WSR 06-04-014

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed January 22, 2006, 11:53 a.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 05-23-050.

Title of Rule and Other Identifying Information: Emerging commercial pilchard fishery.

Hearing Location(s): Room 172, Natural Resources Building, Commission Office, 1111 Washington Street, Olympia, WA, on March 14, 2006, at 1:00.

Date of Intended Adoption: March 14, 2006.

Submit Written Comments to: Rules Coordinator, 600 Capitol Way, Olympia, WA 98501-1091, e-mail jacobesj@dfw.wa.gov, fax (360) 902-2155, by March 10, 2006.

Assistance for Persons with Disabilities: Contact Evan Jacoby by February 24, 2006, TTY (360) 902-2207 or (360) 902-2930.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: This rule adjusts the coastal pilchard fishery, which is being managed as an emerging commercial fishery. These rule changes address the process for issuing replacement permits, the criteria for permit renewal, and the amount of pilchards that can be used for purposes other than human consumption and fishing bait. A change will be made to require an ownership interest in the vessel being used. A seasonal adjustment and allowing more than a single trip per day will increase catch effort.

Reasons Supporting Proposal: The fishery is relatively successful, but is marginally undersubscribed. Issuance of replacement permits will utilize the Washington share of the coastal allocation. Requiring an ownership interest in vessels reduces absentee ownership of licenses, increasing the benefit to Washington residents.

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: Department of fish and wildlife, governmental.

Name of Agency Personnel Responsible for Drafting: Evan Jacoby, 1111 Washington Street, Olympia, (360) 902-2930; Implementation: Phil Anderson, 1111 Washington Street, Olympia, (360) 902-2720; and Enforcement: Bruce Bjork, 1111 Washington Street, Olympia, (360) 902-2373.

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

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: Fish buyers will be required to report on fish tickets, as "reduction," the amount of sardine purchased for purposes other than human consumption or fishing bait. Sardine fishers will need to have at least a 50% ownership interest in the designated vessel, beginning in 2007.

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: One-third of the current experimental permit holders (five persons) do not own the vessels using the licenses. These persons will be required to have at least a 50% ownership interest in the vessel to be designated, beginning in 2007. Since the estimated cost of a vessel capable of participating in the coastal sardine fishery is, at a minimum, approximately $200,000, the cost of these five permit holders is expected to be about $100,000 each.

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.

The 0% of the businesses (two permit holders) that are the largest businesses required to comply with rule (i.e., have at least 50% ownership interest in the vessel designated on their license and permit) are currently vessel owners. Accordingly, there are no compliance costs for these businesses.

6. Steps Taken by the Agency to Reduce the Costs of the Rule on Small Businesses or Reasonable Justification for Not Doing So: The department has reduced the ownership interest from 100% to 50%. This allows a partnership to own the vessel, and assures that a marital community qualifies to hold a permit.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department has held meetings to which all persons currently holding coastal sardine experimental permits have been invited. The fishers who are not vessel owners have been made aware of this proposal, and know they will have to either leave the fishery or buy another vessel. These fishers are making the minimum landing in order to keep the permit (forty metric tons every two years), with an expectation that they will be eligible for a limited entry license if the fishery ever converts from an emerging commercial fishery to a limited entry fishery. Although the limited entry fishery license will have real value, the experimental permit, which is nontransferable, has no value. The failure to these fishers to actively participate in the fishery is part of the reason why the fishery is undersubscribed, and Washington is not taking its full allocation.

8. A List of Industries That Will Be Required to Comply with the Rule: Coastal sardine fishers.

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. These rule proposals do not affect hydraulics.

January 20, 2006

Evan Jacoby

Rules Coordinator

OTS-8581.1


AMENDATORY SECTION(Amending Order 05-53, filed 3/30/05, effective 4/30/05)

WAC 220-88C-030   Eligibility to participate in the coastal pilchard fishery.   (1) Beginning in 2007, a coastal pilchard experimental fishery permit will be issued only to a natural person who:

(a) Held such a permit or held a replacement permit the previous year;

(b) Can demonstrate by valid Washington fish receiving tickets that at least forty metric tons cumulative weight of pilchard taken from Pacific Ocean waters were landed under the person's emerging commercial fishery license during the previous two calendar years;

(c) Has purchased an emerging commercial fisheries license by April 1st; and

(d) ((As of December 1st of the previous licensing year has no outstanding observer fees owed to the department.)) Has an ownership interest of at least fifty percent in the vessel designated on the emerging commercial fishery license.

