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, on July 7, 2005, at 9:00 a.m. The hearing will be held via conference call, and persons who wish to comment will be accommodated in the commission office or the director's conference room, depending on the attendance.

     Date of Intended Adoption: July 7, 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 July 6, 2005.

     Assistance for Persons with Disabilities: Contact Susan Yeager by June 23, 2005, TTY (360) 902-2207 or (360) 902-2267.

     Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule will establish the license that is statutorily required to sell wild shellfish harvested from nonpublic tidelands. A recent increase in wild geoduck harvest from sites other than the Department of Natural Resources (DNR) tidelands, and harvest of wild shellfish from tidelands that never have been commercially harvested is consistent with using the emerging commercial fishery license for this purpose. Allowing use of water pumps to harvest geoduck clams conforms to the industry standard method of harvest.

     Reasons Supporting Proposal: Allows for commercialization of wild embedded shellfish taken from nonpublic tidelands. Utilization of the emerging commercial fishery license and reporting on shellfish receiving tickets will provide for resource management, accurate catch reporting, and enforcement.

     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: Washington Department of Fish and Wildlife, governmental.

     Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, WA, (360) 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, WA, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, WA, (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: None required.

     3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: Purchase of an emerging commercial fisheries license ($185 for residents; $295 for nonresidents), and payment of the excise tax on enhanced food fish. The tax is 2.1% for shellfish other than oysters, and .08% for oysters.

     4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No loss of sales or revenue is anticipated.

     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.

     A harvester who is a single entity will pay $185 for a resident license or $295 for nonresident license. The tax is proportional to production. Using geoduck as an example, DNR has estimated that geoduck at a wholesale value of $5/pound. Thus, if an acre of geoduck produces $65,000 in revenue, the cost is the license ($185) and the enhanced fish tax ($1,365) total $1,550 or $2.38 per $100 in 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) and excise tax ($80) totaling $2.52 per $100 in sales. This presumes the harvest tract is one acre in size. Costs are proportionally higher for smaller tracts and 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: Licensing for harvest of wild shellfish and the excise taxes are required by statute. The department has proposed a presumptive wild shellfish reporting period, after which the product will be reported as private sector cultured aquatic product. If a harvester waits out the reporting period, there is no license cost or tax, as private sector cultured aquatic products are not subject to licensing or enhanced fish excise taxes.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department has held multiple meetings with shellfish growers and tribes affected by the proposed rule. There have been four public meetings before the Fish and Wildlife Commission. The department has mailed drafts of the proposals to all registered growers.

     8. A List of Industries That Will Be Required to Comply with the Rule: Wild shellfish harvesters taking clams, mussels and oysters from private tidelands.

     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.

June 1, 2005

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).]

[Statutory Authority: RCW 77.12.047. 03-16-099 (Order 03-176), § 220-52-020, filed 8/6/03, effective 9/6/03; 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: 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.

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

OTS-6397.8

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. For purposes of this chapter, "wild" or "wild stocks of" clams, mussels, and oysters means shellfish that are not "private sector cultured aquatic product," as defined in chapter 15.85 RCW. These terms, and all provisions of this chapter pertaining to "wild" or "wild stocks of" clams, mussels, and oysters, or to "private sector cultured aquatic product," are for state resource management, catch reporting, and enforcement purposes only. They are neither intended to be, nor should be characterized as, any determination or evidence of whether "wild" or "wild stocks of" clams, mussels, and oysters (or any portion thereof) are naturally occurring, are subject to treaty sharing, or are part of natural or artificial shellfish beds as those concepts and terms are used and defined in United States v. Washington, 157 F.3d 630 (9th Cir. 1998), the Shellfish Implementation Plan of United States v. Washington, C70-9213, Subproceeding 89-3 (W.D. Wash, rev. April 8, 2002), and other applicable court orders relating to shellfish.

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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) A copy of the application for a nonstate lands commercial wild clam, mussel, and oyster trial fishery permit will be provided to the affected tribes.

     (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) Provide a copy of the notice required to be given to affected tribes under the Stipulation and Order Amending Shellfish Implementation Plan, United States v. Washington, Case No. C70-9214, W.D.Wa., if such notice is required.

     (b) Clearly and visibly mark with stakes and/or buoys the property boundaries of the nonstate lands to be harvested, using standard marking methods.

     (c) 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 allows harvest only of clams, mussels, and oysters, and it is unlawful to harvest any other shellfish or any fin fish.

     (4) 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 valid for the lands from which harvest is occurring.

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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 lands as an aquatic farm, mussels, oysters, and clams other than geoducks commercially harvested from the nonstate lands for the first twelve months after aquatic farm registration must be reported as wild stock harvest, and geoducks commercially harvested from the nonstate lands for the first thirty-six months after aquatic farm registration must be reported as wild stock harvest. A copy of the aquatic farm registration will be provided to the affected tribes. Persons who have registered an aquatic farm, and who can prove that aquaculture farming operations commenced on the aquatic farm site prior to the date of registration may include the period from the commencement of aquaculture operations within the respective twelve or thirty-six-month wild shellfish reporting period. After twelve or thirty-six 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.

     (4) Notwithstanding the provisions of subsection (3) of this section, if a person can show that aquatic farm products, set on nonstate lands after the lands have been registered as an aquatic farm, are being harvested for market prior to the end of the presumptive wild shellfish reporting period, such products, with permission from the department, may be reported on aquatic farm production reports.

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