PROPOSED RULES
FISH AND WILDLIFE
Original Notice.
Preproposal statement of inquiry was filed as WSR 06-08-051.
Title of Rule and Other Identifying Information: WAC 220-52-019 Geoduck clams -- Gear and unlawful acts.
Hearing Location(s): Best Western Cotton Tree Inn and Convention Center, 2300 Market Street, Mount Vernon, WA, on August 4-5, 2006, begins 8:00 a.m. on August 4, 2006.
Date of Intended Adoption: August 4, 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 July 28, 2006.
Assistance for Persons with Disabilities: Contact Nancy Burkhart by July 21, 2006, TTY (360) 902-2207 or (360) 902-2267.
Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: Sets maximum depth for geoduck harvest at seventy feet below mean lower low water (0.0 feet).
Reasons Supporting Proposal: Standardize depth restriction. Current rule of seventy feet below any tide heighth [height] is unclear as to legal harvest depth.
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: Lew Atkins, 1111 Washington Street, Olympia, (360) 902-2651; 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.
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: No compliance costs. Dive boats currently have fathometers that show water depth.
4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? Actual tidal depth in most of Puget Sound can be as low as -4.5 feet (extreme low water), although it is unlikely that tide depth at geoduck tracts will ever exceed -3.5 feet. This rule will prevent harvest of geoducks in the -70.0 to -73.5 depth range, and a loss of geoducks taken from those depths, assuming the tract extends into waters greater than seventy feet deep. Since the slope contour of each geoduck tract determines what percentage of the tract lies in this range, there is no method of determining what percentage of geoducks will become unavailable, if any, as a result of this rule. Additionally, since the harvest contract stipulates the maximum poundage of geoducks that may be removed, that harvest ceiling is more than likely to have been taken before it becomes necessary to attempt harvest beyond -70.0 feet.
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. No cost of compliance.
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 costs.
7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: Industry has been briefed on this rule proposal, which is being coordinated with the department of natural resources (DNR), as DNR leases out the subtidal geoduck tracts.
8. A List of Industries That Will Be Required to Comply with the Rule: Geoduck dive industry.
A copy of the statement may be obtained by contacting Evan Jacoby, 600 Capitol Way North, Olympia, WA 09501-1091 [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.
June 20, 2006
Evan Jacoby
Rules Coordinator
OTS-8972.1
AMENDATORY SECTION(Amending Order 03-81, filed 4/25/03,
effective 5/26/03)
WAC 220-52-019
Geoduck clams -- Gear and unlawful acts.
(1) It is unlawful to take, fish for or possess geoduck clams
taken for commercial purposes from any of the beds of
navigable waters of the state of Washington except as provided
in RCW 75.24.100 and rules of the director.
(2)(a) Only a manually operated water jet, the nozzle of which shall not exceed 5/8 inch inside diameter may be used to commercially harvest geoduck clams. Use of any other gear requires a permit from the director.
(b) It is unlawful in the commercial harvest of geoducks for through-hull fittings for water discharge hoses connected to the harvest gear to be below the surface of the water. Any through-hull fitting connected to the harvest gear which is above the surface of the water must be visible at all times.
(3) It is unlawful to take or fish for geoduck clams taken for commercial purposes between one-half hour before official sunset or 7:00 p.m. whichever is earlier and 7:00 a.m. No geoduck harvest vessel may be on a geoduck tract or harvest area after 7:30 p.m. or before 6:30 a.m. It is unlawful to take or fish for geoduck clams on Sundays or on state holidays as defined by the office of financial management. It is unlawful to possess geoduck clams taken in violation of this section.
(4) It is unlawful to harvest geoduck clams with any instrument that penetrates the skin, neck or body of the geoduck.
(5) It is unlawful to possess only the siphon or neck portion of a geoduck clam aboard a geoduck harvest vessel, except when a geoduck is incidentally damaged during harvest and must be reported under a department of natural resources harvest agreement.
(6) It is unlawful to retain any food fish or shellfish other than geoduck clams during geoduck harvesting operations, except for horse clams (Tresus capax and Tresus nuttallii) when horse clam harvest is provided for under a department of natural resources harvest agreement.
(7) It is unlawful for more than two divers from any one geoduck harvest vessel to be in the water at any one time.
(8) The following documents must be on board the geoduck harvesting vessel at all times during geoduck operations:
(a) A copy of the department of natural resources geoduck harvesting agreement for the tract or area where harvesting is occurring;
(b) A map of the geoduck tract or harvest area and complete tract or harvest area boundary identification documents or photographs issued by the department of natural resources for the tract or harvest area;
(c) A geoduck diver license for each diver on board the harvest vessel or in the water; and
(d) A geoduck fishery license as described in WAC 220-52-01901.
(9) It is unlawful to process geoducks on board any harvest vessel.
(10) It is unlawful to take or fish for geoduck clams for commercial purposes outside the tract or harvest area designated in the department of natural resources geoduck harvesting agreement required by subsection (8)(a) of this section. It is unlawful to possess geoduck clams taken in violation of this subsection.
(11) It is unlawful to harvest geoduck clams in areas
deeper than seventy feet below ((the water surface at any tide
height)) mean lower low water (0.0 ft.).
(12) Holders of geoduck fishery licenses shall comply with all applicable commercial diving safety regulations adopted by the Federal Occupational Safety and Health Administration established under the Federal Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq. Some of those regulations appear at 29 C.F.R. Part 1910, Subpart T.
[Statutory Authority: RCW 77.12.047. 03-10-008 (Order 03-81), § 220-52-019, filed 4/25/03, effective 5/26/03. Statutory Authority: RCW 75.08.080. 94-12-009 (Order 94-23), § 220-52-019, filed 5/19/94, effective 6/19/94; 93-15-051, § 220-52-019, filed 7/14/93, effective 8/14/93; 84-08-014 (Order 84-24), § 220-52-019, filed 3/27/84; 81-11-006 (Order 81-31), § 220-52-019, filed 5/11/81; 79-12-039 (Order 79-129), § 220-52-019, filed 11/20/79; 79-02-053 (Order 79-6), § 220-52-019, filed 1/30/79; Order 77-65, § 220-52-019, filed 8/5/77 and 8/25/77; Order 76-152, § 220-52-019, filed 12/17/76; Order 76-26, § 220-52-019, filed 1:45 p.m., 4/20/76; Order 1258, § 220-52-019, filed 8/25/75; Order 857, § 220-52-019, filed 12/11/69.]