(2) Coastal pilchard experimental fishery permits may be revoked by the director, and future permits denied by the director, for failure to comply with conditions specified in the permits or violation of other commercial fishing rules, and shall be revoked if the emerging commercial fishery license is suspended. A coastal pilchard experimental fishery permit will not be renewed if the emerging commercial fishery license is revoked or future fishing privileges of the licensee are suspended.

(3) ((For 2005,)) The director may offer ((temporary)) replacement permits ((valid for the 2005 season only)), provided that((:

(a))) the total number of permits issued by the director, including ((2005 temporary)) replacement permits, shall not exceed twenty-five.

(((b) 2005 temporary permits may be issued only to a person who can demonstrate by valid Washington fish receiving tickets that pilchard were landed under the person's emerging commercial fishery license in 2000, 2001, and 2002, the person has not previously held a coastal pilchard experimental fishery permit and the person has submitted a completed 2005 temporary permit application to the department by June 1, 2005.

(c) A vessel must be designated on the 2005 temporary permit application, and only one 2005 temporary permit application per person or vessel will be allowed.))

(4) A coastal pilchard replacement permit will only be issued to a natural person who:

(a) Has an ownership interest of at least fifty percent in a vessel that was designated on a Washington coastal pilchard experimental fishery permit in 2004 or 2005;

(b) Landed a minimum of 40 mt cumulative weight of pilchard into Washington using the designated vessel referenced in (a) of this subsection in 2004 and 2005; and

(c) Has purchased an emerging commercial fisheries license by June 1, 2006.

(5) Coastal pilchard experimental fishery permits and replacement permits are only valid for the year issued and expire ((on November 30 of the year issued)) with the expiration of the emerging commercial fishery license.

(((5))) (6) Replacement permit holders must designate a vessel in which the replacement permit holder has an ownership interest of at least fifty percent.

(7) Permit holders must designate a vessel to be used in the coastal pilchard emerging commercial fishery at least forty-eight hours before their first pilchard fishing trip of each season. Once designated, permit holders may not change vessel designation for the remainder of the season, except as provided in subsection (8) of this section in an emergency and then only if allowed by the director. The same vessel may not be designated on more than one emerging commercial fishery license and accompanying coastal pilchard experimental fishery permit.

(8) Vessel designation may be changed during the pilchard season provided that the designated vessel has not yet participated in the pilchard fishery during the current calendar year.

[Statutory Authority: RCW 77.12.047. 05-08-056 (Order 05-53), 220-88C-030, filed 3/30/05, effective 4/30/05; 04-10-035 (Order 04-94), 220-88C-030, filed 4/29/04, effective 5/30/04; 03-13-002 (Order 03-111), 220-88C-030, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-030, filed 3/13/01, effective 4/13/01.]


AMENDATORY SECTION(Amending Order 05-53, filed 3/30/05, effective 4/30/05)

WAC 220-88C-040   Coastal pilchard fishery -- Seasons and lawful catch.   (1) The coastal pilchard fishery season is open to purse seine fishing ((May)) April 1 through ((November 30)) December 31 only. Fishing under an experimental commercial fishery permit for pilchard is closed within three miles of shore.

(2) It is unlawful to retain any species taken incidental to pilchard in the coastal pilchard fishery except anchovy, mackerel, and market squid (Logligo opalescens). Any salmon encircled in the purse seine must be released prior to completion of the set, and no salmon may be landed on the fishing vessel.

(3) It is unlawful to transfer pilchard catch from one fishing vessel to another.

(4) It is unlawful to fail to have legal purse seine gear aboard the vessel making a pilchard landing.

(5) It is unlawful to fail to deliver pilchard landings to a shoreside processing facility.

(6) It is unlawful to deliver more than ((ten)) fifteen percent cumulative weight of ((a)) pilchard ((landing)) for the purposes of conversion into fish flour, fish meal, fish scrap, fertilizer, fish oil, other fishery products or by-products for purposes other than human consumption or fishing bait during a pilchard fishery season.

(7) ((It is unlawful to deliver more than one pilchard landing per calendar day.

(8))) Once a delivery has commenced at a processing plant, all fish onboard the vessel must be offloaded at that plant.

