Original Notice.

     Preproposal statement of inquiry was filed as WSR 02-10-105.

     Title of Rule: Direct retail sales rules.

     Purpose: Establish rules for direct retail sales by salmon and crab fishers.

     Statutory Authority for Adoption: Chapter 301, Laws of 2002.

     Statute Being Implemented: Chapter 301, Laws of 2002.

     Summary: Establishes rules allowing direct retail sales by salmon and crab fishers without such fishers having a wholesale dealer license.

     Reasons Supporting Proposal: Required by chapter 310 [301], Laws of 2002.

     Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Lew Atkins, 1111 Washington Street, Olympia, (360) 902-2651; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

     Name of Proponent: 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: Chapter 310 [301], Laws of 2002 requires the department to offer a direct retail sales endorsement to salmon and crab fishers at the time of renewal of their license. This rule allows the endorsement for persons who have already renewed the license at the time the new statute goes into effect. It clarifies the application process, particularly for persons who do not have a documented vessel. It establishes reporting requirements, clarifies to whom product may be sold, and identifies methods by which double accounting of catch will be avoided. Amendments are made to the existing wholesale dealer and duties of commercial fishers rules to conform with the new endorsement.

     Proposal Changes the Following Existing Rules: Amends duties of wholesale dealers and commercial fishers rules.

     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.

     3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: If a fisher wants an endorsement, the cost will be $50. The fisher will need to submit fish tickets for each retail sale, at the cost of postage. There is a requirement to use a mechanical imprinter for the fish tickets, a one-time cost of approximately $150 for a single plate imprinter. If quick reporting is required for the area of catch, they will have to use a telephone to report the prior day's catch.

     4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No.

     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.

     As electing to obtain an endorsement is voluntary, there are no mandatory costs. However, the first year costs for the individual with the endorsement, making ten retail sales per year, should be less than $300. Thereafter, the amount should be less than $100.

     6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: There are no mandatory costs. Obtaining an endorsement is elective.

     7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The rule is required by chapter 301, Laws of 2002. Industry worked with the legislature to pass the bill that created the endorsement.

     8. A List of Industries That Will Be Required to Comply with the Rule: None. No compliance is required.

     A copy of the statement may be obtained by writing to Evan Jacoby, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2930, fax (360) 902-2155.

     RCW 34.05.328 does not apply to this rule adoption. Not hydraulics rules.

     Hearing Location: Pearsall Multi-Services Center, 2109 Sumner Avenue, Aberdeen, WA, on August 2-3, 2002, at 8:00 a.m.

     Assistance for Persons with Disabilities: Contact Debbie Nelson by July 19, 2002, TDD (360) 902-2207, or (360) 902-2267.

     Submit Written Comments to: Evan Jacoby, Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, fax (360) 902-2155, by July 26, 2002.

     Date of Intended Adoption: August 2, 2002.

June 18, 2002

Evan Jacoby

Rules Coordinator

OTS-5758.2

NEW SECTION
WAC 220-20-080   Sale under a direct retail endorsement.   It is unlawful for any fisher selling salmon or Dungeness crab taken by that fisher under a direct retail endorsement, or for a wholesale dealer accepting salmon or crab from such a fisher, to fail to comply with the requirements of this section.

     (1) A direct retail endorsement will not be issued to a licensee who is other than a natural person and, after 2002, will only be issued upon renewal of a qualifying license. Applicants for the endorsement must present a letter from the county health department of the fisher's county of residence certifying that the methods used by the fisher for transport, storage and display of product meet the county and statewide standards for food service operations. If the fisher is landing product from a documented vessel, the letter may be from the county health department of the hailing port of the vessel. Additionally, applicants must present a valid food and beverage service worker's permit at the time of application, and pay the direct retail administrative cost of fifty dollars. The health department letter, permit, and administrative cost are required for each application or renewal for a direct retail endorsement.

     (2) Any fisher who offers salmon or crab for retail sale must complete a fish receiving ticket for all salmon or crab aboard the harvesting vessel before the product is offered for retail sale. The price shown on the fish receiving ticket must be the price at which the fisher is offering the salmon or crab for sale.

     (3) Any fisher selling salmon or crab at retail, which salmon or crab are taken from an area under the quick reporting requirements of WAC 220-69-240, is required to comply with the quick reporting requirement.

     (4) Salmon and crab offered for retail sale must be landed in the round. Salmon may not be cleaned or headed until the fish ticket documenting the landing is completed.

