WSR 97-18-061

EMERGENCY RULES

DEPARTMENT OF

FISH AND WILDLIFE

(Fisheries)

[Order 97-181--Filed August 29, 1997, 4:47 p.m.]

Date of Adoption: August 29, 1997.

Purpose: Personal use rules.

Citation of Existing Rules Affected by this Order: Repealing WAC 220-56-38000K; and amending WAC 220-56-380.

Statutory Authority for Adoption: RCW 75.08.080.

Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

Reasons for this Finding: RCW 34.05.479(3) provides the Department of Health the authority to issue health closure orders that require companion compliance for other pertinent regulating agencies. This action by Washington Department of Fish and Wildlife complies with the intent of the order from Department of Health shown below. There is insufficient time to promulgate permanent rules.

Dear [Grower],

The Department has determined that human consumption of raw oysters harvested from the Samish Bay, Totten Inlet, and all Hood Canal shellfish growing areas is likely to cause actual harm or presents a potential risk of substantial harm to the consumer. Therefore, it is hereby ordered that the commercial harvest of oysters for sale to the retail market as shellstock and all recreational harvest of oysters is prohibited from the date of this Order through September 15, 1997 in the Samish Bay shellfish growing area, the Totten Inlet shellfish growing area, and all Hood Canal shellfish growing areas. This order does not apply to recreational harvest of oysters taken from privately owned tidelands.

This Order has been executed under authority of RCW 43.70.185 and chapter 34.05 RCW and is based upon the following:

1. The bacteria Vibrio Parahaemolyticus (Vibrio) is or may be present in oysters grown in the following shellfish growing areas: Samish Bay, Totten Inlet, and all of Hood Canal.

2. Vibrio is a naturally-occurring bacteria found in shellfish. Humans who consume shellfish containing Vibrio are at risk of developing vibriosis, an intestinal disease. Vibriosis causes nausea, diarrhea, vomiting, abdominal cramps, headache, fever, and chills. In severe cases, hospitalization may be required.

3. As of August 28, 1997, over 40 illnesses associated with the consumption of raw oysters from Washington shellfish growing areas have been reported. Determination of cases of vibriosis was made through epidemiological procedures used by the Washington State Office of Epidemiology, the Department's Shellfish Program, and affected counties.

4. Two or more of the laboratory confirmed cases occurred at approximately the same time and are linked directly to the Samish Bay shellfish growing area. Under the National Shellfish Sanitation Program Manual of Operations, Part I, Section A, General Administrative Procedures to be Used by the States, two or more cases occurring at approximately the same time wiht a common source constitute a foodborne disease outbreak. Multiple cases, although not occurring at the same time, are directly linked to the Samish Bay growing area, Totten Inlet growing area and the Hood Canal growing areas.

5. Data concerning the Vibrio bacteria have been maintained by the Department since at least 1990. The data indicates that vibriosis tends to occur during the warmer months of July, August, and early September, indicating that Vibrio is present in shellfish growing areas during those months.

6. Based on the foregoing, the Department has determined that, through September 15, 1997, human consumption of raw oysters grown in the Samish Bay, Totten Inlet, and all Hood Canal shellfish growing areas is likely to cause actual harm or presents a potential risk of substantial harm to the consumer.

BECAUSE THE DEPARTMENT HAS DETERMINED THAT HUMAN CONSUMPTION OF RAW OYSTERS GROWN IN THE SAMISH BAY, TOTTEN INLET, AND ALL HOOD CANAL SHELLFISH GROWING AREAS IS LIKELY TO CAUSE ACTUAL HARM OR PRESENTS A POTENTIAL RISK OF SUBSTANTIAL HARM TO THE CONSUMER, AND THAT THIS THREAT TO THE PUBLIC HEALTH, SAFETY AND WELFARE IMPERATIVELY REQUIRES EMERGENCY ACTION, THE COMMERCIAL HARVEST OF OYSTERS FOR SALE TO THE RETAIL MARKET AS SHELLSTOCK AND ALL RECREATIONAL HARVEST OF OYSTERS (EXCEPT RECREATIONAL HARVEST OF OYSTERS TAKEN FROM PRIVATELY OWNED TIDELANDS) FROM THE SAMISH BAY, TOTTEN INLET, AND ALL OF HOOD CANAL GROWING AREAS IS HEREBY PROHIBITED THROUGH SEPTEMBER 15, 1997.