[Statutory Authority: RCW 77.12.047. 05-08-056 (Order 05-53), 220-88C-040, filed 3/30/05, effective 4/30/05; 04-10-035 (Order 04-94), 220-88C-040, filed 4/29/04, effective 5/30/04; 03-13-002 (Order 03-111), 220-88C-040, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-040, filed 3/13/01, effective 4/13/01.]


AMENDATORY SECTION(Amending Order 05-53, filed 3/30/05, effective 4/30/05)

WAC 220-88C-050   Coastal pilchard fishery -- Observer and sampler coverage, logbook requirements.   (1) As a condition of the experimental commercial fishery permit, participants in the coastal pilchard fishery are required to have on-board observers for any pilchard fishing effort at the request of the department.

(2) Up to 500 sardine per vessel trip may be retained by WDFW samplers for biological information.

(3) All persons who obtain an experimental commercial fishery permit, including replacement permits, for the coastal pilchard fishery must complete a department-issued logbook, and the logbook is required to be returned to the department by January 15th of the following year. Failure to submit the logbook will cause the person to be ineligible for a permit in the following season.

[Statutory Authority: RCW 77.12.047. 05-08-056 (Order 05-53), 220-88C-050, filed 3/30/05, effective 4/30/05; 03-13-002 (Order 03-111), 220-88C-050, filed 6/4/03, effective 7/5/03; 01-07-016 (Order 01-36), 220-88C-050, filed 3/13/01, effective 4/13/01.]

OTS-8580.1


AMENDATORY SECTION(Amending Order 05-275, filed 12/9/05, effective 1/9/06)

WAC 220-69-240   Duties of commercial purchasers and receivers.   (1) It is unlawful for any person originally receiving fresh or iced fish or shellfish or frozen fish or shellfish that have not been previously delivered in another state, territory, or country, except purchases or receipts made by individuals or consumers at retail, to fail to be a licensed wholesale fish dealer or fish buyer, and to fail to immediately, completely, accurately, and legibly prepare the appropriate state of Washington fish receiving ticket regarding each and every purchase or receipt of such commodities. Each delivery must be recorded on a separate fish receiving ticket.

It is unlawful for any original receiver of crab or spot shrimp to fail to record all crab or spot shrimp aboard the vessel making the delivery to the original receiver. The poundage of any fish or shellfish deemed to be unmarketable, discards, or weighbacks must be shown on the fish receiving ticket and identified as such, but a zero dollar value may be entered for such fish or shellfish.

(a) Failure to be licensed under this subsection is punishable under RCW 77.15.620.

(b) Failure to prepare a fish receiving ticket under this subsection in punishable under RCW 77.15.630.

(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.

(3) It is unlawful for the original receiver to fail to initiate the completion of the fish receiving ticket upon receipt of any portion of a commercial catch. Should the delivery of the catch take more than one day, the date that the delivery is completed is required to be entered on the fish receiving ticket as the date of delivery. If, for any reason, the delivery vessel leaves the delivery site, the original receiver must immediately enter the current date on the fish receiving ticket. Violation of this subsection is punishable under RCW 77.15.630.

(4) Forage fish: It is unlawful for any person receiving forage fish to fail to report the forage fish on fish receiving tickets that are initiated and completed on the day the forage fish are delivered. Herring are also required to be reported on herring harvest logs. The harvested amount of forage fish is to be entered upon the fish ticket when the forage fish are off-loaded from the catcher vessel. 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." In the coastal pilchard fishery, the amount of pilchards, by weight, purchased for the purposes of conversion into fish flour, fish meal, fish scrap, fertilizer, fish oil, other fishery products or by-products for purposes other than human consumption or fishing bait must be included on the fish ticket as "reduction."

Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(5) Geoduck: It is unlawful for any person receiving geoducks, regardless of whether or not the 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 delivery 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 delivery. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(6) Pacific whiting: 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 delivery. The exact weights of whiting, by grade, and all incidental species in the delivery must be entered on the fish receiving ticket within twenty-four hours of the landing. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(7) Puget Sound shrimp - Pot gear: It is unlawful for the original receiver of shrimp other than ghost shrimp taken from Puget Sound by pot gear to fail to report to the department the previous week's purchases by 10:00 a.m. the following Monday. For harvest in Crustacean Management Regions 1 or 2, reports must be made to the La Conner district office by voice 360-466-4345 extension 245, or facsimile 360-466-0515. For harvest in Crustacean Management Regions 3, 4, or 6, reports must be made to the Point Whitney Shellfish Laboratory by voice 1-866-859-8439, extension 800, or facsimile 360-586-8408. All reports must specify the serial numbers of the fish receiving tickets on which the previous week's shrimp were sold, and the total number of pounds caught by gear type, Marine Fish-Shellfish Management and Catch Reporting Area (Catch Area), and species listed on each ticket. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.560.

