WSR 08-14-148

PROPOSED RULES

DEPARTMENT OF

FISH AND WILDLIFE

[ Filed July 1, 2008, 2:38 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 08-11-061.

Title of Rule and Other Identifying Information: WAC 220-20-010 General provisions -- Lawful and unlawful acts -- Salmon, other fish, and shellfish.

Hearing Location(s): Natural Resources Building, Room 172, 1111 Washington Street S.E., Olympia, WA 98504, on September 5 and 6, 2008, at 8:30 a.m.

Date of Intended Adoption: September 19, 2008, via conference call.

Submit Written Comments to: Rules Coordinator, 600 Capitol Way North, Olympia, WA 98501-1091, e-mail preuslmp@dfw.wa.gov, fax (360) 902-2155, by September 2, 2008.

Assistance for Persons with Disabilities: Contact Susan Yeager by August 25, 2008, TTY (360) 902-2207 or (360) 902-2267.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: To allow the director the discretionary authority, on a case-by-case basis, to provide for a live bottomfish fishery by permit. This will let the department promote species- or fishery-specific live fish fisheries to meet a market demand for underutilized or common species, thereby increasing the value of the harvest to the state's fishing industry.

Reasons Supporting Proposal: Current rules prohibit live-fish fisheries, and this proposal would allow such fisheries to occur by permit.

Statutory Authority for Adoption: RCW 77.12.047 and 77.04.020.

Statute Being Implemented: RCW 77.12.047 and 77.04.020.

Rule is not necessitated by federal law, federal or state court decision.

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

Name of Agency Personnel Responsible for Drafting: Morris W. Barker, 1111 Washington Street, Olympia, (360) 902-2826; 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.

Small Business Economic Impact Statement

1. Description of the Reporting, Record-keeping, and Other Compliance Requirements of the Proposed Rule: None required - all compliance requirements will be by permit, which is not required for nonparticipants.

2. Kinds of Professional Services That a Small Business is Likely to Need in Order to Comply with Such Requirements: No professional services required.

3. Costs of Compliance for Businesses, Including Costs of Equipment, Supplies, Labor, and Increased Administrative Costs: No costs of compliance are anticipated.

4. Will Compliance with the Rule Cause Businesses to Lose Sales or Revenue? No - any compliance requirements should increase business sales or revenue.

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 is anticipated.

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 been working with the industry to develop the rule proposal, and no costs are expected.

7. A Description of How the Agency Will Involve Small Businesses in the Development of the Rule: The department will engage the industry under the auspices of the fish and wildlife commission's public hearing process.

8. A List of Industries That Will Be Required to Comply with the Rule: Compliance is not required of the industry as a whole. This proposal affects fishers who apply for a live-fish fishery permit.

A copy of the statement may be obtained by contacting Morris W. Barker, 600 Capitol Way North, Olympia, WA 98501-1091, phone (360) 902-2826, fax (360) 902-2944, e-mail barkemwb@dfw.wa.gov.

A cost-benefit analysis is not required under RCW 34.05.328. These proposals do not affect hydraulics.

July 1, 2008

Loreva M. Preuss

Rules Coordinator

OTS-1612.1


AMENDATORY SECTION(Amending Order 07-266, filed 10/23/07, effective 11/23/07)

WAC 220-20-010   General provisions -- Lawful and unlawful acts -- Salmon, other fish and shellfish.   (1) It shall be unlawful to take, fish for, possess or transport for any purpose fish, shellfish or parts thereof, in or from any of the waters or land over which the state of Washington has jurisdiction, or from the waters of the Pacific Ocean, except at the times, places and in the manners and for the species, quantities, sizes or sexes provided for in the regulations of the department.

(2) It shall be unlawful for any person to have in possession or under control or custody any food fish or shellfish within the land or water boundaries of the state of Washington, except in those areas which are open to commercial fishing or wherein the possession, control or custody of salmon or other food fish or shellfish for commercial purposes is made lawful under a statute of the state of Washington or the rules and regulations of the commission or director, unless otherwise provided.

(3) A person may fish for, possess, process and otherwise deal in food fish and fish offal or scrap for any purpose, provided that it shall be unlawful to use any of the following listed species for purposes other than human consumption or fishing bait:


Pacific halibut (Hippoglossus stenolepis)
Pacific herring

(except as prescribed

in WAC 220-49-020)

(Clupea harengus pallasi)
Salmon
Chinook (Oncorhynchus tshawytscha)
Coho (Oncorhynchus kisutch)
Chum (Oncorhynchus keta)
Pink (Oncorhynchus gorbuscha)
Sockeye (Oncorhynchus nerka)
Masu (Oncorhynchus masu)
Pilchard (Sardinops sagax)
Except as provided for in WAC 220-88C-040

(4) It shall be unlawful for any person to fish for fish or shellfish while in possession in the field of fish or shellfish that are in violation of the harvest regulations for the area being fished. This regulation does not apply to vessels in transit.