Accordingly, as authorized by 34.05.479(3), and consistent with the Department's policy to protect the public from disease before the fact, the Department's action is effective immediately.

The areas from which harvest of oysters intended is prohibited are as follows:

Samish Bay: all marine waters east of a line extending from William Point north to Governors Point.

Totten Inlet: all marine waters south and west of a line extending from the northern end of Steamboat Island to the Arcadia boat launch.

Hood Canal: all marine waters south of a line extending from the northern tip of Tala Point to the northern tip of Foulweather Bluff.

Under RCW 43.70.185(3), it is unlawful to harvest any marine species in violation of a departmental order prohibiting such harvest or to possess or sell any marine species so harvested.

Furthermore, pursuant to RCW 43.70.185(4), any person who sells any marine species taken in violation of this section is subject to the penalties provided in RCW 69.30.140 and 69.30.150. Any person who harvests or possesses marine species taken in violation of this section is guilty of a civil infraction and is subject to the penalties provided in RCW 69.30.150.

If you wish to contest the Department's decision in this matter, you or your representative must, within twenty-eight days of your receipt of this decision, complete and file the enclosed Application for Adjudicative Proceeding or a document providing substantially the same information with the Department's Adjudicative Clerk Office in a manner that shows proof of service on the Adjudicative Clerk Office.

The address of the Adjudicative Clerk Office is:

Department of Health

Adjudicative Clerk Office

2413 Pacific Avenue

P.O. Box 47879

Olympia, Washington 98504-7879

You must attach a copy of the Department's decision document to your Application. filing shall not be deemed complete until the adjudicative clerk office actually receives your application. If you fail to timely file an Application, the Department may decide this matter without your participation and without further notice to you.

Because the Department's decision in the above-referenced matter is effective immediately, you are entitled to a prompt hearing in this matter if you so desire. RCW 34.05.479.

dated this 29 day of August, 1997.

washington state

department of health

Kris Van Gorkum,

Acting Deputy Secretary

Washington State Department of Health

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, amended 0, repealed 0; Federal Rules or Standards: New 0, amended 0, repealed 0; or Recently Enacted State Statutes: New 0, amended 0, repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, amended 0, repealed 0.

Number of Sections Adopted on the Agency's own Initiative: New 1, amended 0, repealed 1.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, amended 0, repealed 0.

Number of Sections Adopted using Negotiated Rule Making: New 0, amended 0, repealed 0; Pilot Rule Making: New 0, amended 0, repealed 0; or Other Alternative Rule Making: New 0, amended 0, repealed 0.

Effective Date of Rule: Immediately.

August 29, 1997

Larry Peck

for Bern Shanks

Director

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

Reviser's note: The brackets and enclosed material in the text above occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

NEW SECTION

WAC 220-56-38000K Oysters--Areas. Notwithstanding the provisions of WAC 220-56-380, effective immediately through September 15, 1997 it is unlawful to harvest or possess oysters taken for personal use from the following areas:

(1) Hood Canal - All marine waters south of a line extending from the north tip of Tala Point to the northern tip of Foulweather Bluff.

(2) Totten Inlet - All marine waters south and west of a line extending from the mainland along the Steamboat Island bridge to the northern end of Steamboat Island to the Arcadia boat launch.

(3) Samish Bay - All marine waters east of a line extending from William Point north to Governors Point.

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REPEALER

The following section of the Washington Administrative Code is repealed effective 12:01 a.m. September 16, 1997:

WAC 220-56-28000K Oysters--Areas. (97-181)