     (5) In order to allow inspection and sampling, each fisher offering salmon or crab for retail sale must notify the department forty-eight hours prior to sale and identify the location of the fisher's temporary food service establishment. The only acceptable notification is by telephone to (360) 902-2936, FAX to 902-2155, or e-mail to enforcement-web@dfw.wa.gov.

     (6) Salmon or Dungeness crab sold under a retail sale endorsement may only be sold to a consumer. Sale is not allowed to any person who will resell the product, such as a restaurant. Dungeness crab must be sold uncooked.

     (7) If salmon or crab offered for retail sale and documented on a fish receiving ticket are subsequently sold to a licensed wholesale dealer, the sale must be documented by a sale receipt, not a fish receiving ticket, and it is the responsibility of the wholesale dealer to maintain the product separately, until the product is resold or processed.

     (8) Violations of subsections (2), (3), and (7) of this section are punishable under RCW 77.15.640.

     (9) Violations of subsections (4), (5), and (6) of this section are punishable under RCW 77.15.540.

[]

OTS-5751.2

AMENDATORY SECTION(Amending Order 01-32, filed 3/13/01, effective 4/13/01)

WAC 220-69-240   Duties of commercial purchasers and receivers.   (1) Every person originally receiving or purchasing fresh or iced food fish or shellfish or parts thereof, or frozen food fish or shellfish or parts thereof that have not been previously landed in another state, territory, or country from ((fishermen)) fishers, firms, or individuals, ((regardless of whether or not the receiver or purchaser holds a license as)) except purchases or receipts made by individuals or consumers at retail is required ((under Title 77 RCW)) to be a licensed wholesale fish dealer or fish buyer, and must immediately, completely, accurately, and legibly prepare the appropriate state of Washington fish receiving ticket regarding each and every purchase or receipt of such commodities. Except, preparation of a fish receiving ticket is not required for fish or shellfish purchased from a fisher who holds either a wholesale dealer's license or a direct retail endorsement and who has previously completed a fish receiving ticket because product was offered for sale to someone other than a licensed wholesale dealer. Purchases from such persons must be documented by sales receipts or invoices, and the product received must be maintained separately until the product is resold or processed.

     (2) Any employee of a licensed wholesale dealer who has authorization to receive or purchase fish or shellfish for that dealer on the premises of the primary business address or any of its branch plant locations shall be authorized to initiate and sign fish receiving tickets on behalf of his employer. The business or firm shall be responsible for the accuracy and legibility of all such documents initiated in its name. Each delivery must be recorded on a separate state of Washington fish receiving ticket.

     (((2))) (3) State of Washington fish receiving tickets are required for:

     (a) Fresh food fish and shellfish landed in the state of Washington including fish or shellfish not purchased, which fish shall be recorded as weigh back or take home fish or shellfish.

     (b) Fresh food fish and shellfish previously landed in another state, territory, or country and shipped or transported into the state of Washington to an original receiver.

     (c) Frozen food fish or shellfish not previously landed in another state, territory, or country and shipped or transported into the state of Washington to an original receiver.

     (((3))) (4) State of Washington fish receiving tickets are not required for:

     (a) ((Purchases or receipts made by individuals or consumers at retail.

     (b))) Purchases or receipts from any person possessing a valid Washington wholesale dealer's license or direct retail endorsement except that a wholesale dealer purchasing fish from a commercial ((fisherman or shellfish gatherer)) fisher shall complete the appropriate fish receiving ticket ((regardless of whether the commercial fisherman or shellfish gatherer possesses a wholesale dealer's license)) if the fisher has not previously completed a fish receiving ticket. It is the purchaser's responsibility to obtain the name, address, and Washington wholesale dealer's license or direct retail endorsement number, together with such sales receipt documents or information as may be required, to show the deliverer's name, quantity of fish, and date of the transaction and retain these with the food fish or shellfish.

     (((c))) (b) Fresh or frozen food fish or shellfish that are in transit through the state of Washington, if no storage, handling, processing, or repackaging occurs within the state.

     (((d))) (c) Private sector cultured aquatic products.