(5) It shall be unlawful for the owner or operator of any commercial food fish or shellfish gear to leave such gear unattended in waters of the state or offshore waters unless said gear is marked.

(a) Shellfish pot, bottom fish pot, set line and set net gear must be marked with a buoy to which shall be affixed, in a visible and legible manner, the department approved and registered buoy brand issued to the license, provided that:

(i) Buoys affixed to unattended gear must be visible on the surface of the water except during strong tidal flow or extreme weather conditions.

(ii) When two or more shellfish pots are attached to a common ground line, the number of pots so attached must be clearly labeled on the required buoy.

(b) It is unlawful to operate any gill net, attended or unattended, unless there is affixed, within five feet of each end of the net, a buoy, float, or some other form of marker, visible on the cork line of the net, on which shall be marked in a visible, legible and permanent manner the name and gill-net license number of the fisher.

(c) It shall be unlawful at any time to leave a gill net unattended in the commercial salmon fishery.

(6) It shall be unlawful to place any commercial food fish or shellfish gear in any waters closed to commercial fishing, provided that this provision shall not apply to reef nets or brush weirs or to gear being tested under supervision of the department. In addition, it shall be unlawful to take, fish for or possess food fish with any type of commercial fishing gear in the waters of Carr Inlet north of north latitude 4720', from August 15 through November 30, except as provided in chapter 220-47 WAC.

(7) It shall be unlawful for the owner or operator of any fishing gear to refuse to submit such gear to inspection in any manner specified by authorized representatives of the department.

(8) It shall be unlawful for any person taking or possessing fish or shellfish taken from any of the waters or beaches of the Columbia River, the state of Washington, or the Pacific Ocean, for any purpose, to fail to submit such fish or shellfish for inspection by authorized representatives of the department.

(9) It shall be unlawful for any person licensed by the department to fail to make or return any report required by the department relative to the taking, selling, possessing, transporting, processing, freezing and storing of fish or shellfish, whether taken within the jurisdiction of the state of Washington or beyond, or on Indian reservations or usual and accustomed Indian fishing grounds.

(10) It shall be unlawful to take, fish for, possess, injure, kill, or molest fish in any fishway, fish ladder, fish screen, holding pond, rearing pond, or other fish protective device, or to interfere in any manner with the proper operation of such fish protective devices.

(11) It shall be unlawful to club, gaff, snag, snare, dip net, harass, spear, stone, or otherwise molest, injure, kill, destroy, or shoot with a firearm, crossbow, bow and arrow, or compressed air gun, any fish or shellfish or parts thereof, or for any person to attempt to commit such acts, or to have any fish, shellfish or parts thereof so taken in possession, except as provided for in this subsection:

(a) A person may use a dip net or club in the landing of fish taken by personal-use angling, unless otherwise provided; and a person may use a gaff in the landing of tuna, halibut and dogfish, and a harpoon in the landing of halibut, in all catch record card areas.

(b)(i) A person may use a dip net, gaff, or club in the landing of food fish or shellfish taken for commercial purposes, except that it is unlawful to use a fish pew, pitchfork, or any other instrument that will penetrate the body of the fish or shellfish that are not going to be retained or are unlawful to possess.

(ii) It is unlawful under any circumstance to use a device that penetrates the body of a sturgeon whether legal to retain or not.

(c) A person may use a spear in underwater spear fishing, as provided for in WAC 220-56-160.

(d) A person may use a bow and arrow or spear to take carp, as provided for in WAC 220-56-280.

(e) A person may snag herring, smelt, anchovies, pilchard, sand lance, and squid when using forage fish jigger gear or squid jigs.

(f) A person may shoot halibut when landing them with a dip net, harpoon or gaff.

(12) It shall be unlawful to take or possess, for any purpose, any fish or shellfish smaller or larger than the lawful minimum or maximum size limits prescribed by department rule. Any such fish either snagged, hooked, netted or gilled must be immediately returned to the water with the least possible injury to the fish or shellfish.

(13) It shall be unlawful to allow salmon or sturgeon or fish unlawful to retain that are entangled in commercial nets to pass through a power block or onto a power reel or drum.

(14) It shall be unlawful to possess, aboard any vessel engaged in commercial fishing or having commercially caught fish aboard, any food fish or shellfish in such condition that its species, length, weight or sex cannot be determined if a species, species group or category, length, weight, or sex limit is prescribed for said species. In addition, it is unlawful to possess food fish or shellfish mutilated in any manner such that the natural length or weight cannot be determined if a length or weight limit is prescribed for said species.

