within 30 days of notification.

[Statutory Authority: RCW 75.08.080. 95-07-012 (Order 95-20), § 220-95-022, filed 3/3/95, effective 4/3/95.]

AMENDATORY SECTION (Amending Order 95-20, filed 3/3/95, effective 4/3/95)

WAC 220-95-027  Ranking of offers. (((1) Incomplete offers will be returned.

(2) Complete offers will be verified prior to ranking.

(3) Ranking of complete offers will occur at the close of the offer period and offers will be ranked within the following three categories:

(a) Salmon troll and salmon delivery licenses.

(b) Willapa Bay-Columbia River and Grays Harbor-Columbia River gill net licenses.

(c) Salmon charter licenses.

(4) Ranking will be established in ascending order from the lowest offer to the highest offer in each license category.

(5) In the event of a tie, the offer of the person with the highest uninsured loss will be accepted.)) Phase two offers will be ranked by the offer ratio, beginning with the lowest ratio.

[Statutory Authority: RCW 75.08.080. 95-07-012 (Order 95-20), § 220-95-027, filed 3/3/95, effective 4/3/95.]

AMENDATORY SECTION (Amending Order 95-20, filed 3/3/95, effective 4/3/95)

WAC 220-95-032  Offer acceptance--Acknowledgment--Retirement of licenses. (1) ((Offers will be accepted in rank order, beginning with the lowest offer.

(2))) Phase one. The department will accept applications for phase one on a first come, first serve basis. Applicants will be prioritized on the basis of the date the application was received by the department. Phase one applicants may apply in person at the department licensing office in Olympia, by FAX to the license office at (360) 902-2925, or by mail to Fish and Wildlife Licensing, 600 Capitol Way North, Olympia, Washington 98501-1091. If insufficient funds are remaining to process all applications received on a given day, a random drawing will be made of that day's applicants to determine which applications will be accepted to participate in the program.

(2) Phase two. The department will accept applications for phase two in rank order, beginning with the lowest offer ratio. In the event of a tie between identical offer ratios, the lowest offer amount will be given preference.

(3) The department will notify license holders that it has accepted a license offer by sending an acceptance and acknowledgment to the license holder by registered mail to the address provided on the offer form or offer sheet. The acknowledgment must be signed and returned to the department ((and must be received by the license division at or before 4:30 p.m. on June 14, 1995. Any acknowledgment received after that date)) within ten days of the date of the mailing of the acceptance. Any acknowledgment received after the 10-day period is void and the acceptance is withdrawn.

(((3) If the license being offered has been issued for 1995,)) (4) The department will tender the amount of the offer upon ((return of the license card)) receipt of a valid acknowledgment.

(((4) If the license being offered has not been issued for 1995, the department will tender the amount of the offer upon receipt of a valid acknowledgment.)) (5) Persons who sell a license in phase two of the program cannot purchase or operate a commercial license listed in RCW 75.28.110 or 75.28.113 for ten years or a salmon charter license listed in RCW 75.28.095, beginning January 1, 1999, except that persons may operate such a license if the license was owned or operated by that person in 1997.

[Statutory Authority: RCW 75.08.080. 95-07-012 (Order 95-20), § 220-95-032, filed 3/3/95, effective 4/3/95.]

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