(a) It is unlawful for any person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 23A, to fail to record either 23A-C, 23A-E, 23A-W or 23A-S on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(b) It is unlawful for any person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 26A, to fail to record either 26A-E or 26A-W on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(c) It is unlawful for any person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Area 26B, to fail to record either 26B-1 or 26B-2 on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(d) It is unlawful for any person originally receiving or purchasing shrimp, other than ghost shrimp, harvested from Catch Areas 20B, 21A, and 22A, to fail to record either 1A-20B, 1A-22A, 1B-20B, 1B-21A, 1B-22A, or 1C-21A on shellfish receiving tickets based on the location of harvest and the boundary definitions specified in WAC 220-52-051. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

(8) Puget Sound shrimp - Trawl gear: It is unlawful for the original receiver of shrimp other than ghost shrimp taken from Puget Sound by trawl gear to fail to report to the department the previous day's purchases by 10:00 a.m. the following morning. For harvest in Crustacean Management Region 1, reports must be made to the La Conner district office by voice 360-466-4345 extension 245, or facsimile 360-466-0515. For harvest in Crustacean Management Region 3, reports must be made to the Point Whitney Shellfish Laboratory by voice 1-866-859-8439, extension 600, or facsimile 360-586-8408. All reports must specify the serial numbers of the fish receiving tickets on which the previous day's shrimp were sold, and the total number of pounds caught by gear type, Marine Fish-Shellfish Management and Catch Reporting Area, and species listed on each ticket. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.560.

(9) Puget Sound crab: It is unlawful for any wholesale dealer acting in the capacity of an original receiver of Dungeness crab taken by nontreaty fishers from Puget Sound to fail to report to the department the previous day's purchases by 10:00 a.m. the following business day. Reports must be made to the La Conner District Office by facsimile 360-466-0515 or by telephone number 1-866-859-8439 extension 500 and must specify the dealer name, dealer phone number, date of delivery of crab to the original receiver, and the total number of pounds of crab caught by nontreaty fishers by Crab Management Region or by Marine Fish-Shellfish Management and Catch Reporting Area. The fish receiving ticket reporting requirement of WAC 220-69-240 remains in effect. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.560.

(10) Salmon and sturgeon: 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 all purchases of salmon and sturgeon made on the previous calendar day, or for a direct retail endorsement holder to fail to report all salmon offered for retail sale on the previous calendar day. The report must include dealer or holder name and purchasing location, date of purchase, each fish ticket number used on the purchasing date, and the following 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 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 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 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 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

(e) Faxing a copy of each fish receiving ticket used on the previous day satisfies the reporting requirement.

(f) Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.560.

(11) Sea urchins and sea cucumbers: 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. For sea cucumbers the report must specify whether the landings were "whole-live" or "split-drained." The report must be made by facsimile (fax) transmission to 360-902-2943 or by toll-free telephone to 866-207-8223. 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. Additionally, it is unlawful for the original receiver of sea cucumbers to fail to record on the fish receiving ticket whether the sea cucumbers were delivered "whole-live" or "split-drained." Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.560.

(12) Coastal spot shrimp: It is unlawful for any original receiver of spot shrimp taken from Marine Fish Management and Catch Reporting Area 60A-1 to fail to record separately on the fish receiving ticket spot shrimp taken north or south of 4704.00' north latitude. Violation of this subsection is a gross misdemeanor, punishable under RCW 77.15.640.

[Statutory Authority: RCW 77.12.047. 06-01-013 (Order 05-275), 220-69-240, filed 12/9/05, effective 1/9/06; 04-17-096 (Order 04-210), 220-69-240, filed 8/17/04, effective 9/17/04; 03-17-008 (Order 03-188), 220-69-240, filed 8/8/03, effective 9/8/03; 03-05-064 (Order 03-28), 220-69-240, filed 2/18/03, effective 3/21/03; 03-05-059 (Order 03-32), 220-69-240, filed 2/18/03, effective 3/21/03; 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.]