(15) It shall be unlawful to possess for any purpose any fish or shellfish in excess of catch or possession limits prescribed by department rule. Any such fish either snagged, hooked, netted or gilled must be immediately returned to the water with the least possible injury to the fish or shellfish.

(16) A person may possess, transport through the waters of the state, or land, dressed sablefish as defined by WAC 220-16-330.

(17) A person may possess, transport through the waters of the Pacific Ocean, or land, dressed salmon caught during a lawful commercial salmon troll fishery, provided that frozen Chinook salmon, dressed, heads off, shall be 21-1/2 inches minimum, and frozen coho salmon dressed, heads off, shall be 12 inches minimum, measured from the midpoint of the clavicle arch to the fork of the tail.

(18) A person may possess, transport through the waters of the Pacific Ocean, or land, dressed halibut if allowed by International Pacific Halibut Commission (IPHC) rules and such fish meet any IPHC size requirements.

(19) It shall be unlawful in any area to use, operate, or carry aboard a commercial fishing vessel a licensed net or combination of such nets, whether fished singly or separately, in excess of the maximum lawful size or length prescribed for a single net in that area, except as otherwise provided for in the rules and regulations of the department.

(20) It shall be unlawful for any permit holder to fail to comply with all provisions of any special permit or letter of approval issued to him under the authority of the director, or to perform any act not specifically authorized in said document or in the regulations of the commission or director.

(21) It shall be unlawful to use, place or cause to be placed in the waters or on the beaches or tidelands of the state any substance or chemical used for control of predators or pests affecting fish or shellfish or other aquatic marine organisms, without first having obtained a special permit to do so from the director.

(22) It shall be unlawful to test commercial fishing gear, except as follows:

(a) Bellingham Bay - inside and northerly of a line from Governor's Point to the south tip of Eliza Island to Point Frances, in waters 10 fathoms and deeper.

(b) Boundary Bay - north of a line from Birch Point to Point Roberts, and south of the international boundary, in waters 10 fathoms and deeper during times not under control of the Pacific Salmon Commission.

(c) San Juan Channel - within a 1-mile radius of Point Caution during times not under control of the Pacific Salmon Commission.

(d) Port Angeles - inside and westerly of a line projected from the east tip of Ediz Hook through buoy C "1" to the mainland.

(e) Port Gardner - within a 2-mile radius of the entrance to Everett breakwater, in waters 10 fathoms and deeper.

(f) Central Puget Sound - between lines from Meadow Point to Point Monroe, and Skiff Point to West Point, in waters 50 fathoms and deeper.

(g) East Pass - between lines from Point Robinson true east to the mainland, and from Dash Point to Point Piner, in waters 50 fathoms and deeper.

(h) Port Townsend - westerly of a line from the Coast Guard station in Port Townsend to Walan Point to Kala Point, in waters 10 fathoms and deeper.

(i) All tows or sets are limited to 20 minutes, exclusive of setting and retrieving time.

(j) All testing is to be accomplished between 8:00 a.m. and 4:00 p.m.

(k) Cod ends of trawl nets must be left open, all hooks of set line gear must be unbaited, and no lures or baited hooks shall be used with jig or troll gear.

(l) Any and all incidentally caught fish and shellfish must be returned to the waters immediately, and no fish or shellfish are to be retained aboard the vessel at any time during a gear test operation.

(m) It shall be unlawful for any person conducting such gear testing operations to fail to notify the fish and wildlife enforcement office in Olympia prior to testing.

(23) It is unlawful for any person or corporation either licensed by the department or bringing fish or shellfish into the state to fail to comply with the directions of authorized department personnel related to the collection of sampling data or material from fish or shellfish. It is also unlawful for any such person or corporation to fail to relinquish to the department, upon request, any part of a salmon or other fish containing coded-wire tags, including but not limited to, the snouts of those salmon that are marked by having clipped adipose fins.

(24) It is unlawful for any person to possess live bottom fish taken under a commercial fishery license, except by permit of the director.

(25) It is unlawful for any person to use chemical irritants to harvest fish, shellfish or unclassified marine invertebrates except as authorized by permit issued by the department.

(26) The lower Columbia River, Grays Harbor and Willapa Bay are closed to commercial sturgeon fishing, except as provided by emergency rule of the director. Sturgeon taken incidentally during an open commercial salmon fishing period may be retained for commercial purposes as described by department rule.

[Statutory Authority: RCW 77.12.047. 07-21-128 (Order 07-266), 220-20-010, filed 10/23/07, effective 11/23/07; 07-04-030, 220-20-010, filed 1/29/07, effective 3/1/07; 06-13-023 (Order 06-135), 220-20-010, filed 6/13/06, effective 7/14/06; 05-08-056 (Order 05-53), 220-20-010, filed 3/30/05, effective 4/30/05; 02-08-048 (Order 02-53), 220-20-010, filed 3/29/02, effective 5/1/02. Statutory Authority: RCW 75.08.080, 77.12.040. 00-08-038 (Order 00-29), 220-20-010, filed 3/29/00, effective 5/1/00. Statutory Authority: RCW 75.08.080. 00-01-096 (Order 99-214), 220-20-010, filed 12/15/99, effective 1/15/00. Statutory Authority: RCW 75.08.080, 77.12.040. 98-15-081 (Order 98-122), 220-20-010, filed 7/15/98, effective 8/15/98. Statutory Authority: RCW 75.08.080. 98-15-031 (Order 98-120), 220-20-010, filed 7/7/98, effective 8/7/98. Statutory Authority: RCW 77.12.040 and 75.08.080. 98-06-031, 220-20-010, filed 2/26/98, effective 5/1/98. Statutory Authority: RCW 75.08.080. 93-15-051, 220-20-010, filed 7/14/93, effective 8/14/93; 91-08-054 (Order 91-13), 220-20-010, filed 4/2/91, effective 5/3/91; 91-01-023, 220-20-010, filed 12/10/90, effective 1/10/91; 89-02-022 (Order 88-186), 220-20-010, filed 12/29/88; 88-10-013 (Order 88-15), 220-20-010, filed 4/26/88; 85-09-017 (Order 85-20), 220-20-010, filed 4/9/85; 85-08-023 (Order 85-24), 220-20-010, filed 4/1/85; 84-08-014 (Order 84-24), 220-20-010, filed 3/27/84; 82-15-040 (Order 82-83), 220-20-010, filed 7/15/82; 82-07-047 (Order 82-19), 220-20-010, filed 3/18/82; 81-02-053 (Order 81-3), 220-20-010, filed 1/7/81; 80-10-058 (Order 80-83), 220-20-010, filed 8/6/80; 80-07-017 (Order 80-45), 220-20-010, filed 6/11/80; 79-10-013 (Order 79-75), 220-20-010, filed 9/7/79; Order 77-14, 220-20-010, filed 4/15/77; Order 76-148, 220-20-010, filed 12/2/76; Order 1193, 220-20-010, filed 3/4/75; Order 1179, 220-20-010, filed 11/19/74; Order 1106, 220-20-010, filed 1/10/74; Order 1057, 220-20-010, filed 5/22/73; Order 945, 220-20-010, filed 8/16/71; Order 920, 220-20-010, filed 5/13/71; Order 817, 220-20-010, filed 5/29/69; Order 810, 220-20-010, filed 4/17/69; Order 771-A, 220-20-010, filed 3/29/68; Order 767, 1, filed 12/22/67; Order 758, 3, filed 10/16/67; Order 726, 2, 3, filed 4/24/67; Order 721, 1, filed 3/9/67; Subsections 1, 2 from Orders 405 and 256, filed 3/1/60; Subsection 3 from Order 677, filed 3/31/66; Subsection 16 from Order 525, filed 5/3/61; Orders 355 and 256, filed 3/1/60; Subsection 4 from Order 591, filed 10/28/63; Orders 479 and 256, filed 3/1/60; Subsection 5 from Orders 383 and 256, filed 3/1/60; Subsections 6, 26, 35 from Order 568, filed 3/26/63; Order 543, filed 3/20/62; Order 507, filed 4/13/60; Order 256, filed 3/1/60; Subsections 7-11, 13-15, 17, 18, 22 from Orders 355 and 256, filed 3/1/60; Subsection 12 from Orders 407 and 256, filed 3/1/60; Subsections 19, 27 from Orders 480 and 256, filed 3/1/60; Subsection 20 from Order 677, filed 3/31/66; Orders 483 and 256, filed 3/1/60; Subsection 23 from Order 677, filed 3/31/66; Order 605, filed 4/21/64; Order 568, filed 3/26/63; Order 543, filed 3/20/62; Order 507, filed 4/13/60; Order 256, filed 3/1/60; Subsection 24 from Order 605, filed 4/21/64; Orders 407 and 256, filed 3/1/60; Subsection 25 from Orders 449 and 256, filed 3/1/60; Subsections 28-33 from Orders 456 and 256, filed 3/1/60; Subsection 34 from Orders 486 and 256, filed 3/1/60; Subsection 36 from Order 591, filed 10/28/63; Subsections 37 and 38 from Order 677, filed 3/31/66; Subsection 39 from Order 672, filed 12/28/65.]

Washington State Code Reviser's Office