     (((4))) (5) Fishermen, fishermen-wholesalers, and wholesalers shall determine the weight of baitfish contained in an average and normal brail and multiply the number of such brailers of baitfish by this weight factor and report such baitfish in both dozens and total weight: Provided, That it is lawful for such fishermen, fishermen-wholesalers, and wholesalers, when receiving herring, candlefish, anchovy, or pilchards for bait purposes, to delay completing that portion of the fish receiving ticket which indicates number of herring received, only if the herring, candlefish, anchovy, or pilchards are sold individually or counted as dozens. Such counts must be entered on the fish tickets immediately. An estimate of herring, candlefish, anchovy, or pilchards caught but not sold due to mortality must be included on the fish ticket as "loss estimate."

     (((5))) (6) It is lawful for an original receiver, when receiving purse seine-caught herring taken from Areas 20A, 20B, 21A, and 21B during the period April 16 through May 31, to delay completing that portion of the fish receiving ticket which indicates the weight of herring received only until the herring are off-loaded from the original receiver's vessel. The herring must then be weighed and the weight immediately entered in the appropriate space on the ticket. A separate state of Washington fish receiving ticket must be initiated at the time of each individual receipt of herring from the purse seine catching vessel.

     (((6))) (7) The original receiver of herring taken from Puget Sound Marine Fish-Shellfish Catch Areas 20A, 20B, 21A, and 21B, during the period April 16 through May 31 must report each calendar day's receipts by noon of the following day to the Department of Fish and Wildlife, LaConner, Washington; telephone (360) 466-4345 ext. 243.

     (((7))) (8) It is unlawful for any person receiving or purchasing geoducks from fishermen, firms, or individuals, regardless of whether or not the purchaser or receiver holds a license as required under Title 77 RCW, to fail to accurately and legibly complete the fish receiving ticket initiated on the harvest tract immediately upon the actual landing of geoducks from the harvesting vessel onto the shore. This fish receiving ticket shall accompany the harvested geoducks from the department of natural resources harvest tract to the point of landing.

     (((8))) (9) It is unlawful for the original receiver of Pacific whiting to fail to enter an estimated weight of Pacific whiting on the fish receiving ticket immediately upon completion of the landing. The exact weights of whiting, by grade, and all incidental species in the landing must be entered on the fish receiving ticket within twenty-four hours of the landing.

     (((9))) (10) It is unlawful for the original receiver of shrimp other than ghost shrimp taken from Puget Sound to fail to report to the department the previous day's purchases by 10:00 a.m. the following morning. Such report must be by telephone call to the Point Whitney Shellfish Laboratory or by facsimile transmission (FAX) to the Point Whitney Shellfish Laboratory. All reports must specify the total number of pounds caught by gear type, Marine Fish-Shellfish Management and Catch Reporting Area, and species. The fish receiving ticket reporting requirement of WAC 220-69-240 remains in effect.

     (((10))) (11) It is unlawful for the original receiver to fail to initiate the completion of the fish receiving ticket immediately upon receipt of any portion of a commercial catch. Should the unloading of a catch take more than one day, the date that the unloading is completed shall be entered on the fish receiving ticket as the date of landing. If, for any purpose, the vessel leaves the unloading site, the original receiver must immediately enter the current date on the fish receiving ticket.

     (((11))) (12) During any fishery opening designated by rule as "quick reporting required," it is unlawful for any wholesale dealer acting in the capacity of an original receiver to fail to report a summary of all purchases of salmon and sturgeon made on the previous calendar day, or for a direct retail endorsement holder to fail to report a summary of all salmon offered for retail sale on the previous calendar day. The summary must include dealer name and purchasing location, date of purchase, list of fish ticket numbers used on the purchasing date, and the following summary catch data for each species purchased: Gear, catch area, species, number and total weight of fish. When quick reporting is required, it is unlawful to fail to comply with the following reporting requirements:

     (a) Puget Sound summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

     (i) FAX transmission to (360) 902-2949

     (ii) E-mail to psfishtickets@dfw.wa.gov or

     (iii) Telephone to 1-866-791-1279

     (b) Coastal troll summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

     (i) FAX transmission to (360) 902-2949

     (ii) E-mail to trollfishtickets@dfw.wa.gov or

     (iii) Telephone to 1-866-791-1279

     (c) Grays Harbor and Willapa Bay summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

     (i) FAX transmission to (360) 664-0689

     (ii) E-mail to harborfishtickets@dfw.wa.gov or

     (iii) Telephone to 1-866-791-1280

     (d) Columbia River summary reports must be reported by 10:00 a.m. on the day after the purchase date by either:

     (i) FAX transmission to (360) 906-6776 or (360) 906-6777

     (ii) E-mail to crfishtickets@dfw.wa.gov or

     (iii) Telephone to 1-866-791-1281

     (((12))) (13) It is unlawful for any wholesale dealer acting in the capacity of an original receiver and receiving sea urchins or sea cucumbers from nontreaty fishers to fail to report to the department each day's purchases by 10:00 a.m. the following day. For red sea urchins the report must specify the number of pounds received from each sea urchin district. For green sea urchins and sea cucumbers the report must specify the number of pounds received from each Marine Fish-Shellfish Management and Catch Reporting Area. The report must be made by facsimile (FAX) transmission to (360) 586-8408 or by telephone to (360) 796-4601, extension 500. Additionally, it is unlawful for the original receiver of red sea urchins to fail to record on the fish receiving ticket the sea urchin district where the red sea urchins were taken, and it is unlawful for the original receiver of any sea urchins to fail to record on the fish receiving ticket the name of the port of landing where the sea urchins were landed ashore.

[Statutory Authority: RCW 77.12.047. 01-07-015 (Order 01-32), § 220-69-240, filed 3/13/01, effective 4/13/01. Statutory Authority: RCW 75.08.080. 00-01-145 (Order 99-221), § 220-69-240, filed 12/20/99, effective 1/20/00; 97-08-052 (Order 97-55), § 220-69-240, filed 3/31/97, effective 5/1/97. Statutory Authority: RCW 75.08.080 and 75.58.040. 86-19-043 (Order 86-102), § 220-69-240, filed 9/12/86. Statutory Authority: RCW 75.08.080. 85-11-020 (Order 85-43), § 220-69-240, filed 5/10/85; 83-24-049 (Order 83-203), § 220-69-240, filed 12/2/83; 82-17-040 (Order 82-105), § 220-69-240, filed 8/13/82; 81-11-006 (Order 81-31), § 220-69-240, filed 5/11/81; Order 77-14, § 220-69-240, filed 4/15/77; Order 76-153, § 220-69-240, filed 12/17/76.]

OTS-5752.1

AMENDATORY SECTION(Amending Order 99-221, filed 12/20/99, effective 1/20/00)

WAC 220-69-241   Duties of commercial fisherman.   (1) Every ((fisherman)) fisher selling ((his)) food fish or shellfish to the consumer, restaurant, boathouse, or other retail outlet, and every ((fisherman)) fisher who places, or attempts to place, into inter-state commerce any food fish or shellfish previously landed in this state, or caught, or harvested from the territorial waters of this state, is required to((:

     (a))) possess a valid wholesale dealer's license or a direct retail endorsement. Such fishers must immediately, completely, accurately, and legibly prepare the appropriate state of Washington fish receiving ticket in ((his)) their own name for each ((retail sale or out-of-state shipment so made, or

     (b) At the close of each day's business, completely, accurately, and legibly prepare the appropriate state of Washington fish receiving ticket in his own name for the total day's activities, or)) landing or delivery of fish. The fish receiving ticket must show the total of all fish and shellfish aboard the harvesting vessel upon landing or delivery, and must be completed before the product is offered for sale. The price shown on the fish ticket must be the price at which the fisher is offering the fish or shellfish for sale.

     (2) In the commercial geoduck fishery, a vessel operator so designated by the geoduck tract holder must be present at all times on each vessel commercially harvesting geoducks or having commercially harvested geoducks aboard. For each day's harvest of geoducks from each tract, the designated operator must legibly and accurately enter the following information on a fish receiving ticket before leaving the department of natural resources geoduck harvest tract:

     (a) Enter in the "dealer's use" column the number of cages of geoducks harvested.

     (b) Write across the top of the fish receiving ticket directly below the tear strip, the harvest vessel name, its Washington department identification number and the date.

     (c) Sign the fish receiving ticket as the fisherman.

[Statutory Authority: RCW 75.08.080. 00-01-145 (Order 99-221), § 220-69-241, filed 12/20/99, effective 1/20/00. Statutory Authority: RCW 75.08.080 and 75.58.040. 86-19-043 (Order 86-102), § 220-69-241, filed 9/12/86. Statutory Authority: RCW 75.08.080. 83-24-049 (Order 83-203), § 220-69-241, filed 12/2/83; 81-11-006 (Order 81-31), § 220-69-241, filed 5/11/81; 81-03-032 (Order 81-6), § 220-69-241, filed 1/13/81; Order 76-153, § 220-69-241, filed 12/17/76.]

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