WSR 14-14-135

PROPOSED RULES

[Filed July 2, 2014, 11:19 a.m.]

Preproposal statement of inquiry was filed as WSR 14-04-132 on February 5, 2014.

Title of Rule and Other Identifying Information: WAC 220-52-01901 Commercial geoduck harvest license and new section WAC 220-52-01904 Commercial geoduck harvest—License application and issuance process for 2015 geoduck diver licenses.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on August 8-9, 2014, at 8:30 a.m.

Date of Intended Adoption: On or after August 15, 2014.

Submit Written Comments to: Joanna Eide, WDFW Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail Rules.Coordinator@dfw.wa.gov, fax (360) 902-2155, by August 1, 2014.

Assistance for Persons with Disabilities: Contact Tami Lininger by August 1, 2014, (360) 902-2207 or TTY 1-800-833-6388.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: The purpose of this proposed rule change is to establish an equitable license application and issuance process for geoduck diver licenses to comply with changes to state law to limit geoduck diver licenses to seventy-seven per year beginning January 1, 2015. These proposed rule changes also address additional application eligibility requirements for geoduck diver licenses as required by RCW 77.65.410. New WAC 220-52-01904 will operate on a temporary type basis to allow the department to issue licenses for first right of refusal applicants as established in section 2 of HB [2SHB] 1764. WAC 220-52-01904 will be repealed after January 1, 2015, as it will no longer be needed. A separate rule making to establish another more permanent rule for use after January 1, 2015, (new WAC 220-52-01905) is being done in tandem with this rule making. The department is also amending WAC 220-52-01901 to add geoduck diver licenses to rule provisions as only geoduck fishery licenses were provided for in that rule and a person may harvest geoduck under both a geoduck fishery license and a geoduck diver license.

Reasons Supporting Proposal: HB [2SHB] 1764 was passed by the Washington state legislature in 2013. This bill limited the geoduck diver licenses issued by the department to seventy-seven licenses per calendar year beginning in 2015 and imposed new application eligibility requirements. The department needs these rules to establish an equitable process the department will follow to comply with changes to state law to limit geoduck diver licenses to seventy-seven per year beginning January 1, 2015, and to address new application requirements for geoduck diver licenses. The rule changes promote clarity and establish a clear process for issuing geoduck diver licenses.

Statutory Authority for Adoption: RCW 77.04.012, 77.04.013, 77.12.047, and 77.65.410.

Statute Being Implemented: RCW 77.04.012, 77.04.013, 77.12.047, and 77.65.410.

Name of Proponent: Washington department of fish and wildlife, governmental.

Name of Agency Personnel Responsible for Drafting and Implementation: Frank Hawley, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2453; and Enforcement: Steve Crown, 1111 Washington Street S.E., Olympia, WA 98504, (360) 902-2373.

1. Description of the Reporting, Recordkeeping, and Other Compliance Requirements of the Proposed Rule: These proposed rule changes will allow the equitable issuance of seventy-seven geoduck diver licenses and will allow the department of fish and wildlife (WDFW) to address the limitation of seventy-seven geoduck diver licenses issued per calendar year by the Washington state legislature in HB [2SHB] 1764.

The right of first refusal applicants that meet the stated qualifications received by WDFW by January 28, 2014, will be given the first right of refusal for up to seventy-seven licenses. The applicants must provide proof that they were included on a department of natural resources (DNR) harvest agreement plan of operation in 2011, 2012, 2013, or 2014. These requirements are already effective in state law. The proposed rule changes in this rule making are administrative in nature and detail the process WDFW will follow in complying with changes to state law to limit geoduck diver licenses to seventy-seven per year.

Other than providing the information required for an application for a geoduck diver license, such as proof of a DNR harvest agreement and proof of diver safety completion, there are no additional reporting and record keeping requirements.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: These rules provide the process WDFW will use to implement state law limiting the number of geoduck diver licenses to seventy-seven per calendar year. There are no anticipated professional services required to comply with these rule changes.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: The proposed rule limits the number of geoduck diver licenses to seventy-seven licenses per year as required by HB [2SHB] 1764 and detail the process WDFW will use to ensure the equitable issuance of geoduck diver licenses due to the license limitation. The proposed rules do not require any additional equipment, supplies, labor, or administrative costs as the rules are administrative in nature. Therefore, there are no expected additional costs to comply with the proposed rules.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? The proposed rules do not affect the harvestable numbers of geoducks available to nontreaty businesses. Therefore, the proposed rules should not cause any businesses to lose sales or revenue.

Since the rules address the limitation of the number of geoduck diver licenses WDFW may issue to seventy-seven licenses per year as required by statute, it is possible that this limitation may impact the ability of a business to engage in geoduck harvest if the business is unable to obtain a license. However, this license limitation is required by statute and these proposed rules simply implement the process WDFW will use to ensure compliance with that limitation.

None - The proposed rules do not require any additional equipment, supplies, labor, or administrative costs. The application fees remain unchanged. Additional costs may be incurred by businesses to meet the qualifications required to be eligible for a license, however, those costs are not determined by these rules and are required by current state law.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses, or Reasonable Justification for Not Doing So: Most businesses affected by these rules are small individual contractors for small and large businesses. As indicated above, all of the gear restrictions proposed by the rules are identical to gear restrictions WDFW has required in past geoduck seasons. Therefore, these rules will not directly impose new costs on small businesses.

Because the geoduck diver license limitation is already effective via statute, WDFW is unable to reduce costs to small businesses due to that license limitation. These proposed rules are administrative in nature.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: DNR and WDFW interacted with and received input from the Geoduck Diver Association in passing the underlying legislation (HB [2SHB] 1764) for these rule changes. These meetings allowed the Geoduck Diver Association to participate in formulating the bill that made these rule changes necessary. WDFW will also share the rule language and proposed process for applications for geoduck diver licenses with affected businesses and receive input from those individuals as part of this rule making. Affected businesses will also have an opportunity to provide public comment during the public hearing on these rule changes.

8. A List of Industries That Will Be Required to Comply with the Rule: All individuals wishing to obtain a geoduck diver license will be required to comply with these rules. In general, businesses affected by these rules are small individual contractors for small and large businesses engaged in the seafood processing, wholesale, and retail industry.

9. An Estimate of the Number of Jobs That Will Be Created or Lost as a Result of Compliance with the Proposed Rule: These rules are administrative in nature and detail the process WDFW will use to comply with the limitation of geoduck diver licenses to seventy-seven per calendar year by HB [2SHB] 1764, passed by the legislature in 2013. This limitation is required by statute. These rules simply detail WDFW's process and do not affect that license limitation. Therefore, the rules will not have an impact on job creation or job loss.

A copy of the statement may be obtained by contacting Joanna Eide, WDFW Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2403, fax (360) 902-2155, e-mail Rules.Coordinator@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. This rule change does not affect hydraulics.

July 2, 2014

Joanna M. Eide

Rules